People ex rel. Smith v. Pearce

• Decision Date: 08 February 1934
• Docket Number: No. 21820.,21820.
• Citation: 354 Ill. 580,188 N.E. 825
• Parties: PEOPLE ex rel. SMITH, State's Atty., v. PEARCE et al.
• Court: Illinois Supreme Court

354 Ill. 580

188 N.E. 825

PEOPLE ex rel. SMITH, State's Atty.,

v.PEARCE et al.

No. 21820.

Supreme Court of Illinois.

Dec. 22, 1933.

Rehearing Denied Feb. 8, 1934.

Suit by the People, on the relation of A. V. Smith, State's Attorney, against Marguerite Pearce and others. From a decree for complainant, defendants appeal.

Reversed.

Appeal from Circuit Court, Lake County; Edward D. Shurtleff, judge.

Werner W. Schroeder, of Chicago, and A. F. Beaubien and Runyard & Bebanna, all of Waukegan, for appellants.

Otto Kerner, Atty. Gen., and Charles E. Mason, State's Atty., of Waukegan (Peter B. Nelson, Sylvester E. Quindry, and B. Blakeney

Harris, all of Chicago, of counsel), for appellee.

DE YOUNG, Justice.

The people of the state, on the relation of A. V. Smith, state's attorney of Lake county, filed a bill in the circuit court of that county against Marguerite Pearce, George W. Pearce, August Froelich, and forty-five other defendants. The prayer of the bill was that the defendants be restrained from interfering with the free use of Lake Zurich by the public for all lawful purposes and that the title to the land constituting the bed of the take be quieted in the state in trust for the use of the people. Answers were filed by certain defendants, while the bill was taken as confessed by the other defendants. A decree in conformity with the prayer of the bill was entered, and Marguerite Pearce, George W. Pearce, and August Froelich prosecute this appeal.

By the stipulation of the parties the record in the case of Leonard v. Pearce, 348 Ill. 518, 181 N. E. 399, was received in evidence. Subject to the objections shown by that record, the evidence introduced by the complainants and defendants in that case, it was agreed, should constitute the evidence respectively of the people and of the defendants in this case. The evidence in Leonard v. Pearce, supra, disclosed the following facts: The subject-matter of the litigation comprised portions of sections 17, 18, 19, and 20, in township 43 north, range 10 east of the Third principal meridian, in Lake county. The central point of these sections is near the center of Lake Zurich. The tracts in sections 18, 19, and 20 were sold by the United States to John Forsythe on April 18, 1856, and he received a patent therefor. On February 21, 1861, the Surveyor General for Illinois and Missouri certified that George Hale, state agent for the county of Lake, had chosen the three tracts as swamp land according to the act of Congress, approved September 28, 1850, and the Surveyor General further certified that these tracts constituted swamp land within the meaning of that act. Under subsequent acts of Congress, the state of Illinois became entitled to the purchase money the federal government received from Forsythe for these tracts of land. The Secretary of the Interior confirmed the finding that the three tracts constituted swamp land within the meaning of the act of September 28, 1850, and that the tracts had been erroneously sold by the United States. The state of Illinois subsequently received the purchase money from the federal government, and the state in turn paid the money to Lake county. The tract in section 17 never came under the operation of the Act of September 28, 1850 (43 USCA §§ 982-984), because the government sold it in 1841, while the Swamp Land Act applied only to lands unsold on and after September 28, 1850. The land in section 17 did not differ from the three tracts in the other sections, save that it was covered by the shallowest water and produced the greatest number of aquatic plants.

The evidence in the case of Leonard v. Pearce, supra, further discloses acts of ownership, increasing in number, character, and extent with the passing of the years, by various persons holding title of record to portions of the bed of the lake. Among such acts were conveyances of parcels of land underlying the waters of the lake, the execution of leases of such parcels, the prevention of the use of the lake over the land owned or claimed, and the payment of the taxes levied thereon annually. The court, by its decree in that case, found, among other things, that the defendants, who are the appellants in this case, owned in fee simple a considerable portion of the bed of Lake Zurich; that their titles were based upon patents from the United States; that the lake had neither outlet nor inlet; that it had never been meandered and was nonnavigable; that the defendants...