33 F. 730 (N.D.Ill. 1888), State of Illinois v. Illinois Cent. R. Co.

Citation:33 F. 730
Case Date:February 23, 1888
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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33 F. 730 (N.D.Ill. 1888)








United States Circuit Court, N.D. Illinois.

February 23, 1888

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W. G. Ewing, Dist. Atty., for the United States.

George Hunt, Atty. Gen., E. B. McCagg, and Williams & Thompson, for the People.

B. F. Ayer, J. N. Jewett, and Lyman Trumbull, for Illinois Cent. R. Co.

James K. Edsall and A. S. Bradley, for Citizens' Committee.

M. W. Fuller, for City of Chicago.

Before HARLAN, Circuit Justice, and BLODGETT, District Judge.

HARLAN, Justice.

The first of the above-named causes is a suit in equity in the name of the people of the state of Illinois against the Illinois Central Railroad Company, the city of Chicago, and the United States of America. It was commenced in the circuit court of Cook county, Illinois, and subsequently, on the petition of the railroad company, was removed into this court. A motion to remand the cause was denied, upon grounds indicated in State v. Railroad Co., 16 F. 881. The railroad company and the city filed answers, and the latter also filed a cross-bill for affirmative relief against the state and its co-defendants. To that cross-bill the company filed an answer, as did also the attorney general of Illinois in behalf of the state. The United States has not appeared, either in the original or cross suit. This cause may be regarded as under submission for final decree as between the state, the railroad company, and the city in the original suit; also as between the city and the railroad company in the cross-suit. Notwithstanding the appearance in the cross-suit of the attorney general of Illinois in behalf of the state, some question is made as to the jurisdiction of the court to give to the city any affirmative relief against the state. But that question need not be decided, since all the issues between the state and the city can be finally determined in the original suit brought by the state. The last named of the causes is an information in equity by the United States against the Illinois Central Railroad Company, the Michigan Central Railroad Company, the Chicago, Burlington & Quincy Railroad Company, the Baltimore & Ohio Railroad Company, and the city of Chicago.

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That case is now before us upon demurrer by the two first-named companies to the information.

The general object of these suits is to obtain a judicial determination of the rights of the parties in respect to certain lands on the east or lake front of the city of Chicago, south of Chicago river, upon some of which are tracks, depots, warehouses, piers, and other structures erected by the Illinois Central Railroad Company; and also in respect to the submerged lands within the limits of the city of Chicago, and of the state of Illinois, 'constituting the bed of Lake Michigan, and lying east of the tracks and breakwater' of that company, 'for the distance of one mile, and between the south line of the south pier (near Chicago river) extended eastwardly, and a line extended eastward from the south line of lot 21, south of and near the round-house and machine-shops of said company. ' The cases, besides, involve an inquiry as to the right of the railroad company, for the promotion as well of its own business as of commerce and navigation generally, to erect and maintain wharves, piers, and docks in the harbor of Chicago. Some of these lands were formerly a part of what was known as 'Fort Dearborn Military Post,' or the S.W. 1/4 of fractional section 10, near the mouth of Chicago river; others, a part of fractional section 15; while others are in section 22,-- all of said sections being in township 39 N., range 14 E. of the third P.M., and on the shore of Lake Michigan, in the order named. It is necessary to a clear understanding of the numerous questions presented for determination that we should first trace the history of the title of these several bodies of lands up to the time when the Illinois Central Railroad was located within the limits of Chicago.

1. As to the Lands Embraced in the Fort Dearborn Reservation. In the year 1804, the United States established the military post of Fort Dearborn, immediately south of Chicago river, and near its mouth, upon the S.W. fractional 1/4 of section 10. It was occupied by troops, as well when Illinois, in 1818, was admitted into the Union, as when congress passed the act of March 3, 1819, authorizing the sale of certain military sites. By that act it was provided 'that the secretary of war be, and he is hereby, authorized, under the direction of the president of the United States, to cause to be sold such military sites, belonging to the United States, as may have been found or become useless for military purposes. And the secretary of war is hereby authorized, on the payment of the consideration agreed for into the treasury of the United States, to make, execute, and deliver all needful instruments conveying and transferring the same in fee; and the jurisdiction which had been specially ceded, for military purposes, to the United States by a state, over such site or sites, shall thereafter cease.' 3 St. 520. In 1824, upon the written request of the secretary of war, the S.W. 1/4 of fractional section 10, containing about 57 acres, and within which Fort Dearborn was situated, was formally reserved by the commissioner of the general land-office from sale, and for military purposes. Wilcox v. Jackson, 13 Pet. 499, 452. The United States admit, and it is also proved, that the lands so reserved were subdivided in 1837, by authority of the secretary,-- he being represented

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by one Matthew Birchard, as special agent and attorney for that purpose,-- into blocks, lots, streets, and public grounds, called the 'Fort Dearborn Addition to Chicago.' And on the 7th day of June, 1839, a map or plat of that addition was acknowledged by Birchard as such agent and attorney, and was recorded in the proper local office. A part of the ground embraced in that subdivision was marked on the recorded plat, 'Public ground, forever to remain vacant of buildings. ' The plat of that subdivision, called 'Map A,' is reproduced, and in the margin will be found the certificates which appear on the plat as made and recorded. 1

The lots designated on this plat were sold and conveyed by the United States to different purchasers. The sale and conveyance (to use the words of the information filed by the United States) was 'by and according to the said plat, and with reference to the same. ' But it should be stated that at the time of the first sales, the United States expressly reserved from sale all of the Fort Dearborn addition (including the ground marked for streets) north of the south line of lot 8 in block 2, lots 4 and 9 in block 4, and lot 5 in block 5, projecting said lines across the adjacent streets.

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The grounds so specially reserved remained in the occupancy of the general government for military purposes from 1839 until after 1845. The legal effect of that occupancy appears in U.S. v. Chicago, 7 How. 185. The city of Chicago having proposed, in 1844, to open Michigan avenue through the lands so reserved from sale, notwithstanding, at the time, they were in actual use for military purposes, the United States instituted a suit in equity to restrain the city from so doing. It appeared in the case that the agent of the general government gave notice, at the time of selling the other lots, that the ground in actual use by the United States was not then to be sold. It also appeared that the act of March 4, 1837, incorporating the city of Chicago, and designating the district of country embraced within its limits, expressly excepted 'the south-west fractional quarter of section 10, occupied as a military post, until the same shall become private property. ' Laws Ill. 1837, pp. 38, 74. The court held that the city had no right to open streets through that part of the ground which, although laid out in lost and streets, had not been sold by the government; that its corporate powers were limited to the part which, by sale, had become private property; and that the streets laid out and dedicated to public use by Birchard, the agent of the secretary of war, did not, merely by his surveying the land into lots and streets, and making and recording a map or plat thereof, convey the legal estate in such streets to the city, and thereby authorize it to open them for public use, and assume full municipal control thereof. The court held to be untenable the claim of the city that 'because streets had been laid down on the plan by the agent, (Birchard,) part of which extended into the land not sold, those parts had, by this alone, become dedicated as highways, and the United States had become estopped to object. ' Further: 'It is entirely unsupported by principle or precedent that an agent, merely by protracting on the plan those streets into the reserved line, and amidst lands not sold, nor meant then to be sold, but expressly reserved, could deprive the United States of its title to real estate, and to its important public works. ' See, also, Irwin v. Dixin, 9 How. 31.

2. As to the Lands in Controversy Embraced in Fractional Section 15. This section is on the lake shore, immediately south of section 10. The particular lands, the history of the title to which is to be now examined, are between the west line of the street now known as 'Michigan Avenue' and the roadway or way-ground of the Illinois Central Railroad Company, and between the middle line of Madison street and the middle line of Twelfth street, excluding what is known as 'Park Row,' or block 23, north of Twelfth street. By an act of the Illinois legislature of...

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