| Ill. | Jun 18, 1898
delivered the opinion of the court:
On the application for an injunction the facts set forth in the bill were admitted to be true, and the question presented by this record is, admitting the facts set out in the bill to be true, whether the court erred in denying the motion for an injunction and in dismissing the bill.
It is contended in the argument of counsel for appellant that the Illinois Central Railroad Company has the right and power, under its charter, to enter upon, take possession of and use land covered by the shallow waters of Lake Michigan for the purpose of constructing thereon an engine house necessary for the altering, maintaining, preserving and complete operation of its road, when such use does not interfere with navigation.
It appears, as has been seen from the allegations of the bill, that in 1852, when the railroad was constructed within the city of Chicago, the company purchased certain lands lying between Twenty-fifth and Twenty-seventh streets, bordering on the shore of Lake Michigan, the shore of the lake being the east boundary line of the lands so purchased. The submerged land in question lies between Twenty-fifth and Twenty-seventh streets, extending into the lake in front of the land purchased in 1852, enclosed by a breakwater erected by the company in 1882. The breakwater extends into the lake 200 feet on a line contiguous with the north boundary line, extended, of the lands purchased by the company, thence southerly 781 feet, thence westerly a distance of 325 feet to the shore line. If the space thus enclosed should be filled in as is proposed by the company, the area of land purchased by the company bordering on the lake will be increased to the extent of 4.48 acres heretofore covered by the waters of the lake. This tract of 4.48 acres the railroad company proposes to fill in and then erect upon it its engine house. It claims the right to fill in the land and erect its engine house upon it on two grounds: First, upon the ground that section 3 of its charter confers the power; and second, because it owns the fee of the shore lands and has the right as a riparian owner.
Section 3 of the act incorporating the Illinois Central Railroad Company, approved February 10,1851, provides: “The said corporation shall have right of way upon, and ma.y appropriate to its sole use and coiitrol for the purposes contemplated herein, land not exceeding 200 feet in width through its entire length; may enter upon and take possession of and use all and singular any lands, streams and materials of every kind for the location of depots and stopping stages, for the purpose of constructing bridges, dams, embankments, excavations, station grounds, spoil-banks, turn-outs, engine houses, shops, ■and other buildings necessary for the construction, completing, altering, maintaining, preserving and complete operation of said road. All such lands, waters, materials and privileges belonging to the State are hereby granted to said corporation for said purposes; but when owned or belonging- to any person, company or corporation, and cannot be obtained by voluntary grant or release, the same may be taken and paid for, if any damages are awarded, in the manner provided in ‘An act to provide for a general system of railroad incorporation,’ approved November 5, 1849, and the final decision or award shall vest in the corporation hereby created all the rights, franchises and immunities in said act contemplated and provided: * * * Provided, that nothing in this section contained shall be so construed as to authorize the said corporation to interrupt the navigation of said streams.”
In the construction of a statute, where the words used are clear and unambiguous they must be taken in their ordinary, natural and commonly received sense. (Deere v. Chapman, 25 Ill. 610" date_filed="1861-04-15" court="Ill." case_name="Deere v. Chapman">25 Ill. 610.) Indeed, where the language of a statute is plain and unambiguous there is no room for construction, and the words used must have their natural meaning, unless some absurd or injurious consequence will result which was not foreseen by the legislature. Martin v. Swift, 120 Ill. 488" date_filed="1887-05-12" court="Ill." case_name="Martin v. Swift">120 Ill. 488. See, also, Sutherland on Const, of Stat. sec. 237.
Adopting the rule of construction indicated, which we regard as the correct one, does section 3 of the charter empower the railroad company, at any time it may see proper, to enter upon and appropriate to its own use, for railroad purposes, lands covered by the waters of Lake Michigan? Conceding that the first clause of section 3 conferred upon the railroad company the right to take for right of wajr a strip of land 200 feet wide upon the location of its line in 1852, that fact has no bearing on the question involved here. The land for right of way in the city of Chicago and along the entire line was selected upon the location of the line of road in 1852, and as to lands taken for right of way there has been no controversy from any quarter. The land here involved is no part of the 200 feet selected or granted for right of way, but it is a tract covered by water beyond the right of way, and the right to appropriate it is claimed under the second clause of section 3, which declares that the railroad company “may enter upon and take possession of and use all and singular any lands, streams and materials of every kind for the location of depots and stopping stages, for the purpose of constructing * * * station grounds, * * * engine houses,” etc., necessary for the construction and operation of the road. The word “lands,” as used, cannot mean any portion of Lake Michigan unless that word is given a meaning different from what is generally understood when the word has been used. Webster, in defining the word “land,” says: “Earth, or the solid matter which constitutes the fixed portion of the globe, in distinction from the waters, which constitute the fluid or movable part.” Under this definition there is a marked distinction between land and water, so that when the word “land” is used it cannot be so construed as to include water. Moreover, if the legislature intended, by the use of the word “lands,” to include lands covered by water, why also use the word “streams?”—for all streams are but lands covered with flowing water. We think, therefore, it is apparent that the legislature, by the use of the word “lands” in section 3 of the charter, did not intend to include lands covered by the waters of Lake Michigan.
In regard to the word “streams” used in the section, that term has a well-defined meaning. It is defined in the Century Dictionary as follows: “A course of running water; a river, rivulet or brook. Second, a steady current in a river or in the sea, especially the middle or most rapid part of a current or tide, as the Gulf Stream. Third, a flow; a flowing; that which flows. Fourth, anything issuing from a source and moving or flowing continuously. Fifth, a continued course or current.” In Trustees of Schools v. Schroll, 120 Ill. 509" date_filed="1887-05-12" court="Ill." case_name="Trustees of Schools v. Schroll">120 Ill. 509, we had occasion to consider what was meant by the use of the word “stream,” and it was expressly held that the distinction between a stream and a pond or lake is, that in the one case the water has a natural motion or current, while in the other the water in its natural state is substantially at rest; that this is so, independently of the size of the one or the other; that the fact of some current in a body of water is not of itself, in every instance, sufficient to make it a stream, nor will the swelling out of a stream into broad water sheets make it a lake. The word “stream,” so far as we are advised, has never been held to include the waters of a great lake like Lake Michigan. If the word can be applied to a large body of water like Lake Michigan it may also be applied to the ocean.
The language of the charter does not authorize the company to enter upon and take possession of any lands, waters and materials belonging to the State, as seems to be supposed, but the authority is to enter upon “any lands, streams and materials.” The last clause of the section has an important bearing, showing that the authority conferred related to streams, and not to the lake. It declares: “Nothing in this section contained shall be so construed as to authorize the said corporation to interrupt the navigation of said streams.” We are therefore of opinion that the grant in section 3, “all such lands, waters, materials and privileges belonging to the State are hereby granted to said corporation for said purposes,” did not include lands covered by the waters of Lake Michigan.
But even if the grant in the charter was broad enough to include the waters of Lake Michigan, it does not follow that the railroad company would have the right, at any time it might see proper, to take and appropriate to itself any of the lands covered by the waters of Lake Michigan, provided only that the navigation of the lake is not interfered with. It is true that the State holds the title to the lands covered by the waters of Lake Michigan lying within its boundaries, but it holds the title in trust for the people, for the purposes of navigation and fishery. The State has no power to barter and sell the lands as the United States sells its public lands, but the State holds the title in trust, in its sovereign capacity, for the people of the entire State, as held in People v. Kirie, 162 Ill. 138" date_filed="1896-06-11" court="Ill." case_name="People ex rel. Moloney v. Kirk">162 Ill. 138.
This question was fully discussed in the Supreme Court of the United States in Illinois Central llailroad Co. v. Illinois, 146 U.S. 387" date_filed="1892-12-05" court="SCOTUS" case_name="Illinois Central Railroad v. Illinois">146 U. S. 387, audit was there held, as we understand the decision, that it was grants of parcels of lands for wharves, piers, docks and other structures in aid of commerce, and grants of parcels which do not impair the public interests in the lands and waters remaining, which are sustained by the courts. In the discussion óf the question the court, among other things, said: “The interest of the people in the navigation of the waters and in commerce over them may be improved, in many instances, by the erection of wharves, docks and piers therein, for which purpose the State may grant parcel's of the submerged lands, and so long as their disposition is made for such purpose no valid objections can be made to the grants. It is grants of parcels of lands under navigable waters that may afford foundation for wharves, piers, docks and other structures in aid of commerce, and grants of parcels which, being occupied, do not substantially impair the public interests in the lands and waters remaining, that are chiefly considered and sustained in the adjudged cases as a valid exercise of legislative power consistently with the trust to the public upon which such lands are held by the State. But that is a very different doctrine from the one which would sanction the abdication of the general control of the State over lands under the navigable waters of an entire harbor or bay or of a sea or lake. Such abdication is not consistent with the exercise of that trust which requires the government of the State to preserve such waters for the use of the public. The trust devolving upon the State for the public, and which can only be discharged by the management and control of property in which the public has an interest, cannot be relinquished by a transfer of the property. The control of the State for the purposes of the trust can never be lost 'except as to such parcels as are used in promoting the interests of the public therein, or can be disposed of without any substantial impairment of the public interest in the lands and water remaining. * * * A grant of all the lands under the navigable waters of a State has never been adjudged to be within the legislative power, and any attempted grant of the kind would be held, if not absolutely void on its face, as subject to revocation. The State can no more abdicate its trust over property in which the whole people are interested, like navigable waters and soils under them, so as to leave them entirely under the use and control of private parties, except in the instance of parcels mentioned for the improvement of the navigation and use of the waters or when parcels can be disposed of without impairment of the public interest in what remains, than it can abdicate its police powers in the administration of government and the preservation of the peace.”
It is not proposed, here, to take or appropriate the land in question for the erection of wharves, docks or piers, the construction of which may facilitate or aid the navigation of the waters of the lake, but the sole purpose seems to be to appropriate the submerged land for the private use of the railroad company. It is unreasonable to believe that the legislature, in the enactment of section 3 of the charter of the railroad company, ever intended to place in the hands of the company unlimited power to go on, from time to time, and appropriate to its own use parcel after parcel of the lands covered by the waters of Lake Michigan, and if such unlimited power was contemplated it transcended its authority. It, in effect, undertook to part with governmental powers, which it could not do.
We are, however, referred to three cases in support of the position of the railroad company: Illinois Central Railroad Co. v. Rucker, 14 Ill. 353" date_filed="1853-06-15" court="Ill." case_name="Illinois Central Railroad v. Rucker">14 Ill. 353, Illinois v. Illinois Central Railroad Co. 33 Fed. Rep. 730, and Illinois Central Railroad Co. v. Illinois, 146 U.S. 387" date_filed="1892-12-05" court="SCOTUS" case_name="Illinois Central Railroad v. Illinois">146 U. S. 387. We do not regard the case first cited as one having a bearing on the question presented by this record. In that case, after the Illinois Central Eailroad Company had located its line of road, with the consent of the city of Chicago, over the shore waters of Lake Michigan, the company applied to the county court of Cook county to appoint appraisers to assess damages to certain parties who owned land on the lake shore. The railroad having been located in front of the premises of said lake shore owners, and partly over the same, the company sought to condemn this property, but the county court refused the application. Upon petition for mandamus to this court a mandamus was awarded, and the court held: First, that the railroad company had the right, with the consent of the city, to locate its line of road over the shallow waters of Lake Michigan on the line selected; second, that the right was not forfeited by the failure to locate prior to January 1, 1852; and third, it was the duty of the county court to appoint appraisers. It thus appears that no question was raised or decided, as we understand the case, in regard to the right of the railroad company to go beyond the 200 feet granted and selected for right of way and take lands covered by the waters of the lake for an engine house or for other railroad purposes named in the charter. As to the second case mentioned, that case was removed by writ of error to the Supreme Court of the United States, and the questions of law involved were settled in Illinois Central Railroad Co. v. Illinois, 146 U. S. 387. That case is also relied upon in the argument. There may be found expressions in the opinion of the court which might seem to favor the view of appellant, but when the facts of that case are taken .into consideration and the entire opinion is examined we do not think that the case lends support to the position of appellant in this case.
It is also set up in the bill that the railroad company has the right, as a riparian owner, to fill in the lake and erect its engihe house on the new-made land. But this question has not been discussed in appellant’s argument, and we must regard it as waived. Moreover, under the facts presented by this record, we are aware of no well-considered case which would sustain the proposed acts of appellant in filling in the lake and erecting upon the newly-made land an engine house.
The decree of the Superior Court will be affirmed.
Decree affirmed.