WARD DECISION - 1902
BLISS et al. V. WARD et al.
(Supreme Court of Illinois. Oct 9, 1902.)
MUNICIPAL CORPORATIONS-PARKS - DEDICATION - RIGHT TO ERECT BUILDINGS -SUBMERGED - RECLAMATION-ADDITION TO PARKS.
1.The decision of the supreme court that the lands of Lake Park, in the city of Chicago and bordering on Lake Michigan, were by the terms of their dedication impressed with a trust on the part of the city to keep the lands free of structures, and that the lands impressed included those of the park and those reclaimed by filling in adjoining submerged lands, was not res judicata as to whether further submerged lands, when reclaimed, might be used for structures, though an ordinance extending the park over the submerged lands to the harbor line had been passed prior to the decision. 2.The lands lying east of Lake Park, in the city of Chicago, submerged by the waters of Lake Michigan and belonging to the state, were not vested in the city as a part of the park by the act of 1863, extending the corporate limits of the city one mile from the shore line. 3.Lake Park in the city of Chicago, bordered on the east by Lake Michigan, was by dedication to remain forever free of structures. The ordinance of June 28. 1895, provided that all such lands that might be reclaimed easterly to the harbor line should be a part of the park, and authority was given to fill in the submerged lands. October 25, 1895, another ordinance authorized the filling in of the submerged lands. July 27, 1896, all such lands were by ordinance dedicated to the National Guard for an armory and parade ground. Act June 11, 1897, recited the ordinances, authorized the building of an armory on the lands, and provided that all improvements should remain the property of the state. By the ordinance of November 15, l897, the city granted the state the perpetual right for armory purposes. Act April 22. 1899, made an appropriation for the grounds. Act April 24, 1899, provided the lands in question should be known as 'Grant Park," and recited that the title, as the legislature believed, was in the state; and the act was entitled "An act to convey and designating certain submerged lands for park purposes." Held that, while title to the submerged lands was in the state, it had assented to their use as an extension of Lake Park, and neither the armory nor any other erections could be placed thereon.
Appeal from circuit court, Cook county.
Suit by A. Montgomery Ward and others against E. R. Bliss and others, as the board of commissioners of Lake Front armory and parade grounds. From a decree for complainants, defendants appeal. Affirmed
David Quigg and Geo. Gillette (E. R. Bliss, of counsel), for appellants. George P. Merrick (Thomas A. Moran, of counsel), for appellees.
CARTWRIGHT, J.. The circuit court of Cook county granted the prayer of a bill filed by appellees, and enjoined the appellants, the board of commissioners of Lake Front armory and parade grounds, from constructing or erecting any building or other structure on that part of Lake Park lying east of the Illinois Central Railroad Company's right of way, bounded on the north by the south line of Randolph street extended east, on the south by the north line of Monroe street extended east, and on the east by the harbor line established by the secretary of war. From that decree appellants took this appeal.
We affirmed a previous decree of the superior court of Cook county enjoining the city of Chicago from placing or causing to be placed any building or structure upon that part of take Park west of the right of way of the Illinois Central Railroad Company, except certain buildings then located thereon, mentioned In said decree. City of Chicago v.Ward, 169 Ill. 392, 48 N. E. 927, 38 L. R. A. 849, 61 Am. St. Rep. 185. The rights asserted by complainants in this suit are based on substantially the same facts as in that case, so far as they relate to the dedication of Lake Park and the easement claimed by complainants, and a full history of such facts will be found in the opinion in that case and the statement preceding the same. Referring to the more comprehensive statement In that case, and the similar statement preceding the opinion of the supreme court of the United States in illinois Cent. R. Co. V. Illinois. 146 U. S. 387, 13 Sup. Ct. 110, 36 L. Ed. 1018, for a complete history of the park and the legislation respecting it, the most important facts may be briefly stated as follows: Complainants own lots and buildings fronting on Michigan avenue and Lake Park, between Washington and Madison streets, in the city of Chicago. These lots are a part of Ft. Dearborn addition to Chicago, which had for its eastern boundary the shore line of Lake Michigan. The land was owned by the United States, and was, subdivided into lots, blocks, streets, and public grounds in the year 1839, and platted as Ft. Dearborn addition, and an open space was reserved for public ground east of Michigan avenue, between Randolph and Madison streets, fronting on Lake Michigan, by means of the words marked on the plat, "Public ground forever to remain vacant of buildings." In the acknowledgment of the plat the following declaration was made: "The public ground between Randolph and Madison streets, and fronting upon Lake Michigan, is not to be occupied with buildings of any description." This addition was in section 10, and the lots were sold with reference to the plat. The state of Illinois, by its board of canal Commissioners, had previously, in the year 1836, platted the lands immediately south, in section 15, which the United States had granted to the state for canal purpose,. and on the platt the lands lying between the east row of blocks, and extending to LakeMichigan, were marked "Michigan Avenue." The lots in that subdivsion were also sold with reference to the plat, and the canal commissioners used a sketch to sell from arid point out the position of lots to purchasers, on which was marked: "Open ground. No buildings." The lots sold at a higher price on account of the eastern exposure to the lake and the reservation of the land, to the public use without buildings. The city of Chicago accepted the dedication of Lake Park by a resolution of April 29, 1844, providing
that all that part of Michigan avenue which lay east of a line 90 feet east of the east line of the tier of lots fronting on the avenue, and that part in Ft. Dearborn addition lying east of a certain line, should be inclosed in a public park at the expense of subscribers to such inclosure. The state granted to the Illinois Central Railroad Company the right to locate and construct its road upon, and to appropriate to its use a right of way over, lands of the state; but the company was not authorized to make a location within any city without the consent of the common council of the city. The railroad company located its right of way and railroad within the limits of the city of Chicago in Lake Michigan, over submerged lands in front of Lake Park, and consent was given to such location by an ordinance of the common council of the city adopted June 14. 1852. The tracks were laid on piling placed in the waters of the lake, and the space between the shore line and the tracks of the railroad company was filled under the direction of the city and became solid ground. In 1861, by an act of the Legislature, the dedication by which the public ground east of the lots fronting on Michigan avenue should forever remain open and vacant was recognized. The right of way of the railroad company was also filled, so that the shore line of Lake Michigan was east of such right of way. Afterwards the Illinois Central Railroad Company claimed title to the submerged lands constituting the bed of the lake lying east of the tracks, within the corporate limits of the city, for a distance of one mile, and litigation arose between the state, the city, and said company concerning their respective titles, which was ended in the decision of the supreme court of the United States in Illinois Cent. R. Co. v. Illinois, supra. In that suit the state of Illinois claimed the title to the submerged lands lying east of the right of way of the railroad company, and prayed for a decree establishing and confirming its title, with the exclusive right to develop and complete the harbor by the construction of docks, wharves, piers, and other improvements, subject only to the paramount authority of the United States in the regulation of commerce, and the right to fill in the bed of the lake and improve its shore for the promotion, generally, of commerce and navigation. The city claimed the ownership in fee of the public grounds on the east front of the city bordering on the lake and exhibited on the plats of the two subdivisions above mentioned, and all riparian rights attached to such ownership. The court adjudged that the state of Illinois was the owner in fee of the submerged lands constituting the bed of Lake Michigan east of the railroad tracks, in trust for the people of the state, that they might enjoy the navigation or the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private parties. The court held that the fee to the lands dedicated to public uses on the lake front by the plats in question passed to the city of Chicago; that the fee of the made and reclaimed ground between Randolph street and Park Row, by filling in from the shore line, embracing the ground upon which the tracks of the railroad company were laid, was in the city; that the city had the rights of a riparian ownership; subject to the conditions of the agreement under which the tracks and breakwater were constructed by the railroad company; and that the city, as riparian owner and by its charter, had power to construct and keep in repair, east of said premises, public landing places, wharves, docks, and levees, subject to the authority of the state and to such supervision and control as the United States might rightfully exercise. It was decided that the railroad company had a perpetual right of way over the ground for the tracks of its railway, and the continuance of the breakwater as a protection of its property and the shore from the violence of the lake. This adjudication was conclusive of the rights and titles of the respective parties at that time.
The question of the right or the complainants, as against the city of Chicago, to have the lands west of the railroad tracks, as appearing on the original plats and as added to by filling and reclamation, kept free from buildings, was adjudicated in City of Chicago v. Ward, supra. It is now contended that the decision in that case fixed and determined the limits of the ground to which the building restriction extended, and that such limits were confined to the lands west of the railroad tracks. That claim is untenable. It is true that an ordinance of the city of Chicago, hereinafter mentioned, purporting to extend Lake Park eastward to the harbor line, had been passed before that decision, and another ordinance had been passed transferring the park to the South Park commissioners; but there had been no attempt to put any structure on that part of the park, nor any occasion for an injunction against a threatened invasion of any rights claimed by the complainants east of the railroad. The lands east of the railroad tracks were submerged by the waters of Lake Michigan, and there had been no threat to interfere with any claimed right. This suit is not between the same parties, and if it were, the question how far the restriction extended was in no way involved in the litigation and was not decided. It is also argued by counsel that the dedication by the United States of the land in Ft. Dearborn addition fronting on the lake as public ground, to remain vacant of buildings, was only of the land which the United States then owned to the shore line of Lake Michigan, and, the title to the submerged lands being in the state of Illinois, they may be filled and reclaimed, and devoted by the state to building purposes. It is true that the United States was the owner of the land to the shore only (Shively v. Bowlby, 152 U. S. 1, 14 Sup. Ct. 548,38 L. Ed. 331), and by the plat did not charge the adjoining submerged lands with any easement or servitude. But when the land was dedicated to the public use, to be kept forever free from buildings, and the dedication was accepted by the city, the fee passed to the city, and it had all the rights of a riparian proprietor as to the accretions and additions to the land, the same as a shore owner. If the land dedicated by the United States was increased by natural accretions, the park would be enlarged, and the addition would become a part of it. Upon the admission of the state of Illinois into the Union, it became vested with the title of the lands within its borders under the waters of the lake, so that, while the dedication by the United States would carry such natural accretions as subsequently came to the park, the state might have appropriated the submerged lands adjoining to such use as would not have been inconsistent with the trust upon which they were held. 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. The state does not hold absolute title, irrespective of such trust, and its control must be consistent with the purposes of the trust. Illinois Cent. R. Co. v. Illinois, supra; People v. Kirk, 162 Ill. 138, 45 N. E. 830 53 Am. St. Rep. 277. We held in Revell v. People, 177 Ill. 468, 52 N. E. 1052, 43 L. R. A. 790, 69 Am. St. Rep. 257, substantially, that a shore - owner has no right to increase the boundary of his premises by building out into the lake for that purpose, and that the only rights which he has are the common-law rights of access from the lake to his land and the right to natural accretions. The state of Illinois, however, as we shall see, did not grant or appropriate the submerged lands in front of the park for wharves, docks, piers, or other uses promoting navigation, or attempt to apply them to any use, but permitted the city, as shore owner, to add to the park by filling, and recognized the reclaimed lands as a part of the park. Furthermore, in the case of Illinois Cent. R. Co. v.Illinois, supra, the supreme court of the United States confirmed the title in the city of Chicago to the lands beyond the original dedication reclaimed from the waters of the lake and filled under the direction of the city, and also to the lands filled and occupied by the Illinois central Railroad Cornpany, subject to railroad uses. Although the original dedication by the United States was only to the shore line with natural accretions, the city, as shore owner, has been permitted by the state to exercise the right of extending the park by filling along the shore. Connected with this subject is a claim on behalf of complainants that title to the submerged lands east of the railroad was conveyed to the city of Chicago in trust for the public and the abutting property owners on Michigan avenue by virtue of the act of 1863, revising and reducing to one act the charter and amendments thereto of the city of Chicago. By that act the corporate limits of the city were extended so as to include the waters and bed of the lake for a distance of one mile east of the shore. Counsel say that this act conferred title on the city of Chicago, that the city would not be permitted to erect buildings on its land, and that the defendants propose to put up the armory on said lands owned by the city, and, therefore, are estopped, as the city would be. They seem to regard it as important to establish the title in the city; but under the circumstances of this case we do not see that it makes very much difference whether the fee is in title city or in the state. The state of Illinois was the dedicator in the Canal Trustees 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. It could appropriate the submerged lands for any purpose within the trust for which they were held, subject only to any rights of lot owners arising out of the dedication and the agreement with them, and as to the lands in front of Ft Dearborn addition would not be affected by the dedication of the shore owner, the United States, but did not make such appropriation. The city received the title dedicated by the United States and the state, in both subdivisions, in trust for the public use, and has been allowed by the state to extend the park by artificial means. The ground dedicated fronted on Lake Michigan, and the property owners on Michigan avenue bought their lots with the distinct understanding that there should never be any building between their lots and the lake. If the state had intervened and devoted the submerged lands to some other use within the trust, the question would be a different one; but we are of the opinion that, when the limits of the park were extended into the lake, no right was acquired to erect buildings between the lots and the lake, although at a greater distance from the lots, and that the park, as extended between the lots and the lake, is subject to the same conditions and limitations as the original dedication. The claim, however, that the act of 1863 conferred title upon the city for a distance of one mile from the shore line, cannot be sustained. The extension of the corporate limits did not transfer title to all the premises within such corporate limits. A corporation must have a definite locality in which to exercise its rights and within which public duties are imposed upon it. Its jurisdiction is confined to such locality, and the corporation is charged with the custody and control of streets, alleys, and public grounds within the corporate limits, in trust for the benefit of the people of the state; but lands do not become public grounds merely because they are within such limits. In 1892, long after this act was passed, the Supreme court of the United States decided the title or the submerged lands to be in the state, and that question was res Judicata. We also held in People v. Kirk, 162 III. 138, 45 N. E. 830, 53 Am. St. Rep. 277, that the state holds the title to the submerged lands of Lake Michigan lying within its boundary in trust for the people of the state. There was the same ruling in Revell v. People, supra, and in both cases the lands involved were within the corporate limits of the city of Chicago. The city was reincorporated in 1875, under the general incorporation act of 1872, with the same territorial limits as before. After the decision by the supreme court of the United States which settled the titles and rights of the city and the state, the city of Chicago adopted an ordinance on June 28, 1895, establishing as a public park, to be known as "Lake Park," all the public lands then existing or which might thereafter be reclaimed, bounded on the north by the south line of Randolph street extended east, on the west by the east line of Michigan avenue, on the south by the north line of Park Row, and on the east by the line established as a harbor line by the government of the United States, and, for the purpose of reclaiming and grading, authority was given to dump or place therein any proper filling material, under the supervision of the commissioner of public works. 'This tract included the premises in question. On October 2, 1805, the city adopted another ordinance, providing that the premises known as "Lake Park" should be extended east to said harbor line by inclosing and filling the shallow waters, for the purpose of providing suitable landing places for steam vessels and other craft employed in navigation. By these ordinances the city of Chicago extended 1,ake Park over these lands for the purposes of a park and landing places, and provided for filling the submerged portion by dumping filling material In the waters. Counsel for complainants contend that the city had power to take the lands under the provision of the charter by which the city has power to lay out, establish, open, extend, and improve parks and public grounds. It does have such power, provided it obtains the lands for the, public use; but the charter power does not authorize a city to extend public parks on the property of private owners or of the state without the consent of the owner. An ordinance extending the public park over certain premises does not, of itself, confer title to such premises. The state, being the owner of the lands, might consent to their appropriation for the uses of a park, the same as any other owner; but the passage of the ordinance and the attempt to extend the park would not give a right to the lands for such uses without such consent. The city, on July 27, 1896, by an ordinance turned over all of Lake Park, except that part north of the north line of Monroe street extended east, to the South Park commissioners, and by the same ordinance provided as follows: "All that portion of said Lake Front Park lying east of the easterly line of the Illinois Central Railroad Company's right of way, and lying north of the north line of Monroe street extended to the east limits of said park at the outer sea wall, shall be, and the same is hereby, dedicated to the use of the local military company of the Illinois National Guard for the purpose of parade grounds and a site for armory and other like uses by said military organizations." The portion of the park which the city thereby attempted to dedicate to uses different and inconsistent with those of a park is partly in front of Ft. Dearborn addition and partly in front of the addition of the state through its canal commissioners. The South Park commissioners accepted the park as turned over to them, by a resolution adopted October 14, 1896. Alter these proceedings the legislature passed an act approved June 11, 1897, reciting the passage of the ordinance by the city of Chicago dedicating the premises In question to the use of the local military companies of the Illinois National Guard for the purpose of parade grounds and a site for armory and other like uses by said military organizations, and enacting that a board of commissioners should be appointed for the purpose of planning and constructing a parade ground and armory on said grounds solely for such organizations and their successors of the Illinois National Guard. Section 5 of that act provided that the building authorized to be constructed, and all improvements made on the grounds, should remain the property of the state of Illinois, and that before any money should be drawn from the treasury for the purposes of the act, the city of Chicago should enter into a contract with the board of commissioners to the effect that the right of the state of Illinois to the use and occupation by said organizations or all the land to be utilized for said parade grounds and armory should be perpetual, and the title to all buildings, improvements, and fixtures put under the provisions of the act should be and remain in the state of Illinois. Laws 1807. p. 32. The city of Chicago, in pursuance of that act, entered into the required agreement on November 15, 1897, by which the city demised, released, conveyed, and confirmed unto the state of Illinois the perpetual and exclusive right to the use and occupation of all that portion of the Lake Front Park lying east of the eastern line of the Illinois Central Railroad Company's right of way north of the north line of Monroe street extended 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 legislature passed an act approved April 22, 1899, reciting the provisions of the act of June 11, 1897, for the contract by the city giving the right to the state to the use and occupation of the portion of Lake Front Park in question and the title to the buildings, improvements, and fixtures, and also reciting that the said contract had been entered into by the city of Chicago as required by said act, and making a further appropriation for the expenses of forming the parade grounds and building the armory. Laws 1899, p. 29, At the same session the legislature passed an act approved April 24, 1899, entitled "An act to convey and designating certain submerged lands known as 'Lake Front' for park purposes." Laws 1899, p. 328. This act recited that the legislature had been petitioned to name and designate, by act, the park which was making and about to be made upon the lake front, in the city of Chicago; that the title to the land, a part of which was yet submerged under the waters of Lake Michigan, but the reclamation of which was contemplated and being then undertaken by the filling from the shore line, was still, as the legislature believed, in the state of Illinois; that the city of Chicago had transferred the possession, care, Improvement, and management of the said Lake Park to the South Park commissioners for the express purpose of establishing a public park and pleasure ground thereon; and that, the title not being vested in said board, the board was prevented and delayed from carrying out and perfecting the plans necessary for the proper improvement and development of a public park in said lake front, and in discharging all their obligations and duties in that behalf. The act provided that the land south of Randolph street, north of Park Row, and east of Michigan avenue, including the premises In question, commonly known and designated as the "Lake Front," should be called, designated, and known as "Grant Park." Id. p. 328. Although the title of the act indicates a purpose to convey, there are no words of conveyance in the act. There is, however, an unmistakable recognition of the park as extended by filling from the shore line, for the purpose of a public park and pleasure ground. Section 1 of that act was amended by an act approved May 10, 1901, designating the land and submerged land bounded on the north by the north line of Monroe street, produced east to the harbor line, south by Park Row, and west by the east line of Michigan avenue, as "Grant Park," and conveying to the park commissioners that part south of the north line of Jackson street. Laws 1901, p. 260. No Interpretation can be put upon these acts except that the legislature assented to the act
of the city extending Lake Park over the 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; and there has been no attempted revocation on the part of the state, or the assertion of an adverse right to reclaim the submerged lands and devote them to a different use than that of the park. The only rights which, defendants claim are under the ordinance of the city purporting to devote a part of the public park to the uses of local military organizations, and the contract with the city that the use shall be perpetual and the improvements made on the ground shall remain the property of the state. These rights are asserted in recognition and subordination to the claim of the city that the premises bad been dedicated to the uses of a park. By the acts under which defendants are proceeding the legislature required from the city the contract in question, which is utterly inconsistent with any claim of right in the state to appropriate the land to other purposes than those of a park. In view of the contract with the city for the use and occupation of a part of the park as extended, we do not see how defendants can deny its existence. If the park were extended by natural accretions, no one would deny that the whole would be subject to the same conditions and limitations annexed to the original dedication; and where the city has been permitted, as the owner in fee, to extend it by filling in the shoal waters along the shore line, we are unable to see how any different rule can prevail. In either case the extension grows upon the original park and becomes corporate with it and part of it, --in the one case by natural process, and in the other by artificial means, with the assent of the state, In our opinion the decree was right, and it is affirmed.
The "certain buildings" that the 1902 decision is referring to in the 1897 decision include the Art Institute, which was neither a part of the initial 1890 complaint, or the amended 1893 or 1896 complaints by Ward. It was reported that Ward later regretted not including the Art Institute in his complaints. The Art Institute is mentioned in the decision, as having obtained consents from abutting owners, presumably to defend against possible lawsuits under the sections of the 1861 and 1863 Charters of Chicago.
Also there were several buildings that were allowed to remain until either a certain time or event such as the replacement post office being built elsewhere.
By the City of Chicago "accepting" the land with the "dedication restrictions", those restrictions became a covenant that ran with the land, and could not be changed even by the Illinois Legislature. After 171 years, they are still effective and controlling.
The legislature codified the dedication restrictions into a statue - The Chicago Charter. However the specific Charter restrictions did not carry the same strength or importance as the original "dedication restrictions" recorded on the original Plats of Chicago in 1836 and 1839.
If Ward had added the challenge to the Art Institute in his 1893 Ammended Complaint. the Art Institute would never have been built, just as the Field Museum was not allowed to be built on the protected Grant Park land, as confirmed in the 1909 Illinois Supreme Court Decision. As we know, the Field Museum wanted to built where the Buckingham Fountain was built in 1926, but had to be built south of Roosevelt, and not on the protected Grant Park land.
This frequent reference to "private parties" gives us insight into how the Supreme Court would treat the current attempt by the private, non-profit, fee-charging (pay-for-play) Children's Museum.
There's the reference to "private parties" again.
Here we see the distinction being made again between the Covenant Protections for the "public", and the Charter Protections for the "abutting property owners" on the west side of Michigan Avenue.
Here the court disagreed with the legislature on the "one mile" extension of the corporate limits.
Note that even the United States Supreme Court weighted in on this long-running land control and ownership dispute.
There is still some uncertainty in this reviewer's mind whether the covenant dedication restrictions apply to the small strip of land between Park Row (11th) and Roosevelt (12th).
More research is needed on what is allowed in the southwest corner of Grant Park.
The Canal Commissioners recorded the open, free, and clear - no buildings-no obstructions, etc in 1836 on the land from Madison to Park Row.
And the Fort Dearborn dedication restrictions of no buildings in 1839 applied between Madison and Randolph.
The Illinois Supreme Court later considered the intent and dedication restrictions similar, even though the wording was different.
The reference to a "public park and pleasure ground" seems unusal today, but it must have been intentional because it was repeated below.
It is equally "unmistakable" today that the protected land between Randolph and at least 11th is to be used for a PUBLIC PARK and not a private indoor children's learning center.
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The proposed armory where Daley Bicentennial Plaza currently exists was never built. There were two armory buildings near Michigan Avenue that were torn down based on the Charter and/or Dedication Restrictions being enforced.
Disclaimer - The 5 Illinois Supreme Court Decisions that are presented on this neweastside.org website were scanned from very poor quality PDF files, then scanned using OCR (Optical Character Recognition) software, and converted to a DOC file for inputing into HTML by the Homestead Software. Because of the historical poor quality of repeated copying, after the OCR conversion, several hundred errors were proofread and corrected. Therefore, there could be minor errors in this presentation. I certify that there are no major errors that would change the interpertation of this decision.
Richard F. Ward, December, 2007