Although the motion under argument in the circuit court was
addressed to its discretion, yet if the questions which arose and
upon which the judges differed involved the right of the matter,
this Court will entertain those questions.
So also where the questions are several in number, and so
material as to decide the whole case, this Court will not dismiss
them, provided they appear to have arisen at one time, at one stage
of the cause, and to have involved little beyond one point.
The corporate powers of the City of Chicago have no right to
open streets through property belonging to the United States,
adjacent to the city, although the ground had been laid out in lots
and streets by the government.
Their right was limited to that part which, by a sale of the
government, had become private property.
The fact that streets had been laid out by an agent of the
government, did not amount to a dedication of them to public use,
so as to vest the control over them in the city.
The United States, having been the proprietor of all the land
and reserved a part for military purposes, holds this part by a
different title than where land is purchased by them in a
state.
In 1839, soon after the decision of the Supreme Court in
Wilcox v.
Jackson, 13 Pet. 498, deciding that southwest
fractional quarter-section ten, township thirty-nine north, range
fourteen east, in the Chicago Land District, having been selected
and used for military purposes, was not subject to preemption, the
Secretary of War, in virtue of the authority vested in him,
directed the sale of a portion thereof.
The act under which the Secretary of War derived this authority
is the Act of 3 March, 1819, entitled "An act authorizing the sale
of certain military sites," which enacts
"That the Secretary of War be, and he is hereby, authorized,
under the direction of the President of the United States, to cause
to be sold such military sites belonging to the United States as
may have been found, or become, useless for military purposes. And
the Secretary of War is hereby authorized, on the payment of the
consideration agreed for into the Treasury of the United States to
make, execute, and deliver all needful instruments conveying and
transferring the same in fee, and the jurisdiction which had been
specially ceded for military purposes to the United States by a
state over such site or sites shall thereafter cease."
Mr. Birchard, then Solicitor of the Treasury, was appointed by
the Secretary of War to make the sale and to cause the land to be
surveyed and platted as an addition to Chicago. A plat was
accordingly made dividing the land into blocks and lots, with
intersecting streets. This plat, together with a description
Page 48 U. S. 186
of the same, was recorded in the Office of the Recorder of Cook
county, under the title of "Fort Dearborn Addition to Chicago."
By this plat, several streets then existing in Chicago were
prolonged, and laid out through all the property which belonged to
the government. Lots were also laid off upon both sides of the
projected streets. But a portion of the property was expressly
reserved from sale, and marked by dotted lines lettered "Line of
reservation." Within the reserved line, there were many public
buildings belonging to the United States.
On 11 April, 1845, the following proceedings were had by the
Common Council of the City of Chicago:
"Alderman Ogden, from committee on the judiciary, reported in
favor of the petition of E. Bowen and others for the removal of
obstructions at the north end of Michigan Avenue. Received and laid
on the table. And,"
"On motion of Alderman Scammon it was ordered that the street
commissioner be directed forthwith to open the street (Michigan
Avenue) and remove the obstructions therefrom, and that the city
attorney be directed to prosecute all persons offering any
resistance to the street commissioner whilst opening said
street."
The City of Chicago was incorporated by an Act of the
Legislature of Illinois of 4 March, 1837.
See Session
Laws, 1836-37, p. 50. By the first section it is enacted,
"That the district of country in the County of Cook, in the
state aforesaid, known as the east half of the southeast quarter of
section thirty-three, in township forty &c., . . . and
fractional section ten, excepting the southwest fractional quarter
of section ten, occupied as a military post, until the same shall
become private property &c., . . . in township thirty-nine
north, range number fourteen east, of the third principal meridian,
in the state aforesaid, shall hereafter be known by the name of the
City of Chicago."
The inhabitants are incorporated by the name of the City of
Chicago, and the corporation is authorized to take, hold, purchase,
and convey such real and personal estate as the purposes of the
corporation may require.
The twenty-fourth section prescribes the duties of the street
commissioner
"to superintend the making of all public improvements ordered by
the Common Council, and to make contracts for the work and
materials which may be necessary for the same, and shall be the
executive officer to carry into effect the ordinances of the Common
Council relative thereto"
&c.
The powers of the common council over streets are conferred by
the thirty-seventh, thirty-eighth, fortieth, and forty-third
Page 48 U. S. 187
sections. The thirty-seventh enacts that
"The said Common Council shall have the exclusive power to
regulate, repair, amend, and clear the streets and alleys of said
city, bridges, side- and cross-walks, and of opening said streets,
and of putting drains and sewers therein, and to prevent the
encumbering of the same in any manner, and to protect the same from
encroachments and injury,"
&c.
The thirty-eighth enacts, that
"The common council shall have power to lay out, make, and
assess streets, alleys, lanes, highways, in the said city, and make
wharves and slips at the end of streets on property belonging to
said city; and to alter, widen, contract, straighten, and
discontinue the same; but no building exceeding the value of one
thousand five hundred dollars shall be removed in whole or in part
without the consent of the owner. They shall cause all streets,
alleys, lanes, or highways laid out by them to be surveyed,
described, and recorded in a book to be kept by the clerk, and the
same, when opened and made, shall be public highways."
The remainder of the section prescribes the manner in which the
damages shall be assessed to the owners of land taken.
The fortieth enacts that
"The Common Council shall have power to cause any street, alley,
lane, or highway in said city to be graded, leveled, paved,
repaired, macadamized, or graveled,"
&c.
And the forty-third enacts, that
"the land required to be taken for the making, opening, or
widening of any street, alley, lane, or highway, shall not be so
taken and appropriated until the damages assessed therefor shall be
paid or tendered to the owner or his agent."
A few days after the passage of the ordinance by the common
council, directing the street commissioner to open Michigan Avenue,
the United States filed their bill of complaint in the circuit
court, setting their case fully forth, and praying for a writ of
injunction against the City of Chicago, its officers, agents,
servants, counselors, and solicitors, to restrain them from
entering upon the unsold and reserved portion of the southwest
fractional quarter-section ten aforesaid, embraced within the
dotted lines of the small map, marked "Line of reservation," for
the purpose of opening "Michigan Avenue," or the other proposed
streets, or from committing any waste or spoil upon said land,
buildings, or enclosures.
The district judge granted the injunction, and on hearing a
motion for its continuance in the circuit court, the opinions of
the judges were opposed upon the following points:
1st. Whether the corporate powers of the City of Chicago have a
right to open the streets through that part of the ground laid out
in lots and streets, but not sold by the government.
Page 48 U. S. 188
2d. Whether the corporate powers of the city are not limited to
that part of the plat which, by sale of the government, has become
private property.
3d. Whether the streets laid out and dedicated to public use by
Birchard were not, by his surveying the land into lots and streets,
making and recording a map or plat thereof, did not convey the
legal estate in the streets to the City of Chicago, and thereby
made the ground embraced by said streets "private property," so as
to authorize said City of Chicago to keep said streets open.
Page 48 U. S. 190
MR. JUSTICE WOODBURY delivered the opinion of the Court.
A preliminary question has arisen as to our jurisdiction, which
first deserves attention.
The proceedings in the court below were a bill, filed on 19
April, 1845, by the United States against the City of Chicago, to
obtain an injunction not to lay out certain streets through land
belonging to the United States, which the city was preparing to
open.
Page 48 U. S. 191
Before the return day a temporary injunction was issued, and
when the term arrived, a motion was made to continue that
injunction till the merits of the bill were decided. No answer had
been put in to the merits, but a hearing was had on affidavits as
to the motion, and in that hearing the division of opinion occurred
which is now before us.
Two leading objections have been suggested to our jurisdiction
over the matter. One is that the division arose, not in a hearing
of the merits, but of a preliminary motion, resting in the
discretion of the court, and the other is that several questions
are certified, covering the whole case rather than a single
point.
In respect to the first objection, we do not propose to decide
whether the grant of a preliminary and temporary injunction is a
matter of discretion merely, rather than of right. Because,
whichever it may be, the questions of division presented here are
not those on matters of mere discretion in the court below, but
involve the right of the United States in the land proposed to be
laid out as a street by the city. The adjudged cases, where a
certificate has not been sustained on account of some discretion
connected with the subject, are chiefly those where the question
presented involved merely a matter of discretion, rather than
arising in the consideration of a motion or point, which was one of
discretion.
Smith v.
Vaughan, 10 Pet. 366;
Packer
v. Nixon, 10 Pet. 411. It must be obvious that, in
deciding a matter of discretion, a point may arise which is one of
right and very material. Other cases not sustained were decided on
the ground that they occurred after the merits of the cause were
decided, and in proceedings subsequent thereto, whether
discretionary or not.
Bank of United States v.
Green, 6 Pet. 28;
United
States v. Daniel, 6 Wheat. 548;
Devereaux
v. Marr, 12 Wheat. 212;
9
U. S. 5 Cranch 11,
9
U. S. 187, 4 Wash.C.C. 333. The act of Congress seems to
reach only matter arising in the progress of the cause, and not
afterwards, because the proviso is, "that nothing herein contained
shall prevent the cause from proceeding," &c., and hence
implies it must be in the progress of the cause.
See act
of Congress, April 29, 1802, 2 Stat. 159, 160;
19 U. S. 6
Wheat. 548. But the present question, occurring before a final
decision, comes expressly within the words of the law "that
whenever any question shall occur before a circuit court, upon
which the opinions of the judges shall be opposed, the point" of
disagreement shall be certified &c., 2 Stat. 159. And this
provision, manifestly, is broad enough to cover any material
question of right thus arising, whether the subject on hearing was
one of discretion or of right.
Page 48 U. S. 192
The second ground of objection, that these questions are several
in number, and so material as to decide the whole cause, might
prevail, if they had not arisen at one time, at one stage in the
cause, and involved little beyond one point. Because, if they are
several in number and apply to different stages of the trial, and
relate to independent points, they are generally not proper.
United States v.
Baily, 9 Pet. 267;
Nesmith
v. Sheldon, 6 How. 43;
White v.
Truk, 12 Pet. 238;
United
States v. Stone, 14 Pet. 524;
Saunders
v. Gould, 4 Pet. 392;
Grant v.
Raymond, 6 Pet. 218.
That these three questions require an opinion virtually on only
one point -- namely the right of the United States to the place
proposed to be opened as a street -- is manifest when we see that
the decision of this one way disposes of them all, and of the whole
case. And the principle embraced in the other branch of this
objection, to acting on several points which dispose of the whole
case, is not that the whole case may not properly be disposed of by
our decision on what is certified, but that the decision must in
substance be, not on several questions arising in various stages of
the cause, and some of them anticipated and presented, so as to
cover the whole case.
Leland v.
Wilkinson, 10 Pet. 294.
There has justly been a leaning in this Court to decline
jurisdiction in cases of decisions below where it is doubtful,
because the power vested here in such cases, it is believed, was
meant to be much more restricted than is often practiced, and is in
the most favorable view rather an anomaly. But by considering
questions, if certified here, only when real divisions of opinion
occur on them, and at one and the same time, no danger exists of
extending this branch of our jurisdiction beyond what Congress
intended. On the contrary, it is divisions of opinion
pro
forma, and from courtesy to counsel, and on a variety of
points, and at times, some not then having actually arisen, but
being anticipated, which appear to transcend the original design of
vesting such a power here.
We have therefore for several years declined to consider a
certificate of such a variety of points so arising. (
See
cases before cited.) And although an indulgence has sometimes been
given to certificates where, in important cases, a division was
certified
pro forma, Jones v. Van
Zandt, 5 How. 224, yet we do not feel justified in
repeating it.
To proceed to a consideration of the principal matter involved
in these questions, it will be necessary first to advert briefly to
some of the admitted facts in the case.
The United States became the owners of the land occupied by Fort
Dearborn, near Chicago, in the State of Illinois, under
Page 48 U. S. 193
the original cession of the Northwest Territory. It was
occasionally a station for troops from 1804 to 1824, when the whole
fractional quarter-section on which the fort stood was reserved by
the General Land Office for military purposes on the application of
the Secretary of War.
See Wilcox v.
Jackson, 13 Pet. 502. In that case, which is better
known as the Beaubean claim, this Court decided that this was a
legal appropriation of that quarter-section of land to a public
purpose, and exempted it from the rules as to the mass of public
lands and their usual liabilities.
From that time till A.D. 1839 it was occasionally occupied as a
fort by the United States, and a lighthouse was erected on it under
the authority of Congress, when the Secretary of War, thinking that
a portion of the same might be sold without injury to the public
interests, proceeded, with the approbation of the President, to
make such a sale, under the Act of Congress of March 3, 1819. 3
Stat. 520.
He did this by an agent, who first made a plan of the whole
quarter-section, calling it "Fort Dearborn Addition to Chicago,"
and laying it down in lots, without exhibiting on it any buildings
or reservations. But he did not sell the whole, the government not
then concluding to part with the fort, or land and buildings
immediately contiguous. On that plan certain streets were also laid
down running into the whole quarter-section. The sales, however,
being made of only the lots and land outside of what was reserved,
the United States allowed the proposed streets only so far as there
laid down to be opened by the City of Chicago, and used by the
adjoining owners, in conformity to the plan. And when the city
undertook to open the streets within the line of reservation, and
where no sales of land had been made, and where opening them would
prostrate some of the public buildings, and materially injure and
impair the public uses of the station, the United States applied
for the injunction before named.
On the motion to continue the temporary injunction till the bill
was answered and heard, the judges being opposed in opinion on the
right of the city to open streets on the public land of the United
States situated like this, the three questions certified were in
form:
"1st. Whether the corporate powers of the City of Chicago have a
right to open the streets through that part of the ground laid out
in lots and streets, but not sold by the government."
"2d. Whether the corporate powers of the city are not limited to
that part of the plat which, by sale of the government, has become
private property. "
Page 48 U. S. 194
"3d. Whether the streets laid out and dedicated to public use by
Birchard were not, by his surveying the land into lots and streets,
making and recording a map or plat thereof, did not convey the
legal estate in the streets to the City of Chicago, and thereby
made the ground embraced by said streets 'private property,' so as
to authorize said City of Chicago to keep said streets open."
But, as has been explained, the whole of them in substance
depend upon the extend and character of the rights of the United
States in the place where the new streets were proposed to be
opened. What, then, were those rights? 1st. The place was where the
title of the government had never been parted with, after the
original cession. 2d. It was where the land had been appropriated
and legally set apart for a special public use. 3d. It was where
the opening of these streets would essentially impair, if not
destroy, that public use. 4th. It was where streets had never been
opened and used, or actually dedicated in that way to purchasers of
land there, or to the community in that neighborhood. 5th. It was
where the city charter, by its act of incorporation, did not
extend, as the charter expressly excepted from its limits "the
southwest fractional quarter of section ten, occupied as a military
post, till the same shall become private property."
Now though this Court possesses a strong disposition to sustain
the rights of the states, and local authorities claiming under
them, when clearly not ceded or when clearly reserved, yet it is
equally our duty to support the general government in the exercise
of all which is plainly granted to it and is necessary for the
efficient discharge of the great powers entrusted to it by the
people and the states. The erection of forts belongs to one of
those powers, and the building and employment of lighthouses
belongs to another.
Under the circumstances of this case just recited, then, very
clear facts or principles must exist which impair the rights of the
United States before streets can be opened upon their soil, when
situated, reserved, and used as this is.
It is not questioned that land within a state purchased by the
United States as a mere proprietor, and not reserved or
appropriated to any special purpose, may be liable to condemnation
for streets or highways, like the land of other proprietors, under
the rights of eminent domain.
But that was not the condition of this quarter-section, being a
part of the land originally ceded to the United States as the
Northwest Territory, and afterwards specially set apart for their
use for military purposes. Here the opening of these streets would,
also, injure, if not destroy, the great objects of
Page 48 U. S. 195
the reservation. Nor was any compensation proposed or made, as
in other cases, for condemning this land and damaging the buildings
thereon. It seems, too, that though land purchased within a state
for ordinary purposes by the general government must yield to the
local public demands, yet land, when held like this, at first by an
original cession to that government, and afterwards appropriated
for a specific public object, cannot easily be shown liable to be
taken away for an ordinary local object, though public, and
especially one under another government and by mere implication.
United States v. Ames, 1 Woodb. & Min. 88.
In must be for a public object, clearly superior or paramount,
or to which preference is expressly given by law or the
Constitution, in order to make the right clear to seize and condemn
land so situated.
West River Bridge v.
Dix, 6 How. 543,
47 U. S. 544,
and cases there cited, 4 Gill & Johns. 108, 150.
But the correctness of this proposition, being open to some
debate, is not further explained, nor is it decided here, because
not necessary to a disposition of the case.
On other grounds, the idea seems entirely untenable which is
entertained by the city and presented in one of the questions that,
because streets had been laid down on the plan by the agent, parts
of which extended into the land not sold, those parts had, by this
alone, become dedicated as highways, and the United States had
become estopped to object.
Persons who looked only at this plan, and did not know that all
of the quarter-section was not then to be sold, might be misled in
their opinion or expectation how far some of the streets might
extend. And if becoming purchasers, such persons might have given
something more, under an impression that their lots were on a
street which would be longer and more important.
But the bill avers that the agent, at the time of the sale, gave
notice that the lots within the line of reservation were not to be
sold. How, then, could a right to open streets there pass, or
purchasers be misled? The streets could not pass as an appurtenant
to the side lots there; because they were not sold. The streets did
not pass by any deed of them, or of any easement or servitude in
them, as none was made. There had been, also, no condemnation of
them for public ways.
It is said, however, and justly, that land may be dedicated by
the owner to highways, and without deed or much formality. Thus, if
one allows his land long to be occupied by the public as a highway,
such a dedication may be presumed.
McConnel
v. Trustees of Lexington, 12 Wheat. 582. So if the
actual user has not been long, but clearly acquiesced in.
Jarvis
Page 48 U. S. 196
v. Dean, 3 Bingham 447; 1 Camp. 262;
City of
Cincinnati v. White, 6 Pet. 431. So if one makes a
map of land proposed to be sold, with streets contiguous and for
the accommodation of side owners, and sells accordingly, it may
generally be presumed that he thus dedicates the land contiguous
for the streets.
See Matter of Thirty-second Street, 19
Wend. 128;
Wyman v. Mayor of New York, 11 Wend. 486;
Lewis Street, 2 Wend. 473; 8 Wend. 85. And certainly, if
he allows them afterwards to be so occupied.
31 U. S. 6 Pet.
431.
But here, as before shown, no such occupation had been allowed
within the reserved line, nor any such sale made there of the
contiguous lots. On the contrary, all the streets so laid down on
the plan, where the lots contiguous were sold, have been allowed to
be opened without opposition by the United States. And it is
entirely unsupported by principle or precedent, that an agent,
merely by protracting on the plan those streets into the reserved
line and amidst lands not sold, nor meant then to be sold, but
expressly reserved, could deprive the United States of its title to
its real estate, and to its important public works. Nor, under such
circumstances, have the purchasers of land elsewhere, or the city,
any equitable ground of complaint, that the streets thus protracted
on paper are not opened.
Let the opinion of this Court, then, be certified in
conformity to these views, which will be, as applied to the
questions formally, in the negative as to the first and third, and
in the affirmative as to the second.
MR. JUSTICE CATRON, dissenting.
On a bill in equity being presented by the United States to the
district judge, he granted an injunction against the City of
Chicago, to restrain the corporation from running a street through
the public property attached to a military post within the
corporate limits. By the Act of February 1, 1807, injunctions
granted by district judges in vacation only remain in force until
the next term of the circuit court. Accordingly, at the next term a
motion was made to continue the injunction granted by the district
judge, and the judges were opposed in opinion whether an injunction
should or should not be granted. The entire matters of law and fact
arising on the face of the bill, and on affidavits and documents
introduced by the defendant to resist the motion, were sent up to
this Court, covered by three points, on which the judges assume to
have been opposed. And the motion to renew the injunction is
presented to us, as it was to the circuit court. And the question
is have we any power to grant the injunction? By the
Constitution,
Page 48 U. S. 197
the judicial power is vested in the supreme court and such
inferior courts as the Congress may from time to time ordain and
establish. In cases affecting public ministers and consuls of other
countries, and in cases where states are the parties, this Court
has original jurisdiction. In all other cases, the Constitution
provides "the supreme court shall have appellate jurisdiction, both
as to law and fact, with such exceptions and under such regulations
as the Congress shall make." That is to say with such exceptions to
the exercise of appellate jurisdiction as Congress shall interpose;
as that no cause shall come up unless the matter in controversy
exceeds the sum or value of two thousand dollars, nor shall a writ
of error lie in a criminal cause, nor from a district court &c.
That the original jurisdiction of the Supreme Court is limited to
the two classes of cases above referred to was held by this Court
in
Marbury v.
Madison, 1 Cranch 174. Is, then, the granting an
injunction an exercise of original jurisdiction? It may be done out
of court by the circuit judge; and so an expired injunction may be
renewed at any time by him, the courts of equity being always open
for such purpose by our present rules. This bill and affidavits are
placed before us as they were before the circuit court, and for the
same purpose, of founding an original motion on them, thereby to
procure an order for the restraining writ to issue. We are asked to
take an original incipient step, as the court below was, before any
answer is filed, and before anything could be adjudged between the
parties by the circuit court, so as to bind their rights.
What is appellate jurisdiction in the sense of the Constitution?
Our practice under the thirteenth section of the Judiciary Act of
1789 has settled the meaning of the term. It is to reexamine, and
to reverse or affirm, the judgment, sentence, order, or decree of
an inferior court -- to pass on that which has been adjudged. Here,
nothing was adjudged in the court below.
From the threatening nature of this precedent, it is deemed
improper to pass over it unnoticed, as I have done in other cases.
If a division can be certified in this instance, so there may be in
every other where an injunction is applied for in open court, and
the judges see proper to send us the cause -- for as to real
divisions, they hardly exist at present. The cases are sent here by
agreement of counsel, with the assent of the circuit court, usually
without any examination below.
I, therefore, am of opinion, that we have no jurisdiction, and
that the matter before us should be dismissed.
Order
This cause came on to be heard on the transcript of the
record
Page 48 U. S. 198
of the Circuit Court of the United States for the District of
Illinois, and on the points and questions on which the judges of
the said circuit court were opposed in opinion, and which were
certified to this Court for its opinion, agreeably to the act of
Congress in such case made and provided, and was argued by counsel.
On consideration whereof, it is the opinion of this Court
1st. That the corporate powers of the City of Chicago have no
right to open the streets through that part of the ground laid out
into lots and streets, but no sold by the government.
2d. That the corporate powers of the city are limited to that
part of the plat which, by sale of the government, has become
private property.
And 3d. That the streets laid out and dedicated to public use by
Birchard, by his surveying the land into lots and streets, and
making and recording a map or plat thereof, did not convey the
legal estate in the streets to the City of Chicago, and thereby
make the ground embraced by said streets "private property," so as
to authorize said city of Chin go to keep said streets open.
Whereupon, it is now here ordered and decreed by this Court, that
it be so certified to the said circuit court.
