The charter of the Illinois Central Railroad Company authorized
it to
"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 . . . complete operation of said
road,"
and granted to it "all such lands, waters, materials and
privileges belonging to the state." A subsequent ordinance of the
City of Chicago, passed in pursuance of authority granted by the
legislature, forbade the driving or placing of any piles, stone,
timbers or other obstruction in the harbor of the city without the
permission of the commissioner of public works.
Held,
that a federal question was presented whether this ordinance
impaired or interfered with the charter of the railroad
company.
Held further, that, under its charter, the railroad
company had no right to take possession of lands submerged beneath
the waters of Lake Michigan.
Held also that the "waters"
granted to the railroad company in the second part of the granting
clause were restricted to the "streams" mentioned in the first
part, and did not include the waters of Lake Michigan.
Under another section of the charter, providing that the
corporation should not locate its track within any city without the
consent of the common council,
held that this proviso was
not confined to the main track of the road, but included its
depots, engine houses, and necessary track approaches to the
same.
This restriction was not limited to the city as bounded at the
date of the charter, but applied also to territory subsequently
included within the city limits.
This was a bill in equity instituted by the Illinois Central
Railroad Company in the Superior Court of Cook County to obtain an
injunction restraining the City of Chicago from interfering with
the exercise of the right of the railroad company to fill in, for
railroad purposes, certain lands submerged by the shallow waters of
Lake Michigan in front of property owned by the railroad company,
in fee, and situated between Twenty-fifth and Twenty-seventh
Streets in said city. The purpose of the railroad company in
reclaiming the land was to erect thereon an engine house and
locomotive stalls necessary to the operation of the road.
Page 176 U. S. 647
The case was heard upon bill, answer, cross-bill, and demurrer
to cross-bill, in which were set forth substantially the following
facts, as recited in the opinion of the supreme court (173 Ill.
471):
By an act of Congress approved September 20, 1850, 9 Stat. 466,
c. 61,
"the right of way through the public lands be . . . granted to
the State of Illinois for the construction of a railroad from the
southern terminus of the Illinois & Michigan Canal to a point
at or near the junction of the Ohio and Mississippi Rivers, with a
branch of the same to Chicago, on Lake Michigan, and another via
the Town of Galena, in said state, to Dubuque, in the State of
Iowa, with the right, also, to take the necessary materials, of
earth, stones, timber, etc., for the construction"
of the railroad. The act also granted to the State of Illinois,
for the purpose of aiding and making the railroad and branches
above named, every alternate section of land designated by even
numbers, for six sections in width, on each side of the railroad
and branches. By the act it was further provided that the railroad
and branches should be and forever remain a public highway for the
use of the government of the United States, free from toll or other
charge upon the transportation of any property or troops of the
United States.
The company was created, organized under, and now exists by
virtue of, an act of the Legislature of the State of Illinois
approved February 10, 1851, entitled "An Act to Incorporate the
Illinois Central Railroad Company," Private Laws of 1851, p. 61,
and by its charter it was authorized to survey, locate, construct,
complete, alter, maintain, and operate a railroad, with one or more
tracks or lines of rail, 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 a branch of the same into 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. By section 3 of its charter, it was provided as
follows:
"The said corporation shall have right
Page 176 U. S. 648
of way upon, and may appropriate to its sole use and control for
the purposes contemplated herein, land not exceeding 200 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
purpose 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; but when owned or belonging to any person, company, or
corporation, and cannot be obtained by voluntary grant or release,
the same may be taken and paid for, if any damages are awarded, in
the manner provided in 'An Act to Provide for a General System of
Railroad Incorporations,' approved November 5, 1849, and the final
decision or award shall vest in the corporation hereby created all
the rights, franchises, and immunities in said act contemplated and
provided; . . .
Provided, that nothing in this section
contained shall be so construed as to authorize the said
corporation to interrupt the navigation of said streams."
The bill also avers that the company constructed its line of
railroad within the then limits of the City of Chicago in the year
1852, and completed its railroad between the termini named in its
charter, in the State of Illinois, in the year 1857; that the total
number of miles of its railroad in the state, upon completion, was
706; that at the time of the construction of its railroad in 1852,
into the City of Chicago, the southern limits and boundary of the
city extended only to Twenty-second Street; that in 1852 it
constructed its line of railroad immediately along the shore and
partly over the shallow waters of Lake Michigan from Fifty-first
street to Twenty-second Street, then the southern boundary of the
city, and that its railroad was constructed into the City of
Chicago through the waters of Lake Michigan, pursuant to an
Page 176 U. S. 649
ordinance of the city; that its railroad within the limits of
the city was constructed on piling set in the open waters of Lake
Michigan east of the shore; that between Park Row and Randolph
Street, the distances in a direct east and west line between the
shore line and the inner or west line of the piling on which the
railroad of the company was constructed through the open waters of
Lake Michigan varied from 5 feet at Park Row to 310 feet at Madison
Street, and that the depth of the water along the line of piling
between the points above named varied from 2 1/2 to 9 1/2 feet;
that the company now owns or controls by lease, and is now
operating under one management, the whole of the trunk line as one
continuous line from New Orleans, through the States of Louisiana,
Mississippi, Tennessee, Kentucky, and Illinois, into the City of
Chicago; that it controls, by lease or otherwise, under the same
management, many other lateral lines in the states above named, and
also in the States of Wisconsin, Iowa, Minnesota, and Dakota, which
connect with and are tributary to the parent line of the company;
that the number of miles now owned or controlled by the company
under one management exceeds 4,600.
It is further alleged in the bill that the City of Chicago is
the business center of the various lines which constitute the
system owned by the company; that the business carried on over the
terminal tracks and facilities of the company within the present
limits of the City of Chicago is so great and so constantly
increasing that the whole of its right of way and lands contiguous
thereto, within said limits, are used to their utmost capacity as
yards, shops, depot grounds, side tracks, switching tracks, storage
tracks, delivery tracks, team tracks, and other structures, all of
which are absolutely necessary as terminal facilities to enable the
company to carry on and conduct its business as a common carrier of
freight and passengers, and that all the tracks, structures, and
appliances of its terminal facilities are necessary and essential
to enable the company to carry on its business; that the business
of the company as a common carrier greatly increases from year to
year, and that it has so continued to increase that its
terminal
Page 176 U. S. 650
facilities in the city are not wholly adequate for the purposes
and uses prescribed and intended by its charter. The bill sets out
in detail its business and its increase from year to year, and
alleges that its terminal facilities in the City of Chicago have
been found to be wholly inadequate to enable the company to carry
on its business; that in order to meet the increased business
necessities and requirements of the company, it is absolutely
necessary that the company should construct, operate, and use an
engine house 316 feet in diameter, and containing forty stalls,
together with a machine shop, turn table, coal chute, and other
structures; that it has no engine house whatever at which it is
practicable for its engines to be overhauled and fitted for
operation; that it has no land whatever unoccupied by other
necessary tracks and structures, which is either sufficient in
dimensions or suitably located, upon which to locate and construct
an engine house of the necessary dimensions and capacity, with the
necessary appurtenances thereto, required and necessary for the
business of the company, and that in order to build such engine
house and the appurtenances, it is necessary to construct the same
upon land covered by the shallow waters of Lake Michigan at a point
between Fifty-first Street and Eighteenth Street.
It is also set up in the bill that, in 1852 at the time of the
construction of the road within the City of Chicago, it purchased
certain lands lying between Twenty-fifth and Twenty-seventh
Streets, bordering on the shore of Lake Michigan; that in the
deeds, the shore of Lake Michigan was designated as the east
boundary line thereof, and that the company, as owner, was vested
with all the riparian rights and privileges incident to the
ownership in fee of the shore land; that in the year 1882 it
constructed a breakwater or bulkhead in the shallow waters of Lake
Michigan, the same being located and constructed in front of the
land which the company purchased in 1852, above referred to, the
east and west line of the breakwater on the north extending from a
point on the shore continuous with the northern boundary of the
land conveyed to the company in 1852, and extending to a point 200
feet easterly from the shore line, running thence southerly
Page 176 U. S. 651
a distance of 781 feet, and thence westerly to the shore line, a
distance of 325 feet; that the breakwater built by the company in
1882 was constructed on two rows of piling driven into the bed of
Lake Michigan, and the space between the rows of piling was filled
in with stone, in order to strengthen the breakwater and enable it
to withstand the force of Lake Michigan during periods of storm;
that all the shore land embraced within the lines of the breakwater
now is, and ever since the year of 1852 has been, owned in fee
simple by the company, and that it is entitled to all the riparian
rights and privileges incident to the ownership in fee of the shore
land; that the superficial area of the land covered by the shallow
waters of Lake Michigan lying within the lines of the breakwater
and the shore line of Lake Michigan is 195,200 square feet, or 4.48
acres; that the superficial area of the ground necessary for the
construction of the engine house, machine shop, coal chute, and
other necessary structures appurtenant thereto is 168,426.9 square
feet, or 3.86 acres.
The bill further states that in the year 1894, a part of the
breakwater referred to as having been constructed by it in the year
1882 was destroyed by a storm on Lake Michigan; that it being
necessary, to enable the company to carry on and conduct its
business, that an engine house, of sufficient capacity to meet its
necessary requirements and demands in conducting its business and
to accomplish the objects for which the company was chartered be
constructed and erected at a reasonably suitable and proper
location, and it being necessary that such engine house should be
erected and constructed upon the lands submerged by the shallow
waters of Lake Michigan lying in front of land on the shore of Lake
Michigan owned in fee simple by the company, the company caused
plans to be made, as before stated, for an engine house 316 feet in
diameter, and containing forty stalls or compartments, and under
the power, authority, and right given and vested in the company by
its charter, and in the exercise of its rights as riparian owner,
it elected and determined to locate and construct said engine house
on land submerged by the shallow waters of Lake Michigan lying
within the limits of
Page 176 U. S. 652
the breakwater, and to repair the breakwater, and fill in the
submerged lands lying within the limits of the breakwater, for the
purpose of constructing thereon said engine house and the necessary
appurtenances thereto; that the breakwater does not in any way
interfere with the navigation of Lake Michigan; that the Secretary
of War gave his consent to the repair of the breakwater; that the
Commissioner of Public Works of the City of Chicago also gave his
consent to the repair; that the company placed upon the ground
large quantities of material for repairing the breakwater, the
filling in of the lands covered by the shallow waters of Lake
Michigan embraced within the lines thereof, and for the
construction of the engine house and appurtenances thereto on the
lands to be filled in; that it repaired the breakwater by driving
two rows of piling, and filled in a large part of the space between
the exterior and interior line of piling with stone, for the
purpose of enabling the breakwater to withstand the force of Lake
Michigan; that the company was prevented by the police force of the
City of Chicago, acting under the orders and direction of the
mayor, from completing the work; that the City of Chicago, without
right or authority, interferes with and prevents the company from
filling in the lands within the lines of such breakwater.
The answer of the city set up its charter and authority under an
act of the General Assembly of the State of Illinois, entitled "An
Act to Provide for the Incorporation of Cities and Villages
(Approved April 10, 1872, in Force July 1, 1872)," and the several
acts amendatory thereof and supplementary thereto, and that, among
other things, it was
"empowered to regulate and control the use of public landing
places for docks and levees; to control and regulate the anchorage,
moorage, and landing of all water crafts and their cargoes; to make
regulations in regard to the use of harbors, and to appoint harbor
masters and define their duties, and that in the exercise of such
power this defendant has, through its police power, prevented the
said complainant hitherto from filling up the said lake and
intruding upon the navigable waters thereof, and that all the acts
and doings complained of as done and performed
Page 176 U. S. 653
by this defendant, its officers, agents, and employees, have
been done strictly in the line of its duty in that behalf for the
purpose of protecting its own rights and the rights of the public
generally in the premises, so as to prevent obstructions in the
harbor and the seizure and appropriation by the complainant of the
bed and navigable waters of the said lake,"
and also pleaded the decision of this Court in
Illinois
Central Railroad v. Illinois, 146 U.
S. 387, as
res judicata of all the questions in
controversy. The cross-bill prayed a counter-injunction against any
interference by the railroad company.
Upon a hearing upon these pleadings, the superior court denied
the injunction demanded by the railroad company and dismissed its
bill. On appeal, the supreme court affirmed this decree. 173 Ill.
471. Whereupon the railroad company sued out a writ of error from
this Court.
MR. JUSTICE BROWN delivered the opinion of the Court.
The Supreme Court of Illinois disposed of this case upon two
grounds: (1) that the power given by the charter of the Illinois
Central Railroad Company of February 10, 1851, to
"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 . . . complete operation of said
road,"
and the grant to said corporation of "all such lands, waters,
materials, and privileges belonging to the state" did not include
lands covered by the waters of Lake Michigan; (2) that even if the
grant were broad enough to include the waters of the lake, it did
not follow that the railroad company would have the right at any
time it might see proper, to take and appropriate to itself any of
the lands covered
Page 176 U. S. 654
by such waters, provided only that the navigation of the lake
was not interfered with.
1. The ultimate jurisdiction of this Court is invoked by the
allegation of the bill that the above provision of the railway's
charter was and is an irrevocable contract between the State of
Illinois and the complainant, conferring upon it
"a vested and continuing right to use the shallow waters and
submerged lands of Lake Michigan for such purposes, when such use
is reasonably necessary for the business of your orator, provided
that the same does not interfere with the navigation of the lake,
having reference to the manner in which commerce is conducted
thereon,"
and that
"any law of the State of Illinois, or any judgment, decree, or
decision of any court or tribunal thereof which denies or in any
way impairs its right to use the submerged land of Lake Michigan
for the purpose of constructing and using engine houses, shops, and
other buildings thereon, etc., impairs the obligation of the
contract created by said charter,"
etc.
The answer of the city avers that under an act of the general
assembly of the state approved April 10, 1872, it was empowered
"to regulate and control the use of public landing places for
docks and levees; to control and regulate the anchorage, moorage,
and landing of all water crafts and their cargoes; to make
regulations in regard to the use of harbors, and to appoint harbor
masters and define their duties, and that in the exercise of such
power this defendant has, through its police power, prevented the
said complainant hitherto from filling up the said lake and
intruding upon the navigable waters thereof,"
and that the city was also empowered to regulate its police and
pass and enforce all necessary police ordinances, and that in
pursuance of this authority the city council made and established
an ordinance (793) that
"no person or persons shall drive or place or caused to be
driven or placed any pile or piles, stone, timbers, earth, or other
obstruction in the harbor of the city without the permission of the
commissioner of public works,"
etc.
This was the only authority claimed in the answer, but as all
this legislation was subsequent to the charter of the railroad
Page 176 U. S. 655
company, the city now sets up in support of its motion, to
dismiss for want of a federal question that it was provided in
section eight of the railroad's charter of 1851 that
"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,"
and that this section operates as a restriction upon the power
of the railroad to locate its track, or other structures, depots,
engine houses, or otherwise, over any lands contiguous to the city
under Lake Michigan, or any other public property over which the
police power of the city extends.
It is also insisted that the city had, in 1851, even greater
powers over the submerged lands on its lakefront under its charter
than it has now, but the only support for this contention lies in
an amended charter of the City of Chicago, passed February 14,
1851, four days after the charter of the Illinois Central Railroad
Company was adopted. As this was a subsequent act, it is impossible
to argue from it that the police power of the city at the date of
the charter was as ample as that conferred by the Act of April 10,
1872, set up in the answer. The extract to which attention is
called by counsel from the opinion of the Supreme Court of Illinois
in
Illinois Central Railroad v. Rucker, 14 Ill. 353, 356,
to the effect that under the charter of the City of Chicago, the
common council was empowered to regulate, control, and protect the
bed and waters of the lake as a part of the City of Chicago, may
have been, and probably was, based upon the Act of February 14,
1851, and, in any event, is too indefinite to be made the basis of
any adjudication as to the power of the common council.
We have examined the first charter of the City of Chicago,
adopted March 14, 1837, and the amendments thereto, down to the
charter of February 14, 1851, and find nothing prior to the
last-mentioned date defining the powers of the common council over
the waters of Lake Michigan adjacent to the city, or anything from
which it can be argued that the authority of the common council
with respect to the harbor and adjacent waters, was as ample as
that conferred by the acts of the general
Page 176 U. S. 656
assembly subsequent to the chartering of the railroad
company.
The question then is reduced to this: giving to the charter of
the railroad company the broadest construction claimed by it (and,
in determining the existence of a federal question, we are bound to
do this), may it not be reasonably insisted that, under the act of
1872 and ordinance No. 793, that
"no person or persons shall drive or place or caused to be
driven or placed any pile or piles, stone, timbers, earth, or other
obstruction in the harbor of the city without the permission of the
commissioner of public works,"
the right of the railroad company "to enter upon and take
possession of and use all and singular lands, streams, and
materials of every kind for the complete operation of the road" is
impaired? We think it may. Without determining the effect of such
ordinance, the question whether it impairs the charter of the
company, giving to that charter a broad construction, is fairly
open to contention.
Bacon v. Texas, 163 U.
S. 207,
163 U. S. 216;
Walla Walla v. Walla Walla Water Co., 172 U.
S. 5,
172 U. S. 10. The
claim is certainly not a frivolous one. In determining the
existence of a federal question, it is only necessary to show that
it is set up in good faith and is not wholly destitute of merit.
Said Chief Justice Chase in
Millingar v.
Hartupee, 6 Wall. 258,
73 U. S. 261,
speaking of the validity of an authority exercised under the United
States:
"Something more than a bare assertion of such authority seems
essential to the jurisdiction of this Court. The authority intended
by the act is one having a real existence, derived from competent
governmental power. If a different construction had been intended,
Congress would doubtless have used fitting words. The act would
have given jurisdiction in cases of decisions against claims of
authority under the United States. . . . If a right were claimed
under a treaty or statute, and on looking into the record it should
appear that no such treaty or statute existed or was in force, it
would hardly be insisted that this Court could review the decision
of a state court that the right claimed did not exist."
So, in
New Orleans v. New Orleans Water Works Co.,
142 U. S. 79, we
held that the bare averment of a federal question is not always
sufficient; that such averment
Page 176 U. S. 657
must not be wholly without foundation, since, if it were
otherwise, a federal question might be set up in almost every case,
and the jurisdiction of this Court invoked simply for the purpose
of delay.
But as we are of opinion that the federal question in this case
was properly set up in the record, and is not destitute of merit,
the motion to dismiss must be denied.
2. Upon the merits, the case turns upon the proper construction
of the charter of the Illinois Central Railroad Company, granted by
the general assembly February 10, 1851. As was said in the case
just decided of
Walsh v. Columbus, Hocking Valley & Athens
Railroad Co., ante, 176 U. S. 469, and
the prior cases therein cited, whenever a contract created by a
state statute is alleged to have been impaired by subsequent
legislation, it is for this Court to determine the proper
construction of such statute, as well as the question whether the
subsequent legislation has impaired it.
The sections of the charter upon which the railroad company
relies for taking possession of this property, so far as the same
are pertinent to this case, are as follows:
"SEC. 3. The said corporation shall have 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 purpose 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; but when owned or belonging to
any person, company, or corporation, and cannot be obtained by
voluntary grant or release, the same may be taken and paid for, if
any damages are awarded, in the manner provided in 'An Act to
Provide for a General System of Railroad Incorporation,' approved
November fifth,
Page 176 U. S. 658
one thousand eight hundred and forty-nine, and the final
decision or award shall vest in the corporation hereby created all
the rights, franchises, and immunities in said act contemplated and
provided; . . .
Provided, that nothing in this section
contained shall be so construed as to authorize the said
corporation to interrupt the navigation of said streams."
"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."
"SEC. 10. Said corporation may construct their said road and
branches over or across any stream of water, watercourse, road,
highway, railroad, or canal, which the route of its road shall
intersect, but the corporation shall restore the stream or
watercourse, road or highway, thus intersected, to its former
state, or in a sufficient manner not to have impaired its
usefulness. . . ."
"SEC. 15. . . .
Third. That said company shall proceed
to locate, survey, and lay out, construct, and complete said road
and branches, through the entire length thereof, . . . with a
branch also diverging from the main track at a point not north of
the parallel of thirty-nine and a half degrees north latitude, and
running on the most eligible route into the City of Chicago, on
Lake Michigan. That the central road or main track shall be
completed, with at least one line of rails, or single track, with
the necessary turnouts, stations, equipments, and furnishings,
within four years from the date of the execution of said deed of
trust, and the branches within six years from the said date."
The position of the railroad company under these sections,
presupposing as it does a vested, continuing, and irrevocable right
for all time, to use such of the shallow waters and submerged lands
of Lake Michigan as it may now or hereafter find to be necessary to
the proper and complete operation of its road, and a surrender by
the City of all power of interference, is certainly a somewhat
startling one. It is no matter of surprise that the magnitude of
the claim should have at once aroused the authorities of the city
to inquire into its soundness.
Page 176 U. S. 659
Under the law of the State of Illinois as laid down by the
supreme court not only in the case under consideration, but in the
prior case of
People v. Kirk, 162 Ill. 146,
"the state holds the title to the lands covered by the waters of
Lake Michigan lying within its boundaries, but it holds the title
in trust for the people, for the purposes of navigation and
fishery. The state has no power to barter and sell the lands as the
United States sells its public lands, but the state holds the title
in trust in its sovereign capacity, for the people of the entire
state."
Such was also the ruling of this Court in a case between the
same parties,
Illinois Central Railroad v. Illinois,
146 U. S. 387,
affirming Illinois v. Illinois Central Railroad, 33 F.
730. This too is a question of local law with regard to which the
decisions of the state courts are conclusive.
Packer v.
Bird, 137 U. S. 661;
Hardin v. Jordan, 140 U. S. 371.
But we are now asked to say that not the state, but a railway
company, is vested with a power which, in the course of time and in
the increasing magnitude of its business, may enable it to do, by
indirection or piecemeal, what it has been held the state could not
do -- directly take the whole waterfront of the city to the limit
of navigation for the operation of the road, and that, too, without
the consent and against the protest of the city. If such authority
be possible, it should be granted in the clearest and most
unmistakable language.
But on examining section three of the charter -- the source of
this almost unlimited power -- we find that, so far from its being
conferred in precise and definite words, the implication is clearly
against the power claimed. In fact, it is only by a strained and
unnatural construction that any intention on the part of the
legislature to abdicate its authority over the submerged lands of
Lake Michigan can be raised.
Referring to the particular language of the grant in that
section, it is manifest that such authority must arise either from
the right given "to enter upon and take possession of and use all
and singular any
lands, streams, and materials of every
kind," etc., or from the grant of "all
such lands, waters,
materials, and privileges belonging to the state."
Page 176 U. S. 660
We do not question the general principle that the word "lands"
includes everything which the land carries or which stands upon it,
whether it be natural timber, artificial structures, or water, and
that an ordinary grant of land by metes and bounds carries all
pools and ponds, nonnavigable rivers, and waters of every
description by which such lands, or any portion of them, may be
submerged, since, as was said by the court in
Queen v. Leeds
& Liverpool Canal Co., 7 Ad. & El. 671, 685: "Lands
are not the less land for being covered with water."
See also
Brocket v. Ohio &c. Railroad, 14 Pa. 241;
Beckman v.
Kreamer, 43 Ill. 447;
Hooker v. Cummings, 20 Johns.
90;
State v. Pottmeyer, 33 Ind. 402;
King v.
Wharton, Cas.Temp.Holt 499;
Buckingham v. Smith, 10
Ohio, 288;
Mill River Woolen Mfg. co. v. Smith, 34 Conn.
462;
Waters v. Lilley, 4 Pick. 145;
Washington Ice.
Co. v. Shortall, 101 Ill. 46.
But it is equally well settled that, in the absence of any local
statute or usage, a grant of lands by the state does not pass title
to submerged lands below high water mark,
Pollard v.
Hagan, 3 How. 212;
Goodtitle
v. Kibbe, 9 How. 471;
United
States v. Pacheco, 2 Wall. 587;
Weber v.
State Harbor Commissioners, 18 Wall. 57;
Hardin
v. Jordan, 140 U. S. 371,
140 U. S. 381;
Shively v. Bowlby, 152 U. S. 1,
152 U. S. 13, and
that this principle also applies to the Great Lakes.
Illinois
Central Railroad v. Illinois, 146 U.
S. 387;
Hardin v. Jordan, 140 U.
S. 371,
140 U. S. 382;
Seaman v. Smith, 24 Ill. 521;
People v. Kirk, 162
Ill. 138, 146;
Revell v. People, 177 Ill. 479.
It is true, as was said by the court in
Shively v.
Bowlby, 152 U. S. 1,
152 U. S. 13,
that if either the language of the grant or long usage under it
clearly indicates an intention that waters submerged by the sea
shall be included, it is within the power of the sovereign to grant
them. But we know of nothing in the way of constant usage with
regard to these submerged waters which lends support to the
argument of the railroad company that this case is within the
exception, and not within the general principle, of
Shively v.
Bowlby. To make usage significant of the proper interpretation
of the grant, it should
Page 176 U. S. 661
appear that it was a usage for the railroad company to
appropriate such lands without the express consent of the city, but
with its silent acquiescence. Undoubtedly such usage might be
inferred from repeated appropriations by the railroad without
objection from the city authorities. But the facts seem to be that,
wherever the railroad has taken such lands, it has done so with the
express consent or subsequent ratification of the state or city.
Thus the railroad originally entered the city under an ordinance
adopted June 14, 1852, giving it the right
"to enter said city 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 15, and
continue northerly across the open space in front of said section
15 to such grounds as the said company may acquire between the
north line of Randolph Street and the Chicago River, . . . upon
which said ground shall be located the depot of said railroad,"
and express permission was given in section three of this
ordinance to extend the railroad company's works and "fill out into
the lake to a point on the southern pier not less than four hundred
feet west from the present east end of the same."
In
Illinois Central Railroad v. Rucker, 14 Ill. 353, it
was held that the company had the right
by its charter to
locate its road over these premises,
the city having consented
to such location. That was an application by the railroad
company for the condemnation of certain lands along the waterfront.
The petitioner alleged that the railroad had been located and was
to be constructed in the waters of the lake, along the margin, in
front of the premises of the landowners, and partly over the same.
One of the defenses was that the corporation had no power to locate
its road in the waters of Lake Michigan, and that the premises in
question were a part of the harbor of Chicago and an encroachment
thereon. Counsel for the road took the position that the state had,
by the express words of the charter, given to the company authority
to locate its road in the waters of the lake. The opinion
Page 176 U. S. 662
is very brief, and the report of the case unsatisfactory, but
the court did hold that the company had the right by its charter to
locate the road over the premises in question, the city having
assented. In the case under consideration, the supreme court took
the view that the controversy in that case concerned only the
200-feet strip for the location of the main track; that no question
was raised or decided in regard to the right of the railroad
company to go beyond the 200-feet right of way, and take submerged
lands for an engine house or other purposes named in the charter.
This is entirely true; at the same time, it is difficult to see
wherein authority to take this 200-feet strip is distinguishable
from an authority to take such other submerged lands as are
necessary for the complete operation of the road. It is highly
probable that, if the case had been presented in the light of
subsequent authorities, a different conclusion might have been
reached. It is sufficient to say of the
Rucker case,
however, that the city was no party to the litigation, having
expressly consented to the location of the main track, and that it
is in no sense estopped by the adjudication. It was entirely
competent for the supreme court in the instant case to take a
different view of the law.
It would appear that, prior to 1869, other encroachments had
been made upon these submerged lands, and upon April 16, 1869, the
general assembly by an act condoned these encroachments, and
declared that the right of the company "under the grant from the
state in its charter . . . and under and by virtue of its
appropriation, occupancy, use, and control . . . in and to
the lands submerged," was confirmed, a procedure which seems to
have been quite unnecessary upon the present theory of the railroad
company that it has a perpetual right under its charter to take
such submerged lands as were necessary for its complete operation.
McAuley v. Columbus, Chicago &c. Central Railway, 83
Ill. 352.
The position here taken, that the grant of the railroad company
did not include the submerged lands along the lake shore, is not in
conflict with the New York cases, which related
Page 176 U. S. 663
to submerged lands admittedly belonging to private parties. In
the principal case,
In the Matter of New York &c. Railroad
Companies, 77 N.Y. 248, the proceeding was for the
condemnation of lands in the City of New York along the Hudson
River, a large portion of which was under water. It was held that,
so far as they belonged to private parties, they might be
condemned, but so far as the lands formed a part of the streets and
avenues of the city, the company could not acquire title to them
for the reason that they belonged to the city, and were for the
benefit of the public, citing
People v. Kerr, 27 N.Y. 188.
It was also held that, so far as respected the lands of private
parties, the fact that they were submerged made no difference. In
Staten Island Rapid Transit Co. 103 N.Y. 251, it appeared
that the statute authorizing the formation of railroad corporations
empowered them to acquire lands, under the right of eminent domain,
not only from individuals, but also from the state; but, as
observed by the court in the opinion, all questions as to the right
of a railroad company to acquire lands under navigable waters, as
against the state, were excluded from the controversy. In the case
of
Kerr v. West Shore Railroad, 127 N.Y. 269, it was held
that proceedings taken by the company to acquire a right of way
across plaintiff's lands were effectual to vest in the company
whatever title plaintiff had in the upland or in the land under the
waters of the river, but it was said in the opinion to be familiar
law that the shores of navigable rivers and streams, and the lands
under the waters thereof, belong to the state, and may be
appropriated by the state to all municipal purposes.
The grant of "waters" in the second sentence of section three
is, as shown by the context, still less decisive of an intent on
the part of the legislature to make a general grant of the waters
of Lake Michigan. By the first sentence of this section, power is
given to the corporation to appropriate land not exceeding two
hundred feet in width through its entire length, and
"to 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,
Page 176 U. S. 664
etc., for . . . the complete operation of said road,"
and by the second sentence,
"all such lands,
waters, materials, and privileges,
belonging to the state, are hereby granted to said corporation for
the 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."
Obviously the words "such waters" in the second sentence is
limited to the "streams" specified in the first sentence, and power
was given to the railroad company to take possession of such
streams for the purpose of constructing bridges, dams, embankments,
excavations, station grounds, etc., upon the theory that the
navigable streams of the state could not be bridged, diverted, or
encroached upon except with the express authority of the state. The
object of the section was evidently to confer such authority,
subject, of course, to the navigation laws of the United States.
Escanaba Co. v. Chicago, 107 U. S. 678,
107 U. S. 683;
Illinois River &c. Packet Co. v. Peoria Bridge Asso.,
38 Ill. 467;
Chicago v. McGinn, 51 Ill. 266.
The word "streams" was evidently used to denote running waters,
and is wholly inapplicable to a body of water like Lake Michigan.
Trustees of Schools v. Schroll, 120 Ill. 509. That this
was the intention of the legislature is also evident from the
proviso of the section "that nothing in this section contained
shall be so construed as to authorize the said corporation to
interrupt the navigation of said streams." The use of this word
"streams" was not only intended to differentiate the waters of
rivers from the waters of the lake, but also has its bearing as
tending to show that the word "land" was used in the sense of dry
lands, or upland, as distinguished from submerged land. It is
incredible that, if the general assembly had intended to authorize
the company to take possession of submerged lands, as it found it
necessary or convenient so to do, it would not have employed more
explicit language to that effect.
3. But even if the grant were as broad as claimed, and gave the
company a right to take parcels of submerged land as it became
necessary for its railroad purposes, we are yet constrained
Page 176 U. S. 665
to hold that it could not do so without the consent of the
common council. The eighth section of the charter provides that
"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."
We see nothing in the act from which an intention can be
inferred to confine this proviso to the main track of the road, and
agree with the Supreme Court of Illinois that it included its
depots, engine houses, and the necessary track approaches to the
same. Such seems to have been the practical construction placed
upon it by the city and the railroad company. If the position of
the company, that it applies only to the main track, were sound, it
would be possible for it, upon establishing the necessity for
additional facilities, to locate these engine houses and work shops
in localities where they would be an intolerable nuisance to the
inhabitants; or perhaps miles distant from the main line to which
approaches would become necessary by tracks laid through populous
portions of the city, regardless of the wishes of its constituted
authorities.
It is also insisted by the company that this restriction applies
only to the city as bounded in 1851 at the date of the charter, and
that as the southern limit of the city at that time was
Twenty-second Street, no such consent is now necessary to be
obtained, though the boundaries of the city have long since been
extended to a point below the land proposed to be taken. Had the
company signified a desire to take possession of these lands before
the limits of the city had been extended, it is possible that it
might claim a vested right to do so, though the boundaries were
subsequently enlarged; but the object of the provision was
evidently for the protection of cities in general, and not for the
protection of cities as they existed at the date of the charter.
The road, as originally constructed, ran through an almost
uninhabited country, and yet a country which gave promise of a
large population and of great cities' being built up along the line
of the road, and it is highly improbable that the growth of the
state should not have been foreseen and contemplated in this
legislation. Indeed, it is impossible to suppose that the
legislature intended
Page 176 U. S. 666
that the road, so far as it passed through existing cities, all
then insignificant, should be subject to the will of the common
council, but so far as it passed through cities that might arise in
the future, or existing cities whose boundaries would shortly be
enlarged, it abdicated such power.
The case of
Regina v. Cottle, 3 Eng.L. & E. 474, is
pertinent in this connection. A turnpike act, passed in 1840, and
which was to be in force for thirty-one years, provided that it
should not be lawful to continue or erect any turnpike gate across
the roads in the Town of Taunton, or in any other town through or
into which the roads might pass or be made. It was held that the
prohibition extended to the erection of a gate within the limits of
a town as it existed at any time during the operation of the act,
and not merely at the time when the act passed. Said Lord
Campbell:
"We think that the legislature contemplated the probable
increase of Taunton within a period longer than that generally
assigned for a generation of the human race, and intended that its
inhabitants, as it increased, should be exempt from the annoyance
of a turnpike gate cutting off the free intercourse between
neighbors in the same street. . . . This construction is fortified
by the reference to 'any other town through or into which the said
roads may pass' -- meant, probably, to protect the inhabitants of
any new town which might spring up within the district while the
act should be in force."
The case of
People v. Deehan, 153 N.Y. 528, is also
apposite in this connection. In that case, a grant by the town
authorities to an incorporated gas company of a power to lay
conductors "for conducting gas in and through the public streets
and highways of said town," without any express limitation, was
held not to be restricted to existing streets and highways, but to
be construed as extending to such as were subsequently enlarged,
changed, or opened. In delivering the opinion, the court
observed:
"When the right to use the streets has been once granted in
general terms to a corporation engaged in supplying gas for public
and private use, such grant necessarily contemplates that new
streets are to be opened and old ones extended from time to time,
and so the privilege may
Page 176 U. S. 667
be exercised in the new streets as well as in the old. Such a
grant is generally in perpetuity, or during the existence of the
corporation, or at least for a long period of time, and should be
given effect according to its nature, purpose, and duration."
There is nothing in these cases in conflict with those of
Chope v. Detroit & Howell Plank Road Co., 37 Mich.195,
and
Detroit v. Detroit & Howell Plank Road Co., 43
Mich. 140, in both of which it was held that a toll gate, lawfully
erected upon land which was subsequently taken into the city, could
not be declared a nuisance by reason of the extension of the
boundaries, and that the same could not be abated without a
violation of the Constitution.
In the case under consideration, however, no invasion of the
right of property is contemplated. The subjection of the railroad
company to the will of the common council deprived the company of
nothing it before possessed, but limited the exercise of a right
which had not yet become vested and was still subject to the police
power. The question is really one of the intention of the general
assembly in incorporating this provision into the charter of the
company, and in view of the need of some control of this kind and
the condition of the country at the time the charter was adopted,
we can have no doubt whatever that the assent of the common council
was intended to be required as a permanent condition. Especially is
this so in view of the insistence of the railroad company that the
power to appropriate these submerged lands is a continuing one. In
such case the condition upon which the power should be exercised,
namely, the consent of the common council, should also be construed
as continuous. In other words, the railroad company cannot assert
the power and in the same breath repudiate the condition.
In conclusion, we are of opinion that the decree of the Supreme
Court of Illinois was clearly right, and it is therefore
Affirmed.
