People v. the City of St. Louis

• Decision Date: 31 December 1848
• Citation: 1848 WL 4171,5 Gilman 351,48 Am.Dec. 339,10 Ill. 351
• Parties: THE PEOPLE OF THE STATE OF ILLINOISv.THE CITY OF ST. LOUIS et al.
• Court: Illinois Supreme Court

5 Gilman 351

10 Ill. 351

1848 WL 4171 (Ill.)

48 Am.Dec. 339

THE PEOPLE OF THE STATE OF ILLINOIS

v.THE CITY OF ST. LOUIS et al.

Supreme Court of Illinois.

December Term, 1848.

BILL IN CHANCERY for an injunction, etc., in the St. Clair circuit court, filed by the appellants against the appellees, and heard before the Hon. Gustavus P. Koerner, at the September term, 1848.

The bill set forth, in substance, the following facts, to wit:

1. That the city of St. Louis, a public corporation situated in the State of Missouri, through her agents and Henry J. Hall, James Conran, Anthony Bennet and John Schreiber, who are also made defendants to the bill together with divers and sundry persons to the orators unknown, on the 12th day of June, 1848, and from that time up to the application, in the county of St. Clair and State of Illinois, deposited large quantities of rock and stone in the eastern channel of the Mississippi, between Bloody Island and the eastern bank of said river.

2. That the depositing of said rock, etc., was seriously injuring and irremediably destroying the navigation of said eastern channel of said river within said county, etc., and that, if continued, would entirely destroy the navigation of said eastern channel.

3. That defendants were endeavoring to build a rocky road across the entire eastern channel of said river, in said county, etc.

4. That said river is a public highway and so declared, etc., and ever to be kept open for the use of the people, etc.

5. That said eastern channel is navigable for steamboats, flat boats and barges, and that the free and uninterrupted navigation of said river is valuable beyond all possible calculation to the orators, and that the obstruction thereof is injurious to the orators in a larger sum than can be calculated, and that the deposit of rock hereinbefore set forth is an obstruction to the free use of said channel in said county, etc., and if permitted to be continued would irremediably destroy that part of said channel in, etc. (as before described).

6. That defendants were attempting by said obstruction to turn the entire channel of the Mississippi river into the western channel of said river, on the western side of Bloody Island; that the work is impracticable, and, if completed, would cause large portions of the Illinois shore in said county to fall in, and shoals and sand bars to be formed where the channel now runs, and make said channel, now safe and navigable, unsafe and dangerous, and injure the orators.

7. That the orators have the sole right to regulate roads within the limits of the State of Illinois; and the defendants were attempting to build and regulate a public road across the navigable eastern channel of the Mississippi river, infringing upon the rightful jurisdiction and sovereignty of the orators. 8. That the county of St. Clair has a right to erect a ferry, by virtue of an act, approved 2d day of March, A. D. 1839, entitled “An act to authorize St. Clair county to establish a ferry across the Mississippi river,” and that a portion of the profits of said ferry go to the State of Illinois.

9. That, by virtue of said law, St. Clair county did establish said ferry from a point in said county upon said river, about 40 yards below where said defendants were depositing said rock, etc., and that the orators have derived and are deriving large profits from the same, and that said profits will increase annually, etc., and that if said obstruction is continued as contrived by said defendants, would entirely remove the water of said river from the landing of said ferry upon the Illinois shore, and entirely destroy the value thereof, and deprive orators of large sums of money yearly; that said work is carried on, etc., by defendants, their agents, servants, workmen, boatmen and other persons, acting in concert, whose names are unknown to orators; that the city of St. Louis, also made defendant, was a public corporation without the jurisdiction of this State, and constituted by and in the State of Missouri, and was engaged in and encouraging the deposits of rock, etc., as aforesaid, by paying and promising to pay those personally engaged in said work; that said city of St. Louis, through her constituted authorities, had passed sundry ordinances from time to time, which are made part of the bill; and that said defendants were about to commence or had commenced to build another dam across said channel, to extend from the head of Bloody Island in St. Clair county, to a point on the Illinois shore in the county of Madison, the more effectually to fill up and obstruct said eastern channel, etc., depriving the oratorsof the profits of said ferry and the use of said channel.

10. That the orators could only have adequate relief in a court of chancery; that injunction be awarded and that upon the above bill, on the 26th of June, an injunction issued as above prayed for, which writ of injunction was duly served, etc. At the September term, the city of St. Louis appeared and filed a demurrer to the bill as follows, to-wit:

1. That complainants have not by the bill made such a case as entitles them, in a court of equity, to any discovery or relief from or against the city of St. Louis, touching the matters, etc.

2. That the circuit court in and for the county of Sangamon, State of Illinois, and not the said St. Clair circuit court, had jurisdiction of the several matters contained in the said bill.

3. That the circuit court in and for the county of St. Louis and State of Missouri, and not the said St. Clair circuit court hath jurisdiction of all the matters set forth and alleged in the said bill.

4. That the city of St. Louis is improperly joined in the said bill as defendant with John Schreiber and others, wherefore, etc.

John Schreiber, one of the defendants, pleaded, that he is a resident of the State of Missouri, and was at the time the bill was filed, and never resided in the county of St. Clair and State of Illinois; nor was he ever found in said county of St. Clair and State of Illinois.

The other defendants, Henry J. Hall, Anthony Bennett and James Conran filed answers which set forth, in substance, the following, to-wit: they denied that at or before filing said bill of complaint they had been engaged in depositing rock, etc., in the eastern channel of the Mississippi river; and admitted that the Mississippi river forms the boundary line between the States of Illinois and Missouri, and had been, and then was a public highway, open to the free use etc.; but denied that the waters between Bloody Island and the Illinois shore, were then or had been considered the ordinary navigable waters of said river, but that the ordinary navigable portion of said river in the vicinity of Bloody Island was on the west side of said island; and denied that the filling up of the waters on the east side of said island, would destroy any channel of the said river; and alleged that the filling up of said eastern channel would be of incalculable advantage to the people of the State of Illinois, and would improve the navigation of said river; admitted that the city of St. Louis was a public corporation, etc., and alleged that the legislature of Missouri authorized the prosecution of said works. That the said city had passed ordinances, and that by the aforesaid authority and that of the United States, they commenced a stony dyke from Venice on the Illinois shore, running down said shore towards the head of Bloody Island, in order to produce a deflection of the water in said river. That in order to secure the said work, a cross dyke had also been commenced from the Illinois shore to Bloody Island in St. Clair county; and averred that Bloody Island and the land on the Illinois shore, for at least a half mile above and below said cross dyke, belonged to individuals, who granted to the city of St. Louis express permission to construct said cross dyke. And that the city of St. Louis, in order to construct said works upon the plan mentioned, entered into contracts with these defendants and John Schreiber co-defendant; admitted that the county of St. Clair did establish a ferry according to law, etc., but denied that the complainants have any interest in said ferry, and averred that it is the exclusive property and right of St. Clair county, and denied having attempted to build a rocky road, etc., and infringe upon the righful sovereignty of said complainants.

Afterwards the following state of facts was agreed upon, to wit: That, at the time of filing said bill, said defendants, Hall, Conran and Bennett, were about to deposit stone in the Mississippi river, with the intention of constructing a dyke from Venice, on the Illinois shore, to the head of Bloody Island; that for the purpose of showing that said dyke was the same projected and in part constructed by the United States, for the years 1838, 1839 and 1840, the said parties might refer to any correspondence with any of the officers of the general government or official documents; that the city of St. Louis, through the said defendants, was, at the time of filing said bill, about to continue and complete the construction of said dyke by depositing stone in the water as above stated; that the work was to be done by said defendants under the direction of an agent of the city of St. Louis, in pursuance of ordinance, etc.; that the said dyke was and is designed to deflect the main body of the water in the Mississippi towards the western side of Bloody Island; that it was the intention of said defendants to raise said dykes to a height of four or five feet above low water mark; that a direct line from the Illinois shore to Bloody Island is about 250 yards, and from Bloody Island to the Missouri shore about 850 yards; that the usual and ordinary channel of the Mississippi is now, and has been, time out of mind, on the west side of Bloody Island, and regarded as the usual navigable channel of the Mississippi river; and...