Bliss v. Ward

• Decision Date: 09 October 1902
• Citation: 64 N.E. 705,198 Ill. 104
• Parties: BLISS et al. v. WARD et al.
• Court: Illinois Supreme Court

198 Ill. 104

64 N.E. 705

BLISS et al.

v.WARD et al.

Supreme Court of Illinois.

Oct. 9, 1902.

Appeal from circuit court, Cook county.

Suit by A. Montgomery Ward and others against E. R. Bliss and others, as the board of commissioners of Lake Front armory and parade grounds. From a decree for complainants, defendants appeal. Affirmed.

David Quigg and Geo. Gillette (E. R. Bliss, of counsel), for appellants.

George P. Merrick (Thomas A. Moran, of counsel), for appellees.

CARTWRIGHT, J.

The circuit court of Cook county granted the prayer of a bill filed by appellees, and enjoined the appellants, the board of commissioners of Lake Front armory and parade grounds, from constructing or erecting any buildingor other structure on that part of Lake Park lying east of the Illinois Central Railroad Company's right of way, bounded on the north by the south line of Randolph street extended east, on the south by the north line of Monroe street extended east, and on the east by the harbor line established by the secretary of war. From that decree appellants took this appeal.

We affirmed a previous decree of the superior court of Cook county enjoining the city of Chicago from placing or causing to be placed any building or structure upon that part of Lake Park west of the right of way of the Illinois Central Railroad Company, except certain buildings then located thereon, mentioned in said decree. City of Chicago v. Ward, 169 Ill. 392, 48 N. E. 927,38 L. R. A. 849, 61 Am. St. Rep. 185. The rights asserted by complainants in this suit are based on substantially the same facts as in that case, so far as they relate to the didication of Lake Park and the easement claimed by complainants, and a full history of such facts will be found in the opinion in that case and the statement preceding the same. Referring to the more comprehensive statement in that case, and the similar statement preceding the opinion of the supreme curt of the United States in Illinois Cent. R. Co. v. Illinois, 146 U. S. 387, 13 Sup. Ct. 110, 36 L. Ed. 1018, for a complete history of the park and the legislation respecting it, the most important facts may be briefly stated as follows: Complainants own lots and buildings fronting on Michigan avenue and Lake Park, between Washington and Madison streets, in the city of Chicago. These lots are a part of Ft. Dearborn addition to Chicago, which had for its eastern boundary the shore line of Lake Michigan. The land was owned by the United States, and was subdivided into lots, blocks, streets, and public grounds in the year 1839, and platted as Ft. Dearborn addition, and an open space was reserved for public ground east of Michigan avenue, between Randolph and Madison streets, fronting on Lake Michigan, by means of the words marked on the plat, ‘Public ground forever to remain vacant of buildings.’ In the acknowledgement of the plat the following declaration was made: ‘The public ground between Randolph and Madison streets, and fronting upon Lake Michigan, is not to be occupied with buildings of any description.’ This addition was in section 10, and the lots were sold with reference to the plat. The state of Illinois, by its board of canal commissioners, had previously, in the yeat 1836, platted the lands immediately south, in section 15, which the United States had granted to the state for canal purposes, and on the plat the lands lying between the east row of blocks, and extending to Lake Michigan, were marked ‘Michigan Avenue.’ The lots in that subdivision were also sold with reference to the plat, and the canal commissioners used a sketch to sell from and point out the position of lots to purchasers, on which was marked: ‘Open ground. No buildings.’ The lots sold at a higher price on account of the eastern exposure to the lake and the reservation of the lands to the public use without buildings. The city of Chicago accepted the dedication of Lake Park by a resolution of April 29, 1844, providing that all that part of Michigan avenue which lay east of a line 90 feet east of the east line of the tier of lots fronting on the avenue, and that part in Ft. Dearborn addition lying east of a certain line, should be inclosed in a public park at the expense of subscribers to such inclosure. The state granted to the illinois Cantral Railroad Company the right to locate and construct its road upon, and to appropriate to its use a right of way over, lands of the state; but the company was not authorized to make a location within any city without the consent of the common council of the city. The railroad company located its right of way and railroad within the limits of the city of Chicago in Lake Michigan, over submerged lands in front of Lake Park, and consent was given to such location by an ordinance of the common council of the city adopted June 14, 1852. The tracks were laid on piling placed in the waters of the lake, and the space between the shore line and the tracks of the railroad company was filled under the direction of the city and became solid ground. In 1861, by an act of the legislature, the dedication by which the public ground east of the lots fronting on Michigan avenue should forever remain open and vacant was recognized. The right of way of the railroad company was also filled, so that the shore line of Lake Michigan was east of such right of way. Afterwards the Illinois Central Railroad Company claimed title to the submerged lands constituting the bed of the lake lying east of the tracks, within the corporate limits of the city, for a distance of one mile, and litigation arose between the state, the city, and said company concerning their respective titles, which was ended in the decision of the supreme court of the United States in Illinois Cent. R. Co. v. Illinois, supra. In that suit the state of Illinois claimed the title to the submerged lands lying east of the right of way of the railroad company, and prayed for a decree establishing and confirming its title, with the exclusive right to develop and complete the harbor by the construction of docks, wharves, piers, and other improvements, subject only to the paramount authority of the United States in the regulation of commerce, and the right to fill in the bed of the lake and improve its shore for the promotion, generally, of commerce and navigation. The city claimed the ownership in fee of the public grounds on the east front of the city bordering on the lake and exhibited on the plats of the two subdivisions above mentioned, and all riparian rights attached to such ownership. The court adjudged that the state of Illinois was the owner in fee of the submerged lands constituting the bed of Lake Michigan east of the railroad tracks, in trust for the people of the state, that they might enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private parties. The court held that the fee to the lands dedicated to public uses on the lake front by the plats in question passed to the city of Chicago; that the fee of the made and reclaimed ground between Randolph street and Park Row, by filling in from the shore line, embracing the ground upon which the tracks of the railroad company were laid, was in the city; that the city had the rights of a riparian ownership, subject to the conditions of the agreement under which the tracks and breakwater were constructed by the railroad company; and that the city, as riparian owner and by its charter, had power to construct and keep in repair, east of said premises, public landing places, wharves, docks, and levees, subject to the authority of the state and to such supervision and control as the United States might rightfully exercise. It was decided that the railroad company had a perpetual right of way over the ground for the tracks of its railway, and the continuance of the breakwater as a protection of its property and the shore from the violence of the lake. This adjudication was conclusive of the rights and titles of the respective parties at that time.

The question of the right of the complainants, as against the city of Chicago, to have the lands west of the railroad tracks, as appearing on the original plats and as added to by filling and reclamation, kept free from buildings, was adjudicated in City of Chicago v. Ward, supra. It is now contended that the decision in that case fixed and determined the limits of the ground to which the building restriction extended, and that such limits were confined to the lands west of the railroad tracks. That coaim is untenable. It is true that an ordinance of the city of Chicago, hereinafter mentioned, purporting to extend Lake Park eastward to the harbor line, had been passed before that decision, and another ordinance had been passed transferring the park to the South Park commissioners; but there had been no attempt to put any structure on that part of the park, nor any occasion for an injunction against a thereatened invasion of any rights claimed by the complainants east of the railroad. The lands east of the railroad tracks were submerged by the waters of Lake Michigan, and there had been no threat to interfere with any claimed right. This suit is not between the same parties, and, if it were, the question how far the restriction extended was in no way involved in the litigation and was not decided.

It is also argued by counsel that the dedication by the United States of the land in Ft. Dearborn addition fronting on the lake as public ground, to remain vacant of buildings, was only of the land which the United States then owned to the shore line of Lake Michigan, and, the title to the submerged lands being in the state of Illinois, they may be filled and reclaimed, and devoted by the state to building purposes. It is true that the United States was the owner of the land to the shore only (Shively v. Bowlby, 152 U. S. 1, 14 Sup. Ct. 548, 38 L. Ed. 331),...