Illinois Central R. Co. v. Illinois, 146 U.S. 387 (1892)
U.S. Supreme CourtIllinois Central R. Co. v. Illinois, 146 U.S. 387 (1892)
Illinois Central Railroad Company v. Illinois
Nos. 419, 608-809
Argued October 12-14, 1892
Decided December 5, 1892
146 U.S. 387
The ownership of and dominion and sovereignty over lands covered by tidewaters, within the limits of the several states, belong to the respective states within which they are found, with the consequent right to use or dispose of any portion thereof when that can be done without substantial impairment of the interest of the public in the waters, and subject always to the paramount right of Congress to control their navigation so far as may he necessary for the regulation of commerce with foreign nations and among the states.
The same doctrine as to the dominion and sovereignty over and ownership of lands under the navigable waters of the Great Lakes applies which
obtains at the common law as to the dominion and sovereignty over and ownership of lands under tidewaters on the borders of the sea, and the lauds are held by the same right in the one case as in the other, and subject to the same trusts and limitations.
The roadway of the Illinois Central Railroad at Chicago as constructed, two hundred feet in width, for the whole distance allowed for its entry within the city, with the tracks thereon, and with all the guards against danger in its approach and crossings, and the breakwater beyond its tracks on the east, and the necessary works for the protection of the shore on the west, in no respect interfere with any useful freedom in the use of the waters of the lake for commerce, foreign, interstate or domestic, and, as they were constructed under the authority of the law, Stat. of February 17, 1851, Laws Ill. 1851, 192, by the requirement of the city as a condition of its consent that the company might locate its road within its limits, Ordinance of June 14, 1852, they cannot be regarded as such an encroachment upon the domain of the state as to require the interposition of the Court for their removal or for any restraint in their use.
The Illinois Central Railroad Company never acquired by the reclamation from the waters of the lake of the land upon which its tracks are laid, or by the construction of the road and works connected therewith, an absolute fee in the tract reclaimed, with a consequent right to dispose of the same to other parties or to use it for any other purpose than the one designated -- the construction and operation of a railroad thereon, with one or more tracks and works, in connection with the road or in aid thereof.
That company acquired by the construction of its road and other works no right as a riparian owner to reclaim still further lands from the waters of the lake for its use, or for the construction of piers, docks and wharves in the furtherance of its business; but the extent to which it could reclaim the land under water was limited by the conditions of the ordinance of June 14, 1852, which was simply for the construction of a railroad on a tract not to exceed a specified width, and of works connected therewith.
The construction of a pier or the extension of any land into navigable waters for a railroad or other purposes, by one not the owner of lands on the shore, does not give the builder of such pier or extension, whether an individual or corporation, any riparian rights.
The railroad company owns and has the right to use in its business the reclaimed land and the slips and piers in front of the lots on the lake north of Randolph Street which were acquired by it, and in front of Michigan Avenue between the lines of Twelfth and Sixteenth Streets, extended, unless it shall be found by the circuit court on further examination, that the piers as constructed extend beyond the point of navigability in the waters of the lake, about which this Court is not fully satisfied from the evidence in this case.
The railroad company further has the right to continue to use, as an additional
means of approaching and using its station grounds, the spaces and the rights granted to it by the ordinances of the City of Chicago of September 10, 1855, and of September 15, 1856.
The Act of the Legislature of Illinois of April 16, 1869, granting to the Illinois Central Railroad Company, its successors and assigns
"all the right and title of the State of Illinois in and to the submerged lands constituting the bed of Lake Michigan and lying east of the tracks and breakwater of the Illinois Central Railroad Company, for the distance of one mile, and between the south line of the south pier extended eastwardly and a line extended eastward from the south line of lot twenty-one, south of and near to the roundhouse and machine shops of said company, in the south division of the said City of Chicago,"
cannot be invoked so as to extend riparian rights which the company possessed from its ownership of lands in sections ten and fifteen on the lake, and as to the remaining submerged lands, it was not competent for the legislature to thus deprive the its ownership of the submerged lands in the harbor of Chicago, and of the consequent control of its waters, and the attempted cession by the Act of April 16, 1869, was inoperative to affect, modify, or in any respect to control the sovereignty and dominion of the state over the lands or its ownership thereof, and any such attempted operation of the act was annulled by the repealing act of April 15, 1813, which, to that extent, was valid and effective.
There can be no irrepealable contract in a conveyance of property by a grantor in disregard of a public trust, under which he was bound to hold and manage it.
The fee of the made or reclaimed ground between Randolph Street and Park Row, embracing the ground upon which rest the tracks and the breakwater of the railroad company south of Randolph Street, is in the city, and subject to the right of the railroad company to its use of the tracks on ground reclaimed by it and the continuance of the breakwater, the city possesses the right of riparian ownership, and is at full liberty to exercise it.
The City of Chicago, as riparian owner of the grounds on its east or lakefront of the city, between the north line of Randolph Street and the north line of block twenty-three, each of the lines being produced to Lake Michigan, and in virtue of authority conferred by its charter, has the power to construct and keep in repair on the lakefront east of said premises within the lines mentioned, public landing places, wharves, docks and levees, subject, however, in the execution of that power, to the authority of the state to prescribe the lines beyond which piers, docks, wharves and other structures other than those erected by the general government, may not he extended into the navigable waters of the harbor, and to such supervision and control as the United States may rightfully exercise.
In equity. These appeals were taken from a decree in a bill or information filed by the State of Illinois against the
Illinois Central Railroad Company, the City of Chicago, and the United States, and a cross-bill therein filed by the city against the Railroad Company, the United States and the State. 33 F. 730. The object of the litigation was to determine the rights, respectively, of the State, of the city, and of the Railroad Company in land, submerged or reclaimed, in front of the waterline of the city on Lake Michigan.
As the record came to this Court, the cause was further entitled "The United States, Appellant v. The People of the State of Illinois et al., No. 610." On the suggestion of the Solicitor General that the United States had never been a party to these suits in the court below and had never taken an appeal from the decree, that title was dropped from the opinion of the court.
The facts were stated by MR. JUSTICE HARLAN in his opinion in the court below, as follows [Footnote 1]:
It is necessary to a clear understanding of the numerous questions presented for determination, that we should first trace the history of the title to these several bodies of lands up to the time when the Illinois Central Railroad was located Within the limits of Chicago.
First. As to the lands embraced in the Foot Dearborn Reservation.
In the year 1804, the United States established the military
post of Fort Dearborn, immediately south of Chicago River, and near its mouth, upon the southwest fractional quarter of section 10. It was occupied by troops as well when Illinois, in 1818, was admitted into the Union as when Congress passed the Act of March 3, 1819, authorizing the sale of certain military sites. By that act it was provided:
"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."
3 Stat. 520, c. 88.
In 1824, upon the written request of the Secretary of War, the southwest quarter of fractional section 10, containing about 57 acres, and within which Fort Dearborn was situated, was formally reserved by the Commissioner of the General Land Office from sale and for military purposes. Wilcox v. Jackson, 13 Pet. 498, 38 U. S. 502. The United States admit, and it is also proved, that the lands so reserved were subdivided in 1837 by authority of the Secretary -- he being represented by one Matthew Birchard, as special agent and attorney for that purpose -- into blocks, lots, streets, and public grounds called the "Fort Dearborn Addition to Chicago." And on the 7th day of June, 1839, a map or plat of that addition was acknowledged by Birchard, as such agent and attorney, and was recorded in the proper local office. A part of the ground embraced in that subdivision was marked on the record plat "Public ground forever to remain vacant of buildings."
The plat of that subdivision is substantially reproduced below as Map A.
The lots designated on this plat were sold and conveyed by the United States to different purchasers. The United States expressly reserved from sale all of the Fort Dearborn Addition
(including the ground marked for streets) north of the south line of lot 8 in block 2, lots 4 and 9 in block 4, and lot 5 in block 5, projecting said lines across the adjacent streets. The grounds so specially reserved remained in the occupancy of the general government for military purposes from 1839 until after 1845. The legal effect of that occupancy appears in United States v. Chicago, 7 How. 185. The City of Chicago having proposed in 1844 to open Michigan Avenue through the lands so reserved from sale, notwithstanding at the time they were in actual use for military purposes, the United States instituted a suit in equity to restrain the city from so doing. It appeared in the case that the agent of the general government gave notice at the time of selling the other lots that the ground in actual use by the United States was not then to be sold. It also appeared that the Act of March 4, 1837, incorporating the City of Chicago and designating the district of country embraced within its limits expressly excepted "the southwest fractional quarter of section 10, occupied as a military post, until the same shall become private property." Ill.Laws, 1837, pp. 38, 74.
The court held that the city had no right to open streets through that part of the ground which, although laid out in lots and streets, had not been sold by the government, that its corporate powers were limited to the part which, by sale, had become private property, and that the streets laid out and dedicated to public use by Birchard, the agent of the Secretary of War, did not, merely by his surveying the land into lots and streets and making and recording a map or plat thereof, convey the legal estate in such streets to the city and thereby authorize it to open them for public use and assume full municipal control thereof. The court held to be untenable the claim of the city that
"because streets had been laid down on the plan by the agent [Birchard] part 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."
"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 real estate, and to its important public works."
Second. As to the lands in controversy embraced in Fractional Section 15.
This section is on the lakeshore, immediately south of section 10. The particular lands, the history of the title to which is to be now examined, are between the west line of the street now known as Michigan Avenue and the roadway or wayground of the Illinois Central Railroad Company, and between the middle line of Madison Street and the middle line of Twelfth Street, excluding what is known as Park Row or block 23, north of Twelfth Street.
By an Act of the Illinois Legislature of February 14, 1823, entitled "An act to provide for the improvement of the internal navigation of this State," certain persons were constituted commissioners to devise and report upon measures for connecting, by means of a canal and locks, the navigable waters of the Illinois River and Lake Michigan. Ill.Laws, 1823, p. 151. This was followed by an Act of Congress approved March 2, 1827, entitled "An act to grant a quantity of land to the State of Illinois for the purpose of aiding in opening a canal to connect the waters of the Illinois River with those of Lake Michigan," granting to this state for the purposes of such enterprise a quantity of land equal to one-half of five sections in width on each side of the proposed canal (reserving each alternate section to the United States), to be selected by the Commissioner of the General Land Office, under direction of the President, said lands to be "subject to the disposal of the said state for the purpose aforesaid, and for no other," and said canal to remain forever a public highway for the use of the national government, free from any charge for any property of the United States passing through it. 4 Stat. 234, c. 51. The power of the state to dispose of these lands was further recognized or conferred by the third section of the act, as follows:
"SEC. 3. That the said state, under the authority of the legislature thereof, after the selection shall have been so made,
shall have power to sell and convey the whole or any part of the said land and to give a title in fee simple therefor to whomsoever shall purchase the whole or any part thereof."
4 Stat. 234.
By an act of the Illinois Legislature of January 22, 1829, entitled "An act to provide for constructing the Illinois and Michigan Canal," the commissioners for whose appointment that act made provision were directed to select, in conjunction with the Commissioner of the General Land Office, the alternate sections of land granted by the act of Congress, such commissioners being invested with the power, among others,
"to lay off such parts of said donation into town lots as they may think proper, and to sell the same at public sale in the same manner as is provided in this act for the sale of other lands."
The act of 1829 was amended February 15, 1831, so as to constitute the Canal Commissioners a board to be known as the "Board of Canal Commissioners of the Illinois and Michigan Canal," with authority to contract and be contracted with, sue and be sued, plead and be impleaded, and with power of control in all matters relating to said canal. Ill.Laws, 1830, 1831, 39.
Pursuant to and in conformity with said acts of Congress and of the Legislature of Illinois, the selection of lands for the purposes specified was made by the proper authorities and approved by the President on the 21st of May, 1830. Among the lands so selected was said fractional section 15.
By an act of the Illinois Legislature, approved January 9, 1836, entitled "An act for the construction of the Illinois and Michigan Canal," the Governor was empowered to negotiate a loan of not exceeding $500,000, on the credit and faith of the state, as therein provided, for the purpose of aiding, in connection with such means as might be received from the United States, in the construction of the Illinois and Michigan Canal, for which loan should be issued certificates of stock, to be called the "Illinois and Michigan Canal stock," signed by the Auditor and countersigned by the Treasurer, bearing an interest not exceeding six per cent, payable semi-annually, and "reimbursable"
at the pleasure of the state at any time after 1860, and for the payment of which, principal and interest, the faith of the state was irrevocably pledged. The same act provided for the appointment of three commissioners to constitute a board to be known as "The Board of Commissioners of the Illinois and Michigan Canal," and to be a body politic and corporate, with power to contract and be contracted with, sue and be sued, plead and be impleaded, in all matters and things relating to them as canal companies, and to have the immediate care and superintendence of the canal and all matters relating thereto. Ill.Laws, 1836, 145.
That act contained, among other provisions, the following:
"SEC. 32. The commissioners shall examine the whole canal route, and select such places thereon as may be eligible for town sites, and cause the same to be laid off into town lots, and they shall cause the canal lands in or near Chicago, suitable therefor, to be laid off into town lots."
"SEC. 33. And the said Board of Canal Commissioners shall, on the twentieth day of June next, proceed to sell the lots in the town of Chicago, and such parts of the lots in the town of Ottawa, as also fractional section Fifteen adjoining the town of Chicago, it being first laid off and subdivided into town lots, streets and alleys, as in their best judgment will best promote the interest of the said canal fund, provided always that before any of the aforesaid town lots shall be offered for sale, public notice of such sale shall have been given. . . ."
Ill.Laws, 1836, 150. The revenue arising from the canal, and from any lands granted by the United States to the state for its construction, together with the net tolls thereof, were pledged by the act for the payment of the interest accruing on the said stock and for the reimbursement of the principal of the same. Ibid. §§ 41, 153.
In 1836, the Canal Commissioners, under the authority conferred upon them by the statutes above recited, caused fractional section 15 to be subdivided into lots, blocks, streets, etc., a map whereof was made, acknowledged and recorded on the 20th of July, 1836, which map is substantially reproduced below as Map B.
At the time this map was made and recorded, fractional sections 15 and 10 were both within the limits of the "Town" of Chicago, except that by the Act of February 11, 1835, changing the corporate powers of that town, it was provided
"that the authority of the Board of Trustees of the said Town of Chicago shall not extend over the south fractional section 10 until the same shall cease to be occupied by the United States."
Ill.Laws, 1835, p. 204. But, prior to the survey and recording of the plat of fractional section 10, to-wit, by the act of March 4, 1837, the City of Chicago was incorporated, and its limits defined (excluding, as we have seen, "the southwest fractional quarter of section 10, occupied as a military post, until the same shall become private property,") and was invested with all the estate, real and personal, belonging to or held in trust by the trustees of the town, its common council being empowered to lay out, make and assess streets, alleys, lanes and highways in said city, to make wharves and slips at the end of the streets, on property belonging to said city, and to alter, widen, straighten and discontinue the same. Ill.Laws, 1837, 61, § 38 § 74, § 61.
Congress having, by an Act approved September 20, 1850, 9 Stat. 466, c. 51, made a grant of land to Illinois for the purpose of aiding the construction of a railroad from the southern terminus of the Illinois and Michigan Canal to a point at or near the junction of the Ohio and Mississippi Rivers, with branches to Chicago and Dubuque, the Illinois Central Railroad Company was incorporated February 10, 1851, and was made the agent of the state to construct that road. Private Laws Ill. 1851, 61. It was granted power by its charter, Sec. 3,
"to survey, locate, construct, complete, alter, maintain and operate a railroad, with one or more tracks or lines of rails from the southern terminus of the Illinois and Michigan Canal to a point at the City of Cairo, with a branch of the same to the City of Chicago, on Lake Michigan, and also a branch via the city of Galena to a point on the Mississippi River opposite the town of Dubuque, in the State of Iowa."
In addition to certain powers, privileges, immunities and franchises -- including the right to purchase, hold and convey real and personal
estate, which might be needful to carry into effect the purposes and objects of its charter -- it was provided that the company
"shall have the right of way upon, and may appropriate to its sole use and control for the purposes contemplated herein, land not exceeding two hundred feet in width through its entire length; may enter upon and take possession of and use all and singular any lands, streams and materials of every kind for the location of depots and stopping stages, for the purposes of constructing bridges, dams, embankments, excavations, station grounds, spoil banks, turnouts, engine houses, shops and other buildings necessary for the construction, completing, altering, maintaining, preserving and complete operation of said road. All such lands, waters, materials and privileges belonging to the state are hereby granted to said corporation for said purposes: . . . provided that nothing in this section contained shall be so construed as to authorize the said corporation to interrupt the navigation of said streams."
But the company's charter also provided (Sec. 8):
"Nothing in this act contained shall authorize said corporation to make a location of their track within any city without the consent of the common council of said city."
Such consent was given by an ordinance of the Common Council of Chicago, adopted June 14, 1852, whereby permission was granted to the company to lay down, construct and maintain within the limits of that city and along the margin of the lake within and adjacent to the same a railroad with one or more tracks, and to have the right of way and all powers incident to and necessary therefor, upon certain terms and conditions, to-wit:
"The said road shall enter at or near the intersection of its southern boundary with Lake Michigan, and, following the shore on or near the margin of said lake northerly to the southern bounds of the open space known as Lake Park, in front of canal section fifteen, and continue northerly across the open space in front of said section fifteen to such grounds as the said company may acquire between the north line of Randolph Street and the Chicago River, in the Fort Dearborn addition in said city, upon which said grounds shall be located the depot of said railroad within the city, and such other buildings,
slips or apparatus as may be necessary and convenient for the business of said company. But it is expressly understood that the City of Chicago does not undertake to obtain for said company any right of way or other right, privilege or easement, not now in the power of said city to grant or confer, or to assume any liability or responsibility for the acts of said company."
By other sections of the ordinance, it was provided as follows:
By the second section, that the company might
"enter upon and use in perpetuity for its said line of road, and other works necessary to protect the same from the lake, a width of 300 feet from the southern boundary of said public ground near Twelfth Street to the northern line of Randolph Street -- the inner or west line of the ground to be used by said company to be not less than 400 feet east from the west line of Michigan Avenue and parallel thereto."
By the third section, that they
"may extend their works and fill out into the lake to a point in the southern pier not less than 400 feet west from the present east end of the same, thence parallel with Michigan Avenue to the north line of Randolph Street extended, but it is expressly understood that the common council does not grant any right or privilege beyond the limits above specified, nor beyond the line that may be actually occupied by the works of said company."
By the sixth section, that the company
"shall erect and maintain on the western or inner line of the ground pointed out for its main track on the lakeshore, as the same is hereinbefore defined, such suitable walls, fences or other sufficient works, as will prevent animals from straying upon or obstructing its tracks, and secure persons and property from danger, said structure to be of suitable materials and sightly appearance, and of such heights as the common council may direct, and no change thereon shall be made except by mutual consent, provided that the company shall construct such suitable gates at proper places at the ends of the streets which are now or may hereafter be laid out as may be required by the common council to afford safe access to the lake, and provided also that, in case of the construction of an outside
harbor, streets may be laid out to approach the same in the manner provided by law, in which case the common council may regulate the speed of locomotives and trains across them."
By the seventh section, that the company
"shall erect and complete within three years after they shall have accepted this ordinance, and shall forever thereafter maintain, a continuous wall or structure of stone masonry, pier work or other sufficient material, of regular and sightly appearance, and not to exceed in height the general level of Michigan Avenue opposite thereto, from the north side of Randolph Street to the southern bound of Lake Park before mentioned, at a distance of not more than 300 feet east from and parallel with the western or inner line pointed out for said company as specified in section two hereof, and shall continue said works to the southern boundary of the city at such distance outside of the track of said road as may be expedient, which structure and works shall be of sufficient strength and magnitude to protect the entire front of said city, between the north line of Randolph Street and its southern boundary, from further damage or injury from the action of the waters of Lake Michigan, and that part of the structure south of Lake Park shall be commenced and prosecuted with all reasonable dispatch after acceptance of this ordinance."
By the eighth section, that the company
"shall not in any manner, nor for any purpose whatever, occupy, use or intrude upon the open ground known as Lake Park, belonging to the City of Chicago, lying between Michigan Avenue and the western or inner line before mentioned, except so far as the common council may consent, for the convenience of said company, while constructing or repairing tire works in front of said ground."
By the ninth section, that the company
"shall erect no buildings between the north line of Randolph Street and the south line of the said Lake Park, nor occupy nor use the works proposed to be constructed between these points, except for the passage of or for making up or distributing their trains, nor place upon any part of their works between said points any obstruction to the view of the lake from the shore, nor
suffer their locomotives, cars or other articles to remain upon their tracks, but only erect such works as are proper for the construction of their necessary tracks and protection of the same."
The company was given ninety days within which to accept the ordinance, and it was provided that upon such acceptance, its terms should be embodied in a contract between the city and the company. The ordinance was accepted, and the required agreement entered into on the 8th day of July, 1852.
At the time this ordinance was passed, the harbor of the city included, under the laws of the state incorporating the city,
"the piers and so much of Lake Michigan as lies within the distance of one mile thereof into the lake, and the Chicago River and its branches to their respective sources."
Private Laws Ill., 2d Sess. 1851, pp. 132, 147. Its common council had power, at the public expense, to construct a breakwater or barrier along the shore of the lake for the protection of the city against the encroachments of the water;
"to preserve the harbor; to prevent any use of the same, or any act in relation thereto . . . tending in any degree to fill up or obstruct the same; to prevent and punish the casting or depositing therein any earths, ashes or other substance, filth, logs or floating matter; to prevent and remove all obstructions therein, and to punish the authors thereof; to regulate and prescribe the mode and speed of entering and leaving the harbor, and of coming to and departing from the wharves and streets of the city by steamboats, canal boats, and other crafts and vessels, . . . and to regulate and prescribe by such ordinances, or through their harbor master, or other authorized officer, such a location of every canal boat, steamboat, or other craft or vessel or float, and such changes of station in, and use of, the harbor, as may be necessary to promote order therein, and the safety and equal convenience, as near as may be, of all such boats, vessels, crafts or floats; . . . to remove and prevent all obstructions in the waters which are public highways in said city, and to widen, straighten and deepen the same,"
and to "make wharves and slips at the end of streets, and alter, widen, contract, straighten and discontinue the same." Ibid.
Under the authority of its charter, and of the ordinance of June 14, 1852, the railroad company located its tracks within the corporate limits of the city. The tracks northward from Twelfth Street were laid upon piling placed in the waters of the lake, the shoreline, which was crooked, being, at that time, at Park Row, about 400 feet from the west line of Michigan Avenue; at the foot of Monroe and Madison Streets, about 90 feet; and at Randolph Street, about 112 feet. Since that time, the space between the shoreline and the tracks of the railroad company has been filled with earth by or under the direction of the city, and is now solid ground. After the construction of the track as just stated, the railroad company erected a breakwater east of its roadway, upon a line parallel with the west line of Michigan Avenue, and, subsequently, filled the space, or nearly all of it, between that breakwater and its tracks, and under its tracks, with earth and stone.
It is stated by counsel, and the record, we think, sufficiently shows, that when the road was located in 1852, nearly all of the lots bordering upon the lake north of Randolph Street had become the property of individuals by purchase from the United States, except a parcel adjacent to the river which had not then been sold by the general government. Soon thereafter, the company acquired the title to all of the water lots in the Fort Dearborn addition north of Randolph Street, including the remaining parcel belonging to the United States. The deed for the latter was made by the Secretary of War October 14, 1852, and included
"all the accretions made or to be made by said lake and river in front of the land hereby conveyed, and all other rights and privileges appertaining to the United States as owners of said land."
The company established its passenger house at the place designated in the ordinance of 1852, and, being the owner of said water lots north of Randolph Street, it gradually pushed its works out into the shallow water of the lake to the exterior line specified in that ordinance, 1376 feet east of the west line of Michigan Avenue.
In order that the railroad company might approach its passenger depot, the common council, by ordinance, adopted
September 10, 1855, granted it permission to curve its tracks westwardly of the line fixed by the ordinance of 1852,
"so as to cross said line at a point not more than 200 feet south of Randolph Street, extending and curving said tracks northwesterly as they approach the depot, and crossing the north line of Randolph Street, extended, at a point not more than 100 feet west of the line fixed by the ordinance, in accordance with the map or plat thereof submitted by said company and placed on file for reference."
This grant was, however, upon the following conditions: that the company lay out upon its own land, west of and alongside its passenger house, a street 50 feet wide, extending from Water Street to Randolph Street, and fill the same up its entire length within two years from the passage of said ordinance; that it should be restricted in the use of its tracks south of the north line of Randolph Street, as provided in the ordinance of 1852; and
"when the company shall fill up its said tracks south of the north line of that street down to the point where said curves and side-tracks commence, and the city shall grant its permission so to fill up its tracks, it should also fill up, at the same time and to an equal height, all the space between the track so filled up and the lakeshore as it now exists, from the north side of Randolph Street down to the point where said curves and sidetracks intersect the line fixed by the ordinance aforesaid."
The company's tracks were curved as permitted; the street referred to was opened and has ever since been used by the public; and the required filling was done.
It being necessary that the railroad company should have additional means of approaching and using its station grounds between Randolph Street and the Chicago River, the city, by another ordinance adopted September 15, 1856, granted it permission
"to enter and use in perpetuity, for its line of railroad and other works necessary to protect the same from the lake, the space between its present [then] breakwater and a line drawn from a point on said breakwater 700 feet south of the north line of Randolph, extended, and running thence on a straight line to the southeast corner of its present breakwater, thence to the river, provided, however, and this permission is
only given upon the express condition, that the portion of said line which lies south of the north line of Randolph Street, extended, shall be kept subject to all the conditions and restrictions as to the use of the same as are imposed upon that part of said line by the said ordinance of June 14, 1852."
In 1867, the company made a large slip just outside of the exterior line fixed by the ordinance of 1852, thereby extending its occupancy between Randolph Street and Chicago River further to the east. Along the outer edge of this pier, a continuous line of dock piling was placed, extending on a line from the river to the north line of Randolph Street, 1792 feet distant from the west line of Michigan Avenue. This line formed the company's breakwater between the river and Randolph Street at the time of the passage, April 16, 1869, of what is known as the Lake Front Act, which was passed by the legislature over the veto of the governor, and which is printed in full in the margin. Laws of 1869, p. 245.
In view of the important questions raised and of the rights asserted under that act, it is here given in full [Footnote 2]:
As early as May, 1869, the railroad company caused to be prepared a plan for an outer harbor at Chicago.
On the 12th of July of the same year, the Illinois Central Railroad Company, the Michigan Central Railroad Company,
and the Chicago, Burlington and Quincy Railroad Company, by an agent, tendered to Walter Kimball, the Comptroller of the City of Chicago, the sum of $200,000 as the first payment to the city under the fifth section of the act of 1869. He received the sum tendered upon the express condition that none of the city's rights be thereby waived or its interest in any manner prejudiced, and placed the money in bank on special deposit, to await the action and direction of the common council. The matter being brought to the attention of that body, it adopted, June 13, 1870, a resolution, declaring that the city
"will not recognize the act of Walter Kimball in receiving said money, as binding upon the city, and that the city will not receive any money from railroad companies, under said act of the General Assembly, until forced to do so by the courts."
The city never quitclaimed or released, nor offered to quitclaim or release, to said companies or to either of them, any right, title, claim or interest in or to any of the land described in the act of 1869, nor was Kimball's act in receiving the money ever recognized by the city as binding upon it. On the expiration of his term of office, he did not turn the money over to his successor in office, but kept it deposited in bank to his own individual credit, and so kept it until sometime during the year 1874 or later, when, upon application by the railroad companies, he returned it to them. No other money than the $200,000 delivered to Kimball was ever tendered by the railroad companies or either of them to the city or to any of its officers.
At a meeting of the Board of Directors of the Illinois Central Railroad Company, held at the company's office in New York, July 6, 1870, a resolution was adopted to the effect
"that this company accepts the grants under the act of the
legislature at its last session, and that the president give notice thereof to the state, and that the company has commenced work upon the shore of the lake at Chicago under the grants referred to."
On the 17th of November, 1870, its president communicated a copy of this resolution to the Secretary of State of Illinois, and gave the notice therein required, adding:
"You will please regard the above as an acceptance by this company of the above-mentioned law [Lakefront Act], and it is desired by said company that said acceptance shall remain permanently on file and of record in your office."
The Secretary of State replied, under date of November 18, 1870:
"Yours of the 17th inst., being a notice of the acceptance by the Illinois Central Railroad Company of the grants under an act of the Legislature of Illinois, in force April 16, 1869, was this day received and filed and duly recorded in the records of this office."
Following these transactions were certain proceedings, commenced about July 1, 1871, by information filed in the circuit court of the United States for that district by the United States against the Illinois Central Railroad Company. That information set forth that Congress, in order to promote the convenience and safety of vessels navigating Lake Michigan, had from time to time appropriated and expended large sums of money in and about the mouth of Chicago River, and had constructed two piers extending from the north and south banks of that river eastwardly for a considerable distance into the lake; that, in July, 1870, it appropriated a large sum of money to construct an outer harbor at Chicago in accordance with the plans of the Engineer Department of the United States; that the railroad company had from time to time wrongfully filled up with earth a portion of said lake within said harbor; that what the company had then done in that way, and what it intended to do unless prevented, would materially interfere with the execution of the plan of improvement adopted by the War Department. A temporary injunction was issued against the company. Subsequently, in 1872, the parties to that suit entered into a stipulation from which it appears that the matters referred to in said information,
relating to the construction of docks and wharves in the basin or outer harbor of the city formed by the breakwater then in process of erection by the United States, were referred to the War Department, and that the Secretary, upon the recommendation of engineer officers, approved certain lines limiting the construction of docks and wharves in said outer harbor, to-wit, commencing at the pier on the south side of the entrance to the Chicago River, 1,200 feet west of the government breakwater; thence south to an intersection with the north line of Randolph Street extended eastwardly; thence due west 800 feet; and thence south to the east and west breakwater proposed to be constructed by the United States 4,000 feet south of the pier first above mentioned, the line so established being fixed as the line to which docks and wharves may be extended by parties entitled to construct them within said outer harbor. The railroad company desiring to proceed, under the supervision of the Engineer Bureau of the United States, with the construction of docks and wharves within the proposed outer harbor between the pier on the south side of the entrance to Chicago River and the north line of Randolph Street, extended eastwardly in conformity with the said limiting lines, and having agreed to observe said lines, as well as the directions which might be given in reference to the construction of said docks end wharves by the proper officers of said bureau, the injunctional order, pursuant to stipulation between the parties, was, January 16, 1872, vacated, and the information dismissed, with leave to the United States to reinstate the same upon the failure of the company in good faith to observe the said conditions.
Subsequently the railroad company resumed work on, and, during the year 1873, completed, Pier No. 1 adjacent to the river and east of the breakwater of 1869.
On the 15th of April, 1873, the Legislature of Illinois passed the following act, which was in force from and after July 1, 1873:
"§ 1. Be it enacted, etc., that the act entitled 'An act in relation to a portion of the submerged lands and Lake Park grounds lying on and adjacent to the shore of Lake Michigan,
on the eastern frontage of the City of Chicago,' in force April 16, 1869, be and the same is hereby repealed."
Ill.Laws of 1873, 115.
In 1880 and 1881, Piers Nos. 2 and 3, north of Randolph Street, were constructed in conformity with plans submitted to and approved by the War Department.
The Common Council of Chicago, by ordinance approved July 12, 1881, extended Randolph Street eastwardly, and declared it to be a public street, from its then eastern terminus
"to the west line of the right of way of the Illinois Central Railroad Company, as established by the ordinance of September 10, 1855, . . . and also straight eastwardly from the easterly line of Slip C, produced southerly to Lake Michigan,"
giving permission to the company to construct and maintain at its own expense, within the line of Randolph Street so extended and over the company's tracks and right of way, a bridge or viaduct, with suitable approaches, to be approved by the Commissioners of Public Works, which should be forever free to the public and to all persons having occasion to pass and repass thereon. Such a bridge or viaduct was necessary in order that the piers constructed and in process of construction east of the breakwater of 1869 might be conveniently reached by teams. The viaduct was built in 1881, and extends to the base of Pier 3. It has ever since been used by the public.
It appears from the evidence that in 1882, the pier, which was built in 1870 from Twelfth Street to the north line, extended, of lot 21, was continued as far south as the center line of Sixteenth Street. The main object of this extension, according to the showing made by the company, was to protect the tracks from the waves during storms from the northeast. Another object was to construct a slip or basin south of the south line of lot 21, between the breakwater and the shore, where vessels loaded with materials for the company, or having freight to be handled, could enter and be in safety. In 1885, a pier was constructed by the company at the foot of Thirteenth Street, according to a plan submitted to the War Department; and the department did not object to its construction, "provided
no change be made in its location and length." The pier, as constructed, does not differ from that proposed and approved except that it is wider by fifty feet. But it does not appear that the War Department regards that change in the plan as injurious to navigation or as interfering with the plans of the government for an outer harbor.
At the hearing in the court below, a map was used for the purpose of showing the different works constructed by the United States, the location of all the structures and buildings erected by the railroad company, with the date of their erection, and the relation of the tracks and breakwaters of the company to the shore as it now is, and, to some extent, as it was heretofore.
That map, known as the Morehouse map, and called C, is substantially reproduced below.
The state, in the original suit, asks a decree establishing and confirming its title to the bed of Lake Michigan, and its sole and exclusive right to develop the harbor of Chicago, by the construction of docks, wharves, etc., as against the claim by the railroad company that it has an absolute title to said submerged lands, described in the act of 1869, and the right -- subject to the paramount authority of the United States in respect to the regulation of commerce between the states -- to fill the bed of the lake for the purposes of its business, east of and adjoining the premises between the river and the north line of Randolph Street, and also north of the south line of Lot 21, and also the right, by constructing and maintaining wharves, docks, piers, etc., to improve the shore of the lake for the purposes of its business and for the promotion generally of commerce and navigation. The state, insisting that the company has, without right, erected, and proposes to continue to erect, wharves, piers, etc., upon the domain of the state, asks that such unlawful structures be directed to be removed, and the company enjoined from constructing others.
The city, by its cross-bill, insists that since June 7, 1839, when the map of Fort Dearborn addition was recorded, it has had the control and use for public purposes of that part of section 10 which lies east of Michigan Avenue and between
Randolph street and fractional section fifteen, and that, as successor of the town of Chicago, it has had possession and control since June 13, 1836, when the map of Fractional Section 15 addition was recorded, of the lands in that Addition north of block 23. It asks a decree declaring that it is the owner in fee, and of the riparian rights thereunto appertaining, of all said lands, and has under existing legislation, the exclusive right to develop the harbor of Chicago by the construction of docks, wharves and levees and to dispose of the same by lease or otherwise as authorized by law, and that the railroad company be enjoined from interfering with its said rights and ownership.
The railroad company, the state, and the city each appealed from the final decree.
In the arguments, some points were taken and many cases cited thereto, which are not noticed or referred to in the opinion of the Court infra.