City of Chicago v. Ward

Decision Date08 November 1897
PartiesCITY OF CHICAGO v. WARD et al.
CourtIllinois Supreme Court


Error to superior court, Cook county; Theodore Brentano, Judge.

Bill by A. Montgomery Ward and another against the city of Chicago and others for an injunction. There was a decree in favor of complainants, to reverse which the city of Chicago alone brings error. Affirmed.

Jesse B. Barton, for plaintiff in error.

George P. Merrick, for defendants in error.


This was a bill for an injunction, filed in the superior court of Cook county, October 16, 1890, by A. Montgomery Ward and George R. Thorne, to enjoin the city of Chicago from erecting any buildings on what is known as ‘Lake Park,’ or ‘Lake Front Park.’ The bill alleges that they are the owners of the south 43 feet of lot 3, and all of lots 4 and 5, in block 15 in Ft. Dearborn addition to the city of Chicago, known as ‘Nos. 111 to 116 Michigan Avenue’; that valuable buildings are erected on said lots and occupied by them in their business of importers, manufacturers, and jobbers of general merchandise; that when said addition was platted an open space was reserved for public grounds east of Michigan avenue, and between Randolph and Madison streets, fronting on Lake Michigan, subject to the prohibition that the grounds should be kept free from buildings; that the lots owned by them are worth more on account of such vacant grounds than they would be otherwise; that they have an easement in such grounds; that it was the duty of the city to prevent encroachments on such grounds, but that it has permitted the erection of certain structures thereon, contrary to the vested rights of complainants, etc. And it prays for an injunction restraining the city from violating the terms of the dedication, and against the erection of buildings, etc., thereon. The Illinois Central Railroad Company and a number of other parties were made defendants. A temporary injunction was granted, and the city answered the bill, denying that it had committed the acts complained of, or intended to erect any structures. On May 6, 1893, the bill was amended. The amended bill alleges that that part of Lake Park south of Madison street has been for many years public grounds and park property, and the lots in Ft. Dearborn addition were sold with the understanding that all of Lake Park should be and remain clear of all buildings; that the city had suffered the Illinois Central Railroad Company and others to occupy portions of the park, and had suffered circuses, shows, etc., upon said premises; that it is using it as a dumping ground for garbage, rubbish, etc., and has constructed a scaffold and floor for that purpose, the filth and rubbish to be carried away by the railroad company, causing a great public nuisance; that the American Express Company has built a shed thereon; that there are seven or more railroad tracks upon it, upon which cars are permitted to stand; that the city has issued a permit to the Forepaugh shows to occupy part of the same. And it prays for a temporary injunction, and for a mandatory injunction, to remove all buildings, sheds, cars, tracks, and material of every kind from the park. The city answered the amended bill, denying the alleged restrictions on the use of the park; alleging that the character of the buildings in Ft. Dearborn addition, and purposes for which they were used, has been entirely changed, for more than 25 years, from residence to business purposes, and that the use for which the public grounds were conveyed has long since ceased to attach thereto; denying that the property of complainants is enhanced in value by reason of its situation relatively to the park, and that the owners have any easement of light, air, or view over the same; denying that the grounds were dedicated for any specific public purpose; and alleging ownership by the city in fee simple absolute. On June 8, 1896, complainants again amended their bill, with the stipulation that the answer of the city should stand as the answer to such secondly amended bill. This amendment sets out the history of the platting and dedication of the two additions to the city of Chicago, of which Lake Park is a part, at length, and alleges that the city accepted the dedication by a resolution of April 29, 1844, which resolution ordered what is now called ‘Lake Park’ to be inclosed as a public park, at the expense of the subscribers of such inclosure; that the city council, by ordinance of August 10, 1847, designated the public ground so fenced in as ‘Lake Park’; that the abutting property owners on Michigan avenue had, prior thereto, erected a fence, at their own expence, around said park, and ornamented the same, etc. It recites section 64 of the act of February 18, 1861, in reference to the charter of the city of Chicago, and refers to the act of 1863 on the same subject, and alleges that the construction of buildings on Lake Park, and its occupancy by railroad tracks, or for other private purposes, and the licensing of the same for circus purposes, etc., and the employment of the same as a dumping ground for filth, etc., will constitute a public nuisance, and will divert the park from the purposes for which it was dedicated, and will constitute a private nuisance, and inflict irreparable damages on the property of complainants, special to the same, and distinct from that suffered by the public at large. The final decree that was entered by the court recites that all the material allegations in the various bills and amendments are true. It decrees that the injunction of May 25, 1890, be made perpetual; that the Illinois Central Railroad Company and the city and its officers desist and refrain from occupying any buildings or structure, except such as described in the ordinance of October 21, 1895, upon the tract of land known as ‘Lake Park’; that they refrain from placing or causing to be placed thereon anything, except for park purposes, and from using, and permitting the use of, any portion thereof for railroad tracks, or such circuses or exhibitions to which the public will not be admitted free; that nothing in the decree shall be held to impair or diminish the rights, etc., of the Illinois Central Railroad Company under the ordinance of October 21, 1895; that the Art Institute, and all necessary improvements thereon, so long as it shall be used in accordance with the terms of the ordinance authorizing its construction, shall be excluded from the operation of the decree, and likewise the temporary post-office building, until a new, permanent post office shall be completed and occupied, and also, for a period of three months, the armory buildings. To reverse this decree, the city of Chicago, alone, has sued out a writ of error from this court.

The evidence showed that the abutting property owners expended considerable sums of money, from time to time, as also did the city of Chicago, in protecting said park from the ravages of Lake Michigan, and in fencing and beautifying the grounds. It was declared by the government plat of the Ft. Dearborn addition that ‘the public ground between Randolph and Madison streets, and fronting upon Lake Michigan, is not to be occupied with buildings of any description.’ By a resolution adopted April 29, 1844, the city declared that all that part of Michigan avenue lying east of a line 90 feet east of the east line of the tier of lots in section 15, fronting said avenue on the west, shall be inclosed as a public park; and the same resolution declared, in substance, that the public ground in the Ft. Dearborn addition should be inclosed as a public park, at the expense of subscribers to such inclosure. And in 1847, by an ordinance of the city, it was ordained, ‘The public ground east of the fence erected on the east side of Michigan avenue from the north side of Randolph street to the south side of lot 8 in block 21, fractional section 15, addition to Chicago [which was coincident with the south line of Park row], shall hereafter be known and designated as Lake Park.’ The city council passed another ordinance to the same effect, August 25, 1851, which declared that the public ground on the east side of Michigan avenue from the north line of Randolph street to the south line of Park row should be designated as ‘Lake Park.’ Another ordinance to the same effect was passed by the city council in 1856; and in the ordinance granting a right of way to the Illinois Central Railroad Company passed June 14, 1852, it was provided that said company should not, in any manner or for any purpose, occupy or intrude upon the open ground known as ‘Lake Park,’ belonging to the city of Chicago, lying between Michigan avenue and the western or inner line before mentioned, which was a line not less than four hundred feet east of the west line of Michigan avenue, and parallel thereto. And similar inhibitions were imposed in subsequent ordinances. The existence of this park was recognized by legislation of the state, by the acts passed in 1861 and 1863, in which the act incorporating the city of Chicago and the several amendments thereto were reduced to a single act, and in which, in section 64, were the following provisions: ‘No encroachments shall be made upon the land or water west of the line mentioned in the second section of an ordinance concerning the Illinois Central Railroad (which line is not less than four hundred feet east from the west side of Michigan avenue, and parallel thereto) by any railroad company, nor shall any cars, locomotives, engines, machines, or other things belonging to any railroad or transportation company be permitted to occupy the same, nor shall any cars or machinery be left standing upon said track fronting any part of Michigan avenue, nor shall the city council ever allow any encroachments west of the line above described. Any person being the owner of or being interested in any lot, or part of a lot, fronting on Michigan avenue, shall...

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