This case was before this Court in
Illinois Central Railroad
Company v. Illinois, 146 U. S. 387, and
in that case the history of the litigation relating to the property
involved is fully disclosed, and the court found that the
structures made in the lake by the Railroad Company did not extend
beyond the point of practical navigability, and upon the return of
this cause to the circuit court, nothing was before that court
except to inquire whether the structures erected by the Railroad
Company extended into the lake beyond the point of practical
navigability.
There was no error in holding that, in view of the manner in
which commerce was conducted on the lake during the period of the
investigation below, the structures erected by the Railroad Company
did not extend into the water beyond the point of practical
navigability.
The circuit court and the circuit court of appeals having
concurred in finding that the structures in question did not extend
into the lake beyond the point of practical navigability, the
decree below should not be disturbed, unless it was clearly in
conflict with the evidence.
The case is stated in the opinion of the court.
Page 184 U. S. 78
MR. JUSTICE HARLAN delivered the opinion of the Court.
This case has been heretofore in this Court.
Illinois
Central Railroad Company v. Illinois, 146 U.
S. 387. The decree then under review was affirmed in all
respects except one, and as to that one the cause was remanded for
further investigation of the facts upon which it depended.
The case involved the asserted ownership by the Illinois Central
Railroad Company of certain piers, docks, and wharves constructed
by it on the lake front of the City of Chicago, east of Michigan
Avenue.
The state contended that the structures in question were
erected, without authority of law, on lands belonging to it, and
that the decree now before us was erroneous in not so
declaring.
The railroad company contended that the mandate of this Court on
the former appeal left open for consideration by the circuit court
only one question, namely, whether those structures extended beyond
the point of practical navigability, having reference to the manner
in which commerce in vessels is conducted on Lake Michigan, and
that that issue of fact having been found in its favor, the circuit
court could not properly have passed any other decree than one
confirming the company's title to such structures.
The history of the litigation relating to this property is fully
disclosed in
Illinois Central Railroad Company v.
Illinois, above cited. But it will be appropriate and will
contribute to a clear understanding of the present appeal if the
essential facts be restated in this opinion.
In the year 1883, an information was filed in the Circuit Court
of Cook County, Illinois, by the that state against the Illinois
Central Railroad Company, the City of Chicago, and the United
States of America. That case was removed into the Circuit Court of
the United States for the Northern District of Illinois, and a
motion to remand it to the state court was overruled. 16 F. 881. In
the same case, the City of Chicago filed a cross-bill against the
state and its codefendants. At the same time, there was pending in
the circuit court of the United States for the same district an
information
Page 184 U. S. 79
in equity filed by the government against the Illinois Central
Railroad Company, the Michigan Central Railroad Company, the
Chicago, Burlington and Quincy Railroad Company, the Baltimore and
Ohio Railroad Company, and the City of Chicago.
At the hearing of those causes in the circuit court, certain
maps were used, one being known as the map of "Fort Dearborn
Addition to Chicago" made by direction of the Secretary of War
under the authority of an Act of Congress approved March 3, 1819;
the other being known as the Morehouse Map. Both maps were made
part of the opinion of this Court in
Illinois Central Railroad
v. Illinois, and for convenience are here reproduced:
Page 184 U. S. 80
image:a
Page 184 U. S. 81
image:b
Page 184 U. S. 82
The questions involved in the above suits are indicated by the
following extract from the opinion of the circuit court at the
original hearing:
"The state, in the original suit, asks a decree establishing and
confirming her title to the bed of Lake Michigan, and her 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, [
Footnote 1]
Page 184 U. S. 83
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 15, 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 relief sought
by the United States is a decree declaring the ultimate title and
property in the 'Public Ground' shown on the plat of the Fort
Dearborn Addition, south of Randolph Street, and also in the open
space shown on the plat of fractional section 15 addition, to be in
the United
Page 184 U. S. 84
States, with the right of supervision and control over the
harbor and navigable waters aforesaid; that the railroad companies
and the city be enjoined from exercising any right, power, or
control over said grounds or over the waters or shores of the lake;
that the Illinois Central Railroad Company be restrained from
making or constructing any piers, wharves, or docks, and from
driving piles, building walls, or filling with earth or other
materials in the said lake, or from using any made-ground, or any
piers, wharves, or other constructions made or built by or for it
in or about the outer harbor, to the east of the 200-feet strip of
its way-ground, or from taking or exacting any toll for such use,
and that the Illinois Central Railroad Company be required to abate
and remove all obstructions placed by it in said outer harbor, and
to quit possession of all lands, waters, and made-ground taken and
held by it without right as aforesaid. The state, the city, and the
general government all unite in contending that the Lakefront Act
of 1869 is inoperative and void."
33 F. 730, 750.
A final decree was rendered in the circuit court on the 24th day
of September, 1888. By that decree, it was adjudged that the fee of
certain streets, avenues, and grounds was in the City of Chicago in
trust for public use, and that the City of Chicago, as riparian
owner of such grounds on the east or lakefront of said 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 to that end conferred by its
charter, had, among other powers, the power to establish,
construct, erect, and keep in repair on the lakefront, east of such
premises, within the lines given, and in such manner as would be
consistent with law, public landing places, wharves, docks, and
levees, subject, however, in the execution of that power, to the
authority of the state by legislation to prescribe the lines beyond
which piers, docks, wharves, and other structures, other than those
erected by the general government, might not be extended into the
waters of the harbor that were navigable in fact and to such
supervision and control as the United States might rightly exercise
in and over such harbor, and subject also to the enjoyment by the
Illinois
Page 184 U. S. 85
Central Railroad Company of the rights then to be defined and
described.
It was further adjudged:
"
That the Illinois Central Railroad Company is the
owner in fee of all the wharves, piers, and other structures
erected by it in the City of Chicago
east of Michigan Avenue,
south of Chicago river, and north of the north line of Randolph
Street, extended eastwardly as shown upon said Morehouse map,
including the station grounds lying west of the slip C, the pier
marked C, lying east of slip C, and represented upon the Morehouse
map to have been built in 1867,
and piers 1, 2, and 3, lying
east of pier C last mentioned, and represented upon said map to
have been built as follows: pier 1 in 1872 and 1873, pier 2 in
1881, and pier 3 in 1880, and is also entitled to the use, for the
purposes of its business, of the slips marked on said Morehouse
map."
"That said company is likewise the owner in fee of all the
wharves, piers, and other works made and constructed by it in the
City of Chicago east of its main tracks,
between the north line
of block 23, in fractional section 15 addition to Chicago, and the
center line of Sixteenth Street extended, including the pier or
line of piling represented upon the said Morehouse map to have been
built in 1870, and the station grounds lying west of the said pier
and contiguous thereto; also of the wharf or pier projecting into
the lake from the grounds last mentioned, and represented upon the
said Morehouse map to have been built in 1885, which said
wharves, piers, and other works so constructed
and so far as
constructed by the said Illinois Central Railroad Company, as
aforesaid, are lawful structures and not encroachments upon the
domain of the State of Illinois
or upon the public right of
navigation, or upon the property interests or estate of the
said City of Chicago."
"And the court doth further find and declare, and it is hereby
adjudged and decreed, that the third section of the act of the
General Assembly of the State of Illinois, passed over the
Governor's veto April 16, 1869, 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
Page 184 U. S. 86
Frontage of the City of Chicago,"
"so far at least, as it confirms"
"the right of the Illinois Central Railroad Company under the
grant from the state in its charter, . . . and under and by virtue
of its appropriation, occupancy, use, and control, and the riparian
ownership incident to such grant, appropriation, occupancy, use,
and control in and to the lands, submerged or otherwise, lying east
of the said line running parallel with and four hundred feet east
of the west line of Michigan Avenue in fractional sections ten and
fifteen,"
"is a valid and constitutional exercise of legislative power,
and legalizes as well what was done by said company prior to April
16th, 1869, in the way of filling in the lake and constructing
wharves, piers, tracks, warehouses, and other works between the
Chicago River and the north line of Randolph Street extended
eastwardly, as its occupancy and use for way-ground of the two said
triangular pieces of ground immediately south of Randolph Street,
and that the subsequent act of the General Assembly of Illinois,
passed April 15th, 1873, insofar as it sought by repealing the said
Act of April 16th, 1869, to revoke or annul said confirmatory
clause of the last-named act, was void under the Constitution both
of Illinois and of the United States; but the court is of opinion,
and so adjudges and decrees, that the said Act of April 15th, 1873,
repealing said Act of April 16th, 1869, had the effect in law to
withdraw from said railroad company the grant to it, its successors
and assigns, by the third section of said Act of April 15th (16th),
1869, of"
"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 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 said
City of Chicago,"
"and to reinvest the state with such right and title as it had
in and to said premises prior to the passage of said Act of April
16th, 1869, and said repealing act had the further effect to
withdraw from said company the additional power conferred upon it
by said Act of April 16th, 1869, to improve the harbor of Chicago,
and
Page 184 U. S. 87
to engage in the business of constructing and maintaining
wharves, piers, and docks for the benefit of commerce and
navigation generally, and not in the prosecution of its business as
defined and limited by its original charter and the laws of the
state, saving, however, to said company as unaffected by said
repeal the right to hold and use as part of its way-ground or right
of way, and not otherwise, the before-mentioned part of the
submerged lands east of its breakwater between Monroe and
Washington Streets extended eastwardly, which was reclaimed from
the lake in 1873, presumably upon the faith of the act of 1869, and
is marked on the Morehouse map with the words 'built 1873.'"
"It is further ordered, adjudged, and decreed that the
defendant, the Illinois Central Railroad Company, be, and it is
hereby, perpetually enjoined and restrained from erecting
structures in or filling with earth or other materials any portion
of the bed of Lake Michigan
as it now exists and as shown on
said Morehouse map east or in front of said fractional sections ten
and fifteen -- that is, east or in front of the grounds
now occupied and used by it between Chicago River and the north
line of Randolph Street extended eastwardly, or east or in
front of the grounds
now occupied and used by it between the
north line of Randolph and the center line of Sixteenth Street,
each extended eastwardly, except that said company
may
complete the slip or basin already commenced immediately north
of Sixteenth Street extended, with a wharf on each side of it not
exceeding one hundred feet in width each, where vessels coming into
such slip or basin may load and unload, and upon which tracks of
the company may be laid, and it is considered and ordered by the
court that the Illinois Central Railroad Company and the City of
Chicago each pay one-half of the costs herein, and that execution
issue therefor."
The railroad company not having obtained all it claimed, the
cause was brought by it to this Court, which affirmed the decree of
the circuit court
except as modified in certain
particulars, to be presently indicated.
Illinois Central
Railroad v. Illinois, 146 U. S. 387,
146 U. S.
449.
Referring to the third section of the act of the Illinois
Legislature
Page 184 U. S. 88
of 1869, this Court said:
"The section in question has two objects in view: one was to
confirm certain alleged rights of the railroad company under the
grant from the state in its charter and under and"
"by virtue of its appropriation, occupancy, use, and control,
and the riparian ownership incident thereto, in and to the lands
submerged or otherwise lying east of a line parallel with and four
hundred feet east of the west line of Michigan Avenue, in
fractional sections ten and fifteen. The other object was to grant
to the railroad company submerged lands in the harbor. The
confirmation made, whatever the operation claimed for it in other
respects, cannot be invoked so as to extend the riparian right
which the company possessed, from its ownership of lands in
sections ten and fifteen on the shore of the lake. Whether the
piers or docks constructed by it
after the passage of the act
of 1869 extended beyond the point of navigability in the
waters of the lake must be the subject of judicial inquiry upon the
execution of this decree in the court below. If it be ascertained
upon such inquiry and determined that such piers and docks do not
extend beyond the point of
practical navigability, the
claim of the railroad company to their title and possession
will be confirmed; but if they, or either of them are
found on such inquiry to extend beyond the point of such
navigability, then the state will be entitled to a decree that
they, or the one thus extended, be abated and removed to the extent
shown, or for such other disposition of the extension as, upon the
application of the state and the facts established, may be
authorized by law."
The modifications in the original decree of 1888 which this
Court directed to be made are distinctly shown by the following
extract from our opinion:
"It follows from the views expressed, and it is so declared and
adjudged, that the State of Illinois is the owner in fee of the
submerged lands constituting the bed of Lake Michigan, which the
third section of the Act of April 16th, 1869, purported to grant to
the Illinois Central Railroad Company, and that the Act of April
15th, 1873, repealing the same, is valid and effective for the
purpose of restoring to the state the same control, dominion,
Page 184 U. S. 89
and ownership of said lands that it had prior to the passage of
the Act of April 16th, 1869."
"But the decree below, as it respects the pier commenced in
1872, and the piers completed in 1880 and 1881, marked 1, 2, and 3,
near Chicago River, and the pier and docks between and in front of
Twelfth and Sixteenth Streets, is
modified so as to direct
the court below to order such investigation to be made as may
enable it to determine whether those piers erected by the company,
by virtue of its riparian proprietorship of lots formerly
constituting part of section 10, extend into the lake
beyond
the point of practical navigability, having reference to the manner
in which commerce in vessels is conducted on the lake, and if
it be determined upon such investigation that said piers, or any of
them, do
not extend beyond such point,
then that
the title and possession of the railroad company to such piers
shall be affirmed by the court; but if it be ascertained
and determined that such piers, or any of them, do extend beyond
such navigable point,
then the said court shall direct the
said pier or piers,
to the excess ascertained, to be
abated and removed, or that other proceedings relating thereto be
taken on the application of the state as may be authorized by law,
and also to order that similar proceedings be taken to ascertain
and determine whether or not the pier and dock constructed by the
railroad company in front of the shore between Twelfth and
Sixteenth Streets
extend beyond the point of navigability, and
to affirm the title and possession of the company if they do not
extend beyond such point, and, if they do extend beyond such
point, to order the abatement and removal of the excess, or that
other proceedings relating thereto be taken on application of the
state as may be authorized by law.
Except as modified in the
particulars mentioned, the decree in each of the three cases
on appeal must be affirmed, with costs against the railroad
company,
and it is so ordered."
Illinois Central Railroad v. Illinois, 146 U.
S. 387,
146 U. S. 449,
146 U. S.
464.
The mandate of this Court embodied the above extract from its
opinion, and upon the return of the causes to the circuit court,
the parties took additional proof on the single matter so reserved
for investigation.
Page 184 U. S. 90
Upon final hearing in the circuit court, May, 1896, a decree was
entered by which it was found and adjudged
"that the said piers and docks referred to in the aforesaid
judgment and mandate of the Supreme Court and there described as
piers marked 1, 2, and 3, near Chicago River, and the piers and
docks constructed by the said railroad company in front of the
shore between Twelfth and Sixteenth Streets, all in the City of
Chicago, in the State of Illinois, do not extend, nor does either
of them extend, into the lake beyond the point of practical
navigability, having reference to the manner in which commerce in
vessels is conducted on the lake. It is therefore ordered,
adjudged, and decreed that the title and possession of the said
Illinois Central Railroad Company to the said piers, and each of
them and every part thereof, be, and the same is hereby,
affirmed."
That decree was affirmed by the circuit court of appeals, 91 F.
955, and the case is here upon appeal by the State of Illinois. No
appeal was taken by the United States or by the City of
Chicago.
In view of these facts, what matters are open for consideration
on this appeal? This question was fully discussed at the bar. It is
not in our opinion difficult of solution.
We have seen that, by the original decree of the circuit court
rendered September 24th, 1888, the railroad company was adjudged to
be the owner in fee of the particular structures in question,
namely, the piers marked 1, 2, and 3 on the Morehouse map, as well
the piers and docks between and in front of Twelfth and Sixteenth
Streets, and were entitled to use and control them in its business.
This Court held that view to be correct,
provided the
structures did
not "extend into the lake beyond the point
of practical navigability, having reference to the manner in which
commerce in vessels in conducted on the lake." If, upon
investigation, it was found that the structures referred to did in
fact extend beyond that point, then the circuit court was directed
to make such decree as would effect their removal "to the excess
ascertained;" and if the contrary was found to be the case, then a
decree was to be entered recognizing the right of the railroad
company in respect of the structures in question to be such as were
declared by the original decree of the circuit court.
Page 184 U. S. 91
As already shown, the circuit court found, upon full inquiry,
that the structures did not extend beyond the point of practical
navigability, having reference to the manner in which commerce was
conducted on the lake, and in conformity with the mandate a decree
was entered confirming the title of the railroad company.
In
Sibbald v. United
States, 12 Pet. 488,
37 U. S. 492,
this Court said:
"A final decree in chancery is as conclusive as a judgment at
law.
14 U. S. 1 Wheat. 355;
19 U. S. 6 Wheat. 113,
19 U. S. 116. Both are
conclusive on the rights of the parties thereby adjudicated. No
principle is better settled, or of more universal application, than
that no court can reverse or annul its own final decrees or
judgments, for errors of fact or law, after the term in which they
have been rendered, unless for clerical mistakes,
16 U. S.
3 Wheat. 591;
28 U. S. 3 Pet. 431; or to
reinstate a cause dismissed by mistake,
25 U. S.
12 Wheat. 10; from which it follows that no change or
modification can be made which may substantially vary or affect it
in any material thing. . . . Whatever was before the court, and is
disposed of, is considered as finally settled. The inferior court
is bound by the decree as the law of the case, and must carry it
into execution, according to the mandate. They cannot vary it, or
examine it for any other purpose than execution, or give any other
or further relief, or review it upon any matter decided on appeal
for error apparent, or intermeddle with it, further than to settle
so much as has been remanded. . . . After a mandate, no rehearing
will be granted, . . . and on a subsequent appeal, nothing is
brought up but the proceeding subsequent to the mandate.
9 U. S. 5 Cranch 316;
20
U. S. 7 Wheat. 58,
20 U. S.
59;
23 U. S. 10 Wheat. 443."
In
Roberts v.
Cooper, 20 How. 467,
61 U. S. 481,
the Court said:
"On the last trial, the circuit court was requested to give
instructions to the jury contrary to the principles established by
this Court on the first trial, and nearly all the exceptions now
urged against the charge are founded on such refusal. But we cannot
be compelled on a second writ of error in the same case to review
our own decision on the first. It has been settled by the decisions
of this Court that, after a case has been brought here and decided,
and a mandate issued to the court
Page 184 U. S. 92
below, if a second writ of error is sued out it brings up for
revision nothing but the proceedings subsequent to the mandate.
None of the questions which were before the court on the first writ
of error can be reheard or examined upon the second. To allow a
second writ of error or appeal to a court of last resort on the
same questions which were open to dispute on the first would lead
to endless litigation. In chancery, a bill of review is sometimes
allowed on petition to the court; but there would be no end to a
suit if every obstinate litigant could, by repeated appeals, compel
a court to listen to criticisms on their opinions, or speculate of
chances from changes in its members. . . . We can now notice,
therefore, only such errors as are alleged to have occurred in the
decisions of questions which were peculiar to the second
trial."
To the same effect are numerous cases, some of which are cited
in the margin. [
Footnote 2]
It is clear under the adjudged cases that, upon the return of
this cause to the circuit court, nothing was before that court
except to inquire whether the structures erected by the railroad
company, and specifically described in the opinion and mandate of
this Court, extended into the lake beyond the point of practical
navigability, having reference to the manner in which commerce in
vessels was conducted on the lake. That matter, and nothing more,
has been or could have been determined by the final decree of the
circuit court, and therefore on this appeal we can only inquire as
to the soundness or unsoundness of its conclusion upon the sole
question reserved for investigation. We therefore do not stop to
consider, as the appellant insists we should do, whether this Court
erred in any particular
Page 184 U. S. 93
in its opinion or judgment on the former appeal, in respect of
any matter then determined. Every matter embraced by the original
decree of the circuit court, and not left open by the decree of
this Court, was conclusively determined, as between the parties, by
our former decree, and is not subject to reexamination on this
appeal.
We come, then, to consider the merits of the case as involved in
the only question now before us -- namely, whether the structures
referred to extend beyond the point of practical navigability,
having reference to the manner in which commerce in vessels is
conducted on the lake.
Judge Showalter, in the circuit court, found that the facts
relating to the structures north of Randolph Street and those
between Twelfth and Sixteenth Streets fully protected the railroad
company under the rule prescribed by the mandate of this Court.
Referring to vessels of the largest class continuously used in lake
navigation, he said:
"Such vessels, when ladened, require from 16 to 20 feet of water
in which to float. A vessel drawing more than 12 feet, as I find
from the evidence in the case, would hardly reach the structure
here in question in the ordinary stages of water, and in the lowest
water vessels requiring more than 10 feet could not reach or land
at these docks. Without being specific as to the exact depth of the
water, I find that the two piers and docks between Twelfth and
Sixteenth Streets do not extend into the lake beyond the point of
practical navigability, having reference to the manner in which
commerce in vessels is conducted on the lakes, and I make the same
finding as to the piers and docks north of Randolph Street."
In the circuit court of appeals, Judge Jenkins, speaking for the
court, said:
"The right [of the riparian owner] is a relative right, having
relation, in the language of the Supreme Court in this cause, 'to
the manner in which commerce in vessels is conducted on the lake.'
To serve any useful purpose these piers must reach water of
sufficient depth to float vessels when laden, and alongside of
which vessels can be brought to be conveniently loaded or unloaded.
A sufficient depth of water to float vessels such as navigate the
waters of the lake is essential, and
Page 184 U. S. 94
it is a necessary incident of the riparian right that the pier
shall penetrate the water to a distance from the shore necessary to
reach water which shall float vessels, the largest as well as the
smallest, that are engaged in the commerce of the lakes.
Atlee v. Packet Company,
21 Wall. 393;
Langdon v. New York, 93 N.Y. 151. . . . We
must have regard to the object for which this right is conferred.
It is to reach out to accommodate the vessels that plow the waters
of the lake. It is in aid of the commerce of the lake, and that
right for that purpose should be liberally interpreted and
upheld."
After referring to the harbor line adopted by the United States
government at the request of the City of Chicago, the court
proceeded:
"Without undertaking to say to what extent these proceedings of
the City of Chicago were authorized as between it and the people of
the State of Illinois, it is sufficient to say that these things
have been done without any adverse action on the part of the State
of Illinois. If they have no other effect, they tend to strengthen,
if support be needed, the general drift of all the evidence in the
case, that the necessities of the commercial marine of the Great
Lakes require substantially a depth of water of twenty feet to
float the larger class of vessels, and indicate that that depth at
the present time marks 'the point of practical navigability, having
reference to the manner in which commerce in vessels is conducted
on the lake.' It is conceded that the piers in question do not
intrude into the waters of the lake to that extent, and that the
depth of water can be obtained at them only by dredging. Conceding,
then, as we must, the right of the railroad company to reach that
point of practical navigability, these structures were not and are
not unlawful, and its rights to them must be sustained. The title
to submerged lands resting in the state is held in trust in aid of
navigation. Courts have at all times been diligent to protect and
enforce rights of navigation, in aiding and protecting whatever may
tend to build up and encourage commerce upon the seas. It does not
comport with our sense of duty in the protection of a mere naked
legal title to submerged land, to deny a conceded riparian right --
conceded because so declared by the ultimate tribunal -- when that
bare legal title is
Page 184 U. S. 95
held in trust for the very purpose to which these structures are
devoted -- namely, the accommodation of the commerce of the lake.
To compel the abatement or removal of these structures to the
extent demanded, or to any extent, in view of the establishment of
the harbor line as indicated, would be to render them useless for
the accommodation of the commerce of the lakes, and to practically
deny to the appellee a substantial and valuable riparian right to
which the Supreme Court has determined it is entitled."
The words of our mandate, "
practical navigability,
having reference to the manner in which commerce in vessels [on the
lake] is conducted," admonished the circuit court that the question
as to the extent to which the railroad company could rightfully
continue to occupy the bed of the lake with piers, docks, or
wharves was not to be determined upon narrow, technical grounds,
but upon grounds which, under all the circumstances, would be fair
and reasonable as between the company and the public, having
reference to the manner in which commerce was commonly or
habitually conducted in vessels of various sizes.
It is said that, in determining whether the piers and docks in
question extended into the lake beyond the point of practical
navigability, the circuit court could only take into view the size
and capacity of vessels habitually employed on the lake at the
commencement of this litigation or at the date of the original
decree in the circuit court.
We are of opinion that nothing in our mandate or opinion
compelled the circuit court to frame its decree upon that theory.
That court was directed to ascertain whether the structures
complained of extended beyond practical navigability, having
reference to the manner in which commerce "is conducted on the
lake." There was no intention to withhold the power to determine
the particular matter reserved for investigation in the light of
the situation as it was when that investigation was made. If this
Court had intended that investigation should relate to the
situation as it was when the litigation commenced, or when the
original decree was rendered, it would have so declared. If, having
reference to the manner in which commerce
Page 184 U. S. 96
in vessels was conducted at the time of the investigation below,
the structures in question did not extend into the lake beyond the
point of practical navigability, then the circuit court, in the
execution of the mandate of this Court, properly confirmed the
title and possession of the railroad company as established by the
original decree.
It appears from the evidence that, in 1847, the largest vessel
on the lake had capacity sufficient to carry 18,000 bushels of
corn; that in 1860, some grain vessels carried as much as 20,000
bushels, having a draft of about twelve or twelve and a half feet.
In 1869, some vessels had a draft of thirteen feet. Later, and
during the period covered by the investigation, there were vessels
on the lake carrying 100,000 bushels of corn, while others carried
as much as 160,000 bushels, the latter drawing from sixteen to
eighteen feet of water. The proof shows that the tendency for many
years prior to the rendition of the decree was to increase the
carrying capacity of vessels. That was particularly so in the case
of metal steamers, some of which carried as much as 4,000 or 5,000
tons, while others varied in draft from ten to eighteen feet. There
were, at the time of the investigation below, vessels regularly
engaged in commerce on the lake whose draft was as much as twenty
feet.
It is safe to say that, according to the evidence in the cause,
a wharf or pier in the lake would not have adequately accommodated
commerce, as carried on in many vessels on the lake, unless it had
reached water not less than from fourteen to eighteen feet deep,
and even such a structure could not have been used by the largest
vessels on the lake. It was shown by soundings that the structures
in question extended no farther into the lake than was necessary to
accommodate a great number of vessels of moderate capacity. When
the investigation below was entered upon, pursuant to our mandate,
the depth of water in the channel of Chicago River over the La
Salle and Washington Streets tunnels was about sixteen feet and
eight inches -- a greater depth than exists at the outer edge of
the piers, docks, and wharves in question, except that at the mouth
of the Chicago River, against the ends of some of the company's
structures, there is a depth of eighteen to twenty feet,
obtained
Page 184 U. S. 97
by dredging. The average depth of water at the outer line of the
structures in question does not exceed twelve or thirteen feet, at
the utmost, which is insufficient for the accommodation of a vast
amount of commerce carried on in vessels on the lake. An
examination of the evidence will disclose this fact beyond all
serious controversy.
We are therefore of opinion that there was no error in holding
that, in view of the manner in which commerce was conducted on the
lake during the period of the investigation below, such structures
did not extend into the water beyond the point of practical
navigability. Regard being had to the weight of the proof, the same
conclusion would be reached if we looked at the capacity of the
vessels used on the lake at the time of the original decree in the
circuit court.
Confirmation of these views will be found in the testimony of
many witnesses whose opinions are entitled to respect. Captain
Marshall of the Engineer Corps of the United States Army, having
accurate knowledge of the harbor of Chicago and of its needs, was
asked the question:
"Having reference to the manner in which commerce in vessels is
now conducted on the lakes at the port of Chicago, what in your
opinion is the reasonable and necessary depth of water in a slip or
dock for the accommodation of that commerce?"
His answer was:
"At present, no vessel with a deeper draft than about sixteen
feet can carry on commerce in the Chicago River, so that I should
think that a foot deeper than that -- seventeen feet -- would be a
proper depth to accommodate the largest as well as the smallest
vessels that come to Chicago now."
He was also asked:
"If you were to construct a pier or wharf in the said outer
harbor for the accommodation of vessels engaged in lake commerce,
or were to advise in relation thereto, what would be the depth of
the water you would consider it necessary to reach in order that
such pier or dock should be available for the uses intended?"
He replied:
"Seventeen feet at present, and ultimately they should construct
their docks with twenty feet of water. Piling and bulkheads so as
to stand dredging to twenty feet."
Many other witnesses testified substantially to the same
effect.
Page 184 U. S. 98
It does not follow from what has been said that the railroad
company can, of right, further extend into the lake either the
structures in question or new structures. While sustaining the
title and possession of the railroad company in respect to piers
and docks, so far as then constructed, the original decree of 1888
perpetually enjoined the railroad company from erecting structures
in or filling with earth or other materials any portion of the bed
of Lake Michigan as it then existed and was shown on the Morehouse
map east or in front of the fractional sections ten and fifteen,
that is,
"east or in front of the grounds now [at the date of the
original decree] occupied and used by it between Chicago River and
the north line of Randolph Street extended eastwardly, or east or
in front of the grounds now [then] occupied and used by it between
the north line of Randolph and the center line of Sixteenth Street,
each extended eastwardly, except that said company may
complete
the slip or basin already commenced immediately north of
Sixteenth Street extended, with a wharf on each side not exceeding
one hundred feet in width each, where vessels coming into such slip
or basin may load or unload, and upon which tracks of the company
may be laid."
These restrictions imposed by the original decree were confirmed
by the former decree of this Court, leaving open only the question
whether the structures complained of, and as then constructed and
maintained, extended into the lake beyond the point of practical
navigability. So that the railroad company cannot acquire by the
present decision any authority to further extend its structures
into the lake. It must stand upon the original decree of the
circuit court in respect of its rights.
We may add that, the circuit court and the circuit court of
appeals having concurred in finding that the structures in question
did not extend into the lake beyond the point of practical
navigability -- which is largely, if not entirely, a question of
fact -- the decree should not be disturbed unless it was clearly in
conflict with the evidence.
Compania la Flecha v. Brauer,
168 U. S. 104,
168 U. S. 123;
Stuart v. Hayden, 169 U. S. 1,
169 U. S. 14;
Baker v. Cummings, 169 U. S. 189,
169 U. S. 198;
The Carib Prince, 170 U. S. 655.
Page 184 U. S. 99
For the reasons stated, the decree of which the state
complains must be affirmed, and it is so ordered.
THE CHIEF JUSTICE, having been of counsel for the City of
Chicago in the earlier stages of this litigation, took no part in
the consideration or decision of this case.
[
Footnote 1]
Martin v. Hunter's
Lessee, 1 Wheat. 304,
14 U. S. 355;
Browder v.
McArthur, 7 Wheat. 58;
Washington
Bridge Co. v. Stewart, 3 How. 413,
44 U. S. 425;
Chaires v. United
States, 3 How. 611,
44 U. S. 620;
Corning v. Troy Iron &
Nail Factory, 15 How. 451,
56 U. S. 466;
Peck v.
Sanderson, 18 How. 42;
Whyte v.
Gibbes, 20 How. 541;
Ex Parte
Dubuque and Pacific Railroad, 1 Wall. 69,
68 U. S. 73;
Noonan v.
Bradley, 12 Wall. 121,
79 U. S. 129;
Wayne County v. Kennicott, 94 U. S.
498;
Stewart v. Salamon, 97 U. S.
361;
Brooks v. Railroad Co., 102 U.
S. 107;
Northern Pacific Railroad Co. v. Ellis,
144 U. S. 458,
144 U. S. 464;
Gaines v. Rugg, 148 U. S. 228,
148 U. S. 241;
Last Chance Mining Co. v. Tyler Mining Co., 157 U.
S. 683,
157 U. S. 691;
New Orleans v. Citizens' Bank, 167 U.
S. 371,
167 U. S. 396;
In re Sanford Fork & Tool Co., 160 U.
S. 247.
[
Footnote 2]
"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. Passed over veto,
April 16, 1869."
The third section of that act reads:
"ยง 3. The right of the Illinois Central Railroad Company under
the grant from the state in its charter, which said grant
constitutes a part of the consideration for which the said company
pays to the state at least seven percent of its gross earnings, and
under and by virtue of its appropriation, occupancy, use, and
control, and the riparian ownership incident to such grant,
appropriation, occupancy, use, and control, in and to the lands,
submerged or otherwise, lying east of the said line, running
parallel with and 400 feet east of the west line of Michigan
Avenue, in fractional sections ten and fifteen, township and range
as aforesaid, is hereby confirmed, and 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, are hereby granted in fee to the said Illinois
Central Railroad Company, its successors and assigns: provided,
however, that the fee to said lands shall be held by said company
in perpetuity, and that the said company shall not have power to
grant, sell, or convey the fee to the same, and that all gross
receipts from use, profits, leases, or otherwise of said lands, or
the improvements thereon, or that may hereafter be made thereon,
shall form a part of the gross proceeds, receipts, and income of
the said Illinois Central Railroad Company, upon which said company
shall forever pay into the state treasury, semiannually, the
percentum provided for in its charter, in accordance with the
requirements of said charter, and provided also that nothing herein
contained shall authorize obstructions to the Chicago harbor, or
impair the public right of navigation; nor shall this act be
construed to exempt the Illinois Central Railroad Company, its
lessees or assigns, from any act of the General Assembly which may
be hereafter passed regulating the rates of wharfage and dockage to
be charged in said harbor, and provided further that any of the
lands hereby granted to the Illinois Central Railroad Company, and
the improvements now, or which may hereafter be, on the same, which
shall hereafter be leased by said Illinois Central Railroad Company
to any person or corporation, or which may hereafter be occupied by
any person or corporation other than said Illinois Central Railroad
Company, shall not, during the continuance of such leasehold estate
or of such occupancy, be exempt from municipal or other
taxation."