OPINION OP THE COURT.
HANNA, J.(After stating the facts as above.) — There are numerous assignments of error predicated upon alleged error in the trial court in refusing to grant a ternporary injunction, a mandatory injunction, and in refusing to make numerous findings of fact and conclusions of law, which were tendered to the trial court and by it refused.
It is only necessary to determine whether the plaintiff was entitled to equitable relief against the defendants, the trial court holding against the right to such relief. Based upon the essential facts of the case, it would seem to be clear that plaintiff was not entitled to the relief sought, and the district court was not in error in denying the injunction applied for.
Aside from the question of damages or injury to plaintiff, concerning which the record is almost silent and which seem to be based only upon a conclusion of the plaintiff, it would seem clear that plaintiff could not have been materially damaged, in that it is undisputed and clearly borne out by the record that this street had never been opened in point of fact, but had existence only upon the plat of the Terrace addition. Neither is there any contention that .the street was the only means of ingress and egress to and from the property of plaintiff, nor does it appear that the plaintiff would he irreparably injured, or that he could not be compensated by a money judgment, but, on the contrary, by his prayer for relief he asked that an account be taken in order that his 'damage might be ascertained.
'The only pleadings in the record are the complaint and the two answers of the defendants, which answers contain certain material allegations which are undenied; no reply thereto having been filed.
The facts thus established are as follows: That Albuquerque is an incorporated city, possessed of the power to lay out, establish^ open, alter, widen, and extend the streets of the city/that the city council found it necessary, in order to facilitate traffic, to straighten said Mulberry street from Central avenue to Gold avenue; that in order to straighten said street it exchanged, by proper deeds with the defendant sanatorium, the 48 feet of land immediately east thereof, which said deeds affecting said exchange were duly accepted by the respective parties thereto; that said exchange of lots was made in good faith; that the original Mulberry street had never been opened and worked as a street between Central and Gold avenues, and had existence only on paper, and had never been traveled by the public, and could not have been used as a highway until leveled, and as straightened the said Mulberry street, when leveled, will be more convenient to the public, serving the adjoining and abutting lot owners and the public as well as the original street location.
Bearing these uncontradicted facts in mind as established by the pleadings, we turn to the consideration of the action of .the trial court in dismissing the complaint upon the ground that plaintiff was not entitled to equitable relief. In meeting this contention, the appellant first sets up that a municipal corporation has no authority to receive the conveyance of lands or real estate beyond its boundaries for the purpose of a street; an attempt to do so being ultra vires and void. Appellees, while not admitting the alleged ultra vires character of the action in question, contend that, even though the city did not have such power, the trial court as a court of equity could not properly pass upon the question in the present form of action, and the plaintiff was without standing in court. In this contention we are disposed to agree with appellees. In the case of Board of Health v. Inhabitants of the City of Trenton, 63 Atl. 897, the Court of Chancery (N. J.) said:
“Tbe right of a municipality to hold the title to lands beyond its limits is cognizable at law, and involves no equitable principle.”
—therefore holding that, in the absence of proof that the use of the proposed hospital would create a nuisance, the court cannot restrain its ‘erection and use simply because the city of Trenton has exceeded its municipal powers in the purchase of the land, because redress for that wrong must be sought in another forum.
We understand appellant to contend that the case under consideration is to be distinguished from the New Jersey case because the building here sought to be enjoined would constitute a nuisance, in that'it is erected in the street in question, and is therefore a nuisance per se which could not be licensed by ' any act of the city council. This contention, however, as we view it, presupposes either that the city was without authority to alter or change Mulberry street — and this fact appellant has admitted by failing to deny the alleged right said to be possessed by the city — or that, because the city has acquired property, said to be outside of the city limits, and the attempt so to acquire being an ultra vires act, it can be properly urged in this proceeding. The first contention not being available, we are left to the -consideration of the second; and, as pointed out in the New Jersey case, whether or not the act be ultra vires is purely a question of law, and, being such, does not afford an adequate ground for equitable relief. In other words, as stated in the -syllabi of the New Jersey case:
“A chancery court cannot pass upon the right of a municipal corporation to acquire and hold lands outside of its territorial limits.”
We are not unmindful of the fact that the appellant argues that the question under consideration is n'ot the right to acquire, but the right to alienate. We do not consider this contention material, however, by reason of the fact that in this particular case the right to alienate would seem to be dependent upon the right to acquire. If the city, in other words, can acquire the land for the purpose of straightening or altering the street in question, it can properly alienate the tract which it has attempted to alienate, because in doing so it would preserve a street and would only be changing or -altering the same, and therefore would not do violence to that well-established general principle that a municipal corporation cannot dispose of property of a public nature in violation of the trust upon which it is held, the trust in this case being to maintain the street as dedicated for public use; but so long as the street is maintained at this place for such uses, and, the condition is only one of alteration or change, the attack would necessarily be limited, as is here admitted, to an ultra vires act in acquiring property outside the city limits for the purpose of a street, and which, being purely a question of law,'must necessarily be solved as we have pointed out. 'Our disposition of the matter, as thus arrived at, Would seem to make further discussion of the numerous questions considered by the briefs unnecessary.
The judgment of the district court is therefore affirmed; and it is so ordered.
Roberts, C.J., and Parker, J., concur.