Monroe Legal Research (2003)
This review can also be used in 2007 for studying the Children's Museum desired move to the Daley Field House site.
1) (The paragraphs will be numbered for easier discussion) This is a review by non-lawyer Richard Ward of the 4 Illinois Supreme Court decisions in the A. Montgomery Ward cases regarding Grant Park. The first case was filed in 1890 and the last decision was rendered in 1911 This review should be read with the notebook copy of the 4 complete decisions provided to the Friends of the Parks. For easier reference the pages have been numbered starting with A1 and going to D41, with the letters being the four decisions in 1897(31pages), 1902(18pages), 1909(16pages), and 1911(41pages). The intent of the review was to identify several categories of potential problems relating these decisions to the present-day efforts to convert the northern third of Monroe Harbor into a 900-slip marina, and there-by obstruct about 30 acres of the waters of Lake Michigan.
2) Let us begin with a short history of the history of Chicago and the lakefront. A more complete version can be found at http://NewEastsideForum.homestead.com/HISTORY.html The short version was the desire to link the Atlantic Ocean (Eastcoast) via the Great Lakes, Chicago River, Illinois River, Mississippi River, and the Gulf of Mexico (Gulf Coast) for trading and travel. A six-mile portage was required through Mud Lake roughly where the Stevenson Expressway is today. The problem and the solution were identified by Father Marquette and Louis Joliet in 1673, but the canal was not opened until 1848. Neither the federal government nor the new Illinois government had sufficient money to dig the canal. So the federal government granted title to a checker-box pattern of land parcels roughly from the lakefront diagonally southwest across where the canal would be built. The state created the canal commissioners to sell the land to the public and raise money to construct the canal. The canal commissioners had the foresight to save valuable lakefront parcels of land for the public from Madison to Park Row (11th Street). In 1836 they wrote on the lakefront plat what was to legally become a covenant to run with the land forever: "Public Ground Forever Open, Clear and Free of any Buildings, or Other Obstruction Whatever." In 1839, when the Fort Dearborn land was being platted, the federal government recorded similar language on the lakefront between Madison and Randolph: "The public ground between Randolph and Madison Streets, and fronting upon Lake Michigan, is not to be occupied with buildings of any description" (page A-5). Later the Illinois Supreme Court essentially combined the two separate covenants for litigation purposes.
3) When a 1000 foot pier was built in1833 from the northshore of the Chicago River out into Lake Michigan to create a protected harbor along the lakefront, the counter clockwise rotation of the waters of Lake Michigan caused erosion along the lakefront that was not anticipated. Again, neither the federal nor the state government had money to build a breakwater to protect the fine homes along the lakefront. So the railroads stepped up and volunteered to build a 300 foot wide breakwater with tracks on top of it, 400 feet out (from the west side of Michigan Ave.) into Lake Michigan. That was completed in the early 1850's and many lawsuits followed regarding who owned and controlled the land west and east of the breakwater. It was a mess for many years and eventually the land west of the breakwater was filled-in with the debris from the 1871 Chicago fire. By 1909 the land had been filled to approximately the present shoreline.
4) In 1890, A. Montgomery Ward, who had built his corporate headquaters on the northwest corner of Madison and Michigan, was tired of the mess of stables, exhibition halls, post office, and garbage dumps and he filed a lawsuit to enforce the covenant of 1836 and 1839. He was successful and everything was removed. Then the city tried to build a parade ground and an armory east of the railroad breakwater, because that new land had not been specifically mentioned in the initial 1897 decision. Again, Ward won in 1902. Then the city deeded the land to the park commissioners and the state legislature cooperated to build the Field Museum near where Buckingham Fountain is today and the Crerar Library where the fountain (at Monroe and Michigan) has just been started in Millennium Park. Again, back to court and in 1909 the Illinois Supreme Court ruled the covenants were still valid and that the state legislature could not change the restrictions imposed on the gift of the land and accepted by the city in 1844. Later the park commissioners and the state legislature tried a new strategy using the powers of eminent domain to undermine the covenants. But the Illinois Supreme Court ruled again in 1910 and sided with Ward. He was not a very popular man, but he saved Grant Park, which the Supreme Court defined as including Monroe Harbor out to the current breakwater. The people of the region should be grateful for his vision and determination.
5) Now let's get to the 4 decisions and try to resolve some of the possible reasons that the covenants might not be an important tool in keeping Monroe Harbor "visually unobstructed".
Does the public have "standing" to bring suit?
I will generally group similar ideas together, and within groups present them roughly in the order they occur in the 4 decisions, A thru D. Let's start on page A4, "will constitute a private nuisance and inflict irreparable damage on the property of the complainants, special to the same and distinct from that suffered by the public at large". (Most of these excerpts will be quotes and anything underlined will be emphasis added by this reviewer. You can confirm what is quoted by reference to the actual court decisions, which should accompany the reading of this review. The first draft of this review is being written on August 25, 2003.) Here the court refers to the special interest created in the Acts (statutes) of the state legislature, and describe them as being distinct from the covenants that protect all of the public. Some confusion exists today whether the general public and/or the new adjacent owners in the condominiums along Randolph Street have standing to bring suit to enforce the covenants to prevent obstruction of Monroe Harbor. It is generally agreed that the owners along Michigan Avenue between Randolph and 11th Street do have standing, but that is the direct result of the original covenants being confirmed by incorporating them into the state statutes in 1861 and 1863.
6) On page A8, the decision includes an argument by Ward's lawyer, George Merrick, that refers to"a trust in favor of the public and of abutting lot owners." That distinction is maintained.
7) On page A12, "That the city of Chicago accepted the ground thus dedicated is undisputed...it is charged with the same rights and interests in the public"
8) On page A20 bottom, "all the rights in regard to Lake Park had long previously been fixed by the acts of dedication of the original owners, the acceptance of the city and the acquiescence and acts of the public and abutting property owners."
9) On page A21, "This plat was a solemn dedication of the ground to the corporation, to be held in trust for the use of the public." As we will see in later decisions, these dedication restrictions were extended out to the Monroe Harbor breakwater for the use of the public forever, not to be divided into slips and rented to private boat owners.
10) On page A26, "In the United States vs. the Illinois Central Railroad Co., the Supreme Court of the United States, in speaking of that part of Lake Park dedicated by the secretary of War, said: The only parties interested in the public use for which the ground was dedicated are the owners of lots abutting the ground dedicated and the public in general."
11) On page B10, "That trust is for the people of the State, that they may enjoy the navigation of the waters, carry on commerce over them and have liberty of fishing therein freed from the obstruction or interference of private parties."
12) On page B12, "The State of Illinois was the dedicator in the canal trustee's subdivision, and sold the lots with the agreement that the ground was to be kept open and free from public buildings. The State was both the shore owner and the owner of the adjoining submerged lands. It held them by titles different in character, the shore lands being held for sale and the submerged lands being held in trust for the people of the whole State for purposes of navigation, commerce and fishing."
13) On page C8, "...this court affirmed it in City of Chicago v. Ward, supra, holding that the dedications of the land were in trust for the public, not to be occupied with buildings, and that abutting owners had the right to have the park maintained in accordance with the terms of the original dedication." Currently 3 condominium associations represent several thousand "abutting owners" adjacent to the park along Randolph Street. They, too, have rights to an open, unobstructed Grant Park and Monroe Harbor. The City of Chicago and the Chicago Park District have been very sensitive over the years. For example, they erected a "potentially temporary" bandshell 40 years ago to avoid violating the covenant of no permanent buildings. The park district built the Daley Bicentennial Fieldhouse below Upper Randolph to avoid violating the covenant. And currently the indoor theater building in Millennium Park was lowered 20 feet so the roof would be below the level of Upper Randolph. They paid an extra $5 million to avoid a potential lawsuit over the covenants requiring open views and no obstructions, whatever. (The Gehey bandshell is considered an art object, and therefore is not restricted by the covenants.)
14) On page C14, "The judgement against the city was binding upon all the citizens of the municipality and upon the State."
14A) on page D10, the majority opinion of the court states: "it was held that the village trustees had no authority to appropriate the square, in whole or in part, as a site for buildings against the wishes of any citizen interested. " Note not restricted to abutting owners.
15) Do the 1836 and 1839 covenants extend over the submerged lands of Monroe Harbor?
On page B1, "the legislature assented to the act of the City of Chicago in extending the park over submerged lands to the outer sea wall, and recognized that it had granted to the city the privilege of filling from the shore line and making such extension for the uses of the park." Also "the park, as extended between the lots and the lake, is subject to the same conditions as the original dedication."
16) On page B6, "and on the east by the harbor line established by the Secretary of War.
17) On page B14, "and on the east by the line established as a harbor line by the government of the United States.
18) On page B14, "The city, on July 27, 1896, by an ordinance, turned over all of Lake Park,extended to the east limits of said park at the outer sea wall,"
19) On page B16, "The City of Chicago, in pursuance of that act, entered into the required agreement on November 15, 1897extended to the east limits of said park at the outer sea wall, with all the buildings, improvements and fixtures to be constructed and put thereon." The Illinois Supreme Court, of course, did not allow the buildings, but this does indicate the City of Chicago's and the park district's opinion on the eastern boundary of the park including the current Monroe Harbor.
20) Do the covenants apply to visual "obstructions" such as piers, and densely parked boats in permanent slips, or just buildings?
On page A10, "Fernando Jones testified that he was employed in the office of the canal commissioners in 1836; that it was stated by and on behalf of the commissioners, to all persons purchasing lots in the subdivision, as an inducement to such purchases, that there would be no buildings to obstruct the view of the lake, and that the commissioners used a sketch to sell from and to point out the position of the lots to purchasers, and on the sketch was marked, "Open ground no building;" Apparently the more extensive wording noted at the beginning of this review, is contained in the official document, which is the recorded plat.
21) Presented in the Illinois Supreme Court decision are the Ward lawyer's arguments on page A21, "In Village of Princeville v. Auten "Had this intention (that a certain square should forever remain an open space) been expressed on the plat, or even in contemporaneous certificates, it is clear on principle and authority, the village trustees could not lawfully appropriate it to any other public use."
22) On page D6, "if the only right that 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 buildings are. But the material question in these cases is the right to erect any sort of building in the park. "
23) The above excerpts from the 4 Illinois Supreme Court Grant Park decisions are by no means exhaustive of relevant points to the Monroe Harbor construction, and are only a start by an interested non-lawyer person. It is my intention to add points to this initial draft such as paragraph 14A.
All the other administrative procedures and political forums should be explored before litigation is considered, but it would be negligent to not research the legal options in parallel to all other efforts.
I wish to thank the Friends of the Parks staff for their objectivity and determination. Their efforts and organization are valuable assets to the citizens of Chicago. I would also like to acknowledge the background and incentive provided by Lois Wille, the author of the 1972 book, "Forever Open, Clear, and Free - The struggle for Chicago's Lakefront".
Richard F. Ward