South Park Com'rs v. Montgomery Ward & Co.

CourtSupreme Court of Illinois
Writing for the CourtCARTWRIGHT
Citation248 Ill. 299,93 N.E. 910
Decision Date08 February 1911

248 Ill. 299
93 N.E. 910

S. KARPEN & BROS. et al.

Supreme Court of Illinois.

Dec. 21, 1910.
Rehearing Denied Feb. 8, 1911.

Appeal from Superior Court, Cook County; William H. McSurely, Judge.

Actions by the South Park Commissioners against Montgomery Ward & Co. and others, and by the same against S. Karpen & Bros. and others. Judgments of dismissal, and plaintiff appeals. Affirmed.

[248 Ill. 301]

[93 N.E. 911]

Tolman, Redfield & Sexton (John P. Wilson, Edgar Bronson Tolman, Leonard A. Busby, and John Barton Payne, of counsel), for appellant.

George P. Merrick and Elbridge Hanecy, for appellees Montgomery Ward & Co. and others.

Mayer, Meyer, Austrian & Platt (Levy Mayer, of counsel), for appellees S. Karpen p Bros. and others.


The appellant, the South Park Commissioners, a municipal corporation having charge and control of Grant Park, in the city of Chicago, appealed from four judgments of the superior court of Cook county dismissing its petitions for the condemnation of the rights and easements to have the park kept free from buildings, and to preserve it for the purposes of the original dedications which the petitions [248 Ill. 302]alleged were vested in Montgomery Ward and others, as owners of lots in Ft. Dearborn addition, and S. Karpen & Bros. and Levy Mayer, as owners of lots in Fractional Section 15 addition to Chicago, opposite the park, and, inasmuch as a materal question in all the cases is the same, they have been heard together. They bring up again the question of the right to erect buildings in the park, which was adjudicated as between the city and Montgomery Ward in City of Chicago v. Ward, 169 Ill. 392, 48 N. E. 927,38 L. R. A. 849, 61 Am. St. Rep. 185, as between commissioners of the state and Ward in Bliss v. Ward, 198 Ill. 104, 64 N. E. 705, and as between Ward and the appellant and the Field Museum in Ward v. Field Museum, 241 Ill. 496, 89 N. E. 731. Two of the petitions prayed for the ascertainment of the compensation to be paid to the owners of lots for the rights and easements, interests, and property to be taken by the erection and maintenance of the Field Museum of Natural History in the park, and two contained like prayers for the ascertainment of the compensation to be paid for the same rights to be taken by the erection and maintenance of the Crerar Library in the park. They were filed in pursuance of the provisions of the Acts of 1903 (Laws 1903, p. 263), permitting the location of this museum and public libraries in the bark. The act of 1903, which was under consideration in Ward v. Field Museum, supra, authorizing park commissioners to permit the directors or trustees of a museum at that time located in a public park to erect and maintain such museum within any public park under the control or supervision of such park commissioners, also provided that if any owner or owners of any lands or lots abutting or fronting on such public park had any private right, easement, interest, or property in such park which would be interfered with by the erection and maintenance of such museum, or any right to have the park remain open or vacant and free from buildings, the authorities having control of the park might condemn the same under the act providing for the exercise of the right of eminent domain. Laws 1903, p. 263. [248 Ill. 303]There was a similar provision in the act of 1903 authorizing park commissioners to permit any free public library to be erected in any public park under their control. Laws 1903, p. 262. On January 5, 1910, the petitioner passed an ordinance for acquiring, by condemnation, all rights and easements in the park requisite for the construction of the museum, which was to occupy a space 1,300 feet long north and south and 800 feet wide from east to west, and another ordinance for condemning such easements for the construction and maintenance of the John Crerar Library in the park, between Madison and Monroe streets extended east. The defendants, claiming

[93 N.E. 912]

that the petitioner had no lawful right to permit the erection of buildings in the park, filed their motions to dismiss the petitions; denying that the proposed uses were public in their nature; alleging that the acts of the Legislature under which the proceedings were instituted were in conflict whith the Constitution and therefore void (and particularly that the act in regard to the museum was unconstitutional as applying only to the Field Museum, and granting to a private corporation an exclusive privilege or franchise), and that the prior judgments against the petitioner, or those represented by it and with whom it was in privity, were final adjudications against the right to disregard the restrictions of the original dedications. The court sustained the motions and dismissed the petitions. Inasmuch as a determination of the question whether the Legislature could authorize the erection of buildings in Grant Park contrary to the terms of the dedications of the property for park purposes will dispose of the cases, other questions will not be considered.

The Field Museum is a private corporation, and the act authorizing the erection of its building in the park, which limited the privilege to museums located in a public park on the 1st day of July, 1903, was intended to apply, and as a matter of fact did apply, only to that corporation. The superior court was of the opinion that the act was in [248 Ill. 304]violation of the Constitution, as granting an exclusive privilege to the corporation, but if the Legislature could not by any act authorize the erection of a building in the park, any question of a special privilege is not meterial. There are also questions as to the nature and limits of public uses, and in Ward v. Field Museum, supra, a great deal of evidence was taken to prove that such buildings as museums were situated in various public grounds called parks, in different parts of the world. We declined to consider that question, and said that questions concerning the proper uses of public parks and what buildings had been erected in other parks were not involved in that case. In the common understanding, a park, in this country, is a piece of ground in or near a city or town for ornament, and as a place for the resort of the public for recreation and amusement, and it is usually laid out in walks, drives, and recreation grounds. Village of Riverside v. MacLain, 210 Ill. 308, 71 N. E. 408,66 L. R. A. 288, 102 Am. St. Rep. 164; Webster's Dict.; 29 Cyc. 1684; 21 Am. & Eng. Ency. of Law (2d Ed.) 1066. Whether a public library which is not for amusement or recreation but for educational purposes, or a museum maintained mainly for scientific investigation and instruction in geology, ethnology, and other kindred sciences, and in which entertainment and amusement is only incidental, is a legitimate part of a part might be proper questions for consideration in some cases; but if the only right which the defendants have consists of easements, in connection with their property, of an unobstructed view, and such easements can be taken from them by condemnation, it is not material to them what the uses of the building are. If buildings should be erected not proper in a public park, and therefore a public nuisance, they might be abated at the suit of any one aggrieved, but the material question in these cases is the right to erect any sort of building in the park.

The right of eminent domain is an inherent attribute of sovereignty, existing independently of written Constitutions[248 Ill. 305]or statutory laws, although it is regulated by appropriate legislation. It is the power of the sovereign to appropriate private property to the public use, limited only by the constitutional provision for compensation. It extends to every kind of property, including not only that which is tangible, but all rights and interests of any kind, including easements. Johnson v. Joliet p Chicago Railroad Co., 23 Ill. 202;Metropolitan City Railway Co. v. Chicago West Division Railway Co., 87 Ill. 317;Sholl v. German Coal Co., 118 Ill. 427, 10 N. E. 199,59 Am. Rep. 379. Questions of the necessity and propriety of the exercise of the right are legislative and not judicial. Chicago, Rock Island & Pacific Railroad Co. v. Town of Lake, 71 Ill. 333;Pittsburgh, Ft. Wayne & Chicago Railway Co. v. Sanitary District, 218 Ill. 286, 75 N. E. 892,2 L. R. A. (N. S.) 226. But the power is not unrestricted and without bounds. The Legislature are restricted by the requirement that the use shall be public and lawful, and the power cannot be abused to the injury of well-recognized private rights. The Legislature cannot authorize the taking of the property of the citizen for illegal uses, and the courts are not without power to determine that question. A use might be public, in the broadest sense, as being open to all alike upon the same terms and conditions, and the right of the public to use and enjoy the property taken from the citizen be an absolute right and not a mere favor, and yet the use be against public policy because destructive of the health, morals and welfare of society, or subversive of natural or constitutional right. The courts have a right to determine such questions, and may decide whether the use to which it is sought to appropriate the property is a public use; whether such use or purpose would justify the exercise of the compulsory taking of private property under the statute and Constitution; and, where the power is attempted to be exercised by a corporation, whether the power has been delegated to the corporation by the Legislature, and whether the uses and purposes for which the power is sought to be exercised[248 Ill. 306]fall within the legisative grant of powers. Chicago, Rock Island & Pacific Railroad Co. v. Town of Lake, supra;

[93 N.E. 913]

South Chicago Railroad Co. v. Dix, 109 Ill. 237;Chicago & Eastern Illinois Railroad Co. v. Wiltse, 116 Ill....

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