*1 . v. RAILROAD ILLINOIS. ILLINOIS CENTRAL 387 Syllabus. where no order is law, at common generally pre ing, defendant is statute, the make all his required scribed is called In before government upon- any. challenges works law, contemporaneous challenging aspect de rather .the injury than-to government in which the in the case ques fendant. Further, precise only cited Missouri, 287, 23 State v. Hays, tion been has presented, 462, v. The Maryland, Turpin approvingly chal manner of of such in favor .-validity decision in the which absence discretion In view lenge. manner in the trial court vested as statute confessedly in this sufficient was no error justify there challenges, new;trial. that Mr. dis- Brown also
I am authorized say Justice sents. v. COMPANY CENTRAL RAILROAD
ILLINOIS ILLINOIS . CENTRAL RAILROAD ILLINOIS v. CHICAGO COMPANY. ILLINOIS RAILROAD ILLINOIS CENTRAL .
COMPANY THE STATES FOR COURT OF UNITED THE CIRCUIT APPEALS FROM DISTRICT. OF ILLINOIS. NORTHERN THE 14, 1892. Argued 5, 1892. Decided December 12, October 13, Nos. Ownership sovereignty lands' covered tide over and dominion and States, respective waters, belong to the the limits of the several within found, consequent they use within with States which thereof, done, portion or-dispose that can be sub- When without waters, impairment the interest of the stantial Congress their paramount -right of to Control subject always to the regulation commerce navigation be necessary far so among foreign the’States. nations and ownership sovereignty over to the dominion' doctrine as The same applies, the Great Lakes the-navigable waters lands under TERM, 1892. Syllabus. sovereignty obtains at the law as to over common dominion ownership sea, of lands under tide waters on the borders *2 other, right by in the lands are held the same one case as in the subject to trusts and limitations. and the same constructed, roadway Chicago at The of the Illinois Central Railroad as width, entry for the for feet in distance allowed its two hundred whole thereon, city, against guards with the the and all within with tracks n approach beyond danger crossings, and in its the breakwater its east, pr-otection necessary on the and the works for of tracks west, r.espect any interfere freedom shore on the in no useful commerce, foreign, lake the use of the waters of the domestic; and, for or interstate law, authority they as under.the of the were constructed 17, 1851, by requirement (Stat. February 192,) of Laws city might company of its consent that the of the as condition locate .a limits, they (Ordinance 1852,) its road its of June cannot be within upon regarded the domain of the as such an encroachment as to interposition require any for their the. of the court removal or restraint their use. acquired Company, by The Illinois Central Railroad never the reclamation laid, of land its tracks are waters lake of the which therewith, by or connected construction an works road reclaimed,'-with consequent dispose right fee in absolute the tract a parties, purpose any of the same to or it for other to use other than thereon, — operation designated one of railroad construction and works, with one or more tracks and the road or in aid in connection with „ thereof. company acquired by'the That construction of its road and other works no riparian right owner to reclaim still further lands as.a from the waters n use, of the lake for'its or piers, the construction docks and wharves, business; in the furtherance of its but the to which it extent could reclaim the land under by water was limited the conditions of the 14, 1852, ordinance of June simply which was for the of a construction railroad on a specified tract not to width, exceed and of works con- n . , nected therewith. . pier construction of a The or the extension of navigable land into for a purposes, waters railroad or by other one not the owner lands shore, give on the does not pier builder extension, of such whether corporation, any an individual riparian.rights; The railroad owns and fight has the to use in its business slips piers land and reclaimed in front of the lots on the lake Randolph it, north of Street acquired .were and in front of Michigan streets, Avenue between the lines“of Twelfth and Sixteenth extended, unless it shall be found the Circuit Court on further exami-- nation, piers that the beyond point constructed extend naviga- bility lake; in the waters fully, about which this court from the evidence satisfied in this case. .company, railroad use, has the further to continue The as an addi- ILLINOIS. ILLINOIS CENTRAL RAILROAD of the Case. Statement spaces approaching station-grounds, the using means of tional city Chicago granted rights it the ordinances 15,1856. 10,1855, September September and of 16,1869, Illin'ois_ofApril Legislature granting to the Illinois act of the Company,its assigns, all the Central Railroad successors and constituting submerged title of the State of Illinois in to the lands Michigan, lying the bed of Lake and breakwater east of the tracks mile, Company, of the Illinois- Central distance one Railroad for the pier eastwardly and a and between the south line of the south extended twenty-one, line extended from the line of lot south eastward south shops company, to the roundhouse and of said machine and.near Chicago,” so as south division said cannot be invoked riparian ownership possessed rights extend which the from its lake; remaining of lands in sections 10 and 15 on sub- and as lands, competent deprive merged legislature not- thus was ownership submerged the State of in the harbor-of lands attempted Chicago, consequent waters; and of the control of its affect, 16, 1869, April inoperative modify, cession the act of *3 any respect in sovereignty or of the State control the and dominion lands,' thereof, opera- ownership attempted the over or its and by April repealing tion of the act which was annulled the act of to that extent was valid and effective. irrepealable property by conveyance can be a There no of contract in a grantor disregard public trust, in bound to hold of a he was under which manage and it. Randolph ground street and The fee of made the or reclaimed between Row, the embracing ground tracks and Park the rest the . street, Randolph in the is the railroad south of breakwater of city, subject its use and of the railroad- of ground of the'break- the tracks on reclaimed it and the continuance ownership, riparian is at full water, possesses city of the the liberty -it. to exercise lake riparian grounds its east or Chicago, the on of city owner The Randolph the street line of city, between north of the front block, produced being twenty-three, of the'lines each north line of charter, has authority conferred Michigan, in Lake virtue front, east of said repair lake keep on the power in to construct wharves, places, landing mentioned, public premises, Within lines that, power, to however, levees, subject, execution docks and piers, beyond which lines prescribe the authority of the.State to- by the erected docks, structures, than those other and other wharves waters of navigable into may general not be extended government, United States harbor, supervision as the and control to such rightfully exercise. -in a decree EQurrr. from were In These taken appeals of Illinois against filed the State bill information TERM, 1892. 390 Statement of the Case. Central Railroad Illinois tlie Company, City . Chicago, States, and cross bill the United therein filed city the Railroad the United Company, States against Fed. 33 The State. Rep. object was litigation to determine the 'rights, .respectively, Railroad land, city, Company submergéd in front line reclaimed, water on of. Lake Michigan.
As the record came this court the cause -further en- ,v. The titleck“ ZTnited States Appellant People of et No. al., Illmois 610.” On the suggestion General that the Solicitor United States had never been a suits in the these court below, had never taken party an the'decree,- title was appeal from the dropped court- 'opinion Mr. Justice Harlan his
The facts were stated by opinion below, as follows:1 the court clear It to a necessary numerous understanding determination, we should first presented questions of the title to. trace the these bodies lands history up several the Illinois to the time when Central Railroad was located limits Avithinthe of Chicago. ' embraced, First. As to the Fort lands Dearborn Meservation.
In the United States- established year the military court, 43Í, opinion,’ infra, says This in its of this statement: “We *4 that, agree understanding court below to with of the numerous a.clear case, questions presented necessary history in this it was to. trace the parcels by company.. to the several title land claimed And the n court, 730, opinion, Rep. purpose elaborate in'its 33 Fed. that referred legislation State, of the and United States of the and to ordinances of .the stated, and proceedings thereunder;, great minuteness with detail, every provision step takep.' every material We have law great' care gone history over the detailed and are satisfied with accuracy. would, therefore, entire .repeat It serve purpose no useful is, opinion, what clearly fully our narrated.” After this full endorse- ment, statement, Reporter thought duty it his has make use of this mostly verbal, making changes, necessary such few as have been' found by adapt opinion it to the issues settled of the court in this case. v. ILLINOIS. CENTRAL
ILLINOIS 391 RAILROAD. - the Case. Statement Diver, south Dearborn, immediately Chicago of Fort post fractional the southwest its mouth, quarter and near upon Illinois, as well when was troops section It occupied into the as when Union, passed was admitted 1818, Congress sale of certain mili- 1819, 3, authorizing the act of March it was that act sites. By provided:' tary “ is of War and he he, authorized, hereby, That the Secretary States, of the President United direction under the to the United sites, such To sold military belonging cause or useless for become, have been found, as States, military is authorized, of War on And the Secretary hereby purposes. into the for, of the consideration agreed treasury payment and deliver all needful execute make, of the United States the same fee; instruments transferring conveying ceded, had been jurisdiction, specially military oyer site States, the United purposes, 3 c. 88. thereafter cease. Stat. sites, shall War, the written In 1824, Secretary request of fractional section 10, about southwest containing quarter tl^e Fort Dearborn was and within whibh was situated, acres, the Commissioner of the Land reserved General formally and for Jaclcson, Officefrom sale military purposes.. Wilcox admit, 502. The United States it is also Pet. 498, the lands so reserved -weresubdivided in 1837 by proved, one Secretary—he being, represented authority by' .the for that Birchard, as Matthew special agent pur- attorney blocks, lots, streets-and called the public grounds pose—into (cid:127) Addition to And on Fort Dearborn the 7th Chicago.” of that addition acknowl- June, plat map Birchard, as such and wás re- attorney, edged by agent local A. corded office. proper part ground was marked on record embraced'in subdivision plat .the to remain forever “Public buildings.” ground vacant.of of that subdivision on The substantially reproduced plat A. 392, Map page on this sold and were .conveyed plat
The lots designated different United States purchasers. States'to United all the Fort Dearborn Addition reserved sale expressly *5 ILLINOIS. EAILEOAD ILLINOIS CENTEAL *6 n of the Case. Statement north of the south for streets) marked ground (including 5 lot in and in block 4, lots 4 9 and 2, line of lot 8 in block The streets. lines across the block said 5, adjacent projecting in the so reserved remained occupancy (cid:127)grounds specially from 1839 until General Government military purposes . effect that after 1845 The occupancy appears legal 185. The How. city United States v. 7 Chicago Chicago, jn Avenue 1844, through open Michigan proposed, having at time, from sale, the lands reserved notwithstanding, so the United States in áctual use for were military purposes, they so to restrain the instituted a suit city doing. equity of the General Govern that It case appeared agent the other that the lots, the time of ment at notice, selling gave then to not be in' actual use the.United States ground 1837, act of March incor It that the also sold. appeared the district of- the city Chicago, designating porating “ the limits embraced within -its expressly excepted country, mili as a fractional of section occupied southwest quarter Ill. the same shall be'come private property!’ tary post, until Laws, 1837, 38, 74. pp.
* court held that had no streets open city laid out in which, although part ground (cid:127)through sold that its had been streets, government; lots had sale, limited to the which, by were part corporate powers (cid:127) laid out and streets become private property; Birchard, use dedicated to agent Secretary public the land into lots and his not, didWar, merely by surveying thereof, map plat streets, recording making such streets to the éstate city, thereby convey legal full use, authorize it to them assume munic- open to be court held untenable the claiin control thereof. The. ipal down streets had been laid that “because on.the into the which'extended part plan by agent [Birchard] become dedicated alone, sold, had, land not those parts States become the United estopped highways had .or It is Further: entirely unsupported by principle object,” on that an merely by protracting plan agent,- precedent, and. amidst lands not sold, the reserved- those streets into line TERM, Statement of the Case. coyld nor meant then to but sold, reserved, de- expressly the United States title real estate, and to prive works.” See also Irwin v. important public How. Dixion, 9, 31.
Second. As to the lands controversy embraced in Frac- tional Section 15.
This section is on lake south of shore, sec- immediately tion lands, 10. The of the title to particular history is to be now between line <Athe examined, are the west street how known as Avenue and the Michigan roadway way- of the Illinois Central Railroad and between ground Company, *7 the middle line of Madison street. and the middle line of Twelfth what is as street, known Park excluding Row ' block north of 23, Twelfth street. . an act of the Illinois By of legislature 14, 1823, February “ entitled An act to for the of the' inter provide improvement nal State,” of this certain were constituted navigation persons commissioners to measures for con report upon devise means of a canal necting, locks, waters navigable of the Illinois River and Lake Ill. Laws, 1823, Michigan. p. 151'. an This followed act of Congress, approved March entitled act to 1827, a of 2, “An land quantity to the of for Illinois, a purpose aiding opening to connect canal the waters of the Illinois River with those Lake to- this State, Michigan,” granting purposes of land, one-half enterprise, to of five quantity equal sections in on each -width, side of the canal (reserving proposed each alternate section the United to be selected by States), (cid:127)the Commissioner of the General direction Land under Office, “ of the President; said lands subject disposal the said State-for the ;” no other aforesaid, for purpose and said canal to remain forever a for the use. public highway of the national free government, any charge any prop erty United-States it. 4 c. 51. 234, Stat. passing through 'of the State to of these lands was further power dispose or conferred the third fol- recognized section of the as -by act, lows : Seo. 3. “That the said under-the of the- authority after tlie selection shall thereof, have-been so made, legislature ILLINOIS CENTRAL RAILROAD ILLINOIS. 395
Statement of the-Case. to sell and .the whole or shall have' convey power part the said title in fee land, therefor give simple whomsoever shall thereof.” whole- purchase any part 4 Stat. 234. an act of the Illinois 22, January 1829, By legislature “ An
entitled act to the Illinois and provide constructing the commissioners for whose Canal,” Michigan appointment made were directed select, that act provision conjunction with of the General Land Office, the Commissioner alter of land nate sections act such com granted Congress, invested'with “to missioners others, .being power, among said donation-into town lots off such parts- they may lay sell, think and to' the same at sale in the proper, same in this act" for the sale of other manner as lands.” provided Ill. 1829. Laws, amended 15,
The act 1829 was so as to February 1831, á the Canal Commissioners board to be known as constitute of the Illinois and Board of Canal Commissioners Michigan contract and be contracted Canal,” with, sue authority and be and with be sued, -plead impleaded, power of,con matters to said canal. Ill. Laws, trol all relating with said to and acts Pursuant conformity Congress of lands for the Illinpis, the selection pur- legislature *8 and .authorities, was made by proper poses specified ap- (cid:127) on the 21st of 1830. the President May, Among proved was said fractional section' lands so selected 15.. 9, of the Illinois approved an act legislature, January By the construction Illinois and “An act'for entitled 1836, was Canal,” negotiate Governor empowered Michigan and the credit faith" on $500,000, of not loan exceeding connec aiding, for the purpose as therein provided, from the United be received means as Avithsuch might tion Illinois Michigan'Canal, in the construction States, to be stock, called certificates issued be for loan should which “ the Auditor stock,” Canal signed by Illinois Michigan an interest not Treasurer, bearing and countersigned by “ reimburs semi-annually, six cent, -per exceeding payable TEEM, OCTOBEE 1892. 396 n Statement of tíie Case. at the thé State at time after
able” pleasure any which, for the and interest, the faith of principal payment was The same act the State irrevocably pledged. provided of three commissioners to constitute a appointment “ known as The Board of board be Commissioners of the and to Canal,” Illinois and be body politic Michigan to contract and be contracted sue power with, corporate, and be and be in-all matters and sued, plead impleaded, things to them as canal and to have the relating companies, imme-. diate care canal and all matters superintendence 145. Laws, '1836, thereto. Ill. relating contained, That act “ other among provisions, following: 32. The commissioners shall examine the whole canal Seo. and select such be route, thereon as places eligible town' cause same be laid off into sites, town lots, shall canal lands pause near they suit- Chicago, able off into town therefor, lots. laid Sec. 33. And the Board Canal Commissionersshall, said lqts on the next, twentieth June to. sell day proceed the town of and such the lots in the town of Chicago, parts fractional as also section Fifteen Ottawa, the town of adjoining first laid off and subdivided into being lots, town Chicago," inas streets and best will best alleys, their promote judgment of the said the-interest canal Provided, fund: That' always, before of the aforesaid town.lots shall be'offered for any sale, notice of-such sale shall have been . . . 111. given.” Laws, 1836, 150. The revenue from the canal, arising ^nd lands United States to the granted by its construction, with the net tolls together thereof, were the act' for the the interest pledged payment accruing on the said stock, and for the reimbursement of the principal of the same. Ibid. 41;§
In Canal Commissioners, under the con- .authority ferred them the statutes above recited, caused frac- tional section 15 to be subdivided into lots, blocks, streets, whereof a' etc., on and recorded map made, acknowledged 20th July, map of. substantially reproduced B. on Map page
398 TERM/1892.
Statement of the Case. was and the time this made recorded At fractional sec map ” “ 15 of and 10 were both within the limits the tions Town the of of act except 11, 1835, Chicago, February the of that it was town, corporate changing powers provided “ that the of the Board of Trustees said Town authority extend of shall over the south fractional section Chicago not until 10 the same shall cease to be the United occupied by 1835, Ill. to Laws, States.” the and p, But, prior survey n recording the of of section 10, wit, fractional to the' plat 4, act March the 1837, was city incorporated, Chicago and its limits defined we south seen, have the (excluding, west of section as a 10,. quarter occupied military fractional until the same shall become and was post, private property,”) with all real and estate,, invested the to or personal, belonging in trust the trustees of the its common town; held council make and assess out, being streets, empowered lay alleys, and lanes said to make wharves and at city, highways slips end on to said streets, and property city, belonging 'to alter, widen, discontinue same. Ill. straighten 38; 74, 61. Laws, 61, 1837, § § an act 20, 1850,
Congress having, by approved September 466," 51, Stat. c. made a land Illinois purpose of a construction railroad from the southern ter aiding minus of the Illinois and Canal to at near a Michigan point of the Ohio and junction with Rivers, branches Mississippi Railroad Com Chicago Central Dubuque, Illinois pany incorporated 10, was made February of the State to’construct agent that road. Private Laws Ill. 1851, 61. It was “to granted its Sec. power by charter, locate, construct, alter, maintain and survey, complete, operate a railroad, one or more tracks or lines rails, southern terminus of the' Illinois Canal, Michigan n of Cairo, with point city a branch of the same to .at on Lake city Chicago, branch, also via Michigan; Galena, to a on River, point opposite Mississippi to, the town of In Dubuque, Iowa.” addition certain powers, franchises—includ privileges, immunities hold real and ing purchase, and convey personal ILLINOIS. RAILROAD CENTRAL ILLINOIS of the Case. Statement be needful to into effect estate, carry purposes which might of its charter —it was provided objects .and “shall have way upon, may appropriate land herein, for the use and control, sole purposes contemplated entire, two hundred feet width through exceeding all and' and take and use of, enter upon possession length; kind,' streams and materials of lands, every singular the location of stages, purposes depots stopping *11 station embankments, excavations, dams, constructing bridges, and other banks, turnouts, houses, spoil engine shops grounds, for construction, necessary buildings completing,.altering, and of said road. complete operation maintaining, preserving to and All materials lands, waters, privileges, belonging such to said for said corporation pur- hereby granted section, in con- That this Provided, : . . . nothing poses to authorize the tained shall be so as construed said corporation the com- of said streams.” But to interrupt navigation in act charter also (Sec. ¡.“Nothing 8) pany’s provided. said, to' make a location authorize contained shall corporation the consent com- of their track within without of any city council of said mon city.” of the common consent was an ordinance
Such given by June 14,1852, whereby permission council adopted Chicago, construct and main- down, lay granted .the to. limitsjof that and tain within the city, along margin with or a railroad one same, lake within adjacent and all to have the more tracks, way powers terms certain incident to and. necessary therefor,'upon at or’near the said road shall enter to wit: “The conditions, and, Lake of its southern with Michigan, intersection boundary lake of said on or near the northerly the shore margin following Park, as Lake known bounds of the southern open space across continue section fifteen, northerly front of-canal (cid:127) in front of fifteen to said section grounds the open space line of the north between as the said company may acquire and, in the Fort Dearborn River, Street Chicago Randolph shall be located which said addition said city, upon grounds other build- and such of said railroad within the city, depot OCTOBER, TERM, 1892. Statement the Case. or be slips necessary convenient ings, apparatus said for business of But it is under- expressly company. stood that the does not undertake to obtain city Chicago for said or other or way, right, privilege not said or .easement, confer, now power or to asáume the acts said any liability responsibility Section company.” other sections the ordinance it was as follows :
By provided “ the second section, enter By company might that and use line of road, works perpetuity other £aid from lake, the same width of 300 necessary protect feet, the southern said near boundary public ground — Twelfth to the northern' line of street street, Randolph the inner or line of' the used west said com- ground to be not' less than 400 feet east from west line pany ” Avenue Michigan thereto; parallel section, third extend their works By they may out, fill into lake -to a in the southern point pier less than 400 feet west from the east end of the same, present thence the north line parallel Avenue Michigan street extended it is ; but Randolph understood expressly 'the common council-does not be- grant any right privilege *12 the limits above nor that yond line specified, beyond may ” the works of said actually occupied company; the sixth. section, that By shall erect and company maintain on the western or inner line of the ground pointed out its main on for track lake is herein- shore, as same before defined, such suitable or walls, féáces other sufficient as -will works, animals or obstruct- prevent straying upon from tracks, secure from ing persons property danger, .its to be of said structure suitable materials sightly appear- council, of such ance, as the heights common direct, may and no thereon shall change made mutual con- be. except by That Provided, sent: shall construct such suit- company at able at the ends gates proper places streets, or hereafter be laid may out, as now may-be required council, afford safe common access And lake; the. pito, That, cáse óf the construction provided, an/outside- RAILROAD v. ILLINOIS. -ILLINOIS CENTRAL Statement Case. be laid out to the'
harbor, same, may approach streets in which case common council law, manner provided by ” n of locomotives and trains across them; may regulate speed that the erect and seventh.section, theBy company.“shall within three after shall have years they accepted complete forever thereafter a con- ordinance, maintain, and shall work or other tinuous wall or structure stone masonry, pier material, sufficient regular sightly appearance, Avenue to exceed in level Michigan op- height general north side of street from the thereto, Randolph posite mentioned, before at a distance southern bound of Lake Park from and with the of not more than 300 feet east parallel said or out for western inner line, company, speci- pointed and shall continue said works hereof, fied section two to' at such distance outside the southern of the city, boundary which structure of the track of road as be expedient, said of sufficient shall be strength'and magnitude-to an^l'works between the north lin. the' entire front of said city, protect from further and its southern boundary; street Randolph the waters- of -the action of Lake or damage injury south of Lake Park that of the structure part Michigan, all reasonable de- commenced and shall' be prosecuted ” ordinance; of this after spatch acceptance “ shall not in section, theBy eighth use or intrude whatever, mánner, nor for occupy, any purpose Lake Párk, known as belonging open ground Avenue and the between Michigan Chicago, lying so far as mentioned, line before except' western inner of said for the convenience consent, the common council may the works in front while constructing repairing company, ” of said ground; ' no “shall erect ninth section, By street and the line Randolph between the north buildings nor use the works nor Park, the said Lake occupy south line of these except points, be constructed between proposed trains, their or distributing of or making up passage *13 between said points their works nor any place upon part nor shore, the lake obstruction the view from.the any VOL. CXLVX—26 TERM, 1892.
Statement of the Case. or. their other articles to' remain locomotives, suffer cars upon erect works as are their but such con- tracks, only proper and struction of their '' tracks same.” protection necessary The was within which to given ninety days accept ordinánce,, and was such provided acceptance terms should be embodied a contract between city and the' and ordinance company. accepted, n required agreement entered into on the 8th day July,
At time this ordinance was the harbor of. the the. passed under the laws included, city incorporating “ the and so much Lake as lies within city, piers Michigan mile into and distance of one thereof lake, Chicago River and its branches to their sources.” Private respective Laws Ill. 1851,- 2d Sess. Its common 132, 147. pp. .council had at the to construct breakwater power, public expense, or barrier the shore of the lake along protection water; encroachments of.the “to city against preserve use of harbor; same, or act prevent, any relation thereto . . . fill or tending any degree up n obstruct the ; same to and or de prevent casting punish therein other substance, ashes or positing any'(cid:127) earths, filth, matter; remove ail logs floating obstruc present tions therein, the authors thereof; 'to punish regulate the mode and speed prescribé entering leaving and of 'harbor, to and coming the wharves ..departing and streets of the steamboats, canal and other boats, crafts and . vessels, . . regulate prescribe by ordinances, or their harbor master, such or other through authorized officer, such location of canal boat, steam-’ every boat, other craft or vessel or and such float, changes in, of, station and use the.harbor, as To may necessary pro therein, and the order safety .fnote convenience, as equal ” boats, near as of all be, crafts vessels, or floats; n “to remove and all obstructions prevent waters in' in said and to public highways city, widen, and- straighten the,same;” and to “make deepen wharves and at slips end of streets, widen, contract, dis straighten .and alter* Il)id. the, continue same.”. *14 v. ILLINOIS. RAILROAD
TT.TJlvrO.TS CENTRAL 403 Statement of the-Case. of of of its .und the-ordinance charter, the
Under authority its located tracks within the railroad 1852, 14, company June tracks northward limits of the The the city. corporate of the waters' were laid Twelfth street placed-in piling at crooked, the the shore which was lake, being, liner west from the .line at Park about 400 feet Row, time, streets, at Madison the foot Monroe Avenue; Michigan at about feet. Since feet; street, about 90 and Randolph 112^- the the the line and tracks that time between space shore under with earth or the railroad has filled by been company and is now solid After direction of city, ground. railroad of the track as stated, construction company just breakwater its' a line erected a east of roadway, upon parallel with Avenue, and, the west line of subsequently, Michigan filled the all of that breakwater it, between space, nearly and its earth and stone. and under its tracks, tracks, suffi- think,
It is stated we counsel, record, by in 1852 that when the road was located shows, nearly ciently north of lake, all of the lots Randolph -bordering upon had of individuals, by become street, purchase property to the river States, from the United except adjacent parcel had then sold General Government. not been by title all of Soon thereafter the company acquired' addition, water lots the Fort Dearborn north Randolph to the United street, parcel including remaining belonging made The deed for the latter was States. by Secretary “all the accretions made October.14, 1852, and included War, in front of the land or to be made said lake and river hereby other all appertaining conveyed, rights privileges as land.” the United -States owners said company at the established its house designated place passenger lots, of said water the owner 1852, and, ordinance being its out it works north of street, gradually pushed Randolph to the exterior line into the water of the lake speeified shallow line in that feet east of west Michigan 4376 ordinance, , Avenue. . yaileoac!
-In plight approach orcer tijiat, ordinanqe, ^doptpd- council, by camaton passenger depot, ~' TERM, Statement the Case. curve September granted permission tracks the line fixed the ordinance of westwardly 1852, “so to cross said line at a not more than 200 point feet south of north-, street, said tracks Randolph -extending curving -the westerly they the north approach depot, crossing line street, at a Randolph extended, more than point west of line fixed ordinance, accordance feet with the thereof submitted said map plat *15 On file for reference.” This placed was, however, grant upon the conditions: That the out its lay following company upon own west of and its land, house, a alongside street passenger street,to 50 feet from Water wide, extending street, Randolph and fill the its same entire within two from length up years the of said that it ordinance; should restricted in passage the use of.its south the north line of' tracks street, Randolph in the ordinance of when the provided company 1852; shall fill its tracks said south of north of' line that up street down where said curves side-tracks point and the commence, shall its so to fill permission up its it should also fill at the tracks, same time and to an up, all the between the track so filled equal height, space up the lake shore as it from exists, now the north side of Ran- street down where said curves and dolph side- point tracks intersect the line fixed the ordinance aforesaid.” tracks were curved as the street company’s permitted; referred to was and' has ever since been opened used by was done. public; required filling It should, that the have being railroad necessary additional means of its station approaching using grounds between street and the Randolph River, Chicago city, by ordinance 15, 1856, another adopted September granted per- “ to mission enter and line of use railroad erpetuity, and other works the same from the lake, necessary-to protect between its a breakwater and line pres'ent space [then] from said drawn a on south of point breakwater 700 feet line north on extended, thence a Randolph, running' line to the corner breakwater, southeast of' its straight present to the riVér: is Provided, however,and thence permission ILLINOIS. RAILROAD ILLINOIS CENTRAL tt 405 Statement of Case. of said condition, tbe portion
only express given ex- street, south of the north line line which lies Randolph conditions and restric- to all the shall be tended, subject kept as are to the use-of the same, imposed upon part tions as 1852.” 14, the said ordinance June of said line by of the ex- made á outside In slip just 1867 large 1852, line the ordinance thereby extending terior fixed by further River, between street Chicago Randolph occupancy, of this a continuous the -outer the east. edge pier Along on line from line of dock was extending piling placed, feet distant street, north line of river Randolph This line Avenue. formed line Vest Michigan the river and street between Randolph breakwater company’s of what known at the time passage, April as the Lake Front Act; passed legislature and which is over the veto of the printed governor, full- .Laws of 1869, margin. p..245. In view and of the raised, rights' important questions it is in full: asserted, under that here act, given “1 portion, submerged Lake An Act in relation lands and Park adjacent lying Michigan, grounds, on and shore Lake on the east- *16 frontage, city Chicago. the of ern of ‘‘ Illinois, by People represented Be the the State 1. it enacted Section of of Assembly, right, the That all title and interest of State of in the General township thirty- (15), so much section fifteen in and to of fractional Illinois meridian, principal range (3d) of- the third in (14) nine fourteen east (39), Cook, Illinois, Chicago, as city county and State of is situated the of of Row, of Michigan.Avenue north of Park and south the south and east of parallel street, running and four line and west of a of Monroe line — Michigan being a of said Avenue east of the line hundred feet west width, including along strip said the in avenue land hundred of four feet submerged partially the of said Michigan, waters of Lake and shore fee, city Chicago, hereby the said with full granted, lake—are in avenue, power authority convey all tract east'of said of said and to sell and width, upon ninety manner and such leaving (90) said feet in avenue ordinance, Provided, provide: city may,by the said terms as commoncouncil of part thereof, any property, shall be conveyance or That no said sale or approved by of not less than a vote three-fourths valid unless the same be of all the aldermen elect. “ any shall be proceeds and all.of said lands set sale of § ’ ‘ aside, fund, designated as Park "be Pund of and a shall constitute TERM, 1892. of the
Statement Case. n the railroad As caused be early May, company an outer harbor at plait-for Chicago. prepared equitably city Chicago, and said fund shall be distributed the said Division, the council the South West Division and the common between city, the basis of the said assessed value Division of the North divisions, applied said and of each of shall'be to the real estate the taxable divisions, improvement vicinity purchase of said or in the and ^ach thereof, parks, purpose public park, and for no'other of a or whatsoever. Company, right Illinois Central Railroad under 3. The § charter, grant part said in its which constitutes.a from State pays company the said for which at least consideration per earnings, appro gross and under virtue of cent-of its its seven control, riparian ownership priation, occupancy, and the use incident grant, appropriation, occupancy, use control in and to to such running parallel submerged lying line or otherwise east said lands Avenue, Michigan east of with and four hundred feet the west line township range (10) (15), ten fractional sections and fifteen as afore confirmed, said, hereby and all and title of the State of Illinois submerged constituting Michigan, lands the bed of Lake in. and to lying east of the tracks and breakwater- of Illinois Central Bailroad mile, Company, for the distance of one between south line of the pier east-wardly extended and a line south eastward from the south extended twenty-one, south of and near lot round-house and machine line shops company, of said in the South Division of the said- of Chicago, fee, hereby granted, in Company, to-the said Illinois Central Railroad its Provided, however, assigns: successors That the fee to said lands shall perpetuity, said be held and that the said shall power grant, convey same; not have sell or the fee to the and that all use, receipts gross profits, lands’, from leases otherwise of said or the thereon, improvements may or that thereon, hereafter be made shall form part proceeds, receipts gross and income of the said Illinois Company, upon Central Railroad company-shall pay which said forever treasury, into the State semi-annually, per provided centum for in charter, in accordance requirements with the of said charter: And also, provided, nothing That herein contained shall áuthorize obstructions harbor, Chicago impair navigation; nor shall exempt act be construed to Company, Illinois Central Railroad assigns, any lessees or may Assembly act of- be the General passed hereafter regulating wharfage dockage the rates to be charged in said provided harbor: further, hereby And That lands granted to the improvements- Illinois Company, Railroad Central now, or which same, be on the shall hereafter *17 hereafter which leased-by said corpora Illinois Company any person Central Railroad to or tion, may or -which occupied corporation by any person.or hereafter be other than said not, Company, during Illinois Central Railroad shall v. ILLINOIS. ILLINOIS CENTRAL RAILROAD Statement of the Case. the Illinois 12th of the same
On the of Central July year Railroad Railroad Central Company, Company, Michigan occupancy, exempt continuance of such leasehold estate or from of municipal or other taxation. “ Illinois, lands, i. and in All title of the State and to the § street, submerged lying or otherwise north of the line of Monroe south and street, Randolph south of the south line of and between the east line of Michigan roadway and Avenue the track and of the Illinois Central Railroad parts Company, constituting and (10) of fractional sections ten and fifteen' township aforesaid, thirty-nine (15) hereby granted, in (39), said as are in fee, Company, Burlington Chicago, Illinois Central Railroad Quincy Company, Railroad Michigan Cpmpany, Central Railroad depot, assigns, passenger their successors and for the erection thereon of require: purposes may and for such other as the of said business Provided, upon receipts gross Com-, That all Central the Illinois Railroad thereon, pany, improvements grounds, from leases’of its interest said same, per provided or other uses of for in the charter of centum requirements paid, conformity said shall forever be said charter. “ Central, Chicago, to the said Illinois In consideration § Companies Quincy, Burlington Michigan of the' Central Railroad city aforesaid, companies required pay hereby said land as said are dollars, paid in the fol- eight to be Chicago the sum of hundred thousand manner, three months dollars within lowing two hundred thousand viz.: act; dollars passage hundred thousand of this two from and after the act; passage hundred of this two from and after the within six months ; passage act this nine months from and after thousand dollars within and after the from within months thousand dollars twelve two hundred placed act; in the Park Fund of shall be passage this said sums manner as is here- city Chicago, in like and shall be distributed the said' may be provided of the other funds which inbefore distribution conveyed to it this'act.' city lands obtained said from the sale “ hereby city Chicago is author- the said common council of 6. The § Central empowered quitclaim the said Illinois release to ized and Company, Quincy Company, Burlington Railroad Chicago, Railroad any interest Company claim and Michigan and all Central Railroad of Monroe upon line any of the south and all of said land north expendi- Street, aforesaid, virtue have as which the said otherwise, common improvements the said and in case tures and thereon to the said quitclaim release neglect council shall or refuse thus passage aforesaid, companies, from and after the within four months act, obligation discharged all said shall be then the companies pay unpaid city. remaining the balance to said Company contained grants to Railroad 7. The the Illinois Central § that said express hereby condition this act declared to be *18 OCTOBER, TERM, 1892. Statement the of Cáse. Railroad Chicago, Burlington Quincy Company, tendered to an Walter Kimball, comptroller by agent, sum first as the $200,000, the city Chicago, payment the fifth He under section act city that the sum tendered condition received upon express or interest in none of the its waived, city’s rights thereby in on manner the- bank any prejudiced, placed money to await the action and direction of the com- deposit, special mon council. The matter the. attention being brought June 13, 1870, resolution, it. a body, adopted, declaring “ that the will not Walter act of Kimball city recognize in said as and that receiving money, binding city, upon will receive from railroad city any money companies; under said act of the General until forced to do so Assembly, the courts.” The never or nor released, city quitclaimed or offered to to said release, or to either quitclaim companies or in them, claim interest or to title, any right, any land described in the act nor was Kimball’s act ever receiving money city recognized binding it. On the of his term office he did not upon expiration turn the over to his successor but it money office, kept in bank to his own credit, individual and so deposited kept until some time or later, when, during yeár upon the railroad he returned it to them. application companies, other No than the money delivered to Kimball was $200,000 ever tendered the railroad or either of them, companies, of its officers.
At a of the Board of Directors of the Illinois Cen- meeting tral Railroad held at the Company, office New company’s York, 6, 1870, resolution was to the July effect adopted “ that this under the act of the' company accepts grants Company perpetually pay Treasury Illinois Central Railroad sliall into the per gross, proceeds, of the State of Illinois the centum on total receipts stipulated or income derived from said -road and branches in its charter,’ per receipts gross and also the centum on the of said reserved this act. n shall, 8. This act abe act and in from and § force after " ” passage. v. ILLINOIS. 409. RAILROAD CENTRAL ILLINOIS tlie Case. Statement-of session, president give its last at legislature that the com- has. notice.thereof at under the of the lake the shore menced work Chicago November, 1870, referred to.” On 17th presi- grants of this resolution Secretary dent communicated copy the notice therein add- Illinois, gave required, *19 the as an above acceptance by will regard “You ing: please law Front of the above-mentioned Act], this company [Lake that said said shall and it is desired by acceptance in of record office.” The on file and remain your permanently 18, under date of November. 1870: of State replied, Secretary a notice of the inst., the 17th by “Yours being acceptance qf an the under Illinois Central Railroad Company grants in force Illinois, 16, 1869, act of April legislature filed and recorded the records of received duly day this office.”' were certain com- -these transactions proceedings,
Following information filed in the Circuit 1871, 1, about July by menced that District the United of the United Court States Central Railroad Illinois That States Company. against in order information set forth Congress, promote of vessels Lake convenience safety navigating Michigan, from time to sums time, had, expended large appropriated about, in and the mouth River, Chicago money had. from the north and constructed two south extending piers for a into that river considerable distance banks of eastwardly it sum of that, the lake; July, appropriated large at to construct an outer harbor accordance Chicago, money United with of the Department plans Engineer from time to had, time, the railroad States; - lake, of said filled with earth a within wrongfully up portion then done, said that -what had in that harbor; .the company do, what it unless intended would prevented, way,, interfere with the execution plan improve- materially ment the War A adopted by Department. temporary injunc- tion was issued against company. Subsequently, n to that suit entered into from which parties a'stipulation, that the .to in matters said appears information, referred n TERM, .
Statement of the Case. of docks to the construction and wharves in the basin relating formed .the outer harbor breakwater then in city, States, United were referred to the erection by process that the the recommen- War Department, Secretary, upon officers, certain dation lines, engineer approved limiting wharves in of docks and said outer harbor, construction to wit : on the south at the side of the entrance to commencing pier 1200 feet west River, break- Chicago government water thence south an intersection with the ; north line street extended thence due west Randolph eastwardly; thence south to east west feet; breakwater pro- to be constructed United States 4000 feet south posed mentioned, first above line so established pier being fixed as the line to docks and wharves be extended entitled to construct them within said outer harbor. parties The railroad under the proceed, company desiring super- vision Bureau of the United States, Engineer construction of docks and wharves within the outer proposed between the on harbor, the south side of the entrance to .pier *20 and the north River line extended Chicago street, Randolph in with the said eastwardly conformity lines, and limiting hav- to observe said as well as .the lines, directions which ing agreed be in reference to the construction of said might given, docks wharves, bureau, officers of said by proper injunc- tional order, between the pursuant to. stipulation was, parties, 16,1872, vacated, information January with dismissed, leave to the to United reinstate the same .States failure of the to faith, observe the company, good said conditions. the railroad resumed work on, and,
Subsequently, Pier No. 1 year 1873, to the during completed, adjacent river and east of the breakwater of 1869.
On the 15th of 1873, April, Illinois legislature passed which was in- force from following act, 1, after. July 1873: 1. Be it etc., That the enacted, act entitled ‘An act
“§ to a relation and Lake Park portion lands submerged on and lying shore Lake grounds adjacent .of Michigan, v. ILLINOIS. EAILEOAD 411 ILLINOIS CENTEAL of the Case. Statement in force Chicago,’ April on the eastern frontage Ill. Laws of- the same hereby repealed.” 16,1869, 115. 1878, 3, north of and 1881 Piers Nos.
In 1880 Randolph submitted conformity constructed plans were street, the War Department. by approved ordinance The common council Chicago, by approved street and de- extended 12, eastwardly, 1881, Randolph July from then eastern terminus street, to be a clared public west, Illinois Central line of the way the ordinance as established by Railroad Septem- Company, . ber (cid:127). and also . . 1855, eastwardly- . . 10, straight C, line of Lake from the Slip produced southerly easterly to the to construct Michigan;” permission giving within the line of and maintain at its own expense, Randolph tracks and and over street so extended company’s with suitable to be viaduct, a approaches, way, bridge Works, of Public should the Commissioners which approved all and to occasion free to the having be forever persons Such viaduct thereon. was bridge repass pass and in constructed in order that process necessary piers breakwater of 1869 be. east of the conve- construction might built in 1881, The viaduct was reached teams. niently It has been of Pier ever since used to the base extends the public. that in from the evidence pier,
It appears line, extended, street north from Twelfth wrasbuilt the centre south as line Six- far of lot continued extension, main of this teenth street. according object towas the tracks made company, protect the showing from northeast. Another waves storms during of the south line or basin south was to construct slip object *21 the>shore, and where vessels the breakwater of lot between 21, to be materials for the loaded with company, freight having In a enter and safety. 1885, could handled, pier . street, at the foot Thirteenth
constructed company to War and submitted Department; according plan did not to its construction, object department provided 1892. TERM,
Statement of Case. as in its location and The no be made change length.” pier, from that not differ does constructed, approved, proposed ,does it it that is wider feet. But except by fifty appear as that in the the "War regards change plan Department as with the interfering injurious navigation, plans for an outer harbor. government court
At in the was used below, hearing map the different works constructed by purpose showing of all States; United the location structures buildings erected the railroad with the date of their erec- company, and the relation of the tracks and breakwaters of tion; and, to the shore as now some as it is, extent, company was heretofore.
That known as the Morehouse and called map, map, on substantially reproduced page
The asks a State, suit, decree original establishing its title to the bed of Lake confirming Michigan, sole and exclusive the harbor of develop Chicago, by of docks, wharves, etc., the construction the claim against the railroad that it has an absolute title to said company described in the lands, act of submerged right— to the of the United subject paramount States in authority re- — of commerce spect between the regulation States fill the bed of the for the lake, of its purposes business, east of between river and adjoining premises the north line and also street, north of the Randolph south line of also, Lot 21; and, right, by constructing maintaining wharves, docks, etc., to piers, the shore improve of the lake, of its and' for purposes business, the promotion, gen- of commerce and erally, The navigation. State, insisting without has, right, erected, proposes continue to erect, wharves, piers, etc., the domain of asks that such unlawful structures be directed'to be removed, enjoined others. constructing city, by cross-bill, insists that since June 7, 1839, whén the of Fort map Dearborn addition was it has recorded, had the control use for public and. of that purposes part section 10 which lies east of and. Michigan Avenue between *22 TERM, Ayer’s Argument Company. for the Illinois Central Railroad
Mr. section that, street and fractional fifteen; Randolph town of. it has had successorof the Chicago, possession when the 'of 13, 1836, control since June Fractional map, *23 in recorded, 15 Addition of the lands that Addi- Section It tion north of block 23. asks a decree that it is declaring fee, the and of the thereunto owner riparian rights apper- all said has under lands, legislation, taining, existing the the the exclusive harbor develop Chicago docks, construction of wharves and and to levees, dispose the or and that samé lease otherwise as authorized law; the railroad from with its enjoined interfering said rights,and ownership.
The railroad each State the city, company,' ap- final decree. pealed
In the some were taken and cases ai’guments, points many thereto, cited which not noticed or referred to in the opin- ion of the court infra.
Mr. F. for the Illinois Central Ayer Railroad Benjamin Company.
I. The railroad in the information with charged an invasion of the interest' of the State in the bed proprietary of the lake. The encroachments of are complained upon asserted property Staté, and jusprwatum upon publicum control over navi- jus governmental waters vested in the gable public There purposes. is a broad distinction between a violation of the public right waters and an navigable invasion of the interest proprietary The one creates sovereign. nuisance; other purpresture. II. The complainants
. allege admits, respondent the admission of Illinois into in 1818 the Union title to bed of Lake of it or so much as lies Michigan, within the boundaries of the became vested State!
Upon the British separation Colonies America from th’émother succeeded country, they States sovereign the title the crown in the tide their waters within terri- v.
ILLINOIS CENTRAL RAILROAD ILLINOIS'. 415 Ayer’s Argument Company. Illinois Central Railroad Mr. publicum n Both the limits. torlal prvo'atum, jus jus then had before been vested crown and parlia or in the local established under the ment, governments royal vested'm the became several States. sanction, They acquired of the soil under but not only waters, ownership navigable also the control authority legislative regulate rights All which before public. prerogatives powers either the crown or became imme belonged parliament, 367; vested in the State. v. 16 Waddell, Martin Pet. diately v. v. 71; 18 How. Corñmonwealth Maryland, Smith Alger, 93 Boston, 39; Cush. Nichols v. 98 Mass. S. C. Am. 53; 7 132; Co., v. Dec. New York & Staten Island People Ferry 71; N. Y. 93 N. York, ; New Y. Langdon Mayor v. Patterson and Newark 34 N. J. Law Railroad, Stevens (5 Vroom) tó under but cases relate lands tide waters; foregoing enunciated are principles equally applicable navigable *24 the flow of the tide. v.
waters above St. Clair County Lovings 23 v. 94 U. Packer v. 46; 324; Wall. S. ton, Keokuk, Barney Bird, 661; v. S. Jordan, U. S. Hardin 140 U. 371. 137 was authorized
III. The Illinois Central Railroad Company and a railroad charter to out construct and by lay required exten- road, To aid in into building city Chicago. made the State to of land were Company sive grarits — 3. said The them,'the corpora- following: among “Seo. to its cmd shall have of way appropriate tion upon, may herein, land for the úse and confrol purposes contemplated sole width, entire hundred feet in two through exceeding all and use enter and take possession length: may kind,, materials every streams and lands, singular any for the purpose stages, the'location stopping depots . . station . dams, embankments, bridges^ constructing and other turn-outs, shops . . . engine-houses, grounds, construction, altering, completing, buildings necessary of said road. operation complete maintaining, preserving materials lands, All waters, privileges belonging said to said State, corporation hereby granted purposes.” ' TERM,
416 Ayer’s Argument Mr. Company. for the Illinois Central Railroad The effect these words is to invest the obviously company with a title all the lands to the State, complete belonging which taken for should be men required purposes tioned. Potomac Steamboat Co. v. Potomac Steamboat Upper 109 Co., U. S. Van Ness v. 4 672, 680; Pet. Washington, 232, 284.
The to its use the appropriate lands of the is coextensive with the conferred power the same section of the charter to acquire by purchase n condemnation the lands of The owners. latter private exercised time continuing power time as the necessities of the company may Chicago require. West. Indiana v. Railroad, Railroad Illinois Central ; 113 156 Illinois, v. Wil Chicago, &c. Railroad Burlington Illinois, N. son, 123; Y. & Harlem Railroad Kip, Y.N. 546 .
IY. The consent of the common council of Chicago location railroad within the was city, required section of An charter. ordinance eighth company’s that consent was June a formal granting passed contract under seal was entered into between the railroad com- which it was covenanted that the ordi- city, pany should be of nance and that each perpetual obligation, party would abide all the therein perform con- obligations tained to the true intent and according thereof. meaning The assent on conditions which were given extremely burdensome, but have been with. they fully complied was located railroad and built in the waters the lake open of fractional front sections ten and fifteen, as directed by the common council; and the had been peaceable *25 of the possession for that grounds appropriated purpose, onq hundred in feet width on the east exception strip of the side railroad tracks, for before the com- thirty years mencement of this suit. The shows that the ordinance proof was accepted railroad by The did company. company not all the land title immediately described; but the occupy is to land not lost it in its state without by natural leaving Potomac Steamboat v. Potomac improvement. Co. Upper v. ILLINOIS. RAILROAD ILLINOIS CENTRAL 417 Company. Railroad Ayer’s for the Illinois Central Argument Hr. v. How. Lecraw, 17 684; 109 U. S. Boston Co., Steamboat 498, 504, v. Howell's Pet. 426, 436; Lessee, Barclay ' much, as of the land took so The company possession needed. When more became necessary was then business, it take Conduct of its possession proper attempted of the of the the interference rest, by prevented, — did not but the action by city—for city object which has control of the ^harbor. War Department That election there was company relinquish that the feet, the additional one hundred company city against claiming rights any way estopped submit, net war- conclusion, is a and'State, respectfully we in the record. ranted evidence by any all land it had title to The railroad Y. company’s line of the east west reclaimed from the lake lying -was confirmed fifteen, ten and in fractional sections railway law, is as A confirmation the act of 16,1869. April if it contained á all intents grant, fully purposes 410; v. 12 Pet. Lucas, terms a de novo. Strother grant 319; 2 How. v. Carter, Astor, Ryan Grignon's Lessees v. S. 551. 95 U. 78; Whitney, U. S. Morrow was made act a further the same YI. By terms: All railroad following- in and land Illinois submerged title of the State of east Lake the bed of lying Michigan, constituting Railroad Com- of the Illinois Central tracks and breakwater the south line of one between distance mile pany,' a line -and éxtended extended eastwardly south pier near to south line of lot the south eastward from in the of said and machine the round-house shops are hereby granted, division south Chicago, n fee, its successors to the Illinois Central Railroad Company, and assigns.” to transfer,- intended
It is manifest the legislature in the State had interest which act, all proprietary words used to the railroad granted company. premises and import words of grant, clause present granting re- is no There an transfer of title. subsequent immediate CXLVI—27 VOL. *26 1892; TERM,
418
Ayer’s Argument
Mr.
Illinois Central
Company.
Railroad
clause. The
straining
admits,
language
therefore,
no other
v.
21
Schulenberg Harriman, Wall.
interpretation.
44; Leaven
Lawrence &c.
worth,
Railroad v. United States,
VII. The of the act of did repeal 16, 1869, not divest April 'the title had become vested railroad company. Private which have vested under a act rights legislative not affected law, cannot be repeal annulled A State does subsequent legislation. possess power own revoking-its grants.
It has been for more than the settled eighty years doctrine of this that a land court, made a' State and is an accepted by grantee contract, within the executed of that clause of the Constitution of the protection United which declares that States, no shall law im- pass any of contracts. v. Fletcher 6 obligation Peck, pairing Cranch, 87. and to be secure property, acquire of it when lawfully has been
enjoyment acquired, placed encroachment beyond the United legislative everywhere States. In some form of words, constitution of every State contains a no shall be provision, person deprived of life, without due liberty property, law”; process and since the of the Fourteenth Amendment adoption, same check on the abuse of has power legislative been Constitution of United States. provided by That railroad are within’ corporations purview this court. Santa settled provision decisions by repeated S. 394; Clara 118 U. Railroad, v. Southern County Pacific S. 26; U. Minneapolis Beckwith, & v. St. Louis Railway Charlotte, Gibbes, S. Columbia &c. 142 U. Railroad on the 15th 16, 1869, April
‘The repealed was. Ej,ct -of of four 3873. During intervening period years thé A¡j>r¡3, ILLINOIS. RAILROAD v. ILLINOIS CENTRAL. City Chicago. Argument
Mr. Miller’s vested in railroad land in controversy title to *27 be.' unless shall title, still holds the The company. of. law.” due act was process held repealing of for the John S. Miller City Chicago. Mr. expendi of large
It is a matter knowledge common in the made of city improve tures have been Chicago by States'not harbor, appropriated United having ment of street of the Rush harbor west for this or spent any money Escanaba Co. river,. the mouth which is near bridge, has of Illinois that the State v. U. S. 107 Chicago, .and for that never money purpose. any spent interests to its addition has, property upon The-city and con- herein an interest and protect lake front, standing from encroachment this harbor appropriation serve great uses. to private uses, owner in in trust fee,
It is public also north line of Ran- south in section 10, grounds 15,- lake, shore section street, upon dolph as such is entitled to the Park, and rights' known as Lake this of the shore The invasion upon owner. of riparian street was the result of' south Randolph public ground at the mouth the river. the government piers building artificial unaffected these of the waters, The natural effect by but front, was to cause accretions pauses, along of these created the construction piers current by storms, caused avulsion off of the effect by turning but wa-s, suddenly the shore not imperceptibly, perceptibly carried away. the Illinois when This invasion of the water up ownership.
Central Railroad was constructed, changed had Steamboat Potomac Lecraw, ston v. 426; 17 How. Bo And- 672. S. Co. v. U. 109 Co., Potomac Upper Steamboat well as this faet was the railroad company recognized'by the agree 14, 1852, ordinance June city, ment-made in pursuance thereof. has all
i shore, the owner rights thus city, being TERM, 1892. 420 Argument City Miller’s Chicago. Mr. and its owner riparian includes additions ownership natural
to the
made
accretions
shore
art or
industry.
Howell,
. The to the to establish grant city power wharves and in aid of commerce and slips navigation, was, by necessary the. lands implication, grant which such wharves and slips might established, taking effect when structures of that kind were erected. Williams v. 105 N. Y. The same be said Mayor, of the grant the act of 1847, to build the power break water. Such which is within riparian right property *28 constitutional v. Milwaukee, 497; Yates 10 Wall. protection. 1 Dutton v. 23 Strong, Black, ; Co. v. Renwick, 102 Railway S. v. 180; U. Railroad Schurmeir, 7 And it would Wall. 272. not be for the competent legislature the grant away adja under cent soil the lake to a or private person corporation, and thus cut off the of'the shore owner. This riparian right and the access,-and to maintain1'them to his adjacency right and to and the advantage, them, preserve improve enjoy land, ment of the of the water in connection navigable is the essence therewith, Stevens v. riparian right. & Patterson Newark 34 Railroad, N. J. L. 532; (5 Vroom,) 3 E. Case, (18 C. N. J. Green, v. Keyport 516; Eq.) Lyon 1Co., 662, 672; Cas. Fishmongers' Potomac App. Steamboat Co. Co., v. Potomac 109 S. 672, Steamboat U. Upper the contract made the- railroad
By the the ordinance of June (cid:127)city by 14, 1852, agreement Maroh owners city rights property acquired furtherance w’hich was use to this property special devoted, which could not be break- They impaired. got water1 or barrier line and shore along shore,"fixing this trust from encroachment. And protecting property city, had to erect riparian' proprietor, authority implied wharves the broad or levee street; along public ground the' of a shore, was dedicated for the landing- purpose
n ILLINOIS RAILROAD ILLINOIS. CENTRAL City Chicago. Argument Miller’s
Mr. of the it as a street would and, by authority as.well place a for incidentally, charge seem, had, right compensation Wall. 389. It is Co., Atlee v. Packet clear their use. a not to the Illinois could Central way grant legislature under the over the soils' waters navigable Railroad Company in front of this ground. harbor and its inhabitants this lake front If the rights in front thereof are not in the harbor within ground because how they public, the constitutional protection, is that true of the act more much subject-matter and of the act, 1869 ? The subject-matter .of alleged to the Illinois Central Railroad made thereby Company, The bed of Lake so far was Michigan, strictly publici juris. is not affected with same rights as the riparian of the State of Illinois their held by is owner, people de in trust communi wholly capacity, jure, sovereign for which uses, adapted. public, the State held the same proprietary And ,a and was not as to or as demesne, large private into the water of lake, a mile tract, deep open extending outer and entrance to the inner harbor, and composing commercial a ’a subject private harbor of great city, or contract. grant, a a which draws distinction jus pri between doctrine
vatum, or a ownership publicum, dividing jus in the bed of waters into of the sovereign navigable *29 is which have and a alleged right, public private have no in our insti the can existed in law of place England, the of the State this country tutions. The rights people —are over the waters —their jurisdiction sovereignty it law of not the common England prevailed by governed our as modified but Revolution, by the the colonies before Pet. Lessee, 367, v. Waddell's own'institutions. Martin 229. 212, v. 3 How. Lessee 410; Hagan, Pollard's . under of the soils the The ownership people different from nature, is, waters entirely navigable or or the demesne of sovereign title to the lands public is above said, not shown what State. That only by. is.
Í22 TEEM, OCTOBEE 1892. Argument City
Mr. Miller’s Chicago. authorities but is this court in quoted, emphasized by Pollard's Lessee 3 How. Hagan, 212, Weber v. Harbor Commis 18 Wall. sioners, must
It clear, therefore, that country of the State in the soils ownership under people waters is and in navigable trust wholly publicum jus uses. And further, at time of the 1869, act of passage no' docks or could be wharves extend into the permitted n lake more feet than 1300 the line was (where established by of the United States in without engineers 1871,) seriously encroaching upon This must public right navigation. be held to have known at been time the' of that passage act. The States United government breakwater, .which was built as an outside breakwater, to enclose and the har- protect bor of from the violence of is refuge about lake, three- fifths aof mile from shore, and the dock line established the United States as the limit engineers beyond docks should be built, between which and the shore there would be in which vessels could enter slips ride, about 1300 feet east of the shore. water at-this is not point within an arm of the ; lake there are not points projections of land within which these enclosed; waters’were this entire one and four-fifths miles of the bed of Lake square Michigan was under yvaters of open, the lake. deep navigable It awas and as such free public port, common law.
It does not the case railroad help herein to company the British have made say such a might grant, Parliament and that the of Illinois has in that all legislature respect, Parliament did make such powers never parliament.. And if could make the under grant. parliament grant its same constitution, so absolute it English could power take Parliament therefore could not make such away. an irrevocable as the railroad here claims.
Neither did the act 1869, constitute a contract April between the' State and the railroad within the mean- 'section article 1, of Constitution ing protection the United States, of laws prohibiting passage impairing *30 v. RAILROAD ILLINOIS. CENTRAL ILLINOIS 423 . Argument City Chicago. Gregory’s Mr. . It did contracts. not invest the
the
company
obligations
the
soil
bed of the lake in the
with such
rights
property
which is covered
act,
of the
the
harbor
city
Chicago,
Fourteenth
as within
meaning
protection
is
if
act,
sustainable as
Constitution.
Amendment
because it invested the railroad
can be sustained
valid,
only
as
with certain
trusts
a
strictly public powers
company
without
and for the
consid-
public
Being
agency
good.
public
will
mere
revocable at the
license,
was a
eration,
legis-
if
railroad
it authorized the
make
lature,
company
any
was
bed of the lake.
It
use of the
purely voluntary.
private
on the
railroad
It created no
part
obligation
company.
and this
act
1869
The charter of
railroad
the railroad
construed
are to
strictly
against
company,
an
and'
nothing by
implication
necessary
give
are to be construed
sovereign
unavoidable. Grants
are not to be
as
understood
they
strictly
grantee;
against
is taken
what
beyond
away by necessary
diminishing
rights
1
Rebeckah,
construction. The
C.
It repealing Moreover, if the act of act of as the entire valid, be held to construction 1869 could, upon give proper beneficial any railroad right, right extinguishing arises from the exercise right, affecting public use of over públic navigable legislature police power And welfare, and is revocable. waters, the public Gommon- act is.the exercise police power. repealing The soil under 95.. navigable weaMh' 7 Cush. Alger, communi, the State, held waters people dejvsre being their inherent for the common use, portion trust their use relates act of affecting sovereignty, legislation is, welfare; affects the jus publicum, exercise therefore, police power.
Mr..8. Chicago. 8. Gregory *31 TERM, Í892. . Gregory’s Argument City Mr. Chicago. for the of section 3 of the railroad it was By charter, company’s pro- “ vided that the should have the of corporation way upon right and to its sole use and control may appropriate pur- for. land not poses herein, two hundred contemplated exceeding feet in width its entire and .enter through length; upon take and of, use all and lands, streams possession singular and kind, materials of for the and location of every depots stop- for the of em- ping dams, stages, purpose constructing bridges, bankments, excavations, banks, station turnouts, grounds, spoil houses, and other for the engine shops con- necessary buildings struction, com- completing, altering, maintaining, preserving of said road. plete operation lands, All such waters, materials to the privileges belonging hereby granted said for said corporation purposes.” to the rules of
Having regard construction apply of from the grant corporate State, it powers privileges cannot be maintained that this successfully in'the provision charter would confer to invade any right upon corporation n the bed waters of Lake its of track Lake Michigan, its bed. The section concludes with a upon Michigan pro- viso construction of the act warrant which would against any said streams.” of company interrupting navigation It is also, that this charter quite apparent, contemplated the railroad take a of land company way right should two hundred feet in and that the exceeding width, of land, waters, etc., the State to the belonging corporation — us,e was for such' purpose namely, way right control for the of a railroad, purpose contemplated by charter.
Between street and Park Randolph Row railroad com- has, therefore, pany under charter. merely right way Prior to this location, the within territory being concededly limits of corporate the railroad com- city Chicago, pany applied obtained common the consent of its council to the limits, location of its road within the city entered into an 28th with that dated the agreement body, March, 1853, width, location, hundred feet accepting three from the southern near Twelfth boundary public ground RAILROAD ILLINOIS. CENTRAL
ILLINOIS City Argument Chicago. Gregory’s Mr. street.” line Randolph northern to the
street width, aof avail itself full right way fit to not see did on the took a feet, but, contrary hundred right of three way and constructed feet, breakwater or hundred shore of two east from the western hundred feet two line of its protection hundred feet, three as it instead of have might of way right not under its ordinance, though charter, done under this to use as thus limited continued way has since and defined. true the railroad therefore,
It is not, as was fee of way, argued owner *32 be in this court. It below, court had may argued perhaps in which way land, an easement neither right merely nor railroad, conferred affected right upon riparian the land owner of over right right 2 Wall. v. 57. The. Ogden, extended. Banks riparian way in the city. right a fair obvious construction of the would seem charter
It a would include to build wharves right city powers if or the east it front, side, lake be so called, on the may to be That seems' the clear Avenue. purport Michigan court of this Steamboat v. the decision Co. Upper Potomac S. Co., 109 U. 672. There was a Steamboat Potomac legisla the dedication of this effectuate as tive public grant purpose water front or authority improve public landing place, full which was to vested in the control be city, municipal harbor was to be committed to over which and thé adjacent the city. in the are held it these at
If be conceded that rights it be said, then that ex- may the pleasure legislature, that if the act of the course of argument, tent anticipating similar rights as privileges be construed devolving 1869 or substituted another public as railroad upon com- them city, thus withdrawing agency, (cid:127) the to hold those upon considered rights should be pany substitution; to this tenure city, prior as same is to be bed of the lake regarded in fee of the and the grant wharf, expressing as aid dock right wholly (cid:127) TERM, 426 1892. Gregory’s Argument
Mr. City Chicago. tlie what, by only would have with- necessary implication, passed out formal grant.
It is not contended that these lot have owners strictly in the technically riparian but are bene rights premises, they ficiaries of trust created and have dedication, as insist, held this court, execution. upon specific 6 v. Howell's Pet. 498. Barclay Lessee, The rights abutting lot owners to insist dedi upon appropriation property cated to a use accordance with public such' dedica specific tion is fully casés: Trustees v. recognized following Walsh, Illinois, 368, 369; 57 v. 118 Co. Maywood Maywood, Illinois, v. 61, 72; Jacksonville Jacksonville 67 Railway, Illinois, v. 540; Moose 104 Carson, 431; N. Car. Zinc v.Co. Illinois, La Salle, 411; Cincinnati v. White's Lessee, Pet. 43 1; 94 U. S. Barney Keokuk, 324, 339, 340, of a hold the soil under its navigable waters for all is exclusive. If it holds title municipal purposes to such lands trusts for it be that it has use, to release to an or a individual such title as power corporation has, the trust estate from the exe- thereby emancipating trust with cution’of the which it but1 stands substituí-' charged, trustee of this trust. would Such ing grantee - the effect of other legislation authorizing any public agency, *33 or as the of the- railroad Chicago, perhaps company, undertake the construction of wharves and docks in aid of and in of execution the to which navigation, trust, public subject title the land under in waters rests the State. navigable this is far But to that the State as say saying proprietor, or the of a State in law the exercise legislature of by plenary such as is the of legislative power, enjoyed by parliament title to the of bed In waters. England, grant navigable as such is in so’far made aid of grant of navigation, by way flats which are an obstacle or of shore granting navigation, of which a aid to exercise is privileges, positive navigation, the State within as trustee for the acts its duty clearly great to its title. trust public attaching in which it is
As a sense of proprietor proprietor for the to which rests in State of title sale lands, purpose v. RAILROAD ILLINOIS. ILLINOIS CENTRAL Chicago. City of Gregory’s Argument Mr. to the bed of title water it has no whatever
and disposition, of navigation. the purposes actually navigable required cited as to in the case (cid:127)Its referred interest, while proprietary, is It not the is municipal. subject sovereign essentially is law not but of law, by disposition regulation in but in so far as at- as is the case unrestrained England, of the trust for is in public navigation, tempted derogation clause Federal commerce absolutely prohibited by Constitution. American, will history jurisprudence' .not
Probably a which an State to abdicate reveal case attempt by title to the bed of a extent great navigable sovereign of commerce and water manifestly required purposes or has been either made a sanc- navigation, legislature a the courts. Treated as a tioned by grant by proprietor such would be because has inoperative legislation grantor an no title as he Treated as ex- such attempts convey. it would be ercise legislative absolutely sovereign power Constitution, infraction void as Federal No positive and no reasonable con- case, such made attempt act struction of review will coun- legislative permit under sel to tax the of Illinois with a wanton justly legislature abuse of breach of high gross important power trust. public
All the
cases
State
have
although
may.
establish
a'
bed
sense measure-of
right
navigable
proprietary
waters within its
boundaries,
sovereignty,
pertains
right
thereof confers no
dominion
-such
a-grant
ownership
lands of the
State sub
as a
grantee
grant-
also
iá
riparian
Such
ject
qualified
disposition.
all
at
of shore owners
owner
depend upon
do
rights
,is a valu
the bed
the water. Such
ship
riparian
impaired by
able
be taken
which cannot
property right
estab
firmly
This
.without compensation.
principle
this court
lished in
this country by
-adjudications
modern
Dutton
Strong,
authority.
great weight
*34
1
v. Schurmeir,
;
428 Gregory’s Argument City for Chicago. Mr. v. Rutz, St. Louis 138 U. S. 57; Wall. Union 236;
18 Depot 31 Brunswick, Minnesota, Miller v. v. 297; Mendenhall, Co. Burton 105 Minriesota, 95; v. Richardson, 351; Mass. New York & New Rumsey England Railroad, N. Y. the State 'to the railroad -by grant wholly in the When, it discretion, legislative exercise gratuitous. that those for which public purposes, regard appeared sug- of these to the railroad gift powers gested company, might better served their withdrawal, was be clearly compe- due tent legislature, having regard property to the attached their in the in- gift rights subject hhd to resume terval,. license to subject permit to control these essentially municipal franchises.
Neither the of the Fourteenth Amendment, nor provisions that clause the Federal Constitution which forbids a State a law to of contracts in passing impair obligation affect this exercise-of anywise discretion. legislative The State did not to the the fee bed of attempt convey lake, Its derogation public right navigation. the bed of sovereign water legislative right convey limited actually in the navigable clearly clause Con- stitution conferring com- upon Congress power regulate (cid:127) to this clause Subject plenary power merce.. lake, bed in aid commerce adjacent shore, must be conceded,, navigation also, however, subject subsequent regulate legislation, control the use to which so bestowed property might put .the .by grantee.
The constitutional involved in on a questions this case"arise consideration effect act of validity the repealing 1873. The had no under April property rights in so far the.act as it acted thereunder and except filled waters of Lake built wharves Michigan, and other erections thereon in accordancé with the permis- sion therein To contained. the extent that its property rights it was the decree of the attached, actually fully protected *35 v. ILLINOIS CENTRAL 429 RAILROAD ILLINOIS.. Argument for the State. Mr. Hunt’s Court. v. & Lowell Rail Circuit Boston Attorney General 118 road, Mass. 345.
Mr. General Hunt, George Attorney State of Illinois.
I. The lake front act was never passed by legislature. II. of that act was not its title. The subject expressed to The had no hold the sub III. railroad power 119 Illinois, lands. Ill. Cent.Railroad v. The merged People, 83. 137; Illinois, In re 119 Swigert, all The of 1870' charters
IY. constitution existing repealed to which were grants privileges corporations, special constitution took ten after the new not within days accepted effect. additional no
Y. There was acceptance corporate the lake within the time limited under front by powers act. the constitution. it not Under constitution of 1848 was
YI. competent to the Illinois Central for the General Assembly grant a' land in mere the title Company question by legisla- tive without the of'the act, approval governor. the railroad No was conferred
YII. right for. the harbor railroad St. its charter by purposes. usq 43 303. Trustees, Illinois, Louis Railroad &c. v. clause conferred The act of 1869-by confirmatory
YIII. ’Illinois Railroad v. Irwin, Illinois, no Central new right. 452. in the navi wharves to construct piers IX. not does harbor pass grant waters gable: authority duty city land.' The submerged of streets and has extension piers the harbor develop of its nor has been been taken not therefore away, deprived in front of the as owner of the public ground riparian rights New 68 N. Y. Co., 71; v. harbor. v. Langdon People Ferry 4 . 14 York N. Y. City, in the harbor X. The and construct wharf- piers not arise does land, with the passing submerged TERM, .480 1892. Argument Company.
Mr. Illinois Central Jewett’s Railroad from the words and that proviso, implication impli is not of sufficient force to cation of its deprive power and to extend streets as take away piers,, riparian rights e of the shore owners. Perrin & Delaware Chesapeake 9 How. Canal,
XI. to wharf in the even if harbor, Tlie-right given act 1869, was-revocable, and was recalled repealing *36 1873. act'.of
XII. The State of Illinois did not
possess
power
these
lands,
harbor of a
submerged
underlying
great city,
to a
Martin v.
I. common law The doctrine in to the respect ownership, control and of' land under waters disposition tide pre in this vails' and is, decisions of this country by repeated court, made- to the bodies of fresh applicable water, denominated Lakes,” which are treated-as Navigable “Inland Seas.” “Great. in The of all rulé such bodies water is, that the title respect under land the waters right-of disposition within their are States respective jurisdictions, vested several . their as-such States v. Mas sovereignty virtue Manchester 139 U. S. sachusetts, Smith v. 18 How. 240; Maryland, 71; v. 94 391; U. S. McCready Virginia, Waddell, 16 Martin v. 367; Pet. Hardin v. 140 U. Jordan, 371; S. Goodtitle v. 9 Kibbe, How. Doe v. 471; 13 How. Beebe, 25; Pollard’s Lessee v. 3 How. v. 6 Hagan, 212; Wardwell, Wall. Mumford Weber Harbor 423; Commissioners, 18 Wall. St. Clair 57; v. v. 23 County Wall. v. 94 Lovingston, 68; Keokuk, Barney U. S. The Genessee 324; 443. Chief, 12 How. The owner,
II. in the absence of restrictive riparian legis- CENTRAL RAILROAD v. ILLINOIS. ILLINQIS Argument Company. for the Illinois Central Mr. Railroad Jewett’s connect, line, his shore means lation, has the in the constructed shallow' waters docks, wharves, piers land, his waters which (cid:127)immediately bordering well his own interest as in fact, navigable Yates 10 Wall. Milwaukee, 497; terest of the v. Weber public. Commissioners, 18 Wall. Dutton v. 57; v. Harbor Strong, 7 Wall. Schurmeir, Railroad Black, 23; Company III. maps recording plats making Dearborn, .of the Addition to Fort Chicago,” by authority and the sale and all lots States, United conveyance States divested United map designated upon plat, over the land so subdivided of all' and authority jurisdiction, to the and of the incidents of sold, pertaining ownership lands. The jurisdiction thereby passed sovereignty lots the State of Illinois, ownership conveyed, and the title to the streets, alleys purchasers, on the to the municipal designated corporation grounds plat, act of trust use Every public. Chicago, the State these absolutely accomplished, within powers unexecuted, should Every power agency, subject respect. *37 East revocation, either by expressly implication. Hart 511; v. 10 How. Von v. Co., Bridge Hoffman Hartford ford Wall. 4 535. Quincy, of of and fractional
IY. The
recording
plats
making
^the
and of
addition
section Í5 addition
Fort Dearborn
to\Ohicágo,
of
in those
additions,
and
sale
all
lots
Chicago,
owners,
'accordance with those
divested
former
plats,
case,
were the State
one
United
although they
title,
their
and estate as
case,\of
States in the'other
right,
all
in said
the streets
additions,
individual
including
proprietors
and
jurisdiction
sovereignty
public grounds;
of
addi
United
over the land
Fort Dearborn
States
comprising
the,
sale of
record of it
was
tion,
plat
In the
of
lots,
making
absolutely
recording
extinguished.
were
States
sheet
State
the United
acting
plats,-
pri
vate
to the same extent that a
owners, and
law'
subject to
Mir. Central Railroad Jewett’s act of the 1869, Y. general assembly April 16, relation a entitled “An act in to. portion submerged oh, and Lake Park grounds, lands lying adjacent of.Lake on the eastern shore Michigan frontage known as “the Lake Front commonly act,”, Chicago”- act a valid a constitutional legislation, passed .was way. effect must tie Due therefore as such. To this ex given of Mr. tent the Justice and the decree entered Harlan, opinion direction in this case, his contention of the support-the Illinois.Central Railroad See also Company. Schuyler County Illinois, v. The 25 v. 38 181; Wabash People, Railway Hughes, Illinois, 174. ' The Illinois YI. Central Railroad was in no need Company ”' Act as the Lake Front a act.' Its confirmatory rights, act, far as covered as a so were confirmatory one, fully n charter. The confirmation a. original was protected of its A com- recognition existing rights. grant, originally not made confirmation. plete,-'is stronger by- subsequent n the act' Still, with all its confirmation, conse- accepting it is insisted that confirmation of respectfully quences, existing not the chief the act itself. This rights-was purpose assumed from its safely positive provisions. n Front The Lake act, YII. coupled acceptance made, it, accordance with its completed grant,'in terms, effect"in No further act on'the presentí. of 'the 'taking part nor itwas required, necessary perfect .was grant. Greene, ; v. Wheat. v. 196 Harris Board Rutherford Illinois, 445; 89 Illi Lavalle Supervisors, Strobel, . nois, 370 n the, The Act General YIII. State-of Assembly Illinois, 15, 1873, “.The April Lake purporting repeal act” of Front void, and did April absolutely could noC not and divest title and operate rights *38 Central Railroad to it the earlier Company, granted by Illinois fthe of which it act, had provisions formally accepted v. acted Fletcher 6 Peck, New upon. Cranch, ;87 v. Jersey 7 Wilson, Cranch, 164; Von Wall. Quincy, Hoffman 535. RAILROAD v. ILLINOIS. CENTRAL ILLINOIS Opinion- of the Court. the court. opinion delivered Field
Me. Justice a 1st in March, suit was commenced on the This bill in an information Illinois, Circuit Court by equity, the the name of filed General of by Attorney a the Illinois its Central Railroad Company, people against created under its laws, city against corporation a United States were also named as The party Chicago. and it was . but never defendant, suit, they appeared them in as without their consent. a impossible bring party The arose from the acts and claims alleged grievances solely but was made railroad company, city Chicago a because its defendant interest subject litiga- The railroad filed its answer the state tion. court company term after suit, at the first the commencement its the case was removed Circuit Court petition District of Illinois. of the United States Northern to the suit filed its In May following city appeared of fact in the" A all the bill. answer, allegations admitting to remand the case motion subsequent complainant 16 Fed. The the state court denied. Rep. plead- altered in various An were afterwards particulars. ings (cid:127) filed Gen- Attorney amended information bill was affirmative relief a cross-bill for eral, city against filed The latter cross- the State and the appeared coippany. General for the bill and did the it,'as Attorney answered State. has. Each party prosecuted separate appeal. is to obtain determination the suit judicial object front, on the east or lake the title of certain lands- River and situated between Six- Chicago Chicago,
n from the street, which been reclaimed waters of t'eenth have warehouses, lake, and are the tracks, depots, occupied by arid other used the railroad structures piers and also óf the title claimed business; lake, bed of the lands, lying submerged constituting the east tracks, within the limits of city, corporate mile, the distance of a line of south between south near a line pier River extended eastwardly, Chicago
VOL. cxlvi—28 *39 TERM, (cid:127)
Opinion of the Court. n in the same from the extended, direction, line of lot south and machine near round-house company’s shops. of determination the title of will involve a for its- construct, consideration of own business, fight well as convenience, wharves, and docks in piers the harbor. that, We with the court below to a clear understand agree n in of the numerous it case,
ing presented questions trace title the several necessary history parcels of-land- And the court, claimed company. elaborate for that Fed. referred (33 730,) purpose Rep. opinion, to the and of the United States and State, legislation to ordinances of and thereunder, proceedings the. with stated, minuteness material detail, every great provi sion of law and have taken. care every step great We over' the with its detailed and are satisfied entire gone history - would, It therefore, serve no useful accuracy. purpose what in our- is, narrated. In repeat clearly opinion, fully what' we of the -railroad may say rights company, arid after the city, legislation remaining we shall taken, assume the correctness proceedings history.
The State of Illinois was Union in 1818 admitted-into the on an with the' States all eqpal footing original respects. Such was one conditions of the cession from Virginia n ofthe northwest of the Ohio Eiver, out of which the territory was formed. State But the would have equality prescribed if had not been existed thus cari There be no stipulated. distinction between the several States of the Union character of the jurisdiction, and dominion which sovereignty they possess within persons subjects exercise^over -their limits. respective' The boundaries of the were State prescribed by Congress in its accepted by'the origi- nal Constitution. are bill. It sufficient They given for our their purpose include within they observe Lajre eastern line all that east portion lying Michigan the main land of the State and the middle of lake south of latitude forty-two minutes. degrees thirty n ILLINOIS RAILROAD ILLINOIS. CENTRAL 435'-
Opinion of the Court.
that the
law this
is the settled
ownership
It
country
waters,
tide
over lands covered
and sovereignty
dominion
of the several States,
the limits
within
belong
respective-
with the
found,
-within
States
they
consequent right
*40
when
that can be
thereof,
to use
any
dispose
portion
substantial
the interest of the
without
impairment,
done
and
waters,
in the
always
paramount
subject
public
their
so far as
to control
Congress
navigation
of commerce with
nations
regulation
foreign
necessary
the States. This doctrine has been often announced
and among
and is not
counsel
this court,,
by
any
by
questipned
Lessee v.
3 How.
Weber v.
212;
Pollard’s
Hagan,
parties.
is
States
nations. These
all the
character
lakes possess
general
foreign
seas,
in the freshness of their waters,
istics
and
open
except
absence of
ebb and flow of the tide.
In
other
inland
is
are
there
no reason or
seas,
respects they
prin
assertion of dominion
over and
sovereignty
ciple
the Stats'
covered
tide waters that
lands
ownership by
to its
of and
not
dominion and
is
applicable
ownership
equally
over lands covered
the fresh waters of these
sovereignty
by.
At one time the existence of tide waters was
lakes.
deemed
in
of courts
jurisdiction
essential
in
determining
admiralty
is now
in
That doctrine
repudiated
country
England.
our condition.
In
ebb
as
England
wholly inapplicable
test of the
flow of the tide constitute the
legal
navigability
(cid:127)
in fact, at least to
waters are navigable
no
of waters. There
tide. There,
extent,
subject
are
any great
,
fore, and over of lands- under the' ownership ereignty navigable waters Great Lakes which obtains the com- at applies, as to and owner- mon law the dominion over sovereignty of lands under tide waters on the borders of the sea, ship held in one case as in that the lands are same the same trusts and limitations. other, subject far dominion, we shall examine how such theory, Upon have been encroached proprietary right sovereignty and how the railroad far company, upon the State the assent of to such encroach- time, at the had, the claim which the ment, and also validity company- to make further encroachments thereon of a asserts in virtue of a from the State April, the southwestern shore is situated city Chicago other frac- includes,-'-with
of Lake territory,- Michigan, east north, 10 and range tional sections township on the third meridian, lake, bordering principal Lor,-a after the their time' forms eastern boundary. long Liver, its harbor'was the Chicago city organization the centre into the lake near narrow stream small, opening it line and in of the east of section 10, and west shipping n waters of the lake and from other navigable arriving ports docks and were anchored, was moored along years of the- wharves. The subsequent growth and commerce business larger required population, .in view of harbor, and the United States, more convenient of a the construction commenced growth, expansion harbor of breakwaters and other protections system sections men- of the lake front of the fractional waters there was con- of this work tioned. In the prosecution *42 and stone cribs of a line of breakwaters wood structed Liver and between the front Chicago city covering lines of cribs street, Twelfth piers- openings a vessels, thus enclosing largo, the entrance and departure and commerce; and for the uses of of the lake shipping part a space It comprises harbor for an outer Chicago. creating south, and- from north in about one mile and one-half length OCTOBER TERM, Opinion of tie Court. from, is of a width from east to west one thousand varying to four thousand feet. As commerce and shipping expand, the harbor will be further extended towards the south, and, as the amended it is bill, that the alleged by necessi- expected ties of commerce will its soon so require enlargement include entire lake front of the It great part city. denied, that and not authorities of the stated, United States have in a indicated' a for the im- way general plan and use of the harbor which has been enclosed as provement mentioned, which a is devoted as a harbor portion where ride at anchor with and refuge ships may security within walls, and another of such protecting enclosure portion nearer the shore of the lake be devoted to wharves and may of which load and unload and piers, alongside ships may upon which warehouses constructed and other structures (cid:127) for the of lake commerce. convenience er.ected The case proceeds upon the-theory allegation t.he- defendant, the Illinois Railroad Central has, with- Company, lawful out and continues to authority,- encroached,, encroach, n upon the domain and its original ownership control of the waters of the harbor and of the lands there-' under, a claim of under'a upon rights acquired ordinance enter city land and -water two hundred feet wide order appropriate a track for a and to erect thereon ware- railway, construct and other in front houses, piers city, structures a claim of virtue of owner- riparian rights acquired of lands- on the lake front ship originally bordering citv. It also the claim asserted the rail- proceeds against road State, iml869, grant by and title the bed of Lake lands, constituting submerged of the com- east tracks and breakwater Michigan lying line distance of one and between south pany, mile, of the south line extended and a extended pier eastwardly the same direction from south the south line of lot twenty-one round-house, of and near.the of the com- machine shops ; of a at pany construct right thereby pleasure^ the harbor, for its use. wharves, other piers works *43 v. ILLINOIS. RAILROAD ILLINOIS CENTRAL . Opinion of Court. its title confirming decree establishing State'prays to and exclusive
to the of Lake right develop bed Michigan of the construction the harbor of by Chicago and impróye and other docks, wharves,- improvements, against piers that it has an absolute title claim of the railroad company,, and the the act of 1869, to lands right, such by submerged of the United States authority only paramount subject " the bed to fill all of the lake commerce, of regulation of its stated, business; the limits above within purpose and maintenance wharves, and the the construction of by right, of the lake for the shore docks .and improve piers, commerce and And the of navigation. promotion generally has, without that erected company .right, insisting to erect wharves to continue piers upon proposes unlawful structures be domain, asks alleged be ordered to be removed, enjoined kind. structures any further erecting harbor of And lands first, as to Chicago possessed under the act of the railroad used Congress c. and the ordinance Stat. 20, 1850, 61,) (9 September act of June Congress By granted one hundred State of Illinois way, exceeding right side on each width, length, through feet of a railroad from the southern the construction lands, to a at Canal Illinois Michigan point terminus Rivers, of the Ohio and with a Mississippi near the junction the town of and another via G-alena to a branch to Chicago with the Iowa, in the State Dubuque point opposite its construction. And, materials for take necessary of the railroad and branches, in the construction aid alternate sections land, State six act same granted numbers, even on each side road and designated with the usual reservation found to branches, portion which the or to States, .United sold pre- at route of had attached the time the the road and emption in which case was fixed, definitely provision branches lands the selection of made for sec- equivalent contiguous tions. ' TERM, 1892.
Opinion of the Court. The lands were made subject disposition granted that the rail- and it was declared State; legislature *44 road and branches should be and remain a public highway free from States, for the use of the of the United government or toll other their charge upon transportation property or troops.
The, act was formally accepted legislature A few February 1851, (Laws 1851, 192,193.) and on the 10th of that before, the Illinois Cen- days month, tral Eailroad was It invested was Company incorporated. with the immunities and fran- generally powers, privileges, chises of and with corporations, specifically power or and of otherwise, and con- acquiring by purchase holding real and estate which be needful to veying personal might into effect of the act. carry fully purposes It was also authorized to locate, construct and survey, a with .one or more tracks or lines railroad, operate rails, between the and the branches mentioned. points designated And it was declared that the should'have company and to way its sole use upon, might and appropriate control, for the land not two hun- purposes contemplated, exceeding dred feet width its entire and throughout length; might enter and take and use upon possession of streams any lands, and materials of for kind, the location of every and depots for the stopping purpose stages, dams, constructing bridges, embankments, and other neces- engine-houses,shops buildings for and sary road. completing, maintaining operating All such materials lands, waters, and to privileges belonging (cid:127)the State were to granted corporation purpose; and it was that, when owned provided or belonging person, and could corporation, not be ob- they tained or release, voluntary, same be taken might and for condemnation as paid by proceedings prescribed by law.
It was also enacted in the act authorize should nothing amake location of its road within corporation any city without the consent itsof common council. consent This given an ordinance of the common council of Chicago, - ,v.- RAILROAD ILLINOIS. CENTRAL ILLINOIS Opinion of the Court. its first section it By granted June per-
adopted. down, construct and lay mission to maintain the limits of the and within city, along margin lake with one railroad, same, within more adjacent with and to same locomotive tracks, operate engines with reference under such rules cars, regulations speed delivery of trains, freight, receipt, safe-keeping accommodation conveyance pas- arrangements as the with the not inconsistent com- safety, sengers, establish, have the from time to time might pany incident to and therefor in all necessary powers way terms and conditions, the manner and the -following at or near that the enter road should namely, Lake Michi- intersection of its then southern boundary *45 the of the on or near lake and follow shore margin gan; known as to the southern bounds of open space northerly fifteen, in front of canal section continue Park, Lake across, in front of section to the open space northerly between north as the such might acquire company grounds River, the Fort line of street Chicago Randolph which should located the Dearborn addition, grounds be upon and such railroad within other of the city, company depot be con- or necessary buildings, apparatus might slips understood, it that the venient for business. But was its the- did not undertake to obtain for any company not then in easement, other or or way, right, privilege or or assume liability responsibility grant, power that-the also It declared the acts of company company. its line of road-and enter and use in might perpetuity the same from lake, other necessary works protect the southern hundred feet from boundary width of three northern line of street, near Twelfth the public ground to be line of the inner or west ground street; Randolph line of. from west than four east not less hundred fee.t authorized and was thereto; Avenue, and it Michigan parallel to a in.ihe lake into the point extend its works and fill out feet west hundred from southern four less than pier with Michigan then end of the thence east same, parallel M2 TERM,
Opinion of the Court. Avenue to the north side of street, extended; but it Randolph was stated thaCthe common council did not grant any right.or the limits above nor privilege beyond the line specified, beyond be actually works of the might occupied by company. the ordinance the Ey to erect required^ maintain on the western or inner line of the ground pointed out for its main tracks on the lake shore such suitable walls, fences or other sufficient works as would animals prevent from tracks, secure straying upon obstructing persons and to construct such property danger; at suitable-gates at the ends proper streets, were then or places thereafter be laid out, as might common coun- required cil, to afford safe access to the lake; that, provided of an case construction outside harbor, streets be might laid out the same the manner law. approach provided by was also to erect and within required complete three after should have years accepted ordinance, forever thereafter wall maintain, continuous or structure of other stone sufficient material, masonry, pier-work regu- lar and and not to exceed in sightly appearance, height Avenue, level from the Michigan thereto, general opposite north side of street the southern bound of Lake Randolph of not Park, at a distance more three -hundred feet than east from and the western.or inner line of the com- parallel continue works to southern pany, boundary at distance outside of track the road as city, might which structure and works should be of suffi- expedient; *46 cient front entire magnitude .the strength protect the north line between street and its south- city, Randolph ern further from the .action boundary, damage injury of the waters of and that that ; of the' Lake'Michigan part structure Park should be south commenced and Lake prose- cuted with reasonable after the ordi- despatch acceptance It was also that the should not nance. company enacted for manner, whatever, nor use or any any purpose occupy, ‘ known as Park,’ intrude Lake. upon open ground belong- between Avenue city ing Chicago, lying, Michigan or inner line so far mentioned, western before except v. ILLINOIS. RAILROAD ILLINOIS CENTRAL Opinion of the Court. for the convenience consent,
as the common council the works while repairing said constructing company, declared that the And it was front of said company ground.” the north line no between Randolph should “erect buildings Lake nor Park, side of said street and the south occupy constructed these to be between works nor use the proposed of or or distribut- making up except passage points, of their works between nor trains, any their upon part place ing lake from the obstruction to view the said any points cars' or other locomotives, their nor shore, suffer articles but erect such works as are tracks, only remain upon fheir their tracks and construction of necessary pro- proper of the same.” tection this ordi- was allowed ¿ccept
The ninety days company a contract and it upon nance, acceptance provided should be executed and delivered its provisions embodying and the and that rights between company, city should conferred upon upon company depend privileges made. on The part requirements performance drawn and agreement ordinance was accepted required (cid:127) March, the 28th of executed on of this ordinance the railroad Tinder authority company limits of the tracks within corporate city. located from Twelfth street northward Those running were.laid line of the lake. shore of the lake in tbe waters piling four at hundred feet from Row, Park about time, at was, and at street Avenue, line of Randolph west Michigan and half feet. Since then the hundred and twelve one about the tracks of shore line and the railroad between space under filled with earth the direction of has been company now and is solid ground. constructed the -.a tracks were After the erected line east of its .the roadway-upon parallel breakwater filled Avenue, afterwards up space west line of Michigan and its tracks with earth and stone. breakwater between the material, for the determination of do deem it ¥e detail, to describe case, hr exten- presented questions under of the railroad permission given sive works *47 TERM, 44A Opinion of the Court. within, its road the the is suffi- city by ordinance. It to locate when this suit was commenced it had reclaimed say cient 'the lake a tract, waters of two hundred the feet width, from distance allowed for its within the the whole entry city, with, the thereon tracks needed for its railway, and constructed in its all the against danger guards approach crossings ordinance, erected break- specified designated tracks on water east, works beyond necessary of the shore on the for the west. Its works in no protection with interfered useful freedom in the use of any respect of the lake for commerce, waters or interstate domes- foreign, constructed tic. under the of the law were They authority of the as a condition of consent that the requirement locate its road within its limits, cannot be company might as such an encroachment domain regarded upon toas court for their require- interposition restraint in removal or their use. any railroad never the reclamation acquired the waters of lake of the land which its tracks laid, or construction of the road and works con- an therewith, reclaimed, nected absolute fee in the- tract with of the same to other consequent dispose parties, — it for to use other than the one any -purpose designated construction of a railroad thereon one operation with more, tracks works with connection the road or in aid thereof. The act incorporating company only granted it a over the lands for its use and right way control, which was to enable it purpose contemplated, to survey, locate, construct and a railroad. All operate lands, waters, (cid:127) materials to the State privileges were belonging granted for that It did not solely purpose. much less contemplate, authorize, diversion any other property purpose. restricted, The use of it was to the Whilst purpose expressed. to it included waters of streams in the line of the right way it State, was belonging accompanied a declaration should not be as to so construed authorize corporation streams. If interrupt navigation waters lake deemed to be included RAILROAD v. ILLINOIS CENTRAL ILLINOIS. 445 *48 Opinion of the Court. their use streams, then would be held
designation equally The restricted. a to make loca- prohibition upon company its- tion of road within without the consent of its any city, council, to .common necessarily empowered body prescribe so far at the conditions least as to entry designate it where should be made, character of the tracks place and that should be con- laid, protection guards did the insure their Nor railroad structed safety. the mere of its road and other works construction
acquire
a
to reclaim still further lands
as
owner
any rights
riparian
or the construction of
the. waters of
lake for its use,
from
in the furtherance of its business.
docks
wharvés
piers,
the land under the waters
to which it could reclaim
The extent
(cid:127)
ordinance,
of the
which was
was limited
the conditions-
on a tract not to
for the construction of a railroad
simply
,
a
and of works connected therewith.
width,
exceed specified
Avhat
"We shall hereafter consider
rights
of title to
as
owner
riparian
acquisition
acquired
lake,
of the
but at
we are
lands bn the shore
present'
speaking
it
from the reclamation of-the
of what
only
rights Acquired
railroad
the Avorks connection with
tract
which the
'
or the' extension
built-. The construction
it'are
pier
for a
or other
into
waters
railroad
pur-
land
any
navigable
not'
does
shore,
the owner of lands on the
one not
give
poses,
whether, án
extension,
individual
of such
or
builder
pier
are incident
Those
any
corporation,
riparian rights.
rights
'
exist with such
They
ownership
ownership.
riparian
land must
transfer of the land. And the
only
with the
pass
'
it.
but in contact with
water,
Proxiihity.
be contiguous
attaches to
contact
insufficient.
riparian right
without
without
water
the border
land on
navigable
declaration
of
the'former
in a
and its
owner,
designation
effect from
to that
-on
Gould
him- Avould be
(See
surplusage.'
conveyance
there
148, .Waters,
cited.)
authorities
§
other
is entitled,
rights,
among
(cid:127)The .riparian proprietor
to access to the
504,
. In this case it that fractional section Avhich 10, was appears within the included limits on the lake front, bordering before suit divided,, was under was, many years brought, States, United into blocks and authority lots, and the lots sold. taken The and the laws on proceedings passed for the sale of the lots are stated Avith subject great of the court but below, for our opinion particularity it is sufficient to mention lots that the laid out in purpose fractional section to the United sold, States were belonging or either from and, the title to directly some of purchasers, them on lake north fronting street Randolph became in the railroad vested company, company, finding in lake front of those lots filled shallow, it in and upon constructed reclaimed Avharves slips, land the last piers, 1872, in 1873, three piers 1880, and which it claims and to have the own use in its business. to the law of
According riparian which have we ownership, stated, this claim well .is founded do so far as piers extend beyond the.point the waters navigability "We lake. are not fully satisfied that such is the from case the evidence Avhichthe the fact has company produced, is not conceded. Nor does the court find that such below had been point navigable established authority by any RAILROAD v. ILLINOIS. ILLINOIS CENTRAL Opinion of the Court. foundation had other than decision, thafc.it judicial railroad company. judgment taken to the claim of
The same as position may\_be and docks erected front of pier- Michigan company between the lines Twelfth and Sixteenth streets Avenue the title extended. had company previously acquired on at certain lots the lake its and, fronting point,, upon from that claim erected riparian rights ownership,'had the structures Its them likewise question. ownership whether are extended question upon they beyond depends or are limited to the. of the watérs of the navigable point which, no evidence was lake, offered. satisfactory reclaimed the railroad land Upon riparian in front of lots into ten which section was divided, proprietor it had its was erected north depot purchased, passenger and, to facilitate its street, common Randolph approach, ordinance 10,1855, authorized council, by adopted September tracks of the line it to curve' its fixed westwardly of. as to that line at a cross not more point ordinance sq street, hundred feet south of than two accordance Randolph This plan. permission given upon-the specified that the should out its own land condition lay house a west of and street feet alongside passenger fifty street, from Water street and fill wide, Randolph extending entire within two same 'the up years length, pas- *50 - of the- ordinance. The tracks were curved as company’s sage referred-to was .the-street opened, required permitted, has and the street ever since been used done, filling was railroad It necessary being company public. means of and its additional should have using approaching street, and the between Randolph station grounds Chicago ordinance another September li>, River, adopted city, the. use, to enter and perpetuity, 1856, granted permission of; other works necessary protect line railroad and breakwater between then lake, same space from.the seven hundred feet from a thereon a line drawn and point street and extended, north line Randolph’ south of southeast corner line to the. thence on a straight running TERM, 1892. Opinion of the Court. to the and river; thence thus breakwater, its present space railroad and continued indicated the to hold' company occupied and ordinance, to this we do not valid perceive any pursuant to its continued the same for the objection holding purposes ' — that as additional is, means of and declared approaching its station grounds. using
We consider the claim the railroad proceed company in the lands and harbor, ownership submerged to construct such docks and wharves, works right piers, other therein as it deem for its interest business. proper ’The claim is founded the third section of the act of the of the on State the 16th of 1869, the legislature passed, April, which material is as follows: part Illinois Eailroad Central Company Sec. under the from the in its which said charter, grant constitutes a consideration for part said com- to the State at least seven cent of its pays earn- pany per gross under virtue of its ings, appropriation, occupancy, use and control, incident to riparian ownership use and in and to grant, appropriation, control, occupancy, lands otherwise said east line run- submerged lying with and four hundred feet east of the west ning parallel line. Avenue, .fractional sections ten and Michigan fifteen, as aforesaid, township range confirmed; and all hereby title State of Illinois in and to the sub- lands the bed of Lake merged constituting Michigan, lying of the tracks east and breakwater of the Illinois Central Eail- and; road for the-distance of one Company, mile, between the south line of the south extended pier and a line ex- eastwardly tended eastward from the south line of lot south of twenty-one, near to the round-house and machine of said shops company, division 'of the said south Chicago, hereby in fee to the said Illinois Central Eailroad granted Company, its successors and however, that the assigns: provided, fee to said lands shall be held said perpetuity, the said shall not have sell or con- power grant, same; fee to the vey and that all use, gross receipts leases otherwise of said or the profits, lands, improvements *51 RAILROAD v. ILLINOIS CENTRAL ILLINOIS.
Opinion oí the Court. be made hereafter shall thereon, thereon, or that form a may of and income the said receipts part gross proceeds, which 'Illinois Eailroad said Central Company, upon company forever into the State shall the treasury, semi-annually, pay in its in charter, centum accordance with the provided per of said charter: also, provided requirements nothing the herein contained shall authorize obstructions to Chicago the of nor harbor, or shall this impair navigation; be construed to the Illinois Central Eailroad act Com- exempt its lessees or from act the of assem- pany, general assigns, the which be hereafter rates of bly passed regulating in to be said harbor.” wharfage charged dockage The was which this section is a act, part, accepted by at resolution of the of directors of the its office board company 1870; in the but New York, acceptance July November,' until 18th of not communicated to the State A on that forwarded to of the resolution was day copy in him the and filed and recorded Secretary records his office. On the 15th legis- April, n lature The of Illinois the act. presented questions repealed act relate cited of the section validity . its
effect operation. repeal upon The two in one was to in has view: section objects question under of the railroad confirm certain rights alleged vir- from the in its charter and under grant control, use and tue occupancy, appropriation, ” sub- to the lands thereto, incident ownership riparian four of a line or otherwise east lying parallel merged in frác- Avenue, line of hundred feet east west Michigan was to The other tional object sections ten fifteen. harbor. lands
to the railroad submerged claimed made,-whatever confirmation operation as' extend so other be invoked cannot respects, owner-' riparian right company possessed, shore and fifteen on lands sections ten ship after it, lake. constructed Whether or docks piers’ naviga- of-the act of 1869, extend passage beyond point be the waters of the must bility lake, judicial subject VOL. CXIVI—29 *52 TERM,.
Opinion of the Court. the execution of this decree the court upon below: inquiry If it be ascertained such and determined that such upon inquiry and docks do not extend the piers beyond, point practicable theip the of the claim railroad navigability, title company will be but if confirmed; or either of them possession they are found on such to extend the inquiry such beyond point then State will be entitled to a decree navigability, or the one thus be abated they, extended, and removed to the shown, extent or for such other of the extension disposition as, of the State and the facts application established, be authorized law. may by
As to the grant the act lands, declares submerged that all the and title of the State in and to the submerged lands, bed of east constituting Michigan, lying of. Lake. the tracks breakwater for the distance of company ' one between the south mile, line of the south extended pier and a line eastwardly. extended from the south line eastwardly lot of' south of and near to twenty-one, the round-house and machine shops fee to rail- company granted road its successorsand The is accom- company, assigns.” grant with a that the fee of the' lands shall be panied proviso held and that it shall not have company perpetuity, or sell the fee thereof. It power grant, convey also declares therein shall authorize obstructions nothing to the harbor or or public right be construed to impair navigation, from act exempt any rates regulating to be in the wharfage harbor. dockage charged clause is This treated the counsel of the as an to it absolute of title to conveyance the submerged lands,'giv- it full and as to use complete' ing power dispose same, technical transfer of except fee, manner as if choose, it were in no they uplands, covered respect or affected waters, not to. navigable as a license use the lands revocation subject the State. it as Treating a conveyance, must validity be'determined by. consider- whether the ation legislature make á competent of the kind. if valid and act, to the extent operative claimed, placed ILLINOIS. EAILEOAD
ILLINOIS CENTEAL Opinion of tlie Court. the whole control of the’railroad company nearly
under the limita- harbor, lands of' subject only submerged or obstructions to the harbor that it authorize tions should or exclude the legislature navigation, impair to be the rates of dockage charged. wharfage regulating the com- it in the the act these limitations put power With harbor, indefinitely improvement pany delay and other and wharves as docks, to construct many piers in the harbor and at such choose, works positions might *53 to of its kind business suit as any might purposes, permit terms, them out on its own and to lease thereon, conducted technical The inhibition the indefinite against for periods. was lands the fee of the transfer of portion submerged any for when it.could make a lease little period consequence And the inhibitions- it at its against, and renew pleasure: to the obstructions the harbor and impairing pub- authorizing the action no lic placed impediments navigation exist. A did not the railroad which previously for the construction oper- corporation-created purpose, one the act, ation of a railroad between is,-by designated points, control to into a converted manage practically corporation for its own the harbor of simply purpose Chicago, own but for its railroád profit generally. corporation, the act the through The circumstances attending passage the the of much on .criti- were hearing subject legislature to of the act .was introduced, the As purpose cism. originally its harbor and enable Chicago enlarge lands to. certain it and interest of the State adja- the,title front of on eastern to the shore of Lake cent Michigan it all control, under its the harbor giving city, and-place But wise during management. necessary powers Instead of-the act its was changed. passage purport lands to city, for the cession submerged providing It of them to the railroad it for a cession company. provided to corre- act was not the title changed that urged was taken and an objection its changed purpose, spond with of the court on But the that account. majority its validity that to show the evidence was insufficient opinion were TERM, Í52 Opinion of the Court. of the State, constitution requirement passage, was not with. complied to be considered therefore, is whether question, the leg-
islature to thus the State was competent deprive of its owner- lands the harbor of submerged ship.of and of Chicago, control of its waters; or, other consequent words, the railroad can hold the lands corporation whether and con- trol the waters future grant, against any exercise of over them the State. póweV
That the holds the title to the lands under the naviga- limits, ble waters of Lake within its Michigan, same manner that the State title to soils under holds tide water, by common shown, we have and that law, title already neces- carries with it over control- the waters above sarily them lands whenever the aré use. But subjected a title different in character the State which holds in lands intended for sale. It is different from the title States hold in the lands United which are open pre- It and sale.- is a title held in trust emption people the State that they may .enjoy navigation watez’s, them, on coznmerce over and have carry liberty fishing freed, frozn obstruction or therein interference' of private *54 The of the- in interest parties. of the people navigation and in commerce watez’s over them be in may improved many instances the erection of wharves, docks and therein, piers for which the. State may of the sub- purpose grant parcels so lands.; as their and, merged long is made for dispositiozi such no valid can be made purpose, Objections to the grants. is of of It lands under grants parcels waters, that navigable afford foundation -for wharves, docks and other piers, in structures aid of which, commerce, grants parcels of do not occupied, interest being substantially impair public in-the lands waters that are considered remaining, chiefly in sustained cases as a valid exercise adjudged legis- lative thé tzmst power consistently upon public which such lands are a held the State. But that is very diffez’entdoctrine from the one the-abdi- which would sanction ujider cation control of the lands State over general EAILEOAD ILLINOIS CENTEAL ILLINOIS. 453 Opinion of the Court. or of a of an entire harbor sea or waters bay,
navigable is' not consistent with the lake. Such abdication exercise of of the State to trust government pre- requires for the of the The devolv- serve such waters use trust public. the State and which can be public, only ing and control of discharged by management property the. an which the has cannot be a interest, public relinquished of the transfer The control of the for the State property. be 'the trust can never to such lost, as purposes except par- therein, used in the interests of the cels ás are public promoting Or be of without substantial can disposed any impairment interest in the lands and It is the public remaining. waters distinction between only by observing grant par- for the of the which when interest, cels improvement public do not interest in the substantially impair occupied public and waters of the whole lands remaining, grant property in which the interested, public language cases can be reconciled. General some- adjudgéd language courts, absolute times found expressive opinions the State of' lands under and control by naviga- ownership trust their use dis- waters, ble irrespective n and construed with reference to the be read must position, of all the lands cases. A facts particular special has watefs of a never been State under the adjudged- navigable and any power; attempted grant to within the be legislative n on face, if not void its held, absolutely the kind would can no more abdicate to. revocation. as subject interested, the whole in which over people trust property as to under so leave them them, and soils waters like navigable .except parties, use and control under the private entirely of the. mentioned improvement the instance parcels can be dis- waters, or when use of the parcels navigation interest what of without impairment posed in the adminis- powers it can abdicate than remains, police *55 In peace,' and the tration of preservation government of such use powers administration government or other to a municipality for a limited be period delegated State remains with but there always body, TERM, 1892. Opinion of the Court. those them in a more revoke exercise direct man- powers one more conformable to its wishes. So with trusts ner* connected with of a char- public property, property special lands under acter, waters, like cannot they navigable placed direction and control of the entirely beyond State. The harbor of is of immense value Chicago people „of Illinois facilities affords to its vast and and the idea commerce; that its constantly increasing legisla- ture the State of can control over its bed and waters deprive the same in the of a hands created private place corporation a different one limited to purpose, transportation passen- between distant is and the gers freight points city, propo- cannot sition that be defended:
The area lands to be ceded submerged proposed the act in to the railroad embraces some- question .company more than a thousand acres, as stated thing being, counsel, than more three times the area of the outer harbor, and not all of that but harbor only sub- including embracing adjoining lands which in all in- be hereafter will, probability, merged cluded in the harbor. It is as as that embraced all large the merchandise docks the-Thames at London; much along than included the famous docks larger and.basins at .in twice that of the Liverpoolis of Marseilles, atid port nearly if not area quite equal water -frontlof pier along the. of New York. And city the arrivals áh'd of vessels clearings at the exceed in number those of port New York, and; (cid:127)- to those of New York and Boston equal combined.- Chicago has nearly twenty-five cent of the per trade as’ lake-carrying compared’with arrivals and of all the clearings leading of our inland ports seas. great In the June year ending joint arrivals and clearances of vessels at that port amounted to thousand and twenty-two' with a ton- ninety-six, of over seven nage and in millions; 1890 the tonnage vessels reached nine mili nearly counsel, ions. As stated since the of the Lake Act, Front passage 1869,the population has increased in- souls, million nearly the. crease of commerce has with it. It is con- pace hardly keo.t ceivable that the legislatuha'can divest the the control *56 ILLINOIS CENTRAL RAILROAD v. ILLINOIS. .455
Opinion ,of the Court. it in of this harbor vest a absolutely management act of the an transfer- legislature Surely private corporation.- title lands and the claiined to its power submerged by ring to a State or nation would be the railroad foreign company, of the hesitation, without as a gross perversion repudiated, it is held. So would a under which trust over property a of another State. It would similar corporation transfer of the not be listened .control management — concern to the whole harbor of that a of city subject great — than thus be elsewhere in- the State should placed people which can be to such All the State itself. objections urged to a transfer a cor- transfer be private attempted may urged in this case. like the railroad company poration revocable, the kind is exer- Any necessarily grant the- was held State cise the trust which by by property there ex- can be resumed at time. be 'Undoubtedly a under such incurred in made improvements grant penses be that as which but, the State may, pay; ought is, best the State to resume trust whenever judges power the rail- we The advanced think, incontrovertible. position of the in of its claim to'the road ownership support of wharves, the erection lands submerged in for its business the har- and docks at its piers pleasure, at harbor country bor of would every Chicago, place in which of a mercy legislature majority the harbor is situated. it'is cite where true,-
We cannot, any authority no for we believe that instance invalid, kind has held been have commerce the harbor exists where great into the control been aliowed to any private-corpora- pass, declare that which áre tion. But the decisions numerous sovereignty, virtue of is held property waters trust for The navigable ownership public?. is a pub- lands under them subject harbor and of the trust lic of the State. concern to the whole people be and-cannot therefore, are held, they governmental used alienated, mentioned parcels those instances except thus when held, parcels the interest improvement TERM, Opinion of the Court. detriment to the of without can interest in disposed public and waters the lands remaining. follows character
This' necessarily held the whole being people purposes property, *57 the whole are As said which Chief people interested. by in Martin v. 16 Waddell, Pet. Taney, 367, 410: .Justice “ Revolution took the When the each State place- people themselves and that character hold became the sovereign, the; to all their soils waters, absolute under navigable their own common to the them, use, subject only rights the surrendered Constitution to the since by general govern ment.” In which Mundy, Halsted, 1, is cited by Arnold Waddell, in Martinv. 16 Pet. this court spoken Justice entitled Chief and in Taney -great by weight, decision was made with which the deliberation and re great the Court-of search,” comments Supreme Jersey New the State in the bed of waters, and, rights navigable after that the exercised the State over the observing power by waters is more is lands than what called the nothing jus regivm, them regulating, improving securing of. for the benefit of citizen, individual adds: “The sov every itself, cannot power, therefore, ereign consistently of the law of nature and the constitution of a well- principles ordered make- direct and absolute society, State, waters all the citizens of their common divesting It would be which never could be right. grievance long borne a free must the by control people.” Necessarily 0‡ waters of a State over' all- lands under them when the pass lands are fee them conveyed private parties, by to use. subjected
In the case Stockton v. Baltimore and New York Railroad Co 32 Fed. which 9, 19, 20, involved a con mpany, Rep. sideration Mr. Justice late of this by court, of the Bradley, nature of State of lands under the navi ownership by waters of the United he gable States, said: “ It is insisted of the State lands under property waters -is navigable and comes private strictly, property, within constitutional It provision. asked, significantly v. ILLINOIS. RAILROAD ILLINOIS CENTRAL Opinion Court. Trenton, at take the state house States
can the United to the State, belonging appropri- the surrounding grounds of a railroad other depot, ate them to the purposes without "We compensation? use of government, general case involves the decision of the present do not apprehend n The cases are a serious question. answer. requires . of the title or not The character ownership clearly parallel. house is different holds the state which the State quite under the the land holds from that navigable information in and around its territory. waters rightly the shore and lands under Revolution, to the that, states prior waters of the streams and province water of navigable Britain as to the of Great New part Jersey King belonged and devolved crown, regalia jura how- state, The information does by right conquest. after the said true, -that, what is ever, conquest, equally were m held as they lands 'were king, uses trust for fishery, navigation *58 beacons' and of wharves,, erection thereon piers, light-houses, commerce. to and facilities Being subject other navigation were words, other were ; they trust, juris they publici is at It to use held for the large. true people of shell it was fish, those neces- the fisheries, especially, utilize and out to to them operators, employ particular sarjr parcel the benefit of the whole the rent or consideration people; of the title. The the character land this did not alter but before, uses as to all other remained public especially subject which are commerce, those of and always para- to navigation also true that fisheries. is mount to those of It portions public which .flats, interfered really shoals of the submerged better subserve could purposes with navigation, were reclaimed, commerce filled disposed by being up But neither did these dis- to individuals that purpose. the title to affect the-character of of useless parts positions remainder.” has been cited where it decided other cases be
Many might held is the bed or waters soil navigable people in. trust for of the State in their character as public* sovereign TERM, 1892. 458 Opinion of' the Court. uses for which Martin v. 16 Waddell, Pet. they adapted. Lessee 367, v. How. Mc 410; 212, 220; Hagan, Pollard's U. S. Cready Virginia, ' In v. New York amd Staten Island Co., 68 People Ferry Y. 71, 76, Court of : N. New York said Appeals'of title to The lands under' tide within the realm of waters, the common were, law, deemed to be vested in England, trust, to subserve king public protect public trade, to use them as common for commerce, highways intercourse. virtue of his in king, by proprietary terest could the soil so that should become grant private but his was to property, grant subject paramount right use of waters, he could neither public .navigable destroy nor In there anwas every reser abridge. grant implied vation of the so far as it to assumed interfere public right, or it, confer or impede obstruct-naviga tion, or make an exclusive of the use of appropriation waters, the void. In his treatise De navigable J ure grant Maris Lord Hale ‘The that is (p. 22) ac says: privat/um jus either quired by subject, must by patent prescription, wherewith prejudice jus publicum, rivers and public ’ the arms of the sea are affected use; and Mr. Jus public Best, tice in Blundell v. 5 B. & Catterall, A. speaking ‘ The soil can subject, says: transferred only subject trust, shows that the general usage public right has been out of the . . excepted soil.’ .
“The of the common principle law to which we Have ad- verted is founded the most obvious of public principles The sea and policy. rivers are natural navigable highways, any obstruction common right, appro- exclusive of their priation use, and if commerce, injurious permitted *59 at the will of the would be in end sovereign, very likely if not materially The laws crippling, it. of most destroying nations have the use of sedulously guarded public navigable within, waters their limits it against infringement, subjecting to such only the in of the regulation by the interest as is public, deemed consistent with the of the preservation public right.” RAILROAD v. CENTRAL ILLINOIS.
ILLINOIS Opinion the Court. York court New contains
While the some opinion when detached may require explanation expressions' of that case, facts observations general particular cite are pertinent. we just under held soil waters being by navigable people úse as trust for the common portion (cid:127) act of inherent their legislation concerning sovereignty, is, affects welfare. therefore,
their use public appro- If the exercise of the within State. power pbliee priately S. it Commissioners, 548, 100 U. that In Newton appeared Ohio, it an act Was passed legislature certain that the fulfilment conditions provided óf citizens the town Canfield, county proprietors in that be established town. Those seat should permanently with, been seat was' conditions having county complied therein In established accordingly. legislature passed seat to another town. an act for the county removal of Canfield filed their bill, Certain citizens setting thereupon ,of act that the con- forth the claiming proceedings for an contract, an executed prayed injunction stituted court removal. But the refused the the contemplated against could be no contract and no that there holding injunction, law- that subjects, upon governmental observing irrepealable acts interests pub- concerning necessarily public legislatiVe the same that every possesses lic laws; Succeedinglegislature that thé latter have as its power predecessor; jurisdiction former which the the same modification power repeal enactment, neither more nor that all less; had of occupy this is neces- d'f perfect a footing equality; respect vital -to so in-the nature things; that sarily at all to do what- times, that each one should be able, welfare attend- ever circumstances and exigencies varying present a different result would ing subject require;, with evil. fraught As if this is true doctrine location counsel observe, it is seat that it-must greater county apparent apply waters; force to control soils beds navigable held' harbors. people great public trusty *60 TERM, Opinion of the Court. their use and common as an common incident to their could not The nor sell legislature give sovereignty. away in its -successors to discretion of matters, the respect govern- nature of ment which, of. must very writh things, vary The circumstances. be needed legislation may varying be different from one for the harbor day legislation at another must, that bemay day. Every required legislature at the time of its exercise the of the in existence, power the execution of the trust devolved it. "Wehold, therefore, that cession of the control any attempted ownership the State in and over the lands in Lake submerged Michigan, 16, 1869, act'of was to affect, April inoperative modify or in control to and dominion of any respect sovereignty lands, the State thereof, or its and that qver ownership act was annulled attempted operation 15:, act of which to that was extent valid repealing April and effective.' There.can be in a no contract con- irrepealable in of a veyance property by grantor disregard under which trust, he was bound to hold and it. .manage in of the State the Lake Front Act, legislation purporting fee lands riientioned to the rail- submerged road was considered the court view of company, below, . taken for the preceding measures .improvement and because harbor, further the same direction improvement as a mere license to the contemplated, prose- cute such further as an of the State, and improvement agency that to this the State had' certain its resources end placed command, at the with such an enlargement and. it as enabled powers privileges accomplish And 'below, view.. the court after objects observing the act be assumed as the- railroad might investing company, with the In' charter, power, given original erecting ' and wharves, docks ánd the interest of maintaining piers commerce, the necessities or beyond legitimate purposes its own as a railroad it added wa$ .business corporation, unable it was not perceive why State; competent act and subsequent legislation, withdraw the repeal.the additional powers it company, thereby restricting RAILROAD v. ILLINOIS. ILLINOIS CENTRAL Opinion of the Court. and to which was resume control incorporated,
business *61 it and which had at the of the resources com- placed property the the improvement'* mand of harbor. company the a license to act as the also court, treating The company, it when that best, was deemed act that was observed passed, that interest of the harbor improvement for the public .of. a effected railroad be cor- by instrumentality should interested, extent, to some accomplishment poration “But if and said: result, that deter- subsequently the.State consideration of that mined, public policy, upon great to railroad not be entrusted any should corporation, work should,not be the owner of even-a a corporation qualified no under the waters fee in soil navigable harbor, national or State constitution forbade the of- the provision of Illinois from giving assembly effect,'by legislation,' general It cannot be claimed that the to this repeal change policy. from the of 1S69 took single óf the act con- company charter. That act it only ferred granted by original upon for which the railroad com-' additional powers privileges consideration^ although, nothing, pany paid it cer- additional agreed pay such privileges, powers centum of the and incomes tain proceeds, receipts, gross per either from the lands which it -derive by granted might thereon. But it or from was act, any improvements erected in the act, contained bound, not by anything absolutely the; lands for the contem- make use of submerged’ purposes — within certainly legislature given- plated — called time could not have been pay per the', lands were used and centum until after improved, act relieved the income-derived therefrom. repeal deferred from pay per centum any obligation corporation to take from the to, because it had the property effect income So' could alone the derived. contemplated (cid:127) to remit the railroad act of only effect of -the and fran- to the powers, privileges exercise from-'it charter, chises in its withdraw original granted of 1869 for the act additional powers given accom- If the act objects.” of certain question plishment n OCTOBER TERM, Opinion of the Court. be treated a mere license to make the im- in the harbor as an of- provement contemplated agency think the then we cancel the and revoke agency its power unquestionable. the, remains to consider claim of the city
It Chicago of the east water front and how such claim, portions áttached to it, interfered the railroad rights company.
'The claim the is to in fee of the ownership streets, and other on alleys, ways, commons public grounds the east front "on the lake, as city bordering exhibited on the subdivision fractional ten maps,showing sections -fifteen,' under the and direction of prepared supervision United States officers the one case and the canal comr' *62 missioners in the the other, duly riparian recorded* - of- rights a statute Illinois Ey ownership. attached the making, acknowledging recording plats oper to.vest the ated title to'the streets, commons, alleys, ways and other on such in the public grounds designated plats, city, in trust for the uses which were public they applicable. Canal Trustees v. Havens, v. Rum 11 Illinois, 556; Chicago 4 35 sey, Illinois, . n besides Such other included the whole property, of parcels, that of fractional section fifteen which portion constitutes Avenue, and that Of the Michigan fractional section part lying the- (cid:127)east of west line of arid that Avenue, of- Michigan portion fractional section tén on one as designated plats “public which was to remain and.free from always open ground,” buildings.
." estate, The real and held the the' trustees' of personal, by town was vested the the Chicago by act city Chicago of March It when the Lake followed that Front Act of 1869 was the fee was in the to the passed city, subject uses of all the of section ten -and designated, portions (cid:127) fifteen, described in the decree below. And we particularly, below that the the made or agree with'the-court fee. reclaimed between Park Row, street and ground Randolph the which rest the tracks' embracing ground upon ILLINOIS CENTRAL RAILROAD v. ILLINOIS.- 463
Opinion of the Court. street, breakwater of the railroad south of Randolph company was in fact had the land the which *city city. to fill in and its virtue of right by appropriate ownership in front of the lake had been filled grounds its of the tracks railroad construction for on did it, railroad breakwater the shore west of its The exercise deprive city riparian rights. those condition of the was rights only subject agree- ment under and breakwater the tracks city, were constructed the railroad company, over for its t-racks of way .ground perpetual and, breakwater continuance railway, necessarily, aas of its works and the from the violence of shore protection With this of the railroad lake. reservation use of the tracts on reclaimed it its ground the breakwater, and the continuance of city possesses and is at full to' same of riparian ownership, liberty right. did. it, exercise which ever
. that the We with the court below also.agree Chicago, owner on east front of lake riparian grounds north line of between the street and city, Randolph each of the north line of block lines twenty-three, being pro- and in virtue of duced to conferred Lake authority Michigan, in, has the chartei*, power keep repair construct ,on within lake of said the lines men- east front, premises,' wharves, docks and sub- tioned, levees, places, public landing in the execution however, that-power, authority ject, *63 docks, the lines which the State to beyond piers, prescribe other than those erected wharves structures, and other by into the not be extended may navigable general government, and control as. and to such harbor, waters of the supervision exercise. United States rightfully may and it so declared and- It the views follows from expressed, is the in fee of the of Illinois owner that the State adjudged, the bed of Lake which lands Michigan, submerged constituting 1869, 16, to the third of the act section Aprií purported and that the' Railroad to Illinois Company, Central is valid and the same effective act of 15, 1873, repealing April 464' TERM, 1892. Opinion: Sliiras, Brown, Gray,
Dissenting JJ. for the' to the State the same control, purpose restoring of said that dominion lands it had ownership prior of the act 16, of'April passage below,
But the decree- as it commenced respects pier and the in 1880 and 1881, marked piers completed néar 1, 2, River, and docks between Chicago pier front and in streets, Twelfth Sixteenth is modified so as to direct the.court such order investigation belo.w made as it- to those enable determine- whether may piers erecte'd virtue by company, riparian proprietor- ten, of lots of section extend ship formerly constituting part into the lake hav- beyond point practical navigability, reference to the -manner in commerce vessels is ing on the lake; conducted if be determined such in- and, that said or do not extend them, piers, vestigation such then the title rail- beyond point, possession road shall be affirmed the court ; such company piers it be but if ascertained and determined that or such any’ piers, do extend such then the beyond navigable point, said them, court shall direct the said ascer- or the excess pier piers, to be or tained, abated and that other removed, proceedings 'thereto be taken on the of the State as relating application be authorized similar law; and also order that may pro- be taken to ascertain and whether determine ceedings dock, constructed, railroad pier front of the shore between streets Twelfth Sixteenth' extend affirm and to beyond point navigability, title and o-f the if not extend be- possession do they such if and, point, point, do extend yond beyond they excess, order abatement and removal of the other' on thereto be taken proceedings'relating application State as be authorized lawby im, 'menUonech, the decree
Except particular.‘s modified im each three with cases must be on afivrmed, appeal of'the costs ordered. against railroad and it is so company; Mr-. Justice Mr. Justice Shiras, whom concurred (U-bast and-Mr. Brown, Justice dissenting. *64 v. ILLINOIS. CENTRAL RAILROAD ILLINOIS 465 Shiras, Brown, Opinion: Gray, Dissenting JJ. in the lands of a State the underlying
That
ownership
to
them
waters is as
power
complete,
navigable
make
as
full,
such owner-
of
the
conveyance
grant
subject
the other
lands
to
in the case of
power
grant
ship
I
to be well settled.
State,
the
of
supposed
have
it
18
was said in
v. Harbor Commissioners,
Weber
Thus-
admission
California into the
57, 65,
Wall.
the
“upon
the
with
absolute
States,
Union
original
upon equal footing
all
under
and dominion and
soils
in,
over,
sovereignty
property
limits
to
with the
State,
tide waters within her
passed
to
to
the title
said soils'
any pct/rt
consequent
dispose
in such manner as
deem
she
proper, subject
might
only
over the
so far as
waters,
navigation
paramount
be
necessities
commerce
navigation might
required
States,
the several
nations or among
foreign
regula-
tion of which
vested in
was
government.”
general
—
Railroad,
In
In Paterson & Vroom, (34 Stevens it was declared Court of N. J. Errors Law,) that was New competent Appeals Jersey the. a lands shore constituting stranger navigable mark,
river under tide below the tide-water to be occu water with structures-and used improvements. pied Y. 129, 155, v. New York 93 N. case Langdon City, in which it was said the Court York: New Appeals “From times in the law has the earliest vested England von. cxlvi—30 OCTOBER, TERM, 1892.
' Shiras, Brown, Opinion; Dissenting Gray, JJ. title and the waters to, control over, in. navigable therein, the crown and A distinction was taken between parliament.. the mere of the imder water and- soil the control ownership soil, over it of the analo- ownership public purposes. of land, as gous ownership dry regarded pri- jus and vatum, was vested in the crown. But to use the'right both water and control the land and was deemed a pub- jus licum, and was in The crown could vested con- parliament. soil under water so as vey therein, private rights give but dominion and over water's, control the interest of commerce for the’benefit all the subjects navigation, . could be exercised Parliament. . . the.kingdom, only by the State has succeeded to all the country,- rights In crown and waters and .both parliament navigable under them, soil and here the privatum jus publi- jus are both cum the State.” vested These -citations be from au- might indefinitely multiplied thorities both Federal Staté. The State her or bill of Illinois,' by complaint, information “
in this the claims of the' defendants case, a're alleges to the State of Illinois as a great irreparable injury pro- owner lake, <md doubts bed prietor throwing thereto, and clouds title an' advanta^ preventing upon ” sale or' other and in the geous disposition thereof; prayer' for relief the State asks that its title be established may confirmed, the claims made the-railroad may to be and that the of Illinois unfounded, State declared be declared to have the sole and exclusive to develop ' n Chicagoby the harbor of the construction of docks, wharves, etc., and to sueX at its 'dispose rights pleasure” Indeed, the her as as case, the State’s well logic pleadings, attributes to the State entire to hold and of, dispose, .by power lease, or in' and' the lands her case is grant question; put upon of the title of the railroad alleged invalidity company, out of the asserted of 'the act of arising unconstitutionality 1869, which act made the reason certain grant, by irregu- larities that- title, or, passage failing, "upon ground revoke, of the the right grant, arbitrarily RAILROAD, v. ILLINOIS. ILLINOIS CENTRAL Brown, Sliiras, Gray, Opinion: . JJ. Dissenting to have exercised she claims duly license, mere act of of the the passage .by if I like- it, rightly apprehend majority,
The opinion does that a State possess power concedes wise in such lands possession private the rights property in some is stated restricted way but. the power be, parties, where such can.be parcels disposed to “small parcels, in the lands and interests without detriment thé But it difficult to see how validity waters remaining.” if the can exists, of the exercise power, power depend if how, the size granted, be'possible parcel *66 is a that the to such the limitation, subject power imagine in be as the affected, case would grant question, present one, a valuable the is, doubtless relatively large though if not waters, soil and insignificant, yet certainly, remaining to be not It effected, in of the unreasonable. view purposes that a railroad is matter common great system, knowledge Railroad of the Illinois like that Central Company, requires for its termi- an extensive territory constantly increasing n nal facilities. to be the of Illinois It would seem if State has that, plain her the power, by legislature, private rights grant in interests soil under her the .waters, parcels navigable a and its extent of such interests grant public effect upon waters are matters lands remaining legislative discretion. State' Illinois then,
Assuming, possesses to confer ’'IllinoisCentral .power grant, upon Railroad by in the lands df the private rights Company, property the waters of the lake, we underlying come inquire whether she has exercised that a valid enactment, by power if whether the so made has been so, grant revoked. legally the State,
It was on behalf of that the act contended, to confer railroad upon certain purporting company rights in the lands in did not so question, really operate,'because in record of the senate does not show that the bill proceedings was read three times it's and because the during title passage, bill does of the express purpose sufficiently TERM, SMras,
Dissenting Opinion: Gray, Brown. JJ- to valid bill—both of which constitutional requisites legis- lation. in this It is to discuss these unnecessary objections
(cid:127). opinion, and because the untenable, because below held them court in of the this court adopts reasoning opinion majority in this conclusion the court regard. below It further on behalf of the contended, State,' that, even if the act 1869 were a valid exercise legislative power, made did not vest railroad com- thereby yet and franchises in the nature rights property, pany private certain but conferred merely powers company which were taken and held purposes, public as an of the and which could be agency accordingly whenever, wisdom, recalled the State she deemed it her interest to do without a so, thereby infringing contract between her and the railroad existing company» n Thisis that must be decided the terms of the question read nature exercised, light grant, power character of railroad corporation created to out and of carry the'facts and' public purposes, circumstances disclosed the record.
It must conceded, in limine, that, construing the State entitled to the benefit of grant, certain well- settled canons of construction pertain grants by *67 State to or as, private persons instance, for corporations, if there any in ambiguity the act uncertainty that inter- must be it which is most pretation put upon to favorable the of that the words State; the grant, to the' attributable being the party procuring are to legislation, receive a strict con- struction as that, against grantee; and "as the State acts we should public good, to find the con- expect grant sistent with morals good- welfare of the State general at and of the large to be particular affected. community
These concessions, and, large of in course, order de- feat the not to be grant; they ought the bounds pushed beyond of reason, so as to in result a strained and construc- improbable tion. Reasonable effect must be em- given language' and the manifest' intent of the enactment must ployed, prevail. ILLINOIS CENTRAL RAILROAD v. ILLINOIS. 469 Opinion: Shiras, Gray, Brown,
Dissenting JJ. 20, 1850, an act of Congress, approved September By c. of 200 feet 61, Stat. 466, right way exceeding of width lands was State granted through public for the construction of a railroad from the southern Illinois, of the Illinois and terminus Canal that State Michigan (at at confluence of the Ohio Missis- Cairo, La Salle) with a branch from that line to Rivers, Chicago, sippi of via State another, Galena, city Dubuque, A was-also made to the Iowa. lands and branches, which, construction of the railroad aid “ a the terms were to be remain act, public high- for the use of the of the United free States, way government toll or other charge upon transportation prop- It was also United States.” erty troops provided that the United States mail should at all times transported the said railroad under the direction of the Post Office on as the at such law Congress might Department price direct.
This act of .was Congress legisla- formally accepted 1851,192, ture of the 111., 1851. Laws February — before, February 193. Seven days acceptance — Illinois Central Railroad incorporated Company operating the constructing, maintaining purpose the-act and branches contemplated Congress. railroad was author- charter, of its the company section the second By locate, construct, complete, to. survey, ized and empowered one or more tracks railroad with a maintain alter, operate of the Illinois terminus southern from the or lines of rails, with a Cairo, at the city ato Canal point Michigan' on Lake Chicago Michigan,1 of the same to city branch tó on the Mis- Galena point via and also branch in the State of Dubuque River town opposite sissippi Iowa.” “ the said corpora- section w;as in the third It provided and may appropriate have the upon, tion shall right way herein, contemplated its sole use and control purposes entire in width through feet land not two hundred exceeding all and of and use take ánd possession length; may enter *68 TERM, Siiiras, Brown, Opinion: Gray, Dissenting JJ. streams and materials for the lands, kind,
singular any every location of con- for the depots.and stopping stages, purpose station, dams, embankments, excavations, structing bridges, banks, and other turnouts, houses, grounds, spoil shops engine for the construction, buildings necessary completing, altering, of said road. maintaining, preserving complete operation waters, All such lands, materials and privileges belonging the State are to said hereby granted said corporation pur- or but when owned poses;. belonging any person, company and cannot be obtained corporation, by voluntary grant release, the same for, be taken and if paid any damages awarded, the manner in ‘An act for a provided provide of railroad system general incorporations,’ approved November and the final decision or award shall vest in the cor- created all the hereby franchises poration rights, immuni- in' act ties said contemplated provided.” “ The section had the : eighth following provision Nothing in this act contained shall authorize said to make corporation location of their track within without the consent any city of the common council of said city.” section, fifteenth and all
By right way the lands the act of State by before granted mentioned, Congress and also the over and lands right way owned through ceded and were to the' granted corporation purpose surveying, locating, constructing, completing, said road and branches.” altering, maintaining operating was a in this section There that the rail- requirement (clause 3) built into the road should city Chicago. the. section, the
By eighteenth required, consideration of conferred, franchises grants, privileges into the of the State, on the treasury first pay Monday of each December June five centum of the year, per gross -the road and branches for the six months then next receipts preceding. n section twenty-second assessment of an provided annual tax for state all the and assets purposes .upon property and if tax and the five corporation; cent per charge should amount to seven gross receipts cent per *69 ' u RAILROAD ILLINOIS. CENTRAL. ILLINOIS 4*71 ras, Brown, Gray, Dissenting-Opinion: Shi JJ. or income of the receipts company,'it
of the total-proceeds, into “so the difference the State treasury, was to-pay required amount least seven to make the whole paid as at equal per of said receipts corporation.” cent gross Exemption- n “ all-, from taxation sectjon kind, was in that every granted ' as for.” herein except provided to in the third section referred The act of November 5,1849, land a mode charter, condemning required, provided an and contained uses, provision for railroad express seize,(i “shall become in the entry corporation of-judgment described estate the-con- all the lands and real during fee of Laws Illinois, 1849, 27. tinuance of corporation.” council to location of the- of the common The consent an ordinance Chicago railroadi within city given 1852. June 14, passed an act was On'the 16th of legis- April, passed “An act in relation to Illinois, entitled
lature of portion lands and Lake Park grounds -lying on submerged on the of Lake eastern front- tó the shore Michigan, adjacent section of this The'third act Chicago.” pro- city age vided as follows: of the Illinois' Central Eailroad Com- Sec. in charter, Staté which said' undér the from the grant
.pany, for which the said- constitutes a consideration part cent of to the State at least seven per gross company pays occu- under virtue of- its appropriation, earnings, control, ownership use riparian incident pancy, in and use and control, appropriation, occupancy, grant, east of the said line- to the lands otherwise lying submergéd -of the west with and four hundred feet east running parallel in ten line" fractional sections Avenúe, (10) Michigan , Con- aforesaid, fifteen hereby (15), township range ; and all and title of firmed Illinois, lands, the bed Lake and to the constituting submerged -and breakwater of the east of the tracks Michigan, lying n of one- Illinois Eailroad Central Company distance line of the south extended and between the pier south mile, from eastward the south line a line extended eastwardly, .and TERM, Sliiras, Gray, Brown,' Opinion: Dissenting JJ.
of lot and near round-house and south of to .the twenty-one, south division of the machine of said company, shops to the said fee, hereby granted, Chicago, said its successor Illinois Central Railroad assigns: Company, ¡the be held fee to said lands shall however,That Provided, the said shall said and that perpetuity, same, fee not have sell convey power grant, leases, or other- and that all use, profits, gross receipts *70 thereon, wise said lands or the or. may improvements of the hereafter be made form a thereon, gross pro- shall part Central Rail- ceeds, and income of the said Illinois receipts road which forever said shall pay Company, upon company the into State centum treasury, pro- per semi-annually, for in its vided accordance with the charter, requirements charter: said And herein con-' also,.That provided, nothing harbor, tained shall authorize obstructions to or Chicago (cid:127) nor shall this be impair public right act navigation, to construed Illinois Railroad exempt Central Company, or its lessees from act of the assigns, any general assembly, which be hereafter the rates may passed, of wharf- regulating to be in said dockage charged harbor: And age provided That of the lands any to further, ’the Illinois hereby granted Railroad Central and the Company, now or improvements which on hereafter be which may same, shall be' hereafter said leased Illinios Central. Railroad to Company any per- or or son which corporation, hereafter be may occupied or other any than person corporation said Illinois Central Railroad shall not, Company, the continuance of during leasehold estate or of such be from occupancy, munici- exempt or other taxation.” 111.Laws pal 1869, act, By right railroad to all the company had lands it appropriated line east'of a occupied, lying to, drawn and four parallel of, hundred feet east line west Michigan Avenue, fractional sections ten and fifteen, confirmed; a further was made to grant company thé lands submerged east of its tracks and lying breakwater, n within distance of one mile therefrom, between the the. south of the south line pier.extended and line extended eastwardly eastward from the south line of lot twenty-one. v. ILLINOIS. CENTRAL RAILROAD
ILLINOIS Brown, Shiras, Gray, Opinion: Dissenting JJ. and natural used
What the fair \ import language in force there So as the act stands seems to me to long the Illinois Central is to contract; whereby exist Company ,and control of the have lands enjoy perpetual possession with the same and take improye question, thereof, issues that' the rents, profits provided always shall have the to sell or lands, alien such company power nor shall be authorized to maintain obstructions company or harbor, Chicago naviga- impair'the'public right nor shall the tion; its lessees or be ex- company, assigns, act empted assembly, may' general be hereafter the rates of passed, wharfage regulating to be con- harbor, said dockage charged whereby, in_ it shall sideration of these rights privileges, of the State of'the duty company pay, railroad seven cent receive, receipts per gross said land otherwise, leases use, from t profits, be hereafter or that made thereon, the improvements thereon.” the re-* railroad
Should the attempt disregard lands, can, the said by judicial straint on alienating *71 it act, an or can as such treat enjoin legal proceeding, ifor, the the railroad company forfeiting grant; ground the for, State centum provided fails or to the refuses per pay and law, at by pro- suit possibly can by enforce payment so as the But long to forfeit the railroad grant. ceedings is so long agreement, fulfil shall company part of the United the Constitution State of Illinois inhibited by of the act obligation States from impairing passing contract. and both limitations, expressed implied,
Doubtless there are lands by company. on the these title to and control over forbidden to is As we have seen, expressly company of navi- to obstruct harbor, public impair Chicago and railroad So, from nature of the corporation gation. of its relation improvements public, with must be consistent these lands put upon by company, must be their duties calculated to carriers, as common OCTOBER TERM, 1892. Shiras, Opinion: Brown-, Dissenting Gray, JJ. of the railroad in the efficiency receipt
promote ship- xfrom and But ment lake. these are inci- freight do not of the it. dents defeat grant operate it To be well to prevent misapprehension, say is not in this view the case that the State can pretended contract, with her has part, parted, sovereign powers. takes holds The these lands railroad at company subject in the all times to the State as obtain same sovereign powers in the Nor can the case of other owners grant property. hostile to the this case be regarded way powers in.any arid in the control of harbors general naviga- government ble waters. able in the of the statement, interesting opinion of the in the waters, of the
majority, navigable rights public the limitation of the of the State part powers its control over But them, is not dissented from. pertinency discussion seen. will It the-present clearly in. time to invoke the enough doctrine inviolability if when and the railroad shall rights dis- attempt ‘ them. regard Should State of Illinois see, and unforeseen great and of growth Chicago lake commerce, reason to doubt the her prudence legislature entering into the contract created passage acceptance act of 1869, she can take the of the rail- rights property road in these lands a constitutional condemnation of them. freed So, from the of an shackles undesirable con- tract, she can make, as she bill her desire expresses do, a more sale or advantageous other disposition parties,” without offence to the law of the land.
The doctrine that a to'a cor- by making of her own poration herself to creation, the restraints subjects of law been able judicially has interpreted, impugned by po- litical thinkers, find in the decision of who. perhaps, may, *72 the court in the countenance their case some of views. present , But I am unable to there is intention on suppose any of this court to from its ex- part doctrine so often depart pressed. v. RAILROAD
ILLINOIS CENTRAL ILLINOIS. 475 Brown, Shiras, Opinion-: Gray, Dissenting JJ. of or
“¥e no any have knowledge authority principle the doctrine that a could is legislative support in its held bene nature, revocable own durante only plácito. is doctrine ... inconsistent a Such a utterly great a fundamental of principle republican government, of free their enjoyment property citizens acquired.” legally A created lose corporation legislature may private a misuser of its franchises or non-user them, they may a resumed under judicial government judgment and enforce forfeiture. a warranto ascertain quo upon . But that can statutes . . repeal creating legislature to them property already private corporations, confirming such laws, under of the faith previous repeal acquired of such exclusively can vest the corporations property to-such same they-may dispose purposes or default we without the consent corporators, please, think we admit; standing" are not ourselves prepared the fundamental of natural justice, upon upon principles- and the letter laws free upon of every spirit government, States, and deci- of the United Constitution tribunals, resisting sions most respectable judicial Cranch, 51, 43, doctrine.” Terrett v. Taylor, S. Chief Justice 814, 816, v. 101 U. In Stone Mississippi, “ It is now said: court, Waite, opinion delivering (cid:127) a State' contract which actually that any toó late to contend ato corporation,' charter when into, private enters granting'a in the Constitution the clause is not within the protection from laws States passing that prohibits States United doctrines Trus of contracts. the obligation impairing an Wheat. Woodward, Dartmouth College tees of become have court more than years ago,, sixty nounced by States as to United in the jurisprudence so imbedded the Constitu them to all intents part purposes make itself.” tion view of case foregoing conclusion
The obvious revocation, act as an arbitrary act that the that the is void, reserved power, in the exercise passed *73 TERM, 1892.' Statement of the Case. court decree below should be and that that reversed, court should be directed to enter a decree the bill dismissing the, of Illinois and the cross-bill city Chicago. Gray
I am authorized state Mr. Justice Mr. Justice Brown concur in this dissent.
The Chief Justice, below, been counsel the court having and Mr. Justice a stockholder in the Illinois being Blatciipord, Central Railroad did not take Company, part consideration or decision of these cases.
DERBY THOMPSON. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR .
THE OF DISTRICT MASSACHUSETTS. 40. 1892. Argued II, 14, No. November Decided December 12, protected patent The article claimed to be under the claim second in letters 224,923 24, 1880, February Joseph No. issued W. Kenna for a new improvement useful not, in a carriage, combined child’s chair and did time, with reference to the state art at the involve invention in opinion, majority court; thé judges but all the concur in the opinion construction, and, that, that the claim should a receive narrow aspect case, infringe. the defendants’ chairs did not This was a bill in of letters equity infringement number 224,923,issued patent "W. February 24,1880, Joseph for a Kenna, new useful in a combined child’s improvement chair and carriage. invention related to an article which, of furniture aby
simple adjustment from a converted child’s parts, may chair for use at a high table to a child’s vice carriage, versa, as be desired ; and more to the manner particularly the chair to its connecting frame, supporting supporting it thereon. It consisted of an chair, practically B, ordináry with four mounted when used as legs, chair high