Scott, Judge,
delivered the opinion of the court.
This cause is made to turn on the statute of limitations. An admission was made on the trial that the defendant, and those under whom he claims, had had the continuous possession of the land in dispute from the year 1825. We conceive that this admission was intended to give the defendant the benefit of such a defence, and as at the trial no point was made on the necessity of proving the time of the incorporating of Carondelet, it would operate as a surprise on the defendant to take advantage here of his failure to make such proof.
It was maintained for the plaintiff that the town of Carondelet was not barred by the statute of limitations, because her commons were not surveyed until the 29th of July, 1834, and, until that was done, the plaintiff’s title attached to no particular land, nor could a court of justice ascertain its boundaries. We do not consider that the doctrine of the case of West v. Cochran, 17 How. 416, is applicable to confirmations made by the act of June 13, 1812. It has always been understood that that act, by its terms, passed a perfect title to the confirmee, and, upon proof of his inhabitation, cultivation or possession of the lot sued for prior to the 20th of December, 1803, and the continued existence of his claim *459until the passage of the act, he was entitled to recover. If the land inhabited, cultivated or possessed could be identified as the land claimed and sued for, to the satisfaction of the jury, by any evidence written or verbal, the plaintiff was entitled to recover without any evidence of a survey made by the officers of the federal government or any one else. The case of Guitard v. Motard, 16 How. 507, holds that such a title passed by the act of 1812, as could not be affected in any way by a subsequent act of Congress passed May 26, 1824. Confirmations until the act of 1807 did not pass absolute titles from the United States. After the confirmation the ultimate title was still in the government, and until the land confirmed wa§ surveyed and patented (when a survey was necessaiy) no perfect title to any land or any particular tract of land was conveyed to the confirmee. It appertained to. the United States executive officers to designate and set apart the land confirmed to the claimant; and until this was done it could not be said that he was entitled to any particular part of the earth’s surface. This we understand to be the doctrine of the case of West v. Cochran, and we do not conceive that it is applicable to the case of a complete title emanating from the United States by a legislative grant. Indeed we consider the language of the court in that case as maintaining this view — language so plain that it can not be misconceived. On page 415 the court says : “ It was competent for congress to take up these titles or rights, and act on them either by legislating directly that each claimant should be confirmed and have a perfect title to his actual possession, lawfully acquired under France or Spain, without ascertaining in the act of confirmation, or by any special means provided therein, the bounds of claims confirmed. But it was also competent for congress to provide that, before a title should be given to any possessor, the exact limits of his possession and the title which the United States was to give should be defined, and that this should be done by such agencies and in such manner as might be fixed by congress.” The court here evidently has in contemplation confirmations *460under tlie two acts of 1812 and 1807, and contrasted the effect of such confirmations. This is made plain by what is said on the succeeding page, where it is remarked that congress might have said, as was done in the case of the St. Louis town lots and out-lots by the act of 1812, that each man should own what he lawfully possessed under the former government; and, if congress had done so, then the question would have been in this instance a matter of fact to be tried by a jxxry as to what the plaintiff did formerly possess and consequently own. Although the preceding remark in its language is confined to “ town lots and out-lots,” yet it is obvious that they were used as examples or illustrations and with no view to limit the act to such lots, as its terms and the reason of it would apply as well to the commons as to any other private property enumerated in it.
Another point made by the plaintiff is, that the statute of limitations did not begin to run against the corporation until it was vested with the power of disposing of the land, which was not conferred until March, 1851; that this want of a power of disposal in the corporation placed the lands out of commerce, and by the principles of the civil and Spanish law things out of commerce could not be prescribed for. We do not regard the doctrine of the Spanish or of the civil law in relation to the imprescriptibility of things out of commerce as having any application in this state since the introduction of the common law, whatever may have been its influence anterior to that event, a matter about which it is not now necessary to express an opinion. Angelí, in his work on highways, says, that the doctrine of the earlier cases, that there can be no loss of the public right by mere non-user, has to some extent been departed from in more modern decisions. (Angell on Highways, 310.) We do not see any difference between the commons owned by the town and lands owned by any other corporation in trust for a special purpose. The principle is not apparent which secures the land in one case more than the other from the operation of the statute. It is not seen how the vesting of the legal title *461to land in a body natural or corporate, without the power of alienation, can protect it from the operation of the statute. The distinction in this respect between an individual and a corporation is scarcely discernible. The statute of limitations is a statute of repose, and extends to all the lands in the state the title to which has passed from the United States. The test of the applicability of the statute is the incapacity of the defendant to sue, and not the existence or non-existence of his right of disposal. The statute of limitations now in force would seem to bind the state. But if the state was not bound by the statute, that principle would not extend to lands held by corporations under no disability to sue. In the case of McPherson v. Carondelet, 20 Mo. 192" court="Mo." date_filed="1854-10-15" href="https://app.midpage.ai/document/city-of-carondelet-v-mcpherson-7999414?utm_source=webapp" opinion_id="7999414">20 Mo. 192, and the City of Carondelet v. The City of St. Louis, 25 Mo. 462, it was held that the City of Carondelet could maintain an action on her title to commons without a survey.
The act of 22d December, 1824, concerning commons (R. C. 1825), gave the trustees or body corporate of any town authority to prosecute for all trespass committed on the commons belonging to the town. The act was continued in force by the revised code of 1835. (See R. C. 1835, tit. Laws.)
In the examination of this controversy we have not overlooked the principle of the case of Menard’s heirs v. Massey, 8 How. -, which maintains that a confirmation by act of congress, which passes a perfect title, may be of so indefinite a character, as to description, as not to prevail against a subsequent sale of land which may be included in a survey of the confirmation made after such sale.
The other judges concurring, the judgment is affirmed.