delivered the opinion of the court,
After a careful review of the able opinion of the learned judge of the court below, and consideration of the evidence *217and pleadings of the case, we are obliged to dissent from his conclusion. Without entering at all into the constitutional question of the right of the Commonwealth to divest an inferior municipality, such as a city or county, of the property which it holds for its own use, we may venture to say without fear of contradiction that it may dispose of its own property to whom it will, and that it may also direct the manner of the execution of a public trust.
We may also say in the beginning that it is hardly worth our while to attempt to establish by argument or authority, that which every one admits ; that is, that the Statute of Limitations affects not the Commonwealth, and that no length of private occupation can defeat the public right to the use of a highway, street or square. Our inquiry is thus limited to the single question: what is it that the commissioners of Berks county oppose to the legislative mandate contained in the Act of the 17th of February, 1852, and why should they not convey as directed by that statute to the mayor, aldermen and citizens of .Reading ? The petition for the mandamus, following the language of the Act cited, sets forth that the land directed by the legislature to be conveyed as aforesaid, was reserved in the original town plat as laid out by the proprietaries of the province of Pennsylvania as a free and public commons. This important allegation, found both in the petition and statute, is not denied in the answer, but the deed of John and Richard Penn, dated November 19th, 1800, to the said commissioners, is alone relied upon to defeat the purposes of the Act. If however the fact is, as we must take the pleadings to admit, that the land in controversy had previously been appropriated to the public use ; that it was embraced in the original town plan as commons devoted to the common use of the citizens of Reading, the deed of the Penns was worthless, for the reason that they had no title in the premises which they could convey to the commissioners : Commonwealth v. Alburger, 1 Whart., 469.
Again, and admitting that the land was not dedicated by the proprietaries to the use of the people as a public park or common, to whom, then, at the date of this deed, did the land in controversy belong ? The Act of Divestiture (27th November, 1779), put an end to all rights of the proprietaries in the public domain, and limited those rights to their private estates and proprietary manors, and the Act of April 10th, 1781, seems to have been framed for the express purpose of putting an end to just such claims as that which the defendants now set up to defeat the provisions of the Act of 1852. “ Sec. 11. And whereas, divers persons pretending title or leases or permission from the late proprietaries, or without *218any pretence whatsoever, have taken into possession divers lots appurtenant to the city, and to the other towns within this state, which lots were held by the said proprietaries as such, and not in their private and several rights and capacities ; and whereas, such possession is nob only injurious to the other citizens who are entitled to the use of such lands as common for their cattle, but will embarrass the future sale and appropriation of said lots for the general benefit of the state. For remedy whereof: 12. Be it enacted, that the care and custody of the city lots shall be and is hereby vested in the wardens of the city, and the care and custody of the lots appurtenant to the town of Reading shall be and is hereby vested in Samuel Mifflin, Henry Christ and Henry Haller.” Now, not only is there no evidence that these Reading lots formed part of the private property of the proprietaries, but we have in the Act cited the express declaration to the contrary, and the claim put forth that they were part of the public domain. It seems to us, therefore, very clear, that however the case may be viewed, the Penns had no right which they could convey, and that at the date of their deed the power to dispose of this property was then, and still is, in the Commonwealth. It follows, that the commissioners of Berks county hold what yet remains of this property at the sufferance of the state, and subject to the will of the legislature thereof.
The judgment of the court below is now reversed, and it is ordered and adjudged that judgment be entered on the demurrer for the Commonwealth, and that the defendants be, and are hereby, peremptorily commanded to execute, as soon as conveniently may be, to the mayor, aldermen and citizens of Reading, a deed for all that certain tract or parcel of land of 49 acres and 134 perches, situate in the city of Reading, and more particularly described in the petition for the writ of mandamus and the Act of the General Assembly, approved February 17th, 1852, and that they, the said defendants, forthwith pay the costs of this suit.