On Rehearing.
O’NIELL, J.On reconsideration of this case, we have confined our inquiry to the only question submitted to and decided by the district court; that is, whether the defendant has acquired title to the property in dispute by the prescription of ten years, as against any or all of the plaintiffs. The validity of the intervener’s asserted tax title has not been put at issue. The question whether the property in contest was exempt from taxation while it was owned by the two municipal corporations to whom it had been given in aid of public education need not be considered, except perhaps in so far as there is or may be an analogy between an exemption from taxation and an exemption from the plea of prescription.
[12] In the bill of exceptions reserved to the ruling of the trial judge, refusing to refer the defendant’s pléa of prescription to the merits, it appears that the plaintiffs joined the intervener in his motion to refer the plea to the merits and in his objection to a separate trial of the plea. After a further consideration of the ruling, we are of the opinion that it would have simplified matters and would have been better practice to have referred the plea to the merits. On the trial of the *850plea, all parties introduced their titles in evidence, and the record is as full and complete as if the case had been tried upon its merits. There is no rule requiring that a plea of prescription acquirendi causa, which is one of the means of acquiring title and which requires the taking of oral testimony, should be tried separately and before a trial of the case on its merits. The authorities cited in support of such a rule do not sustain it. For example, in the ease of Jennings v. Vickers, 31 La. Ann. 679, the exception was one of misjoinder of parties, not a plea of prescription. In the case of Farmer v. Hafley, 38 La. Ann. 232, the exception was a denial of the alleged agency and authority of the person upon whom service of citation had been made as the agent and attorney in fact of the absent defendant. It was an exception of want of citation and had no reference to Jhe merits of the ease. In Zerega v. Percival, 46 La. Ann. 590, 15 South. 476, the exceptions were: First, that the allegations of the petition were vague and indefinite; and, second, that the suit for the nullity of a will on account of suggestion or captation was barred by the express terms of article 1492, R. C. C. This court said that these were in the nature of exceptions of no cause of action and that they were properly-'submitted and decided on the face of the pleadings. In the last case cited (Saint v. Martel, 123 La. 815, 49 South. 582), the exception or plea set forth that the matter in dispute had been settled by compromise after the filing of the suit. Approving the ruling of the trial judge, referring this plea to the merits, it was said:
“That was a matter en pais, to be established by evidence. It could not be disposed of on the face of the papers.”
And, referring to all of the authorities above mentioned, it was further said:
“This court, in Jennings v. Vickers, 31 La. Ann. 679, Farmer v. Hafley, 38 La. Ann. 232, and Zerega v. Percival, 46 La. Ann. 601, 15 South. 476, did make use of the language copied in relator’s application for the writs; but it was. not intended to lay down an invariable rule on the subject of referring- peremptory exceptions to be disposed of with the merits. That matter is to some extent left to the discretion and judgment of the trial judge, to be acted on as may best subserve the administration of justice under-differing circumstances.”
In the judgment of the district court, the plea of prescription in the present - case was maintained as against all of the plaintiffs and the suit was dismissed. This carried with it a dismissal of the intervention, reserving to the intervener his right to assert hereafter whatever claim he may have, because the suit was not tried on its merits.
In our original opinion and decree, the judgment rendered by the district court against the cities of New Orleans and Baltimore and the Board of Trustees of the Mc-Donogh Institute of Baltimore was reversed, and the case was remanded for a trial of the suit of these plaintiffs on its merits. In all other respects the judgment was affirmed. A rehearing was granted on the application of the defendant and its warrantor and the intervener.
The defendant and its author in title have had, publicly and continuously for nearly 18 years prior to the filing of this suit, physical possession of the land in dispute (except the square No. 769, to which the defendant does not assert title), under the following authentic acts of sale properly recorded: The defendant purchased from the Union Lumber Company, on the 15th of July, 1907, for $60,-000. The latter, defendant in warranty, bought from the H. Weston Lumber Company, on the 18th of November, 1899, for $22,-500. The H. Weston Lumber Company bought from Henry Lagardere, on the 22d of May, 1895, for $6,000. In this latter act of sale, it is recited that certain designated squares of the land conveyed were purchased by Lagardere from Theodore O. Stark by an act of sale-passed before Frederick Deibel, notary pub-*852lie, dated the 8th of August, 1888, recorded in Conveyance Book 129, p. 375, and that the other squares enumerated were bought by Lagardere from Charles Ribo, by act of sale before the same notary on the 30th of March, 189-1, recorded in Conveyance Book 151, p. 285. The lumber companies above named erected a sawmill, established a lumber yard, built their office and other structures on the land, and used the premises for their lumber business, without complaint from the plaintiffs or intervener until the filing of this suit.
The intervener, I-I. Osborn Stark, as administrator of the succession of Theodore O. Stark, alleges that the latter purchased a tract of land containing 177% arpents (of which the land in contest forms a part) at a tax sale made on the 12th of November, 1889, for the delinquent taxes assessed in the name of Mrs. Charles Hamilton; and that, by an authentic act dated the 11th of November, 1892, the widow of Charles D. Hamilton, having acquired the interest of A. H. Isaacson in this land, confirmed and ratified the tax title. As will be noted hereafter, the interest of A. H. Isaacson, which is claimed by the widow and heirs of Jules Denis as ifiaintiffs in the present suit, was an undivided Voo interest. The intervener alleges, but has not offered proof in support of the allegation, that Theodore O. Stark had actual possession of the property from the date of his purchase at the tax sale. He therefore pleads the prescription of three years under article 233 of the Constitution in support of his tax title and in defense of any attack upon it. This plea of prescription has not been tried.
The plaintiffs allege that they own the six squares of ground, described in their petition, under the titles which were recognized by the judgment of the civil district court of the parish of Orleans, in the suit of City of- Baltimore v. City of New Orleans, affirmed by this court and reported in 45 La. Ann. 526 et seq., 12 South. 878. They allege that the land was owned by Mathew Morgan, Samuel Jarvis Peters, Levi Pierce, and Henry William Chase, who sold it to John McDonogh on the 10th of February, 1836; and that his title was ‘Confirmed by an act of Congress of the 7th of June, 1858. They allege that John McDonogh bequeathed the property to the cities of New Orleans and Baltimore for a public purpose, that is, for free education; and that the two cities were recognized as the legatees of McDonogh and were put into possession of all of his estate under the terms of his will.
For a clear understanding of the title under which the cities of New Orleans and Baltimore owned this property, reference must be had to the testament of John McDonogh. After giving to his sister and her children certain special legacies and to certain slaves their freedom, the testator bequeathed all the rest, residue, and remainder of his estate to the mayor, aldermen, and inhabitants of New Orleans, his adopted city, and to the mayor, aldermen, and inhabitants of Baltimore, his native city, and their successors forever, one-half to each of said cities. Then he stipulated that the bequest was for the several intents and purposes stated, and especially for the establishment and support of free schools in the cities and their respective suburbs for the poor (and the poor only) of both sexes and of all classes and castes of color. He provided that the Holy Bible, both the Old and New Testament, should be used always as one of the school books, and that singing should be taught so that the pupils might acquire the rudiments of music and learn to sing sacred music. 1-Ie then stipulated that none of his real estate should ever be alienated by the cities, but that it should all be let tb tenants and the revenues expended for the purposes mentioned in his will. He provided that one *854eighth of the revenues of his general estate should go to the American Colonization Society, in Washington, as an annuity for 40 years or until it should amount to $25,000: another eighth of the revenues was to go as an annuity to an asylum for the poor of both sexes in New Orleans until it would amount to $600,000; another eighth of the revenues was to be given to a society for the relief of. the destitute orphan boys of New Orleans until it reached the sum of $400,000; and still another eighth of the revenués was to be devoted to the establishment of a school farm for the destitute boys of Baltimore, to the amount of $3,000,000. The remaining half of the revenues of his general estate, until the four annuities amounting respectively to $25,000, $600,000, $400,000, and $3,000,000 should be paid off, and thereafter the entire revenues, were to be divided between the cities of New Orleans and Baltimore and dedicated to the establishment and support of their free schools. Provision was made for the appointment of trustees of the various funds and annuities, and the method of administration was prescribed in the most minute detail. The testator willed that, in the event the bequest to both or either of the cities should lapse by a refusal to accept or from any other cause, the legacy bequeathed to New Orleans should go to the state of Louisiana and the bequest to Baltimore should go to the state of Maryland, that the Legislature of each state might •carry out the intentions of the testator as expressed in his will and in the manner appearing to the Legislature most proper. He appointed as executors of his will eight citizens of New Orleans, six citizens of Baltimore, the president and secretary of the American Colonization Society of the City of Washington, and the secretary of the Board of Foreign Missions of the Presbyterian Church of the City of New York. The estate consisted of hundreds of thousands of acres of land situated in several parishes in Louisiana and of thousands of lots of ground in New Orleans.
The states of Louisiana and Maryland attacked the will in our state court, and the collateral heirs of John MeDonogh attacked it in the United States court, contending that the bequest to the cities of New Orleans and Baltimore was null because it contained fidei commissa and substitutions prohibited by our Civil Code. In the judgment of the United States Supreme Court (in Executors of John McDonogh et al. v. Mary Murdoch et al., Heirs of John McDonogh, 15 How. 367, 14 L. Ed. 732), and in the judgment of this court (in State of Louisiana, State of Maryland intervening, v. Executors of John McDonogh and City of New Orleans, 8 La. Ann. 171), the bequest to New Orleans and Baltimore was pronounced valid. As we interpret the opinions in these cases, it was held that the conditions on which the bequest was made to the cities did not amount to a ‘‘prohibited substitution,” which would have annulled the bequest, and that, in so far as these conditions amounted to a fidei eommissum, the conditions were to be reputed as not written, leaving the bequest valid. R. C. C. art. 1519 (1506). It was said that, public education being a function of municipal government, the bequest to the cities was a donation for this worthy purpose, or what is defined in our Code as a gift for pious uses. . It was declared that the two cities acquired the property in full ownership, and not as trustees, except to the extent that all property of a municipal corporation is held in trust for the benefit of its citizens.
In their petition in the present suit, the plaintiffs have not stated in what proportions they claim this property, except by their reference to the judgment rendered in the *856suit of the City of Baltimore v. City of New Orleans, No. 19,511 of the docket of the civil district court, No. 11,171 of the docket of this court, which judgment was affirmed and is reported in 45 La. Ann. 526, 12 South. 878, et seq.
The record of the case to which the plaintiffs refer for a determination of their respective interests shows that the city of Baltimore'sued the city of New Orleans for a partition of the original tract of 177 arpents, praying that it be divided in kind if practicable, and, in the alternative, that it be partitioned by licitation, that is, by a sale of the property and a division of the proceeds, if a division of the property itself was not practicable. The plaintiff in the case referred to alleged that Mrs. Sarah Daniels, wife of A. H. Isaacson, and Miss Emily Daniels, the only heirs of John L. Daniels, deceased, claimed an undivided half interest in the land, by virtue of a contract said to have been made by the cities of Baltimore and New Orleans with John L. Daniels for procuring the confirmation of the title of the cities by an act of Congress; but the plaintiff denied that such contract had been made by the city of Baltimore. The city alleged, however, that, it was proper that the question of the ownership of the land should be settled; wherefore the city of New Orleans and Mrs. Isaacson and Miss Daniels were called upon to assert their claims. The petitioner alleged that the land should be surveyed by the surveyor of the city of New Orleans, “for the purpose of ascertaining its exact location and description, so as to enable the court to decide whether the same was (is) susceptible of partition in kind”; and it was alleged that:
“In point of fact, the said city of New Orleans, at the request of petitioner, had (has) ordered the city surveyor to make such survey, which had (has) not been done.”
In answer to the suit, the city of New Orleans admitted its joint ownership with Baltimore, denied that any other parties had an interest in the land, and concurred in the,plaintiff’s prayer for a partition. An intervention was filed by A. H. Isaacson, John Buckingham, L. N. Desharoon, A. T. Steele,, Mrs. Emily Daniel Brenham, and Mrs. Sarah Isaacson, wife of A. H. Isaacson, alleging that John L. Daniels had acquired a half interest in the land under a contract with, the cities of Baltimore and New Orleans, for procuring a confirmation of title; that John L. Daniels sold half of his interest to C. D. Hamilton, John Buckingham, and L. N. Desharoon, jointly, on the 20th of June, 1859, and sold the other half of his interest to A. T. Steele on the 22d of June, 1859; that A. T. Steele transferred the interest thus acquired by him to the two’ daughters of Daniels, namely, Mrs. Sarah Isaacson and Mrs. Emily Brenham, on the 30th of January, 1871; and that C. D. Hamilton sold his interest to A. H. Isaacson on the 25th of February, 1860. After the filing of these pleadings, it developed that the cities of New Orleans and Baltimore had, on the 2d of May, 1859, sold to certain individuals (not parties to the suit) 108 squares of ground, nearly half of the original tract of 177% arpents, according to a plan on which the tract had been laid out in streets and squares, and that the two cities had received $75,284, as the price of the squares sold. Thereupon the interveners filed a supplemental petition, praying for judgment against the two cities for half of the price received by them for the 108 squares of ground sold- by the cities. Judgment was rendered recognizing the interveners, as assignees of John L. Daniels to be the owners of an undivided fourth interest in the land by virtue of the sale by the city of New Orleans to Daniels, and rejecting the interest claimed by the interveners under the alleged contract with Baltimore. Accordingly, the city of Baltimore was recognized as owning % interest *858in the land, New Orleans % interest, A. T. Steele, Vig, A. H. Isaacson 1/24, Mrs. Isaac-son, 1/32. Mrs. Seixas (formerly Mrs. Brenham) 1/32, John Buckingham 1/24, and L. N. Desharoon 1/24. The demand of the interveners for half of the $75,284 was rejected, on the ground that such a demand could not properly be brought by intervention in a suit for partition. In the judgment, a surveyor was appointed to survey the land, and experts were appointed to appraise it and to report to the court whether it could be divided in kind, and it was ordered that the partition be made either in kind or by licitation, .according to the report of the experts, and on an order of court to be thereafter obtained, The parties were referred to a notary public, named in the judgment, to effect the partition. The interveners appealed; the cities of New Orleans and Baltimore did not .appeal nor pray for an amendment of the judgment, which was affirmed by this court.
The plaintiffs in the present suit allege in their petition that Mrs. Sarah Isaacson’s interest (which was 1/32) was bequeathed to her husband, A. H. Isaacson, who sold his entire interest (V24 plus V32, that is, Vog) to Jules Denis. Therefore, by reference to the judgment rendered in Baltimore v. New Orleans, the present plaintiffs allege that they own the remaining six squares of ground in these proportions: The city of Baltimore, % ; the city of New Orleans, (4 ; the widow and heirs of Jules Denis, 7/0g; Mrs. Emily Daniel, widow of Charles L. Seixas, 1/32 ; the succession of John Buckingham represented by C. P. Cordill, administrator, 1/24; the succession of L. W. Desharoon, represented by C. P. Cordill, administrator, 1/24; and Mrs. Virginia Steele, wife of Alexander Hamilton, 1/1 a-
Nothing has been done by the City of New •Orleans or Baltimore with regard to the six .squares of ground in contest since May, 1859, when the entire tract of 177% arpents was laid out in streets - and squares and the 108 squares sold.to certain individuals. The suit by Baltimore against New Orleans was decided nearly 21 years ago, yet the judgment of partition has never been carried out. The suit was filed on the 14th of August, 1867, and remained on the docket of the district court nearly 20 years. During that time, there was a lapse of- over 4 years and another lapse of nearly 16 years in which no proceeding whatever was had in the case.
It is conceded by the plaintiffs that they do not intend to devote the property itself to a public use — that it is never to become a locus publicus. The cities of New Orleans and Baltimore intend to sell their respective interests, as they have sold their interests in the 10S squares which once formed a part of the original tract of 177% arpents and as they have sold nearly all of the vast area óf the MeDonogh estate, and to use the proceeds for the public schools in the respective cities. This disposition of the property is not in accord with the will of John MeDonogh. He stipulated that the property should never be sold by the cities of New Orleans and Baltimore; that it should be let to tenants and the revenues devoted to the five purposes stated in his will. It is permissible for the two cities to dispose of this property and devote the proceeds to the worthy cause of public education, because the law has declared that John MeDonogh .could not control the administration and destiny of the revenues of his estate after his death; that the many conditions under which the bequest was made were invalid — reputed not written —although the bequest itself was valid. For this same reason, from a legal point of view, may not the cities of New Orleans and Baltimore make any other disposition of the property bequeathed to them, not in accord with John McDonogh’s will?
The cities of New Orleans and Baltimore advance two distinct defenses to the plea of *860prescription: First, that the land in dispute is public property, because its revenues were intended to be dedicated to public uses and the proceeds of its sale are now to be devoted to one of these public uses — public education. Secondly, that the maxim, “nullum tempus occurrit regi,” as embodied in our Constitution, “Prescription shall not run against the state,” applies to municipal corporations.
[13] “Prescription runs against all persons, unless they are included in some exception established by law.” R. C. C. art. 3521.
In view of article 193 of the Constitution of 1898 and of 1913, it is now unnecessary to consider the conflicting decisions of the courts of different jurisdictions, as to whether the maxim, “nullum tempus occurrit regi,” applies to the state; nor is it now necessary to reconcile the decisions of this court rendered prior to the adoption of the Constitution of 1898, holding that the maxim did apply to this state with regard to the prescription acquirendi causa but not with, regard to the prescription liberandi causa.
“Prescription shall no,t run against the state in any civil matter, unless otherwise provided in this Constitution, or expressly by law.” Constitutions of 1898 and 1913, art. 193.
[14-18] The Constitution does not provide, nor does any statute of this state provide, that prescription shall not run against a municipal corporation. Therefore, paraphrasing article 3521, R. C. C., it logically follows that prescription runs against municipal corporations unless they are included in some exception established by law. The only exception established by law in favor of municipal corporations has reference to the status of their property or the nature of their title. Property, to the use of which all the inhabitants of a city, and even strangers, are entitled in common, such as the streets, the public walks, quays, and other public places, are not subject to private ownership; and, as prescription is one of the means of acquiring title to property, it follows that public places cannot be acquired by prescription.
“Things which belong in common to the inhabitants of cities and other places, are of two-kinds :
“Common property, to the use of which all the inhabitants of a ‘city or other place, and even strangers, are entitled in common; such as the streets, the public walks, the quays.
“And common property which, though it belongs to the corporation, is not for the common use of all the inhabitants of the place, but may be employed for their advantage by the administrators of its revenues.” R. C. C. art. 453.
The above-quoted article appears in the chapter of the Code, Of the Division of Things. Turning to the chapter, Of Things Considered in their Relation to Those who Possess Them, we find:
“Things, in their relation to those who possess or enjoy them, are divided into two classes; those which are not susceptible of ownership and those which are.” R. C. C. art. 481.
“Among those which are not susceptible of ownership, there are some which can never become the object of it; as things in common, of which all men have the enjoyment and use.
“There are things, on the contrary, which, though naturally susceptible of ownership, may lose this quality in consequence of their being applied to some public purpose, incompatible with private ownership ; but which resume this quality as soon as they cease to be applied to that purpose; such as the high roads, streets and public places.” R. C. C. art. 482.
The distinction which our Civil Code makes between that class of property owned by municipal corporations, which loses the quality of being susceptible to private ownership when applied to some public purpose, but which resumes that quality as soon as it ceases to be applied to a public purpose, and that class of property owned by municipal corporations which is not actually used by the inhabitants of the place but which may be employed for their advantage by the administrators of its revenues, is observed by Mr. Dillon, in his work on Municipal Corporations:
“Although municipal corporations are public agencies, exercising on behfilf of the state public duties, yet they also exercise and acquire what the courts call rights in a private and proprietary capacity rather than in a public and gov*862ernmental capacity. Such corporations are not exempt from the operation of limitation statutes in cases wherein arise questions involving property .or contracts which do not pertain to the authority of the state which is exercised through them but pertain to the private and contractual rights of the municipality, and such statutes run in favor of and against these corporations with respect to these private and proprietary rights and obligations in the same manner and to the same extent as against natural persons.” Volume 3, p. 1887.
“While there is a conflict of opinion as to just how far the rule exempting the sovereign from the operation of the statute should be applied to municipal and quasi municipal corporations, the cases are generally agreed that the rule is not to be applied to such corporations to' the full extent that it is applied in favor of the state.
“Thus, almost if not quite all the cases agree in holding that, where property is held by a municipal corporation as a private owner, it is subject to the operation of the statute, and title thereto may be acquired by adverse possession.” 1 Cyc. 1117.
In Succession of Zebriska, 119 La. 1076, 44 South. 893, it was held by this court that property of the city of New Orleans could be acquired by prescription, even by the heir of the man who had sold it to the city. It is contended by the plaintiffs in the present case that, in the Zebriska Case, the property “was strictly the private property of the corporation, as would be a lot bought'by the city at a public sale for city taxes.” But, from the following expression in the opinion, it seems that this court did not so regard the property:
“We will add that the extreme probability is that the city put this property to the use for which she bought it; that is to say, took actual possession. * * * To a moral certainty the city did not at such a time acquire the property for speculation, or by way of investment, or for any indefinite future use, but for some immediate, pressing need, connected, in all proba; bility, with her measures of defense; and, wé may say the extreme probability is that she did put it to that use.”
In the case of City of New Orleans v. Shakspeare et al., 39 La. Ann. 1033, 3 South. 346, the city attorney urged that the maxim, “Nullum tempus occurrit regi,” should be applied to the property owned by the city, as is shown in the following quotation taken from his brief and printed in the report of the case:
“The long use of the lot as a public pound and for the public work of the city was a dedication of the lot to public purposes and rendered it nonpreseriptible. The lease to Levy did not destroy its character. The public nature of the lot affected every part of it; and defendants cannot be permitted to prescribe against that part occupied by them, even though they may have occupied for more than thirty years. 2 Dil. on Mun. Corp. par. 675; Parish of Plaquemines v. Fulhouse, 30 La. Ann. 64.”
But this court ignored the argument, and overruled the plea of prescription of 10 years under R. C. C. art. 853, on the ground that that particular plea does not apply to a petitory action but only to an action of boundary, and overruled the plea of prescription of 30 years on the ground that the defendants had acknowledged the title of the city during their occupancy of the land. It seems to have been recognized by the court that, although the property had been at one time used for a public purpose and was once a public place, it had lost that character when it ceased to be used for a public purpose. R. C. C. art. 482.
We have examined all the decisions cited in the original opinion in this case, and we do not find that they sustain the conclusion that this property is inalienable or exempt from prescription. Our analysis of the cases follows, viz.:
The decision in the ease of Board of Liquidation v. City of New Orleans, 118 La. 715, 43 South. 307, relied upon by counsel for plaintiffs, does not shed any light upon the question whether the property in contest in the present suit is of that class of municipal property which cannot be acquired by prescription or of that class which may be so acquired. The only question at issue in the case cited was whether the city could abandon the use of the property for one public purpose and apply it to another public purpose. The court did, however, recognize that *864municipal property not used for a public purpose is owned in a private capacity and that used for a public purpose is public property, and added, “The sugar sheds property is of the latter class.” The only matter decided was that the city might discontinue the use of the property as sugar sheds and put it “to a use almost identical,” a part of tlie public Belt Railroad.
In the case of State v. Board of Assessors, 52 La. Ann. 228, 26 South. 872, where this court was considering the question of exemption from taxation of the properties of various charitable institutions in this city, the distinction was recognized between property actually devoted to a charitable or pious use and property of which the revenues were devoted to such use. And it was expressly declared that'the true test of the right to the exemption was the use to which the property itself was given, and not the character of the corporation owning it nor the purpose to which its revenues were dedicated.
The decision in the case of State v. Finlay, 33 La. Ann. 114, holding that a judgment creditor of the Board of Administrators of the Charity Hospital could not seize and sell the property, of that state institution, the revenues of which property were being used for the support of the institution, does not deal with the question of whether the property could have been acquired by prescription if it had been lying idle.
In the case of Administrators of Tulane Educational Fund v. Board of Assessors, 38 La. Ann. 292, it was decided that:
“Property dedicated to a public use, the revenues of which serve a public purpose, is public property although the title be not in the public.”
This was a suit to annul an assessment of the property for taxes; and it was held that the property came,within the exemption of “all public property,” granted by article 207 -of the Constitution of 1879, because, said the court, “whatever taxes are payable upon this property must necessarily be paid out of these revenues that have been dedicated to a public use; that is to say, must be paid by the University.” It was said with good reason that to tax property, the revenues of which have been dedicated to a public use, is the same as to tax the revenues which would have to pay the taxes, but which are public property and therefore exempt from taxation. But this manner of reasoning does not bring us to the conclusion that vacant property, the revenues of which were intended but never used for a public purpose, is public property, in the sense that public property cannot be acquired by prescription.
In the case of Mayor of Thibodaux v. Maggioli, 4 La. Ann. 73, the property in dispute was a public road or street within the corporate. limits of the town of Thibodaux; hence it was well said:
“No silence or length of time could deprive the corporation or its predecessors of their powers over public places. Their inaction gave the defendant an estate at sufferance and nothing more.”
In Delabigarre v. Second Municipality, 3 La. Ann. 230, the public property which was considered out of commerce was the batture donated by the riparian owners to the city for the prolongation of all the streets of the faubourg leading to the new levee. The plaintiff’s suit was dismissed, however, not on the ground that the land which she claimed was public property, but because the matter in dispute had been settled by compromise. See p. 239.
In the case of Parish v. Second Municipality, 8 La. Ann. 145, the plaintiff claimed one-third of the proceeds of a sale which the municipality proposed to make of a portion of the batture, over which the plaintiff asserted a servitude. The only matter decided was that a servitude over such property in favor of an individual was against public policy.
*866In the case of Municipality No. 2 v. Orleans Cotton Press, 18 La. 122-278, 36 Am. Dec. 624, the only issue was whether the alluvial formation or batture belonged to the riparian proprietors along the river or to the open space left by the French government in laying out the city of New Orleans, between the front row of houses and the river, marked “quai” on the plan of the city. The case has no bearing upon the issues presented here.
In City of Baton Rouge v. Bird, Sheriff, 21 La. Ann. 246, the heirs of the man who had dedicated property to public use as a plaza sued to reclaim it, and it was said:
“After being thus set apart for public use and enjoyed as such for more than half a century, and private rights have been acquired with reference to it, the original owner or his heirs can not be permitted to deny or revoke such dedication.”
In that case, the property was actually used as a locus publicus.
In the case of City of Shreveport v. Walpole, 22 La. Ann. 526, the occupant of city property contended that it was of that class of common property defined fin C. C. art. 449 (R. C. C. art. 458), “which, though it belongs to the corporation, is not for the common use of all the inhabitants of the place, but may be employed for their advantage by the administrators of its revenues.” 22 La. Ann. 527. It seems to have been conceded by the court that, if the property in dispute was of that class of common property, the defendant had acquired it by prescription. But the court said:
“It is of that class of property defined in the first clause of article 449 (R. C. C. 458) of the Civil Code as ‘common property, to the use of which all the inhabitants of a city or other place, and even strangers, are entitled in common, such as the streets, the public walks, the •juays.’ ”
Under this classification of the property, it was held that the defendant could not have acquired title by prescription.
In the case of Zagame v. City of New Orleans, 128 La. 388, 54 South. 916, the plaintiff was a trespasser upon a strip of land reserved on the government maps and dedicated for a public road, on which “a public road has existed from time immemorial, * * * probably dating back to the first settlement of the country.” There is no analogy between that case and the one before us now.
In Mayor, etc., v. Magnon, 4 Mart. (O. S.) 8, the property in contest was the land lying between the levee and the river in front of New Orleans. If the converse of the proposition stated in the syllabus, “land not susceptible of alienation can not be acquired by prescription,” be true, it follows that the land in contest in the present case can be acquired by prescription, because it is susceptible of alienation.
In the case of Police Jury v. Foulhouze, 30 La. Ann. 64, the land which was held to be not subject to seizure by a creditor of the parish, had been donated to the inhabitants of the parish for a courthouse site and the courthouse and jail were established on the front portion of it. It was a locus publicus, not susceptible of alienation.
The exemption of school lands, known as sixteenth sections, is not analogous to- the present case. They are exempt from the plea of prescription, not because they are school lands, but because they belong to the state, and the Constitution declares that prescription shall not run against the state.
Sections 1320 and 3422, R. S., provide:
“Property dedicated to the use and belonging to public schools, or employed by. municipal corporations for that purpose, shall be and is hereby exempted from seizure.”
If, by implication, we may say that, notwithstanding article 3521, R. C. C., property dedicated to the use and belonging to public schools, or employed by municipal corporations for that purpose, shall be and is exempt from the plea of prescription, we must *868yet face the fact that the property in dispute is not dedicated to the use of public schools nor employed by the municipal corporations for that purpose. There was no need for the Legislature to have said that property while used as a public school cannot be acquired by adverse possession or prescription.
The illustration given by Mr. Dillon, in his work on Municipal Corporations (section 1396), of the unsuccessful attempt of the city of Brooklyn to tax the public property of the city of New York used as a ferry landing in the city of Brooklyn, does not support the contention of Baltimore in the present case. As Judge Dillon said:
“On this principle, the city of Brooklyn cannot impose a tax upon land in that city owned and used by the city of New York and by its lessee as a ferry landing in connection with a ferry franchise granted by its charter to the last-named city.”
The ferry landing was a public place in the city of Brooklyn; and, even though we might reason by analogy that exemption from taxation carries with it exemption from prescription, it would not require much reasoning to determine that a ferry landing cannot be acquired by adverse possession or prescription, while it is being used for such a public purpose.
■ To illustrate that there is very little analogy between an exemption from taxation and an exemption from prescription, let us suppose that Baltimore owned a factory on her land in New Orleans and used the revenues of the business for the public schools in Baltimore. The property would be exempt from the plea of prescription so long as it was so occupied, but it would not be exempt from taxation. It would be in the same predicament as was the standpipe or water plant owned by Kansas City, Mo., and furnishing water to the inhabitants of that city, but situated in the adjoining state of Kansas. It was not public property, or of any public benefit in the state in which it was situated; nor did it belong to any subordinate branch of the government of the state in which it was located. It was therefore subject to taxation by the state in which it was situated. See State of Kansas ex rel. Taggart v. Holcomb, 85 Kan. 178, 116 Pac. 251, 50 L. R. A. (N. S.) 243, Ann. Cas. 1912D, 800.
The city of Baltimore, in the state of Maryland, owns property in the state of Louisiana, as a subject, not as a sovereign. The authority of the state of Louisiana to regulate the acquisition and ownership of real •estate situated within her borders is not concurrent with, or shared by, the city of Baltimore or state of Maryland. A foreign municipal corporation, owning property in this state not devoted to a public use or to the benefit of the public here, is not exempt from the operation of the statutes of this state imposing restrictions upon the ownership of property of the citizens of this state.
Our conclusion is founded upon the legal principles which apply to both cities. Prescription runs against all persons not included in some exception established by law. The only exception established by law in favor of municipal corporations is that their public property is not alienable and therefore cannot be acquired by prescription. The character of municipal property and the nature of its ownership, i. e., whether of a indvate or public nature, whether alienable or inalienable, must be determined by the purpose to which the property is dedicated, and not by the purpose to which its revenues were intended to be dedicated or the purpose to which the proceeds of a sale of it are to be dedicated. The land in dispute is of that class of mutaicipal property, defined in the last paragraph of article 458' of our Revised Civil Code, which, though it belongs to the corporations, is not for the common use of all the inhabitants, but may be employed for their advantage by the administrators of its revenues. It is, in the very terms of article *870482 of our Revised Civil Code, alienable, subject to private ownership, and has been acquired by prescription.
For the reasons assigned, the judgment heretofore rendered by this court, in so far as it reversed or amended the judgment appealed from, is annulled and set aside; and it is now ordered, adjudged, and decreed that the judgment of the district court be and it is affirmed, at the cost of the appellants.
LAND, J., dissents and files reasons. See 66 South. 251. SOMMERVILLE, J., concurs in reasons of LAND, J.N. B. — Soon after the original opinion and decree were rendered in this case, and before the application for rehearing was filed, the Chief Justice retired from office; the author of the opinion on rehearing succeeded to the vacancy, becoming an associate justice. The senior associate justice, who had dissented from a portion of the original opinion, became Chief Justice. The other associate justice who concurred in the opinion and decree rendered on rehearing had been absent and had taken no part in the rendition bf the original opinion and decree.