The opinion
The opinion of the Court was delivered by
Woodward, J.
The Board of Health, finding nuisances along a lane or alley called Swedes’ Court, proceeded to remove them by curbing and paving the foot-walks, for which they charged adjoining owners; and by grading and paving the cartway, for which they seek to charge the church because the court leads to their burial ground. The claim filed against the church under the Acts of Assembly denominates this alley “ a lot of ground,” and charges the defendants as owners of the soil.
Notwithstanding the Act of 11th March, 1846, prohibits any plea “touching the question of ownership,” it was competent for the defendants to answer such a claim, as they did in their special pleas, by denying that they were the owners of the soil and alleging that the said ■ court had been dedicated to public use for more than 70 years. And these facts, admitted by the demurrer, ousted the jurisdiction of the Court over the claim filed, for although under the Act of 1818, the Board of Health have power to remove nuisances from streets, lanes, alleys, and highways, yet they are authorized, by the Act of 7th April, 1830, to file liens for the expense of such removals only against the “ owner or reputed owner” of the premises from which such nuisance has been removed. The church was neither owner nor reputed owner of this alley within the meaning of the Act. It was a lane or alley, 15 feet wide and 146 feet long, leading from Second street *262 to the burial ground and devoted to public use. It appears of record that it was public ground and not private property. If grading and paving such an alley were necessary to exclude nuisances, the public, and not an owner at the end of it, must foot the bill.
There was no ground furnished for apportionment, and the Court were right in refusing it. Judgment affirmed.