Ward v. Field Museum of Natural History

• Decision Date: 26 October 1909
• Parties: WARD v. FIELD MUSEUM OF NATURAL HISTORY et al. SOUTH PARK COM'RS v. WARD et al.
• Court: Illinois Supreme Court

241 Ill. 496

89 N.E. 731

WARD

v.FIELD MUSEUM OF NATURAL HISTORY et al.

SOUTH PARK COM'RS

v.WARD et al.

Supreme Court of Illinois.

Oct. 26, 1909.

Appeal from Superior Court, Cook County; George A. Dupuy, Judge.

Suit by A. Montgomery Ward against the Field Museum of Natural History and another to enjoin the erection of a building in a park, in which the South Park Commissioners filed a cross-bill to enjoin complainant from interfering with the erection of the building. From a decree enjoining complainant from interfering with the erection of the building in a certain part of the park, complainant and cross-complainant took separate appeals. Reversed and remanded, with directions to dismiss the cross-bill and render decree for complainant.George P. Herrick (Elbridge Hanecy, of counsel), for A. Montgomery ward.

Edwin Walker, Winston, Payne, Strawn & Shaw, John Barton Payne, John S. Miller, and Walter H. Jacobs, for Field Museum of Natural History.

Hollett, Sauter & Henkel (R. P. Hollett and L. E. Sauter, of counsel), for South Park Commissioners.

CARTWRIGHT, J.

This suit is a renewal of a controversy of long standing between A. Montgomery Ward and the public authorities having the control and management of what is now known as Grant Park, in the city of Chicago, concerning the right of Ward to have the park kept free from public buildings, which was adjudicated between him and the city in the case of City of Chicago v. Ward, 169 Ill. 392, 48 N. E. 927,38 L. R. A. 849, 61 Am. St. Rep. 185, and again between him and commissioners of the state in Bliss v. Ward, 198 Ill. 104, 64 N. E. 705. The history of Grant Park and the material facts governing the rights of the parties were recited at length in the opinions of the court in those cases, but, for the purpose of a clear understanding of the questions involved and decided, it is considered proper to bring all the facts together in this opinion.

The Congress of the United States by an act approved March 2, 1827, granted to the state of Illinois certain lands for the purpose of aiding in opening a canal to connect the waters of the Illinois river with those of Lake Michigan. The state was authorized to sell and convey the whole or any part of the land, and give title in fee simple therefor. By an act of the Legislature of January 22, 1829, provision was made for the appointment of commissioners to sell the lands, and by act of February 15, 1831, the commissioners were constituted a board, to be known as ‘Board of Canal Commissioners of the Illinois and Michigan Canal.’ A selection of lands was made by the commissioners, and on May 21, 1830, was approved by the president, and among the lands so selected was fractional section 15, in which that part of Grant Park south of the center of Madison street extended east is located. By an act approved January 9, 1836, the board of canal commissioners were directed to proceed to sell certain lots, including said section, which was first to be laid off into town lots, streets, and alleys, as in the judgment of the commissioners would best promote the interest of the canal fund. The commissioners made a subdivision containing two tiers of eleven blocks each, bounded on the west by State street, on the north by the center line of Madison street, on the south by the center line of Twelfth street, and on the east by Lake Michigan, with streets and alleys, and the plat was acknowledged and recorded July 20, 1836. The open space between the east line of the eastern tier of blocks and the lake, as far south as block 23, now known as Park Row, was left unsubdivided and vacant. At the north line of the section this space was about 500 feet wide and at Park Row it was about 700 feet wide, and that space was marked with the words ‘Michigan avenue,’ which, so far as the plat went, indicated the use of the whole space as an avenue. The commissioners prepared plats or sketches for the purposes of sales and distributed them to the public and prospective bidders, and on these plats or sketches the open space was marked ‘Open ground-no building,’ or equivalent words indicating that it was to be kept open and clear of any buildings. The lots were sold with reference to such plat or sketch, and they sold at a higher price on account of the eastern exposure to the lake and restriction as to buildings.

When the canal commissioners' subdivision was laid out, the southwest fractional quarter of section 10 lying north of it was owned by the United States and occupied for a military post as Ft. Dearborn reservation, and had been so occupied as early as 1804. In the year 1839 it was subdivided, under authority of the Secretary of War, into blocks, lots, streets, and public grounds as Ft. Dearborn addition. On the plat an open space was reserved for public grounds east of Michigan avenue between Randolph and Madison streets, fronting on Lake Michigan, and marked on the plat, ‘Public ground forever to remain vacant of buildings.’ The acknowledgment of the plat contained the following: ‘The public ground between Randolph and Madison streets, and fronting upon Lake Michigan, is not to be occupied with buildings of any description.’ Ward owns lots and buildings fronting on Michigan avenue between Washington and Madison streets. In 1844 the city council accepted the public ground by a resolution that all that part of Michigan avenue lying east of a line 90 feet east of the east tier of blocks of section 15 should be inclosed as a public ground, and all that part of said avenue in the Ft. Dearborn addition lying east of a line drawn south from the southwest corner of land belonging to the estate of John Wright and occupied by Mr. Lamb should be inclosed as a public park, at the expense of the subscribers to such inclosure. The land belonging to the estate of Wright was at the northeast corner of Michigan avenue and Randolph street. This resolution limited the use of the space for street purposes to 90 feet and accepted the remainder as a public park, and that division has always been acquiesced in. The width of the park was reduced, after the dedications, by encroachments of the lake.

In 1852 the Illinois Central Railroad Company, under authority from the state and an ordinance of the city, located its railroad in Lake Michigan over submerged lands in front of the then existing park, and laid its tracks on piles driven in the bed of the lake and built a breakwater to protect the same. The Legislature by an act of February 18, 1861, amending the act incorporating the city of Chicago, prohibited the railroad company from encroaching upon the land or water west of a line not less than 400 feet east of the west line of Michigan avenue and prohibited the city from allowing any encroachment west of that line. It provided that any person being the owner or interested in any lot fronting on Michigan avenue should have the right to enjoin said company, and all other persons and corporations, from any violation of the provisions of the act. It contained this confirmation of the representations of the canal commissioners: ‘The state of Illinois, by its canal commissioners, having declared that the public ground east of said lots should forever remain open and vacant, neither the common council of the city of Chicago nor any other authority shall ever have the power to permit encroachments thereon without the assent of all persons owning lots or land on said street or avenue.’ The railroad company filled up its right of way, which by the ordinance was three hundred feet wide, and the bed of the lake was gradually filled from the shore by the deposit of waste and rubbish. At the time of the great fire of 1871 there was still a basin there, used for row boats and sail boats. The dumping of débris finally the space west of the railroad right of way, and disputes arose as to the titles of the railroad company, the city, and the state in the made lands and submerged lands to the east. Those disputes were all finally and conclusively settled by a suit commenced March 1, 1883, in the name of the people of this state against the railroad company and the city, in which the city filed a cross-bill and which was finally decided by the Supreme Court of the United States in 1892, 146 U. S. 387, 13 Sup. Ct. 110, 36 L. Ed. 1018. The court stated that the object of the suit was to obtain a judicial determination of the title of the lands on the east or lake front, between the Chicago river and Sixteenth street, which had been reclaimed from the waters of the lake and were occupied by the tracks and structures of the railroad company, and the title claimed by said company to the submerged lands constituting the bed of the lake lying east of its tracks, within the corporate limits for the distance of one mile. The city by its cross-bill claimed the ownership in fee of the public grounds on the east front of the city bordering on the lake, contained in the two subdivisions above mentioned, and asked a decree declaring that it was such owner in fee and of the riparian rights thereunto appertaining, and the right to develop the harbor of Chicago by the construction of docks, wharves, and levees. The Supreme Court decided that the city as riparian owner between the north line of Randolph street and the north line of block 23 extended to Lake Michigan, which is now Grant Park, had power to construct and keep in repair on the lake front, east of the premises, landing places, wharves, docks, and levees, subject, however, to the authority of the state and the supervision and control of the United States. The court confirmed the title in the city to the lands which had been filled beyond the original shore line and reclaimed from the waters of the lake and also to the lands filled and occupied by the railroad company, subject only to the use thereof for right of way and railroad purposes. It was decided that the railroad company had a perpetual right of way over the ground for...