This is an action of ejectment brought by the commissioners of commons for the city of Columbus, appointed and empowered to control the said commons by an act of the general assembly of 1873, to recover from The Mobile and Girard Railroad Company a certain parcel of land, alleged to be part of the commons and to be illegally held *416by that company. The question is, are the plaintiffs entitled to recover, or in other words, is the title in them, or did it legally pass out of the city of Columbus into the defendant prior to the act of 1873 ?
Title was vested in the plaintiffs to the commons by the act of 1873, and thus the question arises whether at that date such title to the portion of it now sued for was in the-state as to enable the legislature to 'grant it to the commissioners ; or rather, perhaps, in construing the act of 1873 to authorize the conclusion that the legislature intended by it to interfere with the parcel of land in "dispute?
1. To elucidate this point, it is necessary to examine the original acts by which the site of the city of Columbus was provided for, and the act incorporating that city as the town of Columbus. These acts we'fe passed in 1827 and 1828, and are to be found in Dawson’s Compilation, pp. 470 and 474.
It seems to us quite clear, from a fair and full examination of these statutes, that the state dedicated to the use of Columbus the land set apart for the town, including therein the entire tract of twelve hundred acres, the portion left.as commons as well as the streets laid out and the lots which were to be sold and conveyed, as therein enacted. What was not sold was made a common "for the benefit and use of the city especially. For what uses? Certainly not as a mere common of pasture, or estovers, or other narrow- and agricultural and household uses, but for all the great purposes for which the grant was especially made and the town incorporated. A cemetery is a necessity to a town. As it grows into city proportions, a park is of vast importance for health and recreation. These commons could be legitimately used for these and similar objects, and we cannot suppose that the general assembly designed to interfere with such use by vesting title to the common in these commissioners. The primary purpose, however, of the selection of this site for a town and the dedication of a common for its benefit, appears *417clearly to have been commercial. The title of the act of 1827 calls the future town a trading town. It is entitled “ An act to lay out a trading town, and to dispose of all the lands reserved for the use of the state near the Cow-eta falls on the Chattahoochee river, and to name the same.”
The .body of the act is equally explicit in regard to trade and commerce as the special object in view by the general assembly. The first section of it concludes the question and excludes.all doubt in regard to the intention of the law-makers. The commissioners appointed to select the site and lay out the town, are to have special regard to commerce and commercial prosperity. It provides for the appointment of five commissioners, to “select the most eligible site, and cause to be laid out and distinctly marked on the reserve aforesaid a town, upon such plan as they may devise and approve, having special' regard to the future commercial prosperity of said town- and the health of its inhabitants.” So prominent in the view' of the legislators is the future commerce of the town that that object is coupled with and-put on a par with the indispensable and overshadowing necessity of a regard to the health of the inhabitants.
. Assuredly no .argument is necessary to show that railroads are an important element in facilitating trade, and in these times are essential to commercial prosperity.'
At the date of these acts public attention was being directed,, by the, few .who ever move-in advance of the great army of civilization, to .railroads, and in ten years thereafter the South Carolina railroad was built, and the Georgia Railroad was pushing toward Camak and Warrenton, and surveyed and mapped to Athens and Madison. So that it may be that these.commercial highways were in the eye of the draftsman of the act when he penned it, and of those who passed it. Whether .that be so or not, the future, comm ercial interests of the embryo town were before them prominently, and any use of the. *418common to advance these interests is in the direct line of the grant and the dedication.
The act of 1828, which incorporated the town thus laid out by the act of 1827 does contain restrictions on the powers of the city in regard to the common, and does prohibit the erection of buildings thereon ; but these prohibitions were designed, we think, to guard against leave to put up temporary buildings under leases, and certainly not to prohibit a grant' of the right-of-way over the common — of the right to connect railways thereon, and to construct the depot and other buildings essential to such connection, and conducive to the commercial prosperity of the city. The plan of the town, as laid out by the commissioners under the act of 1827, was not to be materially altered, and the streets and square for the court-house of the county of Muscogee, and other common, were not to be encroached upon by the erection of buildings or otherwise ; but the common was still subject, we think, to the great use for which it was first dedicated, to-wit: the use of a trading town, and the use in such way as to advance its commercial prosperity. See Dawson’s Comp., p. 475 ; sections 3, 4, 5, 6 of act of incorporation.
2. We therefore conclude that the city authorities of Columbus could use the common for railroad purposes, because such use is in the direct line of the original grant. Therefore when they did so use a part of it in order to provide a place for the Mobile and Girard railroad to enter and locate a terminus within the limits of Columbus, instead of keeping that terminus on the Alabama side of the Chattahoochee river, they did a good thing to promote the advancement of this trading town and to increase its commerce. The only difficulty in the way, it would seem, might have been the want of power in the Alabama corporation to put its foot anywhere on the soil of Georgia; and that difficulty is met by the act of 1857, which expressly authorized that road to connect with the Georgia road, then the Muscogee, now the Central rail*419road. That act is, “ That the presidents and directors of said roads shall have the power of connecting their said roads by extending them through the city commons and streets of Columbus, with such side-tracks, turn-outs and sheds as may be necessary for the convenience of freights and passengers: Provided,they fiist obtain the consent of the people of the city of Columbus, upon such terms as may be agreed on and shall be satisfactory to them.”
The consent of the people through the city authorities was had, the land in dispute given for the purposes of the act, and even if the authorities had been before restricted in the use of the common, so as not to permit railway buildings to be erected thereon, and if the argument in regard to the original object and use of the common be untenable, it would seem that this act of the general assembly, and of the city under its grant of' authority, would conclude the case against the plaintiffs. If the title remained in the state, by this act the city’s consent passed it out into the railway companies. Title was vested in them by the holder of the legal fee, if it was in the state, and by the usee, if only that interest was in the city, and why it is not a perfect title, we are at a loss to see. Surely it is unnecessary to show that this right to connect the roads and to have “such side-tracks, turnouts and sheds as may be necessary for the convenience of freights and passengers,” includes houses, roofed and protected from weather, depots of the usual sort, and the yards adjacent and convenient for passengers and freight, and to show that the extent of ground necessary for such objects is left to the terms to be agreed on by theicity and the railroad companies expressly alluded to and authorized by the proviso above cited.
3. What, then, is the scope and effect of the act of 1873? It passed the title of the state to the common, which had not been before that act disposed of by authority of the act of 1827 for the advancement pf commerce, and the act of 31st December, 1857, authorizing the connection of *420the roads, and. all other uses to which the common had been previously put, if in- accordance with the purpose of the grant, such as hospitals for health, cemetery for burial purposes, water-works, and everything promotive of the health and commercial prosperity of the town.
The title to that -part of the common undisposed of is vested in tfie plaintiffs, but that disposed of for other legitimate objects, is where that legal disposition has put it. In this case, in respect to this land here in dispute, a prior legal disposition of it had put the title-in- the defendant, and there it abides.
4. But even if.the legal title had.never been in any person for these uses of -the.city pri.or to the act of 1873, it was then put in these commissioners- for the use of the city, and when it got in them for the .use of the city, and the city, the usee, has used it for beneficial and legal purposes, shall the mere legal holder dispossess those who held under the usee for legitimate uses, at the time they acquired their right ? - Even though the act of 1873 -thereafter restricted the uses, and .excluded this use now under consideration -so far as future acts are concerned, still, as to past transactions, it-would seetn -inequitable to. -wipe them out by a sweep of the legislative pen, doubtful whether it was so intended, to say the least, and trenching on. vested rights if so intended. -The legal principle would be applicable that he. who conveys, having no title, if afterward he acquire it, shall, not use the after acquisition to the destruction of his former deed, but the newly acquired title will inure to the purchaser and perfect what was lame. -As this .recovery would be for the city, as the real interest is in the city, and these commissioners are mere stakeholders for it, the newly acquired title for the city’s benefit cannot .be used to destroy what she before permitted and received value:for, or put other people to expense about. ,
5. It is clear; however that-may be, that the management, the control of the common.was in the city author-*421¡ties, the.usual city authorities, the mayor 'and .council, until the change made by the act of 1873. And their acts were legal, at least.until the will of.-the legislature was expressed ; and that will never has been expressed contrary to this use of the common or.this part of.it. .Because the true intent and meaning of that act is to vest title to the common which was then,common, and not tó parts of it no longer common, but parted with to pro.mote that interest for which the very town and common were.preated and dedicated.
6. Even if the title had been in other city authorities to the common, still, common, in 1873, the legislature, it would seem, would have the right to vest it in .these commissioners; and this would certainly be so, if done at the instance and with the consent of the ipayor and council, which was had.
7. In regard to the military mayor and, council, it is enough to say that their act seems, to have been ratified or acquiesced in by the subsequent action or silence of legally and peacefully elected officers of the city, and confirmed by the constitution of the state of 1868.
We do not see, therefore, force in that objection to defeat the defendant. It is true, that a narrow construction of the constitution of 1868, Code, §§5151, 5.152, might not. extend its shield over this particular act done subsequently to the adoption of that instrument; but the council had been appointed before, and the act of appointment is the main matter complained of. They remained in office, everybody acquiescing, until the next regular election,-and the spirit and effect of the two paragraphs cited is to make their action, until they were superseded by a regularly elected council, valid and legal. These provisions therein, in the language of that constitution itself, “shall be construed as acts of peace and- to prevent injustice.’,’. See Code §5152 above cited.
. If this act, because done after- the adoption of that constitution be invalid, then -all other acts -done during the *422same time — from the adoption of that constitution until the next council was elected — would also be invalid, and anything rather than peace and the'prevention of injustice would result. Law suits and the overthrow of other rights and titles would follow, and the great purpose of the provisions would be annulled in many instances.
There are other minor points made in the record, but none of them controlling, and it is deemed unnecessary to pass upon them. They go to the admission and rejecting of testimony mainly, and whether admitted or rejected, the result would be the same.
The conclusion we reach is that the title to the common, which was common in 1873, is in the plaintiffs; but that this piece of ground sued for was not then common in the sense of the act of 1873, but had become the property of the defendant, and cannot ,be recovered. The judgment is therefore right and must be affirmed.
Judgment affirmed.
Cited for plaintiff in error: 2 Dill, on Mun. Corp., 395, 499, 496, 524; Daws. Comp., 470, 474; Acts of 1831, 236; Acts of 1834, 21; Acts of 1835, 55; Acts of 1836, 143; Acts of 1837, 53; Acts of 1840,—; of 1873, 127; 9 Ga., 517 ; 17 Ib., 60; 45 Ib., 608; 33 Ib., 601; 30 Ib., 507; 4 Pet., 32; 11 Ib., 420; 14 Barb., 511; 1 Miss., 379; 4 Cal., 114; 2 Arm., (Pa.,) 211; 11 M. & W., 827; 33 N. J., 18; Ang. on Highways, 185; Wash, on Eas., 135; 6 Barb., 265; 14 Ib., 512; 26 N. Y., 105; 15 Johns., 452; 79 Ill., 33; 20 Wend., 145; 30 Cal., 379; 31 Ib., 585; 19 Ohio, 514; 26 Wend., 414; 5 Mason, 195; 3 Kent., 432; 27 N. Y., 188; 63 Pa., 489; 16 B. Monroe, 806; 12 Ind., 620; 45 N. Y., 234; 1 Whart., 468; 2 Watts, 25; 6 Whart., 43; 6 Wheat, 593; 3 How., 534; 10 Ib., 511; 7 La.. 208 ; Cooley Cons. Lim., 294-5; 6 N. Y., 540; 45 N. Y., 234; 2 Dill., 147, 445, 512, 513, 518, 618 n; R. M. C.’s R., 342; 16 Pick., 105; 12 Ill., 38; 29 Iowa, 68; 28 Pa., 199; 13 Ib., 555; 26 Iowa, 387; 24 Ib., 445; 22 Mo., 13; 20 Ib., 192; 13 Ib., 610; Code, *423§§2186-7; Story Ag., 210-11; 4 How., 554; Hill on Trusts, 159, 535; 1 Whart. R.,468; 2 Watts, 25; 16 Pa., 94; 7 Tex., 300; 7 Ind., 38; 13 Minn., 13.
For defendant: Daws. Comp., 470, 474; 6 Pet., 436, 502; 10 Pet., 713; 12 Ga., 252; 45 Ib., 342, 602; 3 Kent., 563; Code, §2684; 20 Ga., 467; Daws. Comp., 244, 258, 260, 261, 262, 265, 267, 269, 246, 253, 263, 266, 268, 272; Prince’s Dig., 549, 560, 561, 563; 1 Ire. Law, 196, 197, 198; Act of 1837, 53; Act of 1840, 187; 33 Ga., 601; 59 lb., 476; 50 lb., 451; 51 Ill., 266; 36 Iowa, 357; 4 Metcalf, 564; 1 Whart., 485; 30 Iowa, 94; 2 Smith’s Lead. Cas., 172; 2 Harris (Pa.), 190; Acts of 1857; 17 N. Y., 124; 57 Ga.. 114; Code, §§5151-2; 57 Ga., 370; Code, §2306; 54 Ga., 231; 62 Ib., 733.