177 Ill. 468 | Ill. | 1898
delivered the opinion of the court:
It has been suggested in the argument of counsel for appellant that the People have no interest in this litigation,—that the real parties in interest are the commissioners of Lincoln. Park. We do not regard this position as sustained by the record. The suit was instituted in the name of the People, by the Attorney General. The commissioners of Lincoln Park, as a board, have taken no action whatever in reference to the commencement or prosecution of the action, nor have they any interest in the result except such as may be shared by the people at large. So far as appears, the Attorney General, representing the People, brought the action in good faith for and on behalf of the People. The commissioners of Lincoln Park were not made parties to the proceeding" nor are they mentioned in the information. It is true that the defendant, by a supplemental answer, undertook to bring into the controversy the rights of the commissioners of Lincoln Park under an act of the legislature; but that matter was not responsive to anything found in the information, and in our opinion it had no proper place in the record. When the commissioners of Lincoln Park undertake to condemn or otherwise appropriate any part of the submerged lands of the lake fronting upon the premises of appellant, then will be the proper time to determine their rights and their powers, but until that time arrives nothing need be said upon that question.
The appellant, as a shore owner, constructed from his premises into the lake two piers, extending from the shore into the waters of the lake some 200 feet, and the main question involved here is his right to build and maintain those structures. A description of the structures so built by appellant in the lake will be found in appellant’s argument, substantially as follows: “Defendant purchased the premises in question in July, 1890. The pier at Barry avenue was built by FitzSimons, at Revell’s instance, in the fall of 1890, and the addition on the east end in 1891. The whole structure is about 220 feet in length,.—20 feet on land and 200 feet in water. The north side consists of close piling and the south of piles six feet apart, with single sheeting. The two sides are about eight feet apart, and the space between is filled with rip-rap, with two lines of planking on the top to walk on. The pier at George street is not quite so long, and is made of a single row of piling, spaced and sheeted and anchored to piles to the south. At the east end is a bulkhead 8 by 15 feet, filled with rip-rap and covered with plank. The latter was built by the O. B. Green Dredging Company in 1893. Both piers are practically perpendicular to the shore.”
The law is well settled in the different States that the title to and dominion over lands covered by tide waters within the boundaries of the several States belong to each State wherein the lands are located. The State holds the fee in trust for the public. The doctrine established in regard to lands covered by tide waters has also been held applicable to lands bounded by fresh water in our large lakes. (People v. Kirie, 162 Ill. 138; Shively v. Bowlby, 152 U. S. 9.) In the case last cited it is said: “By the common law both the title and the dominion of the sea, and all rivers and arms of the sea where the- tide ebbs and flows, and of all the lands below high-water mark within the jurisdiction of the' crown of England, are in the king. Such waters, and the- land which they cover, either at all times or at least when the tide is in, are incapable of ordinary and private occupation, cultivation and improvement, and their natural and primary uses are public in their nature, for highways of navigation and commerce, domestic and foreign, and.for the purpose of fishing by all the king’s subjects. Therefore the title jus privatum in such land, as of waste and unoccupied lands, belongs to the king as the sovereign, and the dominion thereof jus publicum is vested in him, as the representative of the nation, for the public benefit.” In Illinois Central Railroad Co. v. Illinois, 146 U. S. 452, in speaking of this question the court said: “That the State holds the title to the lands under the navigable waters of Lake Michigan, within its limits, in the same manner that the State holds title to soils under tide water by the common law, we have already shown, and that title necessarily carries with it control over the waters above them whenever the lands are subject to use. * *i * It is a title held in trust for the people of the State, that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private parties.” Indeed, the doctrine that the State holds the title to the lands covered by the waters of Lake Michigan in trust for the people is not controverted in the argument. It will not, therefore, be necessary to cite further authorities upon that question.
The appellant here owned the premises bordering on the lake, but his title to the premises extended only to the water’s edge, and the fee in and to the lands covered by the waters of the lake was vested in the State and held by the State in trust for the people. The fee being in the State, the important question presented is, whether appellant, without a grant or other authority from the State, had the right to go upon the submerged lands and erect the structures complained of in the information. This State has adopted the common law as it existed prior to March 24, 1606,—the fourth year of James I,— and in the absence of any statute of the State changing the common law in regard to rights of riparian or littoral owners the common law as it then existed must control.
Upon an examination of the authorities we think it is clear that the act complained of in the information was a trespass upon the lands of the State; that the erection of the piers in the lake in front of appellant’s premises was a purpresture. But it is said in the argument that the erection of the structures complained of was not injurious to the State, and hence there was no basis for the interference of a court of equity. We do not concur in that view. Although the act complained of was not injurious and was not a public nuisance, still it was an unlawful act of such a character as would properly authorize a court of equity to interfere upon the information of the Attorney General, as is well established by the authorities.
Coulson & Forbes on the Law of Waters (p. 15) say: “Any unauthorized intrusion or encroachment upon the soil of the shore, such as the building' of quays, piers, moles, etc., is termed a purpresture, and may be abated by the crown or the owner of the shore, or restrained by injunction at Suit of the Attorney General, whether they create a nuisance or not. Such purprestures may or may not be nuisances to navigation. Whether they are so or not is a question of fact.” On page 670 the authors say: “Any invasion of the right of the crown to the bed of the sea or navigable river is a purpresture, and may be restrained by injunction at the suit of the Attorney General, whether it be a nuisance or not. If the act complained of be merely a trespass upon the property of the crown, and not a nuisance to the navigation, the court will generally direct an inquiry whether it is more beneficial to the crown to abate the purpresture or suffer it to remain.”
Wood on Nuisances (sec. 84) says: “A purpresture purely is not indictable, but when a purpresture and encroachment is both a purpresture and a nuisance it is indictable, abatable and punishable as for a nuisance. The remedy for a purpresture simply is by information in equity at the suit of the Attorney General or other proper officer.”
Eden on Injunctions, (chap. 11,) in discussing the question, says: “Purprestures,—more properly pourprestures,— is derived from the French pourprise, and, according to Lord Coke, signifies a close or enclosure,—that is, when one encroaches and makes that safe to himself which ought to be common to many. It is laid down by all the old writers that it might be committed either against the king, the lord of the fee or any other subject, but in its common acceptation it is at present understood to mean any encroachment upon the king, either upon part of the demesne lands, or in the highways, rivers, harbors or streets. The remedy for this species of injury is either by information of intrusion at common law, or by information at the suit of the Attorney General in equity. In case of a judgment upon an information of intrusion, the erection complained of, whether it were a nuisance or not, was abated. But upon a decree upon an information in equity, if it appeared to be a purpresture without being at the same time a nuisance, the court might direct an inquiry whether it was most beneficial to the crown to abate the purpresture or to suffer the erection to remain and be arrented.”
Story in his Equity Jurisprudence (sec. 922) says: “In cases of purpresture the remedy for the crown is either by an information of intrusion at the common law, or by an information at the suit of the Attorney General in equity. In a case of a judgment upon an information of intrusion, the erection complained of, whether it be a nuisance or not, is abated. But upon a decree in equity, if it appeared to be a mere purpresture without being at the same time a nuisance, the court may direct an inquiry to be made whether it is most beneficial to the crown to abate the purpresture or to suffer the erections to remain and be arrented.”
Gould on Waters (sec. 21) declares: “There is a broad distinction between the violation of the public right and an invasion of the proprietary interests of the crown. The one creates a public nuisance; the other a purpresture. Any encroachment upon the king, either upon part of the demesne lands or any public rivers, harbors or highways, is called a purpresture. If a littoral proprietor, without grant or license from the crown, extends a wharf or building into the water in front of his land it is a purpresture, though the public rights of navigation and fishery may not be impaired. * * * The remedy for a purpresture is either by an information of intrusion at common law, or by information in equity at suit of Attorney General.”
In Angell on Tide Waters (p. 200) will be found this language: “A wharf or pier or other erection may, therefore, be below high-water mark or even below low-water mark, but not necessarily a nuisance though a purpresture. The remedy for a purpresture, it is laid down, is either by information of intrusion at common law, or by information at the suit of the Attorney General in equity. The judicial department of the English Court of Exchequer is divided into one of equity and one of law, and the primary business of the former is to recover any lands belonging to the crown, so that purprestures upon arms and creeks of the sea are proper subjects of information in the Court of Exchequer. The king’s Attorney General, on the paid of the crown, may proceed, for the purpose of protecting either the jus privation of the king from the purpresture or the jus publiciom of the subject from nuisance, by information on the king’s remembrancer’s side of the Exchequer by English bill, praying a personal decree against the defendant in the suit.” See, also, Attorney General v. Terry, 9 Ch. App. 423; Attorney General v. Burridge, 10 Price, 350; Attorney General v. Parmeter, 10 id. 378; Attorney General v. London, 8 Beav. 270.
In opposition to the above authorities the case of People v. Davidson, 30 Cal. 379, is cited and relied upon. In that case it was held that the district courts of California have no power to decree the destruction or to enjoin the erection of a wharf unless it is or will be a nuisance, or is or will be followed by some form of irreparable damage, or unless it is or will be an appreciable hindrance to the execution of some legislative act relating to fishery or to commerce or navigation. So far as this case is in conflict with the rule established by the authorities cited we are not inclined to follow it. We think the decided weight of authority is that a purpresture maybe enjoined or abated in a court of equity although it is not injurious or not a public nuisance.
But aside from this position, it is apparent from an examination of this record that the construction of the piers was injurious to the State. It is true, the appellant testified that the piers were construc.ted to prevent erosion and protect his shore bordering on the lake; but it is apparent from the evidence that the effect has been to add new land to his premises, and that the accretions resulting from the construction of the piers have extended the boundary of his premises into the lake. In other words, the erection of the piers has increased appellant’s land and diminished the land belonging to the State. This being so, it cannot be said that the construction of the piers was not injurious to the State. The appellant had no right to build piers or “wharf out” into the lake for the purpose of making land or increasing the boundary of his premises, nor had he the right to do any act which would produce that result. As has heretofore been said, the lands covered by the waters of the lake belong to the State, and appellant had no right, by any device whatever, to extend his boundary line beyond the water’s edge, and when he did so an injury was inflicted on the rights of the State, which might be inquired into and abated in a court of equity on the application of the Attorney General.
It is, however, insisted that the court erred in decreeing that appellant had no riparian rights as agninst the State. We do not understand that the decree goes to the extent claimed in the argument. But however that may be, the main question presented by the record and discussed in the argument is, what are the riparian rights of appellant, as a shore owner, on Lake Michigan? There is one riparian right which existed at common law which is not disputed or called in question in the argument, and that is: where land bordering on the lake gradually and imperceptibly encroaches upon the water the accretion thus made belongs to the shore owner. This riparian right of appellant was not disturbed or interfered with by the decree. The shore owner also has another riparian right which is undisputed: the right of access from his land to the lake,—in other words, the right to pass to and from the waters of the lake within the width of his premises as they bordered on the lake. This right cannot be diverted or taken from the shore owner without just compensation being made therefor, as provided by law. These are common law rights, and, as we understand the law, they are the only common law rights possessed by the shore owner. Other rights may have been conferred in different States by statute, usage or custom, but the question involved here is whether such additional rights exist in this State.
In the well known case of Shively v. Bowlby, supra, the Supreme Court of the United States, after a thorough examination of the authorities, held that the common law of England is the law of this country upon the question of the rights of a shore owner, except where it has been modified by the constitutions, statutes or usages of the different States or by the constitution and laws of the United States. The court also held that the rights of these owners have been committed to the several States, and that each State has dealt with the lands under tide water within its boundaries according to its own notion of right and public policy. We are aware of no statute of this State changing the common law, nor has there been established any custom or usage which modifies the common law. What, then, is the common law in regard to the right of a shore owner to build out from the shore into the waters of the lake, as was done by appellant in this case?
In Shively v. Bowlby, supra, after declaring that it is settled in England that the title to the soil of the sea, or arms thereof, below ordinary high-water mark, is in the king, it is said: “It is equally well settled that a grant from the sovereign of land bounded by the sea or any navigable tide waters does not pass any title below high-water mark, unless either the language of the grant, or long usage under it, clearly indicates that such was the intention. * * * By the law of England, also, every building or wharf erected without license below highwater mark, where the soil is the king’s, is a purpresture, and may, at the suit of the king, either be demolished or be seized and rented for his benefit, if it is not a nuisance to navigation. (Citing many cases.) By recent judgments of the House of Lords, after conflicting decisions in the court below, it has been established in England that the owner of land fronting on a navigable river in which the tide ebbs and flows has a right to access from his land to the river, and may recover compensation for the cutting off of that access by the construction of public works authorized by an act of parliament, which provides ‘for compensation for injuries affecting lands, including easements, interests, rights and privileges in, over or affecting lands. ’ The right thus recognized, however, is not a title in the soil below high-water mark, nor a right to build thereon, but a right of access only, analogous to that of an abutter upon a highway. (Buccleuch v. Metropolitan Board of Works, L. R. 5 H. L. 418; Lyons v. Fishmongers’ Co., 1 App. Cas. 662.) ‘That decision, ’ says Lord Selborne, ‘must be applicable to every country in which the same general law of riparian rights prevails, unless excluded by some positive rule or binding authority of the lex loci.’ (North Shore Railroad Co. v. Ryan, L. R. 14 App. Cas. 612-620, affirming 14 Can. Sup. Ct. 667.) The common law of England upon this subject at the time of the emigration of our ancestors is the law of this country, except so far as it has been modified by the charters, constitutions, statutes or usages of the several colonies and States, or by the constitution and laws of the United States.”
Under the common law as declared in this case,—and it is fully sustained by the authorities,—it is apparent that appellant, as owner of premises bounded on Lake Michigan, took no title to any submerged lands under the waters of the lake, nor did he, by virtue of being a shore owner, have any right to construct piers upon the submerged lands without the consent of the State.
It is, however, suggested in the argument, that this court, in passing' upon the rights of riparian owners upon the Mississippi and other rivers in the State navigable in fact but not navigable at law, has held the shore owner may wharf out from the shore into the stream, and that the same doctrine should be extended to a shore owner on Lake Michigan. Those cases have no bearing here, for the reason that they all are predicated on the theory that the line of the riparian owner extends to the center thread of the stream. Being the owner of the soil under the water he had the right to build such structures on his own land as he might desire, except such as might interfere with the navigation of the stream. Under the rule established in those cases, beginning with Middleton v. Pritchard, 3 Scam. 510, it was held in Ensminger v. People, 47 Ill. 384, that a riparian owner in the Ohio river having" the title to the land between high and low-water mark, and the right to the exclusive use thereof, had the right to establish a private wharf on his land and make reasonable charges for its use by those navigating the river. The right, however, as is apparent from the rule established in the case, rests upon the ownership of the underlying soil.
Much reliance is, however, placed, in the argument, in Illinois Central Railroad Co. v. Illinois, 146 U. S. 387. It is true that the majority of the court in that case held that a littoral owner of lands bordering on Lake Michigan had the right to wharf out from his premises into the lake in aid of navigation; but upon an examination of that case it will be found that the decision is predicated largely upon Yates v. Milwaukee, 10 Wall. 497, Railroad Co. v. Schurmeier, 7 id. 272, and Dutton v. Strong, 1 Black, 23, or two of them; and in Shively v. Bowlby, supra, decided two years after the Illinois Central case, the doctrine laid down in the three cases above cited seems to have been substantially repudiated. It is there said: “Some passages in the opinions in Dutton v. Strong, Railroad Co. v. Schurmeier and Yates v. Milwaukee were relied on by the learned counsel for the plaintiff in error as showing that the owner of land adjoining any navigable water, whether within or above the ebb and flow of the tide, has, independently of local law, a right of property in the soil below high-water mark, and the right to build out wharves, so far, at least, as to reach water really navigable. But the remarks of Mr. Justice Clifford in the first of those cases, upon which his own remarks in the second case and those of Mr. Justice Miller in the third case were based, distinctly recognize the diversity of laws and usages in the different States upon this subject. * * * And none of the three cases called for the laying down or defining of any general rule independent of local law or usage or of the particular facts before the court. * * * In Dutton v. Strong there can be no doubt of the correctness of the decision, for, even if the pier had been unlawfully erected by the-defendants' as against the State, the plaintiffs had no right to pull it down or injure it, and, upon the facts of the case, were mere trespassers upon the defendant’s possessions. * * * In Railroad Co. v. Schurmeier the question in controversy was whether the plaintiff’s patent was limited by the main shore or extended to the outside of the island. The Supreme Court of Minnesota held that by the law of Minnesota, land bounded by a navigable river extended to low-water mark at least, if not to the thread of the river, and that the plaintiff’s title therefore extended to the water’s edge at low-water mark and included the island, and gave judgment for the plaintiff. (10 Minn. 82.) This court affirmed the judgment, saying the express decision of the Supreme Court of the State was, etc. "" * * In Yates v. Milwaukee the point adjudged was, that the mere declaration of the city council that the wharf already built and owned by the plaintiff was a nuisance did not make it such or subject it to be removed by the authority of the city. It was recognized in the opinion that by the law of Wisconsin, established by the decisions of its Supreme Court, the title of the owner of land bounded by a navigable river extended to the center of the stream, subject, of course, to the public rig'ht of navigation, and the only decision of that court which this court considered itself not bound to follow was Yates v. Judd, 18 Wis. 119, upon the question of fact whether certain evidence was sufficient to prove a dedication to the public. The later judgements of this court cle.arly establish that the title and riglits of riparian or littoral proprietors in the soil below high-water mark of navigable waters are governed by the local laws of the several States, subject, of course, to the rights granted to the United States by the constitution.”
If the three cases cited did not call for the laying down of a general rule independently of local law or usage in the States, as was held in the Shively case, the doctrine laid down in the Illinois Central case could not be predicated upon those cases. Moreover, we regard the rule established by the common law as the safer and better doctrine, and as each State has the right to determine for itself the title and rights of riparian owners within its border, we regard it a better policy for all concerned to adhere to the common law rule rather than follow the doctrine laid down in the Illinois Central case. Moreover, the learned justice who delivered the opinion of the court in the Illinois Central case, in Webber v. Harbor Comrs. 18 Wall. 57, practically concedes the correctness of the doctrine laid down in the Shively case. Mr. Justice Field, in delivering the opinion of the court, while recognizing the correctness of the doctrine that a riparian proprietor whose land is bounded by a navig'able stream has the right of access to the navigable part of the stream in front of Ms land, and to construct a wharf or pier into the stream, subject to such general rules and regulations as the legislature may prescribe for the protection of the public, said: “In the absence of such legislation or usage, however, the common law rule would govern the rights of the proprietor, at least in those States where the common law obtains. By that law the title to the shore of the sea and of the arms of the sea, and in the soil under tide waters, is in England in the crown and in this country in the State. Any erection thereon without license is therefore deemed an encroachment upon the property of the sovereign, or, as it is termed in the language of the law, a purpresture, which he may remove at pleasure, whether it tends to obstruct navigation or otherwise.”
Cases from other States have been cited by the appellant and appellees as sustaining their respective views of riparian rights, but it would extend this opinion to too great a length to enter upon a review of those cases. Moreover, local laws, customs and usages enter so largely into the decisions of the courts in the different States that such decisions cannot, as a general rule, control as precedents here. But if the right to wharf out in aid of navigation existed, as held in the Illinois Central case, the rule thus established could have no application here, as the piers erected by the appellant in this case were not constructed in aid of navigation. That is not claimed or pretended from anything appearing in the record.
It is, however, insisted that owners of land bordering on Lake Michigan have the right, as riparian owners, to wharf out in order to protect the shore of their lands from erosion. If a rig'ht of this character exists it is one not recognized by the common law. As we understand the common law, any structure placed upon the land of the State below or beyond the water’s edge in the waters of the lake is a purpresture, and may be abated in a proceeding instituted on behalf of the People. A shore owner may, no doubt, erect on his own land such structures as may be necessary to protect Ms land from erosion, provided such structures do not interfere with navigation, but he has no right to intrude upon the lands of the State unless authorized by the State. Tyler, in his work on Boundaries, (p. 95,) states the doctrine of protection in the following language: “There can be no doubt that by the law of England encroachments cannot be made upon the property of the crown or its grantee, but if an embankment which is lawfully made on a man’s own land cause a silting up of sand and mud, whereby soil is gradually gained from the sea, the owner of the embankment would appear to be entitled to this increase, upon the principle laid down in respect to alluvion and reliction. An encroachment upon the king, or upon part of the demesne lands, or on the highways, public rivers, harbors or common streets, is called a purpresture. This word frequently occurs in the judicial reports of both this country and England, and invariably signifies an encroachment of this kind. * * * A man may raise an embankment on his own property to prevent the encroachments of the sea, although the fact of his doing so may be to cause the water to beat with violence against the adjoining lands, thereby rendering" it necessary for the adjoining land owner to enlarge or strengthen his defenses.” Wood on Nuisances (sec. 494) says: “Every proprietor of land exposed to the inroads of the sea may erect on his own land groynes or other reasonable defenses for the protection of his land from the inroads of the sea. * * * But a man has no right to do more than is necessary for his defense, and to make improvements at the expense of his neighbor.” Gould on Waters (sec. 160) says: “The owners of lands exposed to the inroads of the sea or of inland waters may erect walls and embankments to prevent the wearing away of the land or to protect it from overflow. * * * If a sea wall or embankment is erected in tide waters, beyond the limits of the owner’s land, it is doubtless illegal at common law, as being a purpresture", since it does not appear that littoral proprietors are authorized, as against the crown or without its sanction, to erect even defenses against the sea below high-water mark.”
Reliance is, however, placed by appellant in King v. Comr. of Sewers for Pagham, 8 B. & C. 355. Expressions may be found in that case that seem to sustain the view of appellant, but upon an examination it will be found that what was said was not necessary to a decision of the case or applicable to the facts involved therein, and we do not regard the expressions used in deciding the case as authority on the question. (See Coulson & Forbes on Law of Waters, 32.) It may be conceded that under the doctrine of protection a shore owner may erect structures on his own land for protection against erosion, but as we understand the law he has no right to enter upon the lands of the State and erect thereon such structures, and when he undertakes to do so he is a trespasser. The State, holding the submerged lands of the lake in trust for the people of the State, would be false to its trust should it permit shore owners to encroach on the public domain and gradually appropriate such property to their own use. Here, in the erection of the structures complained of in the information, there has been a clear violation of the law, and no reason occurs to us why the structures should not be abated on the application of the People.
The decree in this case was in favor of the complainants, but after a careful consideration of the whole record we do not think it goes far enough. We think the cross-errors of appellees are well assigned. The decree will therefore be reversed and the cause remanded on the cross-errors, with directions to the circuit court to enter a decree according to the prayer of the information, 'in conformity to the views here expressed.
Reversed and remanded.