David Mark Cummings v. City of Chicago

• Decision Date: 23 February 1903
• Docket Number: No. 136,136
• Citation: 188 U.S. 410,23 S.Ct. 472,47 L.Ed. 525
• Parties: DAVID MARK CUMMINGS and Grace Dunlap Kennedy, Appts. , v. CITY OF CHICAGO
• Court: U.S. Supreme Court

188 U.S. 410

23 S.Ct. 472

47 L.Ed. 525

DAVID MARK CUMMINGS and Grace Dunlap Kennedy, Appts.,

v CITY OF CHICAGO.

No. 136.

Submitted December 19, 1902.

Decided February 23, 1903.

The appellants, citizens of Illinois, brought this suit against the city of Chicago for the purpose of obtaining a decree restraining the defendant, its officers and agents, from interfering with the construction of a dock in front of certain lands owned by the plaintiffs and situated on Calumet river, within the limits of that city.

The city demurred to the bill upon the ground that it did not state facts entitling the plaintiffs to the relief asked. The demurrer was sustained, and the bill was dismissed for want of equity.

The controlling question in the case is whether the plaintiffs have the right, in virtue of certain legislation of Congress and of certain action of the Secretary of War, to which reference will be presently made, to proceed with the proposed work in disregard of an ordinance of the city of Chicago requiring the permission of its department of public works as a condition precedent to the construction of any dock within the limits of the city. The plaintiffs had not obtained any permit from that department.

The legislation of Congress and the action of the Secretary of War upon which the plaintiffs rely are very fully set forth in the bill, and are as follows:

In the river and harbor appropriation act of August 2d, 1882, chap. 375, will be found this provision: 'Improving harbor at Calumet, Illinois: Continuing improvement, thirty-five thousand dollars: Provided, That with a view to the improvement of the Calumet river, in the state of Illinois, from its mouth to the Fork at Calumet lake, the Secretary of War shall appoint a board of engineers who shall examine said river and report upon the practicability and the best method of perfecting and maintaining a channel for through navigation to said Fork at Lake Calumet, adapted to the passage of the largest vessels navigating the Northern and Northwestern Lakes, limiting and locating the lines of channel to be improved by the United States, and of docks that may be constructed by private individuals, corporations, or other parties, and clearly defining the same under the direction of the chief of engineers, United States Army; and the Secretary of War shall report to Congress the result of said examination, and the estimated cost of the proposed improvement; also what legislation, if any, is necessary to prevent encroachments being made or maintained within the limits of the channel designated as above provided for.' 22 Stat. at L. 194.

Thereafter, the bill alleges, the Secretary of War appointed a board of engineers, who surveyed the river and defined the lines of its channel and of docks to be constructed, under the direction of said chief of engineers; and the Secretary of War thereafter reported to Congress the estimated cost of the proposed improvement.

In the river and harbor appropriation act of July 5th, 1884, chap. 229, this provision was inserted: 'Improving Calumet River, Illinois: Continuing improvement, fifth thousand dollars: Provided, however, That no part of said sum shall be expended until the right of way shall have been conveyed to the United States, free from expense, and the United States shall be fully released from all liability for damages to adjacent property owners, to the satisfaction of the Secretary of War.' 23 Stat. at L. 133, 143.

Under these enactments, the bill alleged, the United States caused a plat to be made establishing the channel of the river and its lines, and fixing the dock lines thereof. That plat was approved by the chief of engineers of the Army and was duly recorded in the recorder's office of Cook county.

The above legislation was followed by this provision in the river and harbor act of August 5th, 1886, chap. 929: 'Improving Calumet River, Illinois: Continuing improvement, thirty thousand dollars; of which eleven thousand two hundred and fifty dollars are to be used between the Forks and one-half mile east of Hammond, Indiana; . . . Provided, however, That no part of said sum, nor any sum heretofore appropriated, except the said eleven thousand two hundred and fifty dollars, for the river above the Forks, shall be expended until the entire right of way, as set forth in Senate Executive Document Number Nine, second session Forty-seventh Congress, shall have been conveyed to the United States free of expense, and the United States shall be fully released from all liability for damages to adjacent property owners, to the satisfaction of the Secretary of War; . . .' 24 Stat. at L. 310, 325.

Without going into all the details set forth in the bill, it may be assumed that the deeds of conveyance which the above acts of 1884 and 1886 required to be made to the United States were in fact made and accepted.

The bill alleges that the United States by its duly authorized officials thereafter entered upon the improvement of Calumet river in accordance with the surveys and plans adopted by the chief of engineers of the United States Army, and 'thereby established said dock or channel line on the west line of said river in the manner and form shown by said plat approved by the said chief of engineers, and filed for record as aforesaid.'

By the 7th section of the river and harbor act of Congress approved September 19th, 1890, chap. 907, it was provided: 'That it shall not be lawful to build any wharf, pier, dolphin, boom, dam, weir, breakwater, bulkhead, jetty, or structure of any kind outside established harbor lines, or in any navigable waters of the United States where no harbor lines are or may be established, without the permission of the Secretary of War, in any port, roadstead, haven, harbor, navigable river, or other waters of the United States, in such manner as shall obstruct or impair navigation, commerce, or anchorage of said waters, and it shall not be lawful hereafter to commence the construction of any bridge, bridge-draw, bridge piers and abutments, causeway, or other works over or in any port, road, roadstead, haven, harbor, navigable river, or navigable waters of the United States, under any act of the legislative assembly of any state, until the location and plan of such bridge or other works have been submitted to and approved by the Secretary of War, or to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of the channel of said navigable water of the United States, unless approved and authorized by the Secretary of War: Provided, That this section shall not apply to any bridge, bridge-draw, bridge piers, and abutments the construction of which has been heretofore duly authorized by law, or be so construed as to authorize the construction of any bridge, drawbridge, bridge piers and abutments, or other works, under an act of the legislature of any state, over or in any stream, port, roadstead, haven, or harbor, or other navigable water not wholly within the limits of such state.' 26 Stat. at L. 426, 454.

Then, by the 10th section of the river and harbor act of March 3d, 1899, chap. 425, it was provided: 'That the creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States, is hereby prohibited; and it shall not be lawful to build, or commence the building of, any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the chief of engineers and authorized by the Secretary of War; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, con- dition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the chief of engineers and authorized by the Secretary of War prior to beginning the same.' 30 Stat. at L. 1121, 1151 (U. S. Comp. Stat. 1901, p. 3541).

Subsequently, the plaintiffs and the Calumet Grain & Elevator Company—the latter also owning land on the Calumet river in front of which the proposed new dock would be built—caused plans of the dock to be prepared and submitted to the Secretary of War and the chief of engineers of the Army, and application was made to the former for permission to rebuild the dock along the front of their lands on Calumet river as shown by those plans.

Those plans were approved by the United states engineer stationed at Chicago, and were subsequently recommended by the chief of engineers of the Army. The Secretary thereupon issued and delivered to the plaintiffs and the Grain & Elevator Company the following instrument:

Whereas, by § 10 of an act of Congress, approved March 3d, 1899, entitled 'An Act Making Appropriations for the Construction, Repair, and Preservation of Certain Public Works on Rivers and Harbors, and for Other Purposes,' it is provided that it shall not be lawful to build, or commence the building of, any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, Jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the chief of engineers and authorized by the Secretary of War; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United...