People ex rel. Deneen v. Economy Light & Power Co.

• Decision Date: 26 October 1909
• Citation: 89 N.E. 760,241 Ill. 290
• Court: Illinois Supreme Court
• Parties: PEOPLE ex rel. DENEEN, Governor, et al. v. ECONOMY LIGHT & POWER CO.

241 Ill. 290

89 N.E. 760

PEOPLE ex rel. DENEEN, Governor, et al.

v.ECONOMY LIGHT & POWER CO.

Supreme Court of Illinois.

Oct. 26, 1909.

Appeal from Circuit Court, Grundy County; Julian W. Mack, Judge.

Suit by the People, on relation of Charles S. Deneen, Governor, and William H. Stead against the Economy Light & Power Company. From a decree dismissing the appeal, relators appeal. Affirmed.W. H. Stead, Atty. Gen., and Joel C. Fitch (Peck, Miller & Starr, Reeves, Osborn & Griggs, Walter Reeves, and Merritt Starr, of counsel), for appellants.

Isham, Lincoln & Beale and Scott, Bancroft & Stephens (John P. Wilson, Frank H. Scott, and Gilbert E. Porter, of counsel), for appellee.

VICKERS, J.

This is a direct appeal to this court from a decree of the circuit court of Grundy county dismissing for want of equity an information in the nature of a bill in equity filed by the Attorney General on behalf of the people, on the relation of Charles S. Deneen, Governor of the state of Illinois, against the Economy Light & Power Company, to restrain said company from erecting a dam across the Desplaines river, and to cause the removal of that portion of the dam already constructed, and to prevent other injuries to the property of the state which it is alleged will result from the construction and maintenance of said dam.

Appellant bases its claim to relief on three propositions, as follows: (1) That the state of Illinois owns the bed of the river at the point where it is proposed to build said dam; (2) that the Desplaines river is a navigable stream, and that the proposed dam would constitute an obstruction to navigation; (3) that certain contracts executed by the commissioners of the Illinois and Michigan canal, under which appellee claims certain rights in connection with the construction of said dam, are void, and that no rights were acquired by or can be asserted under said contracts.

It is conceded by appellee that if the state of Illinois owns the fee in the bed of the Desplaines river at the point where the proposed dam is to be located, or if said river is a navigable stream at that point, appellee has no right to build the dam. Whether the same result would follow if the instruments referred to in the third proposition were held invalid is one of the controverted questions between the parties. The question involved in each of appellant's propositions arise out of facts which have but little, if any, bearing on the other contentions. It will therefore conduce to a clearer understanding to examine these propositions separately, in the light of the facts applicable to each. The Title of the State to Bed of the River.

The validity of appellant's claim of title to the bed of the river at the point where the dam is located depends upon the construction of certain statutes passed by the Legislature in relation to the Illinois and Michigan canal. The consideration of the legal questions involved in appellant's claim of title to the bed of the river will be facilitated and the ultimate result clarified by a brief review of the history of the Illinois and Michigan canal prior to the passage of the particular statute, a construction of which is involved in this question.

The possibility of connecting the waters of Lake Michigan with the Illinois river by means of an artificial channel, thence through the Mississippi river to the Gulf of Mexico, thus establishing a continuous waterway for commerce from the Lakes on the north to the Gulf on the south, was at a very early time appreciated, and its consummation cherished by the early traders and explorers as a work of first importance, both from a commercial and military standpoint. The portage between the south branch of the Chicago river and the Desplaines was only a few miles, and it was confidently believed that these two streams could be connected by an artificial channel at a cost that would be trifling in comparison with the commercial benefits that were expected to result. Experience has shown, however, that the cost of the canal, first and last, has been nearly twenty times the original estimate, and that its practical benefits have fallen much below its promoters' expectations. The subject of constructing the canal was first brought to the attention of the federal Congress in 1801 by Albert Gallatin in a report recommending its construction by the general government. In 1816 a government survey was made of the proposed route, and after Illinois was admitted into the Union the attention of the new state was turned to the proposed connecting waterway. In 1822 Congress passed an act authorizing the state of Illinois to survey and mark through the public lands of the United States the route of a canal connecting the Illinois river with the southern bend of Lake Michigan, and vesting in the state the perpetual use of a strip of land 90 feet wide on each side of said canal for canal purposes, subject to certain conditions which have either been complied with or waived by subsequent acts and therefore need not be stated. Stead's Canal Laws, p. 1.

During an extra session of the Illinois Legislature, in 1826, a memorial was addressed to the Congress of the United States in which the great advantages both to the nation and the state of the proposed canal were eloquently set forth, and the liberality of Congress was appealed to to make a grant of public lands to aid the state ‘to commence and complete this great and useful work.’ In this memorial it was stated that ‘your memorialists have caused the route to be explored and estimates to be made of the probable expense of the work, from which it appears that the cost of constructing the canal will not be less than $600,000 and may possibly amount to $700,000.’ The effect of this memorial was to attract the attention and awaken the generous patronage of the federal Congress, and on March 2, 1827, an act was passed granting to the state of Illinois for the purposes stated a quantity of land equal to one-half of five sections in width on each side of said canal from one end thereof to the other. The lands thus granted to the state, when selected and set apart, were found to contain approximately 300,000 acres which were subject to the disposal of the state Legislature ‘for the purposes aforesaid and no other. In 1829 the Legislature passed an act authorizing the appointment of a board of canal commissioners to explore, examine, fix, and determine the route of the canal, and dispose by sale of the lands and lots and commence the work. Under this act Gov. Edwards appointed Charles Dunn, Dr. Gersham Jayne, and Edmond Roberts as commissioners. For lack of funds the commissioners were able to accomplish but little. February 15, 1831, an amendatory act was passed. Under the provisions of these two acts the board of commissioners laid out the towns of Chicago and Ottawa, and caused a new survey and estimate to be made by engineer Bucklin, whose estimate showed that the canal, instead of costing $600,000 or $700,000, as the Legislature had stated in its memorial, would cost $4,043,386.50-and this estimate proved to be too low by half. In view of the unexpected increase in the cost of the canal the plan of substituting a railroad for the canal was favorably considered for a time, and with this in view a survey and estimate for the railroad were made, a law passed abolishing the office of canal commissioners, and the consent of the federal government to use the land granted in constructing a railroad instead of a canal was obtained.

In 1835 the canal proposition was again taken up and an act passed authorizing the Governor to negotiate a loan, not exceeding $500,000, solely on the pledge of the canal lands and tolls. Certificates were to be issued, called ‘Illinois and Michigan canal stock,’ which were to be sold at not less than face value. This effort to raise money proved a failure. Ex-Gov. Coles, who then resided at Philadelphia, was appointed agent of the state to negotiate the loan, and in April, 1835, he wrote that capitalists were unwilling to take the stock certificates because they were not based upon the faith of the state. To obviate the objections thus raised the act of January 9, 1836, was passed, which repealed the act of 1835, and authorized the same loan of $500,000 on the credit of the state, which was irrevocably pledged for the payment of both principal and interest. The money thus borrowed, together with the proceeds of canal lands and lots, constituted a fund with which the actual construction of the canal was commenced, and on July 4, 1836, ground was first broken for the canal.

Two general plans of construction had been estimated and recommended. One, which is described as the ‘deep-cut’ plan, provided for a channel six feet below the water level of Lake Michigan, and contemplated the maintenance of a channel 60 feet wide at the top and 40 feet at the bottom and a depth of six feet, supplied by the direct flowage of water from Lake Michigan. The cost of the canal under the deep-cut plan was estimated at more than $10,000,000. This excess in cost over the available funds led to the consideration and adoption of the ‘shallowcut’ plan, which provided for a channel 12 feet above the water level of Lake Michigan, and contemplated to supply the channel with water by feeders from the Calumet or Desplaines rivers. Up to the first of January, 1839, the gross expenditures on the canal derived from loans and the sale of lands and lots amounted to $1,400,000. All of the canal, except about 23 miles between Dresden and Marseilles, was under contract, and the jobs let were roughly estimated at $7,500,000. In this situation the Legislature directed the commissioners to borrow $300,000, and the Governor to make a further loan by the sale of $4,000,000 of state bonds. These bonds were disposed of to irresponsible parties some of whom paid a portion, others practically nothing, so that the state lost several hundred...