The ownership of and dominion and sovereignty over lands covered
by tidewaters, within the limits of the several states, belong to
the respective states within which they are found, with the
consequent right to use or dispose of any portion thereof when that
can be done without substantial impairment of the interest of the
public in the waters, and subject always to the paramount right of
Congress to control their navigation so far as may he necessary for
the regulation of commerce with foreign nations and among the
states.
The same doctrine as to the dominion and sovereignty over and
ownership of lands under the navigable waters of the Great Lakes
applies which
Page 146 U. S. 388
obtains at the common law as to the dominion and sovereignty
over and ownership of lands under tidewaters on the borders of the
sea, and the lauds are held by the same right in the one case as in
the other, and subject to the same trusts and limitations.
The roadway of the Illinois Central Railroad at Chicago as
constructed, two hundred feet in width, for the whole distance
allowed for its entry within the city, with the tracks thereon, and
with all the guards against danger in its approach and crossings,
and the breakwater beyond its tracks on the east, and the necessary
works for the protection of the shore on the west, in no respect
interfere with any useful freedom in the use of the waters of the
lake for commerce, foreign, interstate or domestic, and, as they
were constructed under the authority of the law, Stat. of February
17, 1851, Laws Ill. 1851, 192, by the requirement of the city as a
condition of its consent that the company might locate its road
within its limits, Ordinance of June 14, 1852, they cannot be
regarded as such an encroachment upon the domain of the state as to
require the interposition of the Court for their removal or for any
restraint in their use.
The Illinois Central Railroad Company never acquired by the
reclamation from the waters of the lake of the land upon which its
tracks are laid, or by the construction of the road and works
connected therewith, an absolute fee in the tract reclaimed, with a
consequent right to dispose of the same to other parties or to use
it for any other purpose than the one designated -- the
construction and operation of a railroad thereon, with one or more
tracks and works, in connection with the road or in aid
thereof.
That company acquired by the construction of its road and other
works no right as a riparian owner to reclaim still further lands
from the waters of the lake for its use, or for the construction of
piers, docks and wharves in the furtherance of its business; but
the extent to which it could reclaim the land under water was
limited by the conditions of the ordinance of June 14, 1852, which
was simply for the construction of a railroad on a tract not to
exceed a specified width, and of works connected therewith.
The construction of a pier or the extension of any land into
navigable waters for a railroad or other purposes, by one not the
owner of lands on the shore, does not give the builder of such pier
or extension, whether an individual or corporation, any riparian
rights.
The railroad company owns and has the right to use in its
business the reclaimed land and the slips and piers in front of the
lots on the lake north of Randolph Street which were acquired by
it, and in front of Michigan Avenue between the lines of Twelfth
and Sixteenth Streets, extended, unless it shall be found by the
circuit court on further examination, that the piers as constructed
extend beyond the point of navigability in the waters of the lake,
about which this Court is not fully satisfied from the evidence in
this case.
The railroad company further has the right to continue to use,
as an additional
Page 146 U. S. 389
means of approaching and using its station grounds, the spaces
and the rights granted to it by the ordinances of the City of
Chicago of September 10, 1855, and of September 15, 1856.
The Act of the Legislature of Illinois of April 16, 1869,
granting to the Illinois Central Railroad Company, its successors
and assigns
"all the right and title of the State of Illinois in and to the
submerged lands constituting the bed of Lake Michigan and lying
east of the tracks and breakwater of the Illinois Central Railroad
Company, for the distance of one mile, and between the south line
of the south pier extended eastwardly and a line extended eastward
from the south line of lot twenty-one, south of and near to the
roundhouse and machine shops of said company, in the south division
of the said City of Chicago,"
cannot be invoked so as to extend riparian rights which the
company possessed from its ownership of lands in sections ten and
fifteen on the lake, and as to the remaining submerged lands, it
was not competent for the legislature to thus deprive the its
ownership of the submerged lands in the harbor of Chicago, and of
the consequent control of its waters, and the attempted cession by
the Act of April 16, 1869, was inoperative to affect, modify, or in
any respect to control the sovereignty and dominion of the state
over the lands or its ownership thereof, and any such attempted
operation of the act was annulled by the repealing act of April 15,
1813, which, to that extent, was valid and effective.
There can be no irrepealable contract in a conveyance of
property by a grantor in disregard of a public trust, under which
he was bound to hold and manage it.
The fee of the made or reclaimed ground between Randolph Street
and Park Row, embracing the ground upon which rest the tracks and
the breakwater of the railroad company south of Randolph Street, is
in the city, and subject to the right of the railroad company to
its use of the tracks on ground reclaimed by it and the continuance
of the breakwater, the city possesses the right of riparian
ownership, and is at full liberty to exercise it.
The City of Chicago, as riparian owner of the grounds on its
east or lakefront of the city, between the north line of Randolph
Street and the north line of block twenty-three, each of the lines
being produced to Lake Michigan, and in virtue of authority
conferred by its charter, has the power to construct and keep in
repair on the lakefront east of said premises within the lines
mentioned, public landing places, wharves, docks and levees,
subject, however, in the execution of that power, to the authority
of the state to prescribe the lines beyond which piers, docks,
wharves and other structures other than those erected by the
general government, may not he extended into the navigable waters
of the harbor, and to such supervision and control as the United
States may rightfully exercise.
In equity. These appeals were taken from a decree in a bill or
information filed by the State of Illinois against the
Page 146 U. S. 390
Illinois Central Railroad Company, the City of Chicago, and the
United States, and a cross-bill therein filed by the city against
the Railroad Company, the United States and the State. 33 F. 730.
The object of the litigation was to determine the rights,
respectively, of the State, of the city, and of the Railroad
Company in land, submerged or reclaimed, in front of the waterline
of the city on Lake Michigan.
As the record came to this Court, the cause was further entitled
"
The United States, Appellant v. The People of the State of
Illinois et al., No. 610." On the suggestion of the Solicitor
General that the United States had never been a party to these
suits in the court below and had never taken an appeal from the
decree, that title was dropped from the opinion of the court.
The facts were stated by MR. JUSTICE HARLAN in his opinion in
the court below, as follows [
Footnote 1]:
It is necessary to a clear understanding of the numerous
questions presented for determination, that we should first trace
the history of the title to these several bodies of lands up to the
time when the Illinois Central Railroad was located Within the
limits of Chicago.
First.
As to the lands embraced in the Foot Dearborn
Reservation.
In the year 1804, the United States established the military
Page 146 U. S. 391
post of Fort Dearborn, immediately south of Chicago River, and
near its mouth, upon the southwest fractional quarter of section
10. It was occupied by troops as well when Illinois, in 1818, was
admitted into the Union as when Congress passed the Act of March 3,
1819, authorizing the sale of certain military sites. By that act
it was provided:
"That the Secretary of War be, and he is hereby, authorized,
under the direction of the President of the United States, to cause
to be sold such military sites belonging to the United States as
may have been found or become useless for military purposes. And
the Secretary of War is hereby authorized on the payment of the
consideration agreed for into the Treasury of the United States to
make, execute, and deliver all needful instruments conveying and
transferring the same in fee, and the jurisdiction, which had been
specially ceded for military purposes to the United States by a
state over such site or sites shall thereafter cease."
3 Stat. 520, c. 88.
In 1824, upon the written request of the Secretary of War, the
southwest quarter of fractional section 10, containing about 57
acres, and within which Fort Dearborn was situated, was formally
reserved by the Commissioner of the General Land Office from sale
and for military purposes.
Wilcox v.
Jackson, 13 Pet. 498,
38 U. S. 502.
The United States admit, and it is also proved, that the lands so
reserved were subdivided in 1837 by authority of the Secretary --
he being represented by one Matthew Birchard, as special agent and
attorney for that purpose -- into blocks, lots, streets, and public
grounds called the "Fort Dearborn Addition to Chicago." And on the
7th day of June, 1839, a map or plat of that addition was
acknowledged by Birchard, as such agent and attorney, and was
recorded in the proper local office. A part of the ground embraced
in that subdivision was marked on the record plat "Public ground
forever to remain vacant of buildings."
Page 146 U. S. 392
The plat of that subdivision is substantially reproduced below
as Map A.
image:a
The lots designated on this plat were sold and conveyed by the
United States to different purchasers. The United States expressly
reserved from sale all of the Fort Dearborn Addition
Page 146 U. S. 393
(including the ground marked for streets) north of the south
line of lot 8 in block 2, lots 4 and 9 in block 4, and lot 5 in
block 5, projecting said lines across the adjacent streets. The
grounds so specially reserved remained in the occupancy of the
general government for military purposes from 1839 until after
1845. The legal effect of that occupancy appears in
United States v.
Chicago, 7 How. 185. The City of Chicago having
proposed in 1844 to open Michigan Avenue through the lands so
reserved from sale, notwithstanding at the time they were in actual
use for military purposes, the United States instituted a suit in
equity to restrain the city from so doing. It appeared in the case
that the agent of the general government gave notice at the time of
selling the other lots that the ground in actual use by the United
States was not then to be sold. It also appeared that the Act of
March 4, 1837, incorporating the City of Chicago and designating
the district of country embraced within its limits expressly
excepted "the southwest fractional quarter of section 10, occupied
as a military post, until the same shall become private property."
Ill.Laws, 1837, pp. 38, 74.
The court held that the city had no right to open streets
through that part of the ground which, although laid out in lots
and streets, had not been sold by the government, that its
corporate powers were limited to the part which, by sale, had
become private property, and that the streets laid out and
dedicated to public use by Birchard, the agent of the Secretary of
War, did not, merely by his surveying the land into lots and
streets and making and recording a map or plat thereof, convey the
legal estate in such streets to the city and thereby authorize it
to open them for public use and assume full municipal control
thereof. The court held to be untenable the claim of the city
that
"because streets had been laid down on the plan by the agent
[Birchard] part of which extended into the land not sold, those
parts had, by this alone, become dedicated as highways, and the
United States had become estopped to object."
Further:
"It is entirely unsupported by principle or precedent that an
agent,
merely by protracting on the plan those streets
into the reserved line and amidst lands not sold,
Page 146 U. S. 394
nor meant then to be sold, but expressly reserved, could deprive
the United States of its title to real estate, and to its important
public works."
See also Irwin v.
Dixion, 9 How. 9,
50 U. S. 31.
Second.
As to the lands in controversy embraced in
Fractional Section 15.
This section is on the lakeshore, immediately south of section
10. The particular lands, the history of the title to which is to
be now examined, are between the west line of the street now known
as Michigan Avenue and the roadway or wayground of the Illinois
Central Railroad Company, and between the middle line of Madison
Street and the middle line of Twelfth Street, excluding what is
known as Park Row or block 23, north of Twelfth Street.
By an Act of the Illinois Legislature of February 14, 1823,
entitled "An act to provide for the improvement of the internal
navigation of this State," certain persons were constituted
commissioners to devise and report upon measures for connecting, by
means of a canal and locks, the navigable waters of the Illinois
River and Lake Michigan. Ill.Laws, 1823, p. 151. This was followed
by an Act of Congress approved March 2, 1827, entitled "An act to
grant a quantity of land to the State of Illinois for the purpose
of aiding in opening a canal to connect the waters of the Illinois
River with those of Lake Michigan," granting to this state for the
purposes of such enterprise a quantity of land equal to one-half of
five sections in width on each side of the proposed canal
(reserving each alternate section to the United States), to be
selected by the Commissioner of the General Land Office, under
direction of the President, said lands to be "subject to the
disposal of the said state for the purpose aforesaid, and for no
other," and said canal to remain forever a public highway for the
use of the national government, free from any charge for any
property of the United States passing through it. 4 Stat. 234, c.
51. The power of the state to dispose of these lands was further
recognized or conferred by the third section of the act, as
follows:
"SEC. 3. That the said state, under the authority of the
legislature thereof, after the selection shall have been so
made,
Page 146 U. S. 395
shall have power to sell and convey the whole or any part of the
said land and to give a title in fee simple therefor to whomsoever
shall purchase the whole or any part thereof."
4 Stat. 234.
By an act of the Illinois Legislature of January 22, 1829,
entitled "An act to provide for constructing the Illinois and
Michigan Canal," the commissioners for whose appointment that act
made provision were directed to select, in conjunction with the
Commissioner of the General Land Office, the alternate sections of
land granted by the act of Congress, such commissioners being
invested with the power, among others,
"to lay off such parts of said donation into town lots as they
may think proper, and to sell the same at public sale in the same
manner as is provided in this act for the sale of other lands."
Ill.Laws, 1829.
The act of 1829 was amended February 15, 1831, so as to
constitute the Canal Commissioners a board to be known as the
"Board of Canal Commissioners of the Illinois and Michigan Canal,"
with authority to contract and be contracted with, sue and be sued,
plead and be impleaded, and with power of control in all matters
relating to said canal. Ill.Laws, 1830, 1831, 39.
Pursuant to and in conformity with said acts of Congress and of
the Legislature of Illinois, the selection of lands for the
purposes specified was made by the proper authorities and approved
by the President on the 21st of May, 1830. Among the lands so
selected was said fractional section 15.
By an act of the Illinois Legislature, approved January 9, 1836,
entitled "An act for the construction of the Illinois and Michigan
Canal," the Governor was empowered to negotiate a loan of not
exceeding $500,000, on the credit and faith of the state, as
therein provided, for the purpose of aiding, in connection with
such means as might be received from the United States, in the
construction of the Illinois and Michigan Canal, for which loan
should be issued certificates of stock, to be called the "Illinois
and Michigan Canal stock," signed by the Auditor and countersigned
by the Treasurer, bearing an interest not exceeding six per cent,
payable semi-annually, and "reimbursable"
Page 146 U. S. 396
at the pleasure of the state at any time after 1860, and for the
payment of which, principal and interest, the faith of the state
was irrevocably pledged. The same act provided for the appointment
of three commissioners to constitute a board to be known as "The
Board of Commissioners of the Illinois and Michigan Canal," and to
be a body politic and corporate, with power to contract and be
contracted with, sue and be sued, plead and be impleaded, in all
matters and things relating to them as canal companies, and to have
the immediate care and superintendence of the canal and all matters
relating thereto. Ill.Laws, 1836, 145.
That act contained, among other provisions, the following:
"SEC. 32. The commissioners shall examine the whole canal route,
and select such places thereon as may be eligible for town sites,
and cause the same to be laid off into town lots, and they shall
cause the canal lands in or near Chicago, suitable therefor, to be
laid off into town lots."
"SEC. 33. And the said Board of Canal Commissioners shall, on
the twentieth day of June next, proceed to sell the lots in the
town of Chicago, and such parts of the lots in the town of Ottawa,
as also fractional section Fifteen adjoining the town of Chicago,
it being first laid off and subdivided into town lots, streets and
alleys, as in their best judgment will best promote the interest of
the said canal fund,
provided always that before any of
the aforesaid town lots shall be offered for sale, public notice of
such sale shall have been given. . . ."
Ill.Laws, 1836, 150. The revenue arising from the canal, and
from any lands granted by the United States to the state for its
construction, together with the net tolls thereof, were pledged by
the act for the payment of the interest accruing on the said stock
and for the reimbursement of the principal of the same.
Ibid. §§ 41, 153.
In 1836, the Canal Commissioners, under the authority conferred
upon them by the statutes above recited, caused fractional section
15 to be subdivided into lots, blocks, streets, etc., a map whereof
was made, acknowledged and recorded on the 20th of July, 1836,
which map is substantially reproduced below as Map B.
Page 146 U. S. 397
image:b
Page 146 U. S. 398
At the time this map was made and recorded, fractional sections
15 and 10 were both within the limits of the "Town" of Chicago,
except that by the Act of February 11, 1835, changing the corporate
powers of that town, it was provided
"that the authority of the Board of Trustees of the said Town of
Chicago shall not extend over the south fractional section 10 until
the same shall cease to be occupied by the United States."
Ill.Laws, 1835, p. 204. But, prior to the survey and recording
of the plat of fractional section 10, to-wit, by the act of March
4, 1837, the City of Chicago was incorporated, and its limits
defined (excluding, as we have seen, "the southwest fractional
quarter of section 10, occupied as a military post, until the same
shall become private property,") and was invested with all the
estate, real and personal, belonging to or held in trust by the
trustees of the town, its common council being empowered to lay
out, make and assess streets, alleys, lanes and highways in said
city, to make wharves and slips at the end of the streets, on
property belonging to said city, and to alter, widen, straighten
and discontinue the same. Ill.Laws, 1837, 61, § 38 § 74,
§ 61.
Congress having, by an Act approved September 20, 1850, 9 Stat.
466, c. 51, made a grant of land to Illinois for the purpose of
aiding the construction of a railroad from the southern terminus of
the Illinois and Michigan Canal to a point at or near the junction
of the Ohio and Mississippi Rivers, with branches to Chicago and
Dubuque, the Illinois Central Railroad Company was incorporated
February 10, 1851, and was made the agent of the state to construct
that road. Private Laws Ill. 1851, 61. It was granted power by its
charter, Sec. 3,
"to survey, locate, construct, complete, alter, maintain and
operate a railroad, with one or more tracks or lines of rails from
the southern terminus of the Illinois and Michigan Canal to a point
at the City of Cairo, with a branch of the same to the City of
Chicago, on Lake Michigan, and also a branch via the city of Galena
to a point on the Mississippi River opposite the town of Dubuque,
in the State of Iowa."
In addition to certain powers, privileges, immunities and
franchises -- including the right to purchase, hold and convey real
and personal
Page 146 U. S. 399
estate, which might be needful to carry into effect the purposes
and objects of its charter -- it was provided that the company
"shall have the right of way upon, and may appropriate to its
sole use and control for the purposes contemplated herein, land not
exceeding two hundred feet in width through its entire length; may
enter upon and take possession of and use all and singular any
lands, streams and materials of every kind for the location of
depots and stopping stages, for the purposes of constructing
bridges, dams, embankments, excavations, station grounds, spoil
banks, turnouts, engine houses, shops and other buildings necessary
for the construction, completing, altering, maintaining, preserving
and complete operation of said road. All such lands, waters,
materials and privileges belonging to the state are hereby granted
to said corporation for said purposes: . . .
provided that
nothing in this section contained shall be so construed as to
authorize the said corporation to interrupt the navigation of said
streams."
But the company's charter also provided (Sec. 8):
"Nothing in this act contained shall authorize said corporation
to make a location of their track within any city without the
consent of the common council of said city."
Such consent was given by an ordinance of the Common Council of
Chicago, adopted June 14, 1852, whereby permission was granted to
the company to lay down, construct and maintain within the limits
of that city and along the margin of the lake within and adjacent
to the same a railroad with one or more tracks, and to have the
right of way and all powers incident to and necessary therefor,
upon certain terms and conditions, to-wit:
"The said road shall enter at or near the intersection of its
southern boundary with Lake Michigan, and, following the shore on
or near the margin of said lake northerly to the southern bounds of
the open space known as Lake Park, in front of canal section
fifteen, and continue northerly across the open space in front of
said section fifteen to such grounds as the said company may
acquire between the north line of Randolph Street and the Chicago
River, in the Fort Dearborn addition in said city, upon which said
grounds shall be located the depot of said railroad within the
city, and such other buildings,
Page 146 U. S. 400
slips or apparatus as may be necessary and convenient for the
business of said company. But it is expressly understood that the
City of Chicago does not undertake to obtain for said company any
right of way or other right, privilege or easement, not now in the
power of said city to grant or confer, or to assume any liability
or responsibility for the acts of said company."
Section 1.
By other sections of the ordinance, it was provided as
follows:
By the second section, that the company might
"enter upon and use in perpetuity for its said line of road, and
other works necessary to protect the same from the lake, a width of
300 feet from the southern boundary of said public ground near
Twelfth Street to the northern line of Randolph Street -- the inner
or west line of the ground to be used by said company to be not
less than 400 feet east from the west line of Michigan Avenue and
parallel thereto."
By the third section, that they
"may extend their works and fill out into the lake to a point in
the southern pier not less than 400 feet west from the present east
end of the same, thence parallel with Michigan Avenue to the north
line of Randolph Street extended, but it is expressly understood
that the common council does not grant any right or privilege
beyond the limits above specified, nor beyond the line that may be
actually occupied by the works of said company."
By the sixth section, that the company
"shall erect and maintain on the western or inner line of the
ground pointed out for its main track on the lakeshore, as the same
is hereinbefore defined, such suitable walls, fences or other
sufficient works, as will prevent animals from straying upon or
obstructing its tracks, and secure persons and property from
danger, said structure to be of suitable materials and sightly
appearance, and of such heights as the common council may direct,
and no change thereon shall be made except by mutual consent,
provided that the company shall construct such suitable
gates at proper places at the ends of the streets which are now or
may hereafter be laid out as may be required by the common council
to afford safe access to the lake,
and provided also that,
in case of the construction of an outside
Page 146 U. S. 401
harbor, streets may be laid out to approach the same in the
manner provided by law, in which case the common council may
regulate the speed of locomotives and trains across them."
By the seventh section, that the company
"shall erect and complete within three years after they shall
have accepted this ordinance, and shall forever thereafter
maintain, a continuous wall or structure of stone masonry, pier
work or other sufficient material, of regular and sightly
appearance, and not to exceed in height the general level of
Michigan Avenue opposite thereto, from the north side of Randolph
Street to the southern bound of Lake Park before mentioned, at a
distance of not more than 300 feet east from and parallel with the
western or inner line pointed out for said company as specified in
section two hereof, and shall continue said works to the southern
boundary of the city at such distance outside of the track of said
road as may be expedient, which structure and works shall be of
sufficient strength and magnitude to protect the entire front of
said city, between the north line of Randolph Street and its
southern boundary, from further damage or injury from the action of
the waters of Lake Michigan, and that part of the structure south
of Lake Park shall be commenced and prosecuted with all reasonable
dispatch after acceptance of this ordinance."
By the eighth section, that the company
"shall not in any manner, nor for any purpose whatever, occupy,
use or intrude upon the open ground known as Lake Park, belonging
to the City of Chicago, lying between Michigan Avenue and the
western or inner line before mentioned, except so far as the common
council may consent, for the convenience of said company, while
constructing or repairing tire works in front of said ground."
By the ninth section, that the company
"shall erect no buildings between the north line of Randolph
Street and the south line of the said Lake Park, nor occupy nor use
the works proposed to be constructed between these points, except
for the passage of or for making up or distributing their trains,
nor place upon any part of their works between said points any
obstruction to the view of the lake from the shore, nor
Page 146 U. S. 402
suffer their locomotives, cars or other articles to remain upon
their tracks, but only erect such works as are proper for the
construction of their necessary tracks and protection of the
same."
The company was given ninety days within which to accept the
ordinance, and it was provided that upon such acceptance, its terms
should be embodied in a contract between the city and the company.
The ordinance was accepted, and the required agreement entered into
on the 8th day of July, 1852.
At the time this ordinance was passed, the harbor of the city
included, under the laws of the state incorporating the city,
"the piers and so much of Lake Michigan as lies within the
distance of one mile thereof into the lake, and the Chicago River
and its branches to their respective sources."
Private Laws Ill., 2d Sess. 1851, pp. 132, 147. Its common
council had power, at the public expense, to construct a breakwater
or barrier along the shore of the lake for the protection of the
city against the encroachments of the water;
"to preserve the harbor; to prevent any use of the same, or any
act in relation thereto . . . tending in any degree to fill up or
obstruct the same; to prevent and punish the casting or depositing
therein any earths, ashes or other substance, filth, logs or
floating matter; to prevent and remove all obstructions therein,
and to punish the authors thereof; to regulate and prescribe the
mode and speed of entering and leaving the harbor, and of coming to
and departing from the wharves and streets of the city by
steamboats, canal boats, and other crafts and vessels, . . . and to
regulate and prescribe by such ordinances, or through their harbor
master, or other authorized officer, such a location of every canal
boat, steamboat, or other craft or vessel or float, and such
changes of station in, and use of, the harbor, as may be necessary
to promote order therein, and the safety and equal convenience, as
near as may be, of all such boats, vessels, crafts or floats; . . .
to remove and prevent all obstructions in the waters which are
public highways in said city, and to widen, straighten and deepen
the same,"
and to "make wharves and slips at the end of streets, and alter,
widen, contract, straighten and discontinue the same."
Ibid.
Page 146 U. S. 403
Under the authority of its charter, and of the ordinance of June
14, 1852, the railroad company located its tracks within the
corporate limits of the city. The tracks northward from Twelfth
Street were laid upon piling placed in the waters of the lake, the
shoreline, which was crooked, being, at that time, at Park Row,
about 400 feet from the west line of Michigan Avenue; at the foot
of Monroe and Madison Streets, about 90 feet; and at Randolph
Street, about 112 feet. Since that time, the space between the
shoreline and the tracks of the railroad company has been filled
with earth by or under the direction of the city, and is now solid
ground. After the construction of the track as just stated, the
railroad company erected a breakwater east of its roadway, upon a
line parallel with the west line of Michigan Avenue, and,
subsequently, filled the space, or nearly all of it, between that
breakwater and its tracks, and under its tracks, with earth and
stone.
It is stated by counsel, and the record, we think, sufficiently
shows, that when the road was located in 1852, nearly all of the
lots bordering upon the lake north of Randolph Street had become
the property of individuals by purchase from the United States,
except a parcel adjacent to the river which had not then been sold
by the general government. Soon thereafter, the company acquired
the title to all of the water lots in the Fort Dearborn addition
north of Randolph Street, including the remaining parcel belonging
to the United States. The deed for the latter was made by the
Secretary of War October 14, 1852, and included
"all the accretions made or to be made by said lake and river in
front of the land hereby conveyed, and all other rights and
privileges appertaining to the United States as owners of said
land."
The company established its passenger house at the place
designated in the ordinance of 1852, and, being the owner of said
water lots north of Randolph Street, it gradually pushed its works
out into the shallow water of the lake to the exterior line
specified in that ordinance, 1376 feet east of the west line of
Michigan Avenue.
In order that the railroad company might approach its passenger
depot, the common council, by ordinance, adopted
Page 146 U. S. 404
September 10, 1855, granted it permission to curve its tracks
westwardly of the line fixed by the ordinance of 1852,
"so as to cross said line at a point not more than 200 feet
south of Randolph Street, extending and curving said tracks
northwesterly as they approach the depot, and crossing the north
line of Randolph Street, extended, at a point not more than 100
feet west of the line fixed by the ordinance, in accordance with
the map or plat thereof submitted by said company and placed on
file for reference."
This grant was, however, upon the following conditions: that the
company lay out upon its own land, west of and alongside its
passenger house, a street 50 feet wide, extending from Water Street
to Randolph Street, and fill the same up its entire length within
two years from the passage of said ordinance; that it should be
restricted in the use of its tracks south of the north line of
Randolph Street, as provided in the ordinance of 1852; and
"when the company shall fill up its said tracks south of the
north line of that street down to the point where said curves and
side-tracks commence, and the city shall grant its permission so to
fill up its tracks, it should also fill up, at the same time and to
an equal height, all the space between the track so filled up and
the lakeshore as it now exists, from the north side of Randolph
Street down to the point where said curves and sidetracks intersect
the line fixed by the ordinance aforesaid."
The company's tracks were curved as permitted; the street
referred to was opened and has ever since been used by the public;
and the required filling was done.
It being necessary that the railroad company should have
additional means of approaching and using its station grounds
between Randolph Street and the Chicago River, the city, by another
ordinance adopted September 15, 1856, granted it permission
"to enter and use in perpetuity, for its line of railroad and
other works necessary to protect the same from the lake, the space
between its present [then] breakwater and a line drawn from a point
on said breakwater 700 feet south of the north line of Randolph,
extended, and running thence on a straight line to the southeast
corner of its present breakwater, thence to the river,
provided, however, and this permission is
Page 146 U. S. 405
only given upon the express condition, that the portion of said
line which lies south of the north line of Randolph Street,
extended, shall be kept subject to all the conditions and
restrictions as to the use of the same as are imposed upon that
part of said line by the said ordinance of June 14, 1852."
In 1867, the company made a large slip just outside of the
exterior line fixed by the ordinance of 1852, thereby extending its
occupancy between Randolph Street and Chicago River further to the
east. Along the outer edge of this pier, a continuous line of dock
piling was placed, extending on a line from the river to the north
line of Randolph Street, 1792 feet distant from the west line of
Michigan Avenue. This line formed the company's breakwater between
the river and Randolph Street at the time of the passage, April 16,
1869, of what is known as the Lake Front Act, which was passed by
the legislature over the veto of the governor, and which is printed
in full in the margin. Laws of 1869, p. 245.
In view of the important questions raised and of the rights
asserted under that act, it is here given in full [
Footnote 2]:
Page 146 U. S. 406
As early as May, 1869, the railroad company caused to be
prepared a plan for an outer harbor at Chicago.
Page 146 U. S. 407
On the 12th of July of the same year, the Illinois Central
Railroad Company, the Michigan Central Railroad Company,
Page 146 U. S. 408
and the Chicago, Burlington and Quincy Railroad Company, by an
agent, tendered to Walter Kimball, the Comptroller of the City of
Chicago, the sum of $200,000 as the first payment to the city under
the fifth section of the act of 1869. He received the sum tendered
upon the express condition that none of the city's rights be
thereby waived or its interest in any manner prejudiced, and placed
the money in bank on special deposit, to await the action and
direction of the common council. The matter being brought to the
attention of that body, it adopted, June 13, 1870, a resolution,
declaring that the city
"will not recognize the act of Walter Kimball in receiving said
money, as binding upon the city, and that the city will not receive
any money from railroad companies, under said act of the General
Assembly, until forced to do so by the courts."
The city never quitclaimed or released, nor offered to quitclaim
or release, to said companies or to either of them, any right,
title, claim or interest in or to any of the land described in the
act of 1869, nor was Kimball's act in receiving the money ever
recognized by the city as binding upon it. On the expiration of his
term of office, he did not turn the money over to his successor in
office, but kept it deposited in bank to his own individual credit,
and so kept it until sometime during the year 1874 or later, when,
upon application by the railroad companies, he returned it to them.
No other money than the $200,000 delivered to Kimball was ever
tendered by the railroad companies or either of them to the city or
to any of its officers.
At a meeting of the Board of Directors of the Illinois Central
Railroad Company, held at the company's office in New York, July 6,
1870, a resolution was adopted to the effect
"that this company accepts the grants under the act of the
Page 146 U. S. 409
legislature at its last session, and that the president give
notice thereof to the state, and that the company has commenced
work upon the shore of the lake at Chicago under the grants
referred to."
On the 17th of November, 1870, its president communicated a copy
of this resolution to the Secretary of State of Illinois, and gave
the notice therein required, adding:
"You will please regard the above as an acceptance by this
company of the above-mentioned law [Lakefront Act], and it is
desired by said company that said acceptance shall remain
permanently on file and of record in your office."
The Secretary of State replied, under date of November 18,
1870:
"Yours of the 17th inst., being a notice of the acceptance by
the Illinois Central Railroad Company of the grants under an act of
the Legislature of Illinois, in force April 16, 1869, was this day
received and filed and duly recorded in the records of this
office."
Following these transactions were certain proceedings, commenced
about July 1, 1871, by information filed in the circuit court of
the United States for that district by the United States against
the Illinois Central Railroad Company. That information set forth
that Congress, in order to promote the convenience and safety of
vessels navigating Lake Michigan, had from time to time
appropriated and expended large sums of money in and about the
mouth of Chicago River, and had constructed two piers extending
from the north and south banks of that river eastwardly for a
considerable distance into the lake; that, in July, 1870, it
appropriated a large sum of money to construct an outer harbor at
Chicago in accordance with the plans of the Engineer Department of
the United States; that the railroad company had from time to time
wrongfully filled up with earth a portion of said lake within said
harbor; that what the company had then done in that way, and what
it intended to do unless prevented, would materially interfere with
the execution of the plan of improvement adopted by the War
Department. A temporary injunction was issued against the company.
Subsequently, in 1872, the parties to that suit entered into a
stipulation from which it appears that the matters referred to in
said information,
Page 146 U. S. 410
relating to the construction of docks and wharves in the basin
or outer harbor of the city formed by the breakwater then in
process of erection by the United States, were referred to the War
Department, and that the Secretary, upon the recommendation of
engineer officers, approved certain lines limiting the construction
of docks and wharves in said outer harbor, to-wit, commencing at
the pier on the south side of the entrance to the Chicago River,
1,200 feet west of the government breakwater; thence south to an
intersection with the north line of Randolph Street extended
eastwardly; thence due west 800 feet; and thence south to the east
and west breakwater proposed to be constructed by the United States
4,000 feet south of the pier first above mentioned, the line so
established being fixed as the line to which docks and wharves may
be extended by parties entitled to construct them within said outer
harbor. The railroad company desiring to proceed, under the
supervision of the Engineer Bureau of the United States, with the
construction of docks and wharves within the proposed outer harbor
between the pier on the south side of the entrance to Chicago River
and the north line of Randolph Street, extended eastwardly in
conformity with the said limiting lines, and having agreed to
observe said lines, as well as the directions which might be given
in reference to the construction of said docks end wharves by the
proper officers of said bureau, the injunctional order, pursuant to
stipulation between the parties, was, January 16, 1872, vacated,
and the information dismissed, with leave to the United States to
reinstate the same upon the failure of the company in good faith to
observe the said conditions.
Subsequently the railroad company resumed work on, and, during
the year 1873, completed, Pier No. 1 adjacent to the river and east
of the breakwater of 1869.
On the 15th of April, 1873, the Legislature of Illinois passed
the following act, which was in force from and after July 1,
1873:
"§ 1.
Be it enacted, etc., that the act entitled
'An act in relation to a portion of the submerged lands and Lake
Park grounds lying on and adjacent to the shore of Lake
Michigan,
Page 146 U. S. 411
on the eastern frontage of the City of Chicago,' in force April
16, 1869, be and the same is hereby repealed."
Ill.Laws of 1873, 115.
In 1880 and 1881, Piers Nos. 2 and 3, north of Randolph Street,
were constructed in conformity with plans submitted to and approved
by the War Department.
The Common Council of Chicago, by ordinance approved July 12,
1881, extended Randolph Street eastwardly, and declared it to be a
public street, from its then eastern terminus
"to the west line of the right of way of the Illinois Central
Railroad Company, as established by the ordinance of September 10,
1855, . . . and also straight eastwardly from the easterly line of
Slip C, produced southerly to Lake Michigan,"
giving permission to the company to construct and maintain at
its own expense, within the line of Randolph Street so extended and
over the company's tracks and right of way, a bridge or viaduct,
with suitable approaches, to be approved by the Commissioners of
Public Works, which should be forever free to the public and to all
persons having occasion to pass and repass thereon. Such a bridge
or viaduct was necessary in order that the piers constructed and in
process of construction east of the breakwater of 1869 might be
conveniently reached by teams. The viaduct was built in 1881, and
extends to the base of Pier 3. It has ever since been used by the
public.
It appears from the evidence that in 1882, the pier, which was
built in 1870 from Twelfth Street to the north line, extended, of
lot 21, was continued as far south as the center line of Sixteenth
Street. The main object of this extension, according to the showing
made by the company, was to protect the tracks from the waves
during storms from the northeast. Another object was to construct a
slip or basin south of the south line of lot 21, between the
breakwater and the shore, where vessels loaded with materials for
the company, or having freight to be handled, could enter and be in
safety. In 1885, a pier was constructed by the company at the foot
of Thirteenth Street, according to a plan submitted to the War
Department; and the department did not object to its construction,
"provided
Page 146 U. S. 412
no change be made in its location and length." The pier, as
constructed, does not differ from that proposed and approved except
that it is wider by fifty feet. But it does not appear that the War
Department regards that change in the plan as injurious to
navigation or as interfering with the plans of the government for
an outer harbor.
At the hearing in the court below, a map was used for the
purpose of showing the different works constructed by the United
States, the location of all the structures and buildings erected by
the railroad company, with the date of their erection, and the
relation of the tracks and breakwaters of the company to the shore
as it now is, and, to some extent, as it was heretofore.
That map, known as the Morehouse map, and called C, is
substantially reproduced below.
image:c
The state, in the original suit, asks a decree establishing and
confirming its title to the bed of Lake Michigan, and its sole and
exclusive right to develop the harbor of Chicago, by the
construction of docks, wharves, etc., as against the claim by the
railroad company that it has an absolute title to said submerged
lands, described in the act of 1869, and the right -- subject to
the paramount authority of the United States in respect to the
regulation of commerce between the states -- to fill the bed of the
lake for the purposes of its business, east of and adjoining the
premises between the river and the north line of Randolph Street,
and also north of the south line of Lot 21, and also the right, by
constructing and maintaining wharves, docks, piers, etc., to
improve the shore of the lake for the purposes of its business and
for the promotion generally of commerce and navigation. The state,
insisting that the company has, without right, erected, and
proposes to continue to erect, wharves, piers, etc., upon the
domain of the state, asks that such unlawful structures be directed
to be removed, and the company enjoined from constructing
others.
The city, by its cross-bill, insists that since June 7, 1839,
when the map of Fort Dearborn addition was recorded, it has had the
control and use for public purposes of that part of section 10
which lies east of Michigan Avenue and between
Page 146 U. S. 414
Randolph street and fractional section fifteen, and that, as
successor of the town of Chicago, it has had possession and control
since June 13, 1836, when the map of Fractional Section 15 addition
was recorded, of the lands in that Addition north of block 23. It
asks a decree declaring that it is the owner in fee, and of the
riparian rights thereunto appertaining, of all said lands, and has
under existing legislation, the exclusive right to develop the
harbor of Chicago by the construction of docks, wharves and levees
and to dispose of the same by lease or otherwise as authorized by
law, and that the railroad company be enjoined from interfering
with its said rights and ownership.
The railroad company, the state, and the city each appealed from
the final decree.
In the arguments, some points were taken and many cases cited
thereto, which are not noticed or referred to in the opinion of the
Court
infra.
Page 146 U. S. 433
MR. JUSTICE FIELD delivered the opinion of the Court.
This suit was commenced on the 1st of March, 1883, in a circuit
court of Illinois by an information or bill in equity filed by the
Attorney General of the state in the name of its people against the
Illinois Central Railroad Company, a corporation created under its
laws, and against the City of Chicago. The United States were also
named as a party defendant, but they never appeared in the suit,
and it was impossible to bring them in as a party without their
consent. The alleged grievances arose solely from the acts and
claims of the railroad company, but the City of Chicago was made a
defendant because of its interest in the subject of the litigation.
The railroad company filed its answer in the state court at the
first term after the commencement of the suit, and upon its
petition, the case was removed to the Circuit Court of the United
States for the Northern District of Illinois. In May following, the
city appeared to the suit and filed its answer, admitting all the
allegations of fact in the bill. A subsequent motion by the
complainant to remand the case to the state court was denied. 16 F.
881. The pleadings were afterwards altered in various particulars.
An amended information or bill was filed by the Attorney General,
and the city filed a cross-bill for affirmative relief against the
state and the company. The latter appeared to the cross-bill and
answered it, as did the Attorney General for the state. Each party
has prosecuted a separate appeal.
The object of the suit is to obtain a judicial determination of
the title of certain lands on the east or lakefront of the City of
Chicago, situated between the Chicago River and Sixteenth Street,
which have been reclaimed from the waters of the lake and are
occupied by the tracks, depots, warehouses, piers, and other
structures used by the railroad company in its business, and also
of the title claimed by the company to the submerged lands,
constituting the bed of the lake, lying east of its tracks, within
the corporate limits of the city, for the distance of a mile, and
between the south line of the south pier near Chicago River,
extended eastwardly, and a line
Page 146 U. S. 434
extended in the same direction from the south line of lot 21
near the company's roundhouse and machine shops. The determination
of the title of the company will involve a consideration of its
right to construct, for its own business, as well as for public
convenience, wharves, piers, and docks in the harbor.
We agree with the court below that, to a clear understanding of
the numerous questions presented in this case, it was necessary to
trace the history of the title to the several parcels of land
claimed by the company, and the court, in its elaborate opinion, 33
F. 730, for that purpose referred to the legislation of the United
States and of the state, and to ordinances of the city and
proceedings thereunder, and stated, with great minuteness of
detail, every material provision of law and every step taken. We
have with great care gone over the history detailed, and are
satisfied with its entire accuracy. It would therefore serve no
useful purpose to repeat what is, in our opinion, clearly and fully
narrated. In what we may say of the rights of the railroad company,
of the state, and of the city, remaining after the legislation and
proceedings taken, we shall assume the correctness of that
history.
The State of Illinois was admitted into the union in 1818 on an
equal footing with the original states in all respects. Such was
one of the conditions of the cession from Virginia of the territory
northwest of the Ohio River, out of which the state was formed. But
the equality prescribed would have existed if it had not been thus
stipulated. There can be no distinction between the several states
of the union in the character of the jurisdiction, sovereignty, and
dominion which they may possess and exercise over persons and
subjects within their respective limits. The boundaries of the
state were prescribed by Congress and accepted by the state in its
original Constitution. They are given in the bill. It is sufficient
for our purpose to observe that they include within their eastern
line all that portion of Lake Michigan lying east of the mainland
of the state and the middle of the lake, south of latitude 42
degrees and 30 minutes.
Page 146 U. S. 435
It is the settled law of this country that the ownership of and
dominion and sovereignty over lands covered by tidewaters, within
the limits of the several states, belong to the respective states
within which they are found, with the consequent right to use or
dispose of any portion thereof, when that can be done without
substantial impairment of the interest of the public in the waters,
and subject always to the paramount right of Congress to control
their navigation so far as may be necessary for the regulation of
commerce with foreign nations and among the states. This doctrine
has been often announced by this Court, and is not questioned by
counsel of any of the parties.
Pollard's Lessee v.
Hagan, 3 How. 212;
Weber v.
Commissioners, 18 Wall. 57.
The same doctrine is in this country held to be applicable to
lands covered by fresh water in the Great Lakes, over which is
conducted an extended commerce with different states and foreign
nations. These lakes possess all the general characteristics of
open seas except in the freshness of their waters and in the
absence of the ebb and flow of the tide. In other respects, they
are inland seas, and there is no reason or principle for the
assertion of dominion and sovereignty over and ownership by the
state of lands covered by tidewaters that is not equally applicable
to its ownership of and dominion and sovereignty over lands covered
by the fresh waters of these lakes. At one time, the existence of
tidewaters was deemed essential in determining the admiralty
jurisdiction of courts in England. That doctrine is now repudiated
in this country as wholly inapplicable to our condition. In
England, the ebb and flow of the tide constitute the legal test of
the navigability of waters. There, no waters are navigable in fact,
at least to any great extent, which are not subject to the tide.
There, as said in the case of
The Genesee
Chief, 12 How. 443,
53 U. S.
455,
"'tidewater' and 'navigable water' are synonymous terms, and
'tidewater,' with a few small and unimportant exceptions, meant
nothing more than public rivers, as contradistinguished from
private ones,"
and writers on the subject of admiralty jurisdiction
"took the ebb and flow of the tide as the test because it was a
convenient one, and more easily determined
Page 146 U. S. 436
the character of the river. Hence the establishes doctrine in
England that the admiralty jurisdiction is confined to the ebb and
flow of the tide. In other words, it is confined to public
navigable waters."
But in this country, the case is different. Some of our rivers
are navigable for great distances above the flow of the tide --
indeed, for hundreds of miles -- by the largest vessels used in
commerce. As said in the case cited:
"There is certainly nothing in the ebb and flow of the tide that
makes the waters peculiarly suitable for admiralty jurisdiction,
nor anything in the absence of a tide that renders it unfit. If it
is a public navigable water, on which commerce is carried on
between different states or nations, the reason for the
jurisdiction is precisely the same, and if a distinction is made on
that account, it is merely arbitrary, without any foundation in
reason, and indeed would seem to be inconsistent with it."
The Great Lakes are not in any appreciable respect affected by
the tide, and yet on their waters, as said above, a large commerce
is carried on, exceeding in many instances the entire commerce of
states on the borders of the sea. When the reason of the limitation
of admiralty jurisdiction in England was found inapplicable to the
condition of navigable waters in this country, the limitation and
all its incidents were discarded. So also, by the common law, the
doctrine of the dominion over and ownership by the crown of lands
within the realm under tidewaters is not founded upon the existence
of the tide over the lands, but upon the fact that the waters are
navigable, "tidewaters" and "navigable waters," as already said,
being used as synonymous terms in England. The public being
interested in the use of such waters, the possession by private
individuals of lands under them could not be permitted except by
license of the Crown, which could alone exercise such dominion over
the waters as would insure freedom in their use so far as
consistent with the public interest. The doctrine is founded upon
the necessity of preserving to the public the use of navigable
waters from private interruption and encroachment -- a reason as
applicable to navigable fresh waters as to waters moved by the
tide. We hold, therefore,
Page 146 U. S. 437
that the same doctrine as to the dominion and sovereignty over
and ownership of lands under the navigable waters of the Great
Lakes applies which obtains at the common law as to the dominion
and sovereignty over and ownership of lands under tidewaters in the
borders of the sea, and that the lands are held by the same right
in the one case as in the other, and subject to the same trusts and
limitations. Upon that theory, we shall examine how far such
dominion, sovereignty, and proprietary right have been encroached
upon by the railroad company, and how far that company had at the
time the assent of the state to such encroachment, and also the
validity of the claim which the company asserts, of a right to make
further encroachments thereon by virtue of a grant from the state
in April, 1869.
The City of Chicago is situated upon the southwestern shore of
Lake Michigan, and includes, with other territory, fractional
sections 10 and 15, in township 39 north, range 14 east of the
third principal meridian, bordering on the lake, which forms their
eastern boundary. For a long time after the organization of the
city, its harbor was the Chicago River, a small, narrow stream
opening into the lake near the center of the east and west line of
section 10, and in it the shipping arriving from other ports of the
lake and navigable waters was moored or anchored, and along it were
docks and wharves. The growth of the city in subsequent years in
population, business, and commerce required a larger and more
convenient harbor, and the United States, in view of such expansion
and growth, commenced the construction of a system of breakwaters
and other harbor protections in the waters of the lake in front of
the fractional sections mentioned. In the prosecution of this work,
there was constructed a line of breakwaters or cribs of wood and
stone covering the front of the city between the Chicago River and
Twelfth Street, with openings in the piers or lines of cribs for
the entrance and departure of vessels, thus enclosing a large part
of the lake for the uses of shipping and commerce and creating an
outer harbor for Chicago. It comprises a space about one mile and
one-half in length from north to south, and
Page 146 U. S. 438
is of a width from east to west varying from one thousand feet
to four thousand feet. As commerce and shipping expand, the harbor
will be further extended toward the south, and, as alleged by the
amended bill, it is expected that the necessities of commerce will
soon require its enlargement so as to include a great part of the
entire lakefront of the city. It is stated, and not denied, that
the authorities of the United States have in a general way
indicated a plan for the improvement and use of the harbor which
had been enclosed as mentioned, by which a portion is devoted as a
harbor of refuge, where ships may ride at anchor with security and
within protecting walls, and another portion of such enclosure,
nearer the shore of the lake, may be devoted to wharves and piers,
alongside of which ships may load and unload and upon which
warehouses may be constructed and other structures erected for the
convenience of lake commerce.
The case proceeds upon the theory and allegation that the
defendant the Illinois Central Railroad Company has, without lawful
authority, encroached, and continues to encroach, upon the domain
of the state, and its original ownership and control of the waters
of the harbor and of the lands thereunder, upon a claim of rights
acquired under a grant from the state and ordinance of the city to
enter the city and appropriate land and water two hundred feet wide
in order to construct a track for a railway and to erect thereon
warehouses, piers, and other structures in front of the city, and
upon a claim of riparian rights acquired by virtue of ownership of
lands originally bordering on the lake in front of the city. It
also proceeds against the claim asserted by the railroad company,
of a grant by the state in 1869 of its right and title to the
submerged lands constituting the bed of Lake Michigan, lying east
of the tracks and breakwater of the company for the distance of one
mile, and between the south line of the south pier extended
eastwardly and a line extended in the same direction from the south
line of lot 21 south of and near the machine shops and roundhouse
of the company, and of a right thereby to construct at its
pleasure, in the harbor wharves, piers, and other works for its
use.
Page 146 U. S. 439
The state prays a decree establishing and confirming its title
to the bed of Lake Michigan, and exclusive right to develop and
improve the harbor of Chicago by the construction of docks,
wharves, piers, and other improvements, against the claim of the
railroad company that it has an absolute title to such submerged
lands by the act of 1869, and the right, subject only to the
paramount authority of the United States in the regulation of
commerce, to fill all the bed of the lake within the limits above
stated for the purpose of its business, and the right, by the
construction and maintenance of wharves, docks and piers, to
improve the shore of the lake for the promotion generally of
commerce and navigation. And the state, insisting that the company
has, without right, erected, and proposes to continue to erect,
wharves and piers upon its domain, asks that such alleged unlawful
structures may be ordered to be removed, and the company be
enjoined from erecting further structures of any kind.
And first as to lands in the harbor of Chicago possessed and
used by the railroad company under the Act of Congress of September
20, 1850, 9 Stat. 466, c. 61, and the ordinance of the city of June
14, 1852. By that act, Congress granted to the State of Illinois a
right of way, not exceeding one hundred feet in width, on each side
of its length, through the public lands, for the construction of a
railroad from the southern terminus of the Illinois & Michigan
Canal to a point at or near the junction of the Ohio and
Mississippi Rivers, with a branch to Chicago, and another, via the
Town of Galena, to a point opposite Dubuque, in the state of Iowa,
with the right to take the necessary materials for its
construction, and to aid in the construction of the railroad and
branches, by the same act it granted to the state six alternate
sections of land, designated by even numbers, on each side of the
road and branches, with the usual reservation of any portion found
to be sold by the United States, or to which the right of
preemption had attached at the time the route of the road and
branches was definitely fixed, in which case provision was made for
the selection of equivalent lands in contiguous sections.
Page 146 U. S. 440
The lands granted were made subject to the disposition of the
legislature of the state, and it was declared that the railroad and
its branches should be and remain a public highway for the use of
the government of the United States, free from toll or other charge
upon the transportation of their property or troops.
The act was formally accepted by the legislature of the state
February 17, 1851, Laws 1851, pp. 192, 193. A few days before and
on the 10th of that month, the Illinois Central Railroad Company
was incorporated. It was invested generally with the powers,
privileges, immunities, and franchises of corporations, and
specifically with the power of acquiring by purchase or otherwise,
and of holding and conveying, real and personal estate which might
be needful to carry into effect fully the purposes of the act.
It was also authorized to survey, locate, construct, and operate
a railroad, with one or more tracks or lines of rails, between the
points designated and the branches mentioned, and it was declared
that the company should have a right of way upon, and might
appropriate to its sole use and control, for the purposes
contemplated, land not exceeding two hundred feet in width
throughout its entire length, and might enter upon and take
possession of and use any lands, streams, and materials of every
kind, for the location of depots and stopping stages, for the
purpose of constructing bridges, dams, embankments, engine houses,
shops, and other buildings necessary for completing, maintaining,
and operating the road. All such lands, waters, materials, and
privileges belonging to the state were granted to the corporation
for that purpose, and it was provided that when owned by or
belonging to any person, company, or corporation, and they could
not be obtained by voluntary grant or release, the same might be
taken and paid for by proceedings for condemnation, as prescribed
by law.
It was also enacted that nothing in the act should authorize the
corporation to make a location of its road within any city without
the consent of its common council. This consent was given by an
ordinance of the Common Council of Chicago,
Page 146 U. S. 441
adopted June 14, 1852. By its first section, it granted
permission to the company to lay down, construct, and maintain
within the limits of the city, and along the margin of the lake
within and adjacent to the same, a railroad, with one or more
tracks, and to operate the same with locomotive engines and cars,
under such rules and regulations, with reference to speed of
trains, the receipt, safekeeping, and delivery of freight, and
arrangements for the accommodation and conveyance of passengers,
not inconsistent with the public safety, as the company might from
time to time establish, and to have the right of way and all powers
incident to and necessary therefor, in the manner and upon the
following terms and conditions, namely, that the road should enter
the city at or near the intersection of its then southern boundary
with Lake Michigan, and follow the shore on or near the margin of
the lake northerly to the southern bounds of the open space known
as "Lake Park," in front of canal section 15, and continue
northerly across the open space in front of that section to such
grounds as the company might acquire between the north line of
Randolph Street and the Chicago River, in the Fort Dearborn
addition, upon which grounds should be located the depot of the
railroad company within the city, and such other buildings, slips,
or apparatus as might be necessary and convenient for its business.
But it was understood that the city did not undertake to obtain for
the company any right of way or other right, privilege, or easement
not then in its power to grant, or to assume any liability or
responsibility for the acts of the company. It also declared that
the company might enter upon and use in perpetuity for its line of
road, and other works necessary to protect the same from the lake,
a width of three hundred feet from the southern boundary of the
public ground near Twelfth Street, to the northern line of Randolph
Street; the inner or west line of the ground to be not less than
four hundred feet east from the west line of Michigan Avenue, and
parallel thereto, and it was authorized to extend its works and
fill out into the lake to a point in the southern pier not less
than four hundred feet west from the then east end of the same,
thence parallel with Michigan
Page 146 U. S. 442
Avenue to the north side of Randolph Street extended; but it was
stated that the common council did not grant any right or privilege
beyond the limits above specified, nor beyond the line that might
be actually occupied by the works of the company.
By the ordinance, the company was required to erect and maintain
on the western or inner line of the ground pointed out for its main
tracks on the lakeshore such suitable walls, fences, or other
sufficient works as would prevent animals from straying upon or
obstructing its tracks and secure persons and property from danger,
and to construct such suitable gates at proper places at the ends
of the streets which were then or might thereafter be laid out as
required by the common council, to afford safe access to the lake,
and provided that, in the case of the construction of an outside
harbor, streets might be laid out to approach the same in the
manner provided by law. The company was also required to erect and
complete within three years after it should have accepted the
ordinance, and forever thereafter maintain, a continuous wall or
structure of stone masonry, pier work, or other sufficient
material, of regular and sightly appearance, and not to exceed in
height the general level of Michigan Avenue, opposite thereto, from
the north side of Randolph Street to the southern bound of Lake
Park at a distance of not more than three hundred feet east from
and parallel with the western or inner line of the company, and
continue the works to the southern boundary of the city at such
distance outside of the track of the road as might be expedient,
which structure and works should be of sufficient strength and
magnitude to protect the entire front of the city, between the
north line of Randolph Street and its southern boundary, from
further damage or injury from the action of the waters of Lake
Michigan, and that that part of the structure south of Lake Park
should be commenced and prosecuted with reasonable dispatch after
acceptance of the ordinance. It was also enacted that the company
should
"not in any manner, nor for any purpose whatever, occupy, use,
or intrude upon the open ground known as 'Lake Park,' belonging to
the City of Chicago, lying between Michigan Avenue and the western
or inner line before mentioned, except so far
Page 146 U. S. 443
as the common council may consent, for the convenience of said
company, while constructing or repairing the works in front of said
ground,"
and it was declared that the company should
"erect no buildings between the north line of Randolph Street
and the south side of the said Lake Park, nor occupy nor use the
works proposed to be constructed between these points, except for
the passage of or for making up or distributing their trains, nor
place upon any part of their works between said points any
obstruction to the view of the lake from the shore, nor suffer
their locomotives, cars, or other articles to remain upon their
tracks, but only erect such works as are proper for the
construction of their necessary tracks, and protection of the
same."
The company was allowed ninety days to accept this ordinance,
and it was provided that upon such acceptance, a contract embodying
its provisions should be executed and delivered between the city
and the company, and that the rights and privileges conferred upon
the company should depend upon the performance on its part of the
requirements made. The ordinance was accepted and the required
agreement drawn and executed on the 28th of March, 1853.
Under the authority of this ordinance, the railroad company
located its tracks within the corporate limits of the city. Those
running northward from Twelfth Street were laid upon pilling in the
waters of the lake. The shoreline of the lake was at that time at
Park Row, about four hundred feet from the west line of Michigan
Avenue, and at Randolph Street, about one hundred twelve and
one-half feet. Since then, the space between the shoreline and the
tracks of the railroad company has been filled with earth under the
direction of the city, and is now solid ground.
After the tracks were constructed, the company erected a
breakwater east of its roadway upon a line parallel with the west
line of Michigan Avenue, and afterwards filled up the space between
the breakwater and its tracks with earth and stone.
We do not deem it material, for the determination of any
questions presented in this case, to describe in detail the
extensive works of the railroad company under the permission
given
Page 146 U. S. 444
to locate its road within the city by the ordinance. It is
sufficient to say that when this suit was commenced, it had
reclaimed from the waters of the lake a tract two hundred feet in
width, for the whole distance allowed for its entry within the
city, and constructed thereon the tracks needed for its railway,
with all the guards against danger in its approach and crossings as
specified in the ordinance, and erected the designated breakwater
beyond its tracks on the east, and the necessary works for the
protection of the shore on the west. Its works in no respect
interfered with any useful freedom in the use of the waters of the
lake for commerce -- foreign, interstate, or domestic. They were
constructed under the authority of the law by the requirement of
the city, as a condition of its consent that the company might
locate its road within its limits, and cannot be regarded as such
an encroachment upon the domain of the state as to require the
interposition of the court for their removal or for any restraint
in their use.
The railroad company never acquired by the reclamation from the
waters of the lake of the land upon which its tracks are laid, or
by the construction of the road and works connected therewith, an
absolute fee in the tract reclaimed, with a consequent right to
dispose of the same to other parties, or to use it for any other
purpose than the one designated -- the construction and operation
of a railroad thereon, with one or more tracks and works in
connection with the road or in aid thereof. The act incorporating
the company only granted to it a right of way over the public lands
for its use and control for the purpose contemplated, which was to
enable it to survey, locate, and construct and operate a railroad.
All lands, waters, materials, and privileges belonging to the state
were granted solely for that purpose. It did not contemplate, much
less authorize, any diversion of the property to any other purpose.
The use of it was restricted to the purpose expressed. While the
grant to it included waters of streams in the line of the right of
way belonging to the state, it was accompanied with a declaration
that it should not be so construed as to authorize the corporation
to interrupt the navigation of the streams. If the waters of the
lake may be deemed to be included in the
Page 146 U. S. 445
designation of streams, then their use would be held equally
restricted. The prohibition upon the company to make a location of
its road within any city without the consent of its common council
necessarily empowered that body to prescribe the conditions of the
entry, so far at least as to designate the place where it should be
made, the character of the tracks to be laid, and the protection
and guards that should be constructed to insure their safety. Nor
did the railroad company acquire, by the mere construction of its
road and other works, any rights as a riparian owner to reclaim
still further lands from the waters of the lake for its use or the
construction of piers, docks, and wharves in the furtherance of its
business. The extent to which it could reclaim the land under the
waters was limited by the conditions of the ordinance, which was
simply for the construction of a railroad on a track not to exceed
a specified width, and of works connected therewith.
We shall hereafter consider what rights the company acquired as
a riparian owner from its acquisition of title to lands on the
shore of the lake, but at present we are speaking only of what
rights it acquired from the reclamation of the tract upon which the
railroad and the works in connection with its are built. The
construction of a pier or the extension of any land into navigable
waters for a railroad or other purposes, by one not the owner of
lands on the shore, does not give the builder of such pier or
extension, whether an individual or corporation, any riparian
rights. Those rights are incident to riparian ownership. They exist
with such ownership, and pass with the transfer of the land, and
the land must not only be contiguous to the water, but in contact
with it. Proximity, without contact, is insufficient. The riparian
right attaches to land on the border of navigable water, without
any declaration to that effect from the former owner, and its
designation in a conveyance by him would be surplusage.
See Gould on Waters, § 148, and authorities there
cited.
The riparian proprietor is entitled, among other rights, as held
in
Yates v.
Milwaukee, 10 Wall. 497,
77 U. S. 504,
to access to the navigable part of the water on the front of which
lies his land, and for that purpose to make a landing, wharf, or
pier for his
Page 146 U. S. 446
own use or for the use of the public, subject to such general
rules and regulations as the legislature may prescribe for the
protection of the rights of the public. In the case cited, the
court held that this riparian right was property, and valuable,
and, though it must be enjoyed in due subjection to the rights of
the public, it could not be arbitrarily or capriciously impaired.
It had been held in the previous case of
Dutton v.
Strong, 1 Black 23,
66 U. S. 33, that
whenever the water of the shore was too shoal to be navigable,
there was the same necessity for wharves, piers, and landing places
as in the bays and arms of the sea; that where that necessity
existed, it was difficult to see any reason for denying to the
adjacent owner the right to supply it; but that the right must be
understood as terminating at the point of navigability, where the
necessity for such erections ordinarily ceased.
In this case, it appears that fractional section 10, which was
included within the city limits bordering on the lakefront, was,
many years before this suit was brought, divided under the
authority of the United States into blocks and lots, and the lots
sold. The proceedings taken and the laws passed on the subject for
the sale of the lots are stated with great particularity in the
opinion of the court below, but for our purpose, it is sufficient
to mention that the lots laid out in fractional section 10
belonging to the United States were sold, and, either directly or
from purchasers, the title to some of them fronting on the lake
north of Randolph Street became vested in the railroad company, and
the company, finding the lake in front of those lots shallow,
filled it in, and upon the reclaimed land constructed slips,
wharves, and piers, the last three piers in 1872-73, 1880, and
1881, which it claims to own and to have the right to use in its
business.
According to the law of riparian ownership which we have stated,
this claim is well founded so far as the piers do not extend beyond
the point of navigability in the waters of the lake. We are not
fully satisfied that such is the case, from the evidence which the
company has produced, and the fact is not conceded. Nor does the
court below find that such navigable point had been established by
any public authority
Page 146 U. S. 447
or judicial decision, or that it had any foundation, other than
the judgment of the railroad company.
The same position may be taken as to the claim of the company to
the pier and docks erected in front of Michigan Avenue between the
lines of Twelfth and Sixteenth Streets extended. The company had
previously acquired the title to certain lots fronting on the lake
at that point, and, upon its claim of riparian rights from that
ownership, had erected the structures in question. Its ownership of
then likewise depends upon the question whether they are extended
beyond or are limited to the navigable point of the waters of the
lake, of which no satisfactory evidence was offered.
Upon the land reclaimed by the railroad company as riparian
proprietor in front of lots into which section 10 was divided,
which it had purchased, its passenger depot was erected north of
Randolph Street, and to facilitate its approach, the common
council, by ordinance adopted September 10, 1855, authorized it to
curve its tracks westwardly of the line fixed by the ordinance of
1852, so as to cross that line at a point not more than two hundred
feet south of Randolph Street, in accordance with a specified plan.
This permission was given upon the condition that the company
should lay out upon its own land, west of and alongside its
passenger house, a street fifty feet wide, extending from Water
Street to Randolph Street, and fill the same up its entire length
within two years from the passage of the ordinance. The company's
tracks were curved as permitted, the street referred to was opened,
the required filling was done, and the street has ever since been
used by the public. It being necessary that the railroad company
should have additional means of approaching and using its station
grounds between Randolph Street and the Chicago River, the city, by
another ordinance, adopted September 15, 1856, granted it
permission to enter and use, in perpetuity, for its line of
railroad and other works necessary to protect the same from the
lake, the space between its then breakwater and a line drawn from a
point thereon seven hundred feet south of the north line of
Randolph Street extended, and running thence on a straight line to
the southeast corner of
Page 146 U. S. 448
its present breakwater, thence to the river, and the space thus
indicated the railroad company occupied and continued to hold
pursuant to this ordinance, and we do not perceive any valid
objection to its continued holding of the same for the purposes
declared -- that is, as additional means of approaching and using
its station grounds.
We proceed to consider the claim of the railroad company to the
ownership of submerged lands in the harbor, and the right to
construct such wharves, piers, docks, and other works therein as it
may deem proper for its interest and business. The claim is founded
upon the third section of the act of the legislature of the state
passed on the 16th of April, 1869, the material part of which is as
follows:
"SEC. 3. The right of the Illinois Central Railroad Company
under the grant from the state in its charter, which said grant
constitutes a part of the consideration for which the said company
pays to the state at least seven percent of its gross earnings, and
under and by virtue of its appropriation, occupancy, use, and
control, and the riparian ownership incident to such grant,
appropriation, occupancy, use, and control, in and to the lands
submerged or otherwise lying east of the said line running parallel
with and four hundred feet east of the west line of Michigan
Avenue, in fractional sections ten and fifteen, township and range
as aforesaid, is hereby confirmed, and all the right and title of
the State of Illinois in and to the submerged lands constituting
the bed of Lake Michigan, and lying east of the tracks and
breakwater of the Illinois Central Railroad Company, for a distance
of one mile, and between the south line of the south pier extended
eastwardly and a line extended eastward from the south line of lot
twenty-one, south of and near to the roundhouse and machine shops
of said company, in the south division of the said City of Chicago,
are hereby granted in fee to the said Illinois Central Railroad
Company, its successors and assigns, provided, however, that the
fee to said lands shall be held by said company in perpetuity, and
that the said company shall not have power to grant, sell, or
convey the fee to the same, and that all gross receipts from use,
profits, leases, or otherwise, of said lands, or the
improvements
Page 146 U. S. 449
thereon, or that may hereafter be made thereon, shall form a
part of the gross proceeds, receipts, and income of the said
Illinois Central Railroad Company, upon which said company shall
forever pay into the state treasury, semiannually, the percentum
provided for in its charter, in accordance with the requirements of
said charter, and provided also that nothing herein contained shall
authorize obstructions to the Chicago harbor or impair the public
right of navigation, nor shall this act be construed to exempt the
Illinois Central Railroad Company, its lessees or assigns, from any
act of the General Assembly which may be hereafter passed
regulating the rates of wharfage and dockage to be charged in said
harbor."
The act of which this section is a part was accepted by a
resolution of the board of directors of the company at its office
in the City of New York, July 6, 1870, but the acceptance was not
communicated to the state until the 18th of November, 1870. A copy
of the resolution was on that day forwarded to the Secretary of
State and filed and recorded by him in the records of his office.
On the 15th of April, 1873, the Legislature of Illinois repealed
the act. The questions presented relate to the validity of the
section cited, of the act, and the effect of the repeal upon its
operation.
The section in question has two objects in view: one was to
confirm certain alleged rights of the railroad company under the
grant from the state in its charter and under and "by virtue of its
appropriation, occupancy, use, and control, and the riparian
ownership incident" thereto, in and to the lands submerged or
otherwise lying east of a line parallel with and four hundred feet
east of the west line of Michigan Avenue in fractional sections 10
and 15. The other object was to grant to the railroad company
submerged lands in the harbor.
The confirmation made, whatever the operation claimed for it in
other respects, cannot be invoked so as to extend the riparian
right which the company possessed from its ownership of lands in
sections 10 and 15 on the shore of the lake. Whether the piers or
docks constructed by it after the passage of the act of 1869 extend
beyond the point of navigability in the waters of the lake must be
the subject of judicial
Page 146 U. S. 450
inquiry upon the execution of this decree in the court below. If
it be ascertained upon such inquiry and determined that such piers
and docks do not extend beyond the point of practicable
navigability, the claim of the railroad company to their title and
possession will be confirmed; but if they or either of them are
found, on such inquiry, to extend beyond the point of such
navigability, then the state will be entitled to a decree that
they, or the one thus extended, be abated and removed to the extent
shown, or for such other disposition of the extension as, upon the
application of the state and the facts established, may be
authorized by law.
As to the grant of the submerged lands, the act declares that
all the right and title of the state in and to the submerged lands,
constituting the bed of Lake Michigan, and lying east of the tracks
and breakwater of the company for the distance of one mile, and
between the south line of the south pier extended eastwardly and a
line extended eastwardly from the south line of lot 21, south of
and near to the roundhouse and machine shops of the company, "are
granted in fee to the railroad company, its successors and
assigns." The grant is accompanied with a proviso that the fee of
the lands shall be held by the company in perpetuity, and that it
shall not have the power to grant, sell, or convey the fee thereof.
It also declares that nothing therein shall authorize obstructions
to the harbor, or impair the public right of navigation, or be
construed to exempt the company from any act regulating the rates
of wharfage and dockage to be charged in the harbor.
This clause is treated by the counsel of the company as an
absolute conveyance to it of title to the submerged lands, giving
it as full and complete power to use and dispose of the same,
except in the technical transfer of the fee, in any manner it may
choose, as if they were uplands, in no respect covered or affected
by navigable waters, and not as a license to use the lands subject
to revocation by the state. Treating it as such a conveyance, its
validity must be determined by the consideration whether the
legislature was competent to make a grant of the kind.
The act, if valid and operative to the extent claimed,
placed
Page 146 U. S. 451
under the control of the railroad company nearly the whole of
the submerged lands of the harbor, subject only to the limitations
that it should not authorize obstructions to the harbor, or impair
the public right of navigation, or exclude the legislature from
regulating the rates of wharfage or dockage to be charged. With
these limitations, the act put it in the power of the company to
delay indefinitely the improvement of the harbor, or to construct
as many docks, piers, and wharves and other works as it might
choose, and at such positions in the harbor as might suit its
purposes, and permit any kind of business to be conducted thereon,
and to lease them out on its own terms for indefinite periods. The
inhibition against the technical transfer of the fee of any portion
of the submerged lands was of little consequence when it could make
a lease for any period, and renew it at its pleasure, and the
inhibitions against authorizing obstructions to the harbor and
impairing the public right of navigation placed no impediments upon
the action of the railroad company which did not previously exist.
A corporation created for one purpose, the construction and
operation of a railroad between designated points, is by the act
converted into a corporation to manage and practically control the
harbor of Chicago, not simply for its own purpose as a railroad
corporation, but for its own profit generally.
The circumstances attending the passage of the act through the
legislature were on the hearing the subject of much criticism. As
originally introduced, the purpose of the act was to enable the
City of Chicago to enlarge its harbor, and to grant to it the title
and interest of the state to certain lands adjacent to the shore of
Lake Michigan, on the eastern front of the city, and place the
harbor under its control; giving it all the necessary powers for
its wise management. But during the passage of the act, its purport
was changed. Instead of providing for the cession of the submerged
lands to the city, it provided for a cession of them to the
railroad company. It was urged that the title of the act was not
changed to correspond with its changed purpose, and an objection
was taken to its validity on that account. But the majority of the
court were of opinion that the evidence was insufficient to show
that
Page 146 U. S. 452
the requirement of the constitution of the state, in its
passage, was not complied with.
The question therefore to be considered is whether the
legislature was competent to thus deprive the state of its
ownership of the submerged lands in the harbor of Chicago, and of
the consequent control of its waters -- or in other words, whether
the railroad corporation can hold the lands and control the waters
by the grant against any future exercise of power over them by the
state.
That the state holds the title to the lands under the navigable
waters of Lake Michigan, within its limits in the same manner that
the state holds title to soils under tidewater by the common law we
have already shown, and that title necessarily carries with it
control over the waters above them, whenever the lands are
subjected to use. But it is a title different in character from
that which the state holds in lands intended for sale. It is
different from the title which the United States hold in the public
lands which are open to preemption and sale. It is a title held in
trust 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 interest of the people in the
navigation of the waters and in commerce over them may be improved
in many instances by the erection of wharves, docks, and piers
therein, for which purpose the state may grant parcels of the
submerged lands; and so long as their disposition is made for such
purpose, no valid objections can be made to the grants. It is
grants of parcels of lands under navigable waters that may afford
foundation for wharves, piers, docks, and other structures in aid
of commerce, and grants of parcels which, being occupied, do not
substantially impair the public interest in the lands and waters
remaining, that are chiefly considered and sustained in the
adjudged cases as a valid exercise of legislative power
consistently with the trust to the public upon which such lands are
held by the state. But that is a very different doctrine from the
one which would sanction the abdication of the general control of
the state over lands under the
Page 146 U. S. 453
navigable waters of an entire harbor or bay, or of a sea or
lake. Such abdication is not consistent with the exercise of that
trust which requires the government of the state to preserve such
waters for the use of the public. The trust devolving upon the
state for the public, and which can only be discharged by the
management and control of property in which the public has an
interest, cannot be relinquished by a transfer of the property. The
control of the state for the purposes of the trust can never be
lost, except as to such parcels as are used in promoting the
interests of the public therein or can be disposed of without any
substantial impairment of the public interest in the lands and
waters remaining. It is only by observing the distinction between a
grant of such parcels for the improvement of the public interest,
or which, when occupied, do not substantially impair the public
interest in the lands and waters remaining and a grant of the whole
property in which the public is interested, that the language of
the adjudged cases can be reconciled. General language sometimes
found in opinions of the courts expressive of absolute ownership
and control by the state of lands under navigable waters,
irrespective of any trust as to their use and disposition, must be
read and construed with reference to the special facts of the
particular cases. A grant of all the lands under the navigable
waters of a state has never been adjudged to be within the
legislative power, and any attempted grant of the kind would be
held, if not absolutely void on its face, as subject to revocation.
The state can no more abdicate its trust over property in which the
whole people are interested, like navigable waters and soils under
them, so as to leave them entirely under the use and control of
private parties, except in the instance of parcels mentioned for
the improvement of the navigation and use of the waters, or when
parcels can be disposed of without impairment of the public
interest in what remains, than it can abdicate its police powers in
the administration of government and the preservation of the peace.
In the administration of government, the use of such powers may for
a limited period be delegated to a municipality or other body, but
there always remains with the state the right to
Page 146 U. S. 454
revoke those powers and exercise them in a more direct manner,
and one more conformable to its wishes. So with trusts connected
with public property, or property of a special character, like
lands under navigable waters; they cannot be placed entirely beyond
the direction and control of the state.
The harbor of Chicago is of immense value to the people of the
State of Illinois in the facilities it affords to its vast and
constantly increasing commerce, and the idea that its legislature
can deprive the state of control over its bed and waters and place
the same in the hands of a private corporation, created for a
different purpose -- one limited to transportation of passengers
and freight between distant points and the city -- is a proposition
that cannot be defended.
The area of the submerged lands proposed to be ceded by the act
in question to the railroad company embraces something more than
1,000 acres, being, as stated by counsel, more than three times the
area of the outer harbor, and not only including all of that
harbor, but embracing adjoining submerged lands which will in all
probability be hereafter included in the harbor. It is as large as
that embraced by all the merchandise docks along the Thames at
London; is much larger than that included in the famous docks and
basins at Liverpool; is twice that of the port of Marseilles, and
nearly, if not quite, equal to the pier area along the waterfront
of the City of New York. And the arrivals and clearings of vessels
at the port exceed in number those of New York, and are equal to
those of New York and Boston combined. Chicago has nearly
twenty-five percent of the lake-carrying trade, as compared with
the arrivals and clearings of all the leading ports of our great
inland seas. In the year ending June 30, 1886, the joint arrivals
and clearances of vessels at that port amounted to twenty-two
thousand and ninety-six, with a tonnage of over seven million, and
in 1890 the tonnage of the vessels reached nearly nine million. As
stated by counsel, since the passage of the Lakefront Act in 1869,
the population of the city has increased nearly a million souls,
and the increase of commerce has kept pace with it. It is hardly
conceivable that the legislature can divest the state of the
control
Page 146 U. S. 455
and management of this harbor and vest it absolutely in a
private corporation. Surely an act of the legislature transferring
the title to its submerged lands and the power claimed by the
railroad company to a foreign state or nation would be repudiated
without hesitation as a gross perversion of the trust over the
property under which it is held. So would a similar transfer to a
corporation of another state. It would not be listened to that the
control and management of the harbor of that great city -- a
subject of concern to the whole people of the state -- should thus
be placed elsewhere than in the state itself. All the objections
which can be urged to such attempted transfer may be urged to a
transfer to a private corporation like the railroad company in this
case.
Any grant of the kind is necessarily revocable, and the exercise
of the trust by which the property was held by the state can be
resumed at any time. Undoubtedly there may be expenses incurred in
improvements made under such a grant which the state ought to pay,
but, be that as it may, the power to resume the trust whenever the
state judges best is, we think, incontrovertible. The position
advanced by the railroad company in support of its claim to the
ownership of the submerged lands, and the right to the erection of
wharves, piers, and docks at its pleasure, or for its business in
the harbor of Chicago would place every harbor in the country at
the mercy of a majority of the legislature of the state in which
the harbor is situated.
We cannot, it is true, cite any authority where a grant of this
kind has been held invalid, for we believe that no instance exists
where the harbor of a great city and its commerce have been allowed
to pass into the control of any private corporation. But the
decisions are numerous which declare that such property is held by
the state, by virtue of its sovereignty, in trust for the public.
The ownership of the navigable waters of the harbor and of the
lands under them is a subject of public concern to the whole people
of the state. The trust with which they are held therefore is
governmental, and cannot be alienated, except in those instances
mentioned of parcels used in the improvement of the interest thus
held, or when parcels
Page 146 U. S. 456
can be disposed of without detriment to the public interest in
the lands and waters remaining,
This follows necessarily from the public character of the
property, being held by the whole people for purposes in which the
whole people are interested. As said by Chief Justice Taney in
Martin v.
Waddell, 16 Pet. 367,
41 U. S.
410:
"When the Revolution took place, the people of each state became
themselves sovereign, and in that character hold the absolute right
to all their navigable waters and the soils under them for their
own common use, subject only to the rights since surrendered by the
Constitution to the general government."
In
Arnold v. Mundy, 6 N.J.Law 1, which is cited by this
Court in
Martin v.
Waddell, 16 Pet. 418, and spoken of by Chief
Justice Taney as entitled to great weight, and in which the
decision was made "with great deliberation and research," the
Supreme Court of New Jersey comments upon the rights of the state
in the bed of navigable waters, and, after observing that the power
exercised by the state over the lands and waters is nothing more
than what is called the "
jus regium," the right of
regulating, improving, and securing them for the benefit of every
individual citizen, adds:
"The sovereign power itself therefore cannot, consistently with
the principles of the law of nature and the constitution of a well
ordered society, make a direct and absolute grant of the waters of
the state, divesting all the citizens of their common right. It
would be a grievance which never could be long borne by a free
people."
Necessarily must the control of the waters of a state over all
lands under them pass when the lands are conveyed in fee to private
parties, and are by them subjected to use.
In the case of
Stockton v. Baltimore & New York Railroad
Company, 32 F. 9, which involved a consideration by Mr.
Justice Bradley, late of this Court, of the nature of the ownership
by the state of lands under the navigable waters of the United
States, he said:
"It is insisted that the property of the state in lands under
its navigable waters is private property, and comes strictly within
the constitutional provision. It is significantly asked,
Page 146 U. S. 457
can the United States take the Statehouse at Trenton and the
surrounding grounds belonging to the state and appropriate them to
the purposes of a railroad depot, or to any other of the general
government, without compensation? We do not apprehend that the
decision of the present case involves or requires a serious answer
to this question. The cases are clearly not parallel. The character
of the title or ownership by which the state holds the state house
is quite different from that by which it holds the land under the
navigable waters in and around its territory. The information
rightly states that, prior to the Revolution, the shore and lands
under water of the navigable streams and waters of the province of
New Jersey belonged to the King of Great Britain as part of the
jura regalia of the Crown, and devolved to the state by
right of conquest. The information does not state, however, what is
equally true -- that after the conquest, the said lands were held
by the state, as they were by the King, in trust for the public
uses of navigation and fishery, and the erection thereon of
wharves, piers, lighthouses, beacons, and other facilities of
navigation and commerce. Being subject to this trust, they were
publici juris -- in other words, they were held for the
use of the people at large. It is true that to utilize the
fisheries, especially those of shell fish, it was necessary to
parcel them out to particular operators and employ the rent or
consideration for the benefit of the whole people; but this did not
alter the character of the title. The land remained subject to all
other public uses as before, especially to those of navigation and
commerce, which are always paramount to those of public fisheries.
It is also true that portions of the submerged shoals and flats
which really interfered with navigation and could better subserve
the purposes of commerce by being filled up and reclaimed were
disposed of to individuals for that purpose. But neither did these
dispositions of useless parts affect the character of the title to
the remainder."
Many other cases might be cited where it has been decided that
the bed or soil of navigable waters is held by the people of the
state in their character as sovereign in trust for public
Page 146 U. S. 458
uses for which they are adapted.
Martin v.
Waddell, 16 Pet. 367,
41 U. S. 410;
Pollard's Lessee v.
Hagan, 3 How. 212,
44 U. S. 220;
McCready v. Virginia, 94 U. S. 391,
94 U. S.
394.
In
People v. New York & Staten Island Ferry Co., 68
N.Y. 71, 76, the Court of Appeals of New York said:
"The title to lands under tidewaters within the realm of England
were by the common law deemed to be vested in the King as a public
trust, to subserve and protect the public right to use them as
common highways for commerce, trade, and intercourse. The King, by
virtue of his proprietary interest, could grant the soil so that it
should become private property, but his grant was subject to the
paramount right of public use of navigable waters, which he could
neither destroy nor abridge. In every such grant there was an
implied reservation of the public right, and so far as it assumed
to interfere with it, or to confer a right to impede or obstruct
navigation, or to make an exclusive appropriation of the use of
navigable waters, the grant was void. In his treatise
De Jure
Maris, p. 22, Lord Hale says:"
"The
jus privatum that is acquired by the subject,
either by patent or prescription, must not prejudice the
jus
publicum, wherewith public rivers and the arms of the sea are
affected to public use."
And Mr. Justice Best, in
Blundell v. Catterall, 5 B.
& A. 268, in speaking of the subject, says:
"The soil can only be transferred subject to the public trust,
and general usage shows that the public right has been excepted out
of the grant of the soil. . . ."
"The principle of the common law to which we have adverted is
founded upon the most obvious principles of public policy. The sea
and navigable rivers are natural highways, and any obstruction to
the common right, or exclusive appropriation of their use, is
injurious to commerce, and, if permitted at the will of the
sovereign, would be very likely to end in materially crippling, if
not destroying it. The laws of most nations have sedulously guarded
the public use of navigable waters within their limits against
infringement, subjecting it only to such regulation by the state,
in the interest of the public, as is deemed consistent with the
preservation of the public right. "
Page 146 U. S. 459
While the opinion of the New York court contains some
expressions which may required explanation when detached from the
particular facts of that case, the general observations we cite are
just and pertinent.
The soil under navigable waters being held by the people of the
state in trust for the common use and as a portion of their
inherent sovereignty, any act of legislation concerning their use
affects the public welfare. It is therefore appropriately within
the exercise of the police power of the state.
In
Newton v. Commissioners, 100 U.
S. 548, it appeared that by an act passed by the
Legislature of Ohio in 1846, it was provided that upon the
fulfillment of certain conditions by the proprietors or citizens of
the Town of Canfield, the county seat should be permanently
established in that town. Those conditions having been complied
with, the county seat was established therein accordingly. In 1874,
the legislature passed an act for the removal of the county seat to
another town. Certain citizens of Canfield thereupon filed their
bill setting forth the act of 1846 and claiming that the
proceedings constituted an executed contract, and prayed for an
injunction against the contemplated removal. But the court refused
the injunction, holding that there could be no contract and no
irrepealable law upon governmental subjects, observing that
legislative acts concerning public interests are necessarily public
laws; that every succeeding legislature possesses the same
jurisdiction and power as its predecessor; that the latter have the
same power of repeal and modification which the former had of
enactment -- neither more nor less; that all occupy in this respect
a footing of perfect equality; that this is necessarily so in the
nature of things; that it is vital to the public welfare that each
one should be able at all times to do whatever the varying
circumstances and present exigencies attending the subject may
require, and that a different result would be fraught with
evil.
As counsel observe, if this is true doctrine as to the location
of a county seat, it is apparent that it must apply with greater
force to the control of the soils and beds of navigable waters in
the great public harbors held by the people in trust for
Page 146 U. S. 460
their common use and of common right, as an incident to their
sovereignty. The legislature could not give away nor sell the
discretion of its successors in respect to matters, the government
of which, from the very nature of things, must vary with varying
circumstances. The legislation which may be needed one day for the
harbor may be different from the legislation that may be required
at another day. Every legislature must at the time of its existence
exercise the power of the state in the execution of the trust
devolved upon it. We hold, therefore, that any attempted cession of
the ownership and control of the state in and over the submerged
lands in Lake Michigan by the Act of April 16, 1869, was
inoperative to affect, modify, or in any respect to control the
sovereignty and dominion of the state over the lands, or its
ownership thereof, and that any such attempted operation of the act
was annulled by the repealing Act of April 15, 1873, which to that
extent was valid and effective. There can be no irrepealable
contract in a conveyance of property by a grantor in disregard of a
public trust, under which he was bound to hold and manage it.
The legislation of the state in the Lakefront Act, purporting to
grant the fee of the submerged lands mentioned to the railroad
company, was considered by the court below, in view of the
preceding measures taken for the improvement of the harbor, and
because further improvement in the same direction was contemplated,
as a mere license to the company to prosecute such further
improvement as an agency of the state, and that to this end the
state has placed certain of its resources at the command of the
company, with such an enlargement of its powers and privileges as
enabled it to accomplish the objects in view, and the court below,
after observing that the act might be assumed as investing the
railroad company with the power, not given in its original charter,
of erecting and maintaining wharves docks, and piers in the
interest of commerce, and beyond the necessities or legitimate
purposes of its own business as a railroad corporation, added that
it was unable to perceive why it was not competent for the state,
by subsequent legislation, to repeal the act and withdraw the
additional powers of the company, thereby restricting it to the
Page 146 U. S. 461
business for which it was incorporated, and to resume control of
the resources and property which it had placed at the command of
the company for the improvement of the harbor. The court, treating
the act as a license to the company, also observed that it was
deemed best, when that act was passed, for the public interest that
the improvement of the harbor should be effected by the
instrumentality of a railroad corporation interested to some extent
in the accomplishment of that result, and said:
"But if the state subsequently determined, upon consideration of
public policy, that this great work should not be entrusted to any
railroad corporation, and that a corporation should not be the
owner of even a qualified fee in the soil under the navigable
waters of the harbor, no provision of the national or state
constitution forbade the General Assembly of Illinois from giving
effect by legislation to this change of policy. It cannot be
claimed that the repeal of the act of 1869 took from the company a
single right conferred upon it by its original charter. That act
only granted additional powers and privileges, for which the
railroad company paid nothing, although, in consideration of the
grant of such additional powers and privileges, it agreed to pay a
certain percentum of the gross proceeds, receipts, and incomes
which it
might derive either from the lands granted by the
act, or from any improvements erected thereon. But it was not
absolutely bound by anything contained in the act to make use of
the submerged lands for the purposes contemplated by the
legislature -- certainly not within any given time -- and could not
have been called upon to pay such percentum until after the lands
were used and improved, and income derived therefrom. The repeal of
the act relieved the corporation from any obligation to pay the
percentum referred to, because it had the effect to take from it
the property from which alone the contemplated income could be
derived. So that the effect of the act of 1873 was only to remit
the railroad company to the exercise of the powers, privileges, and
franchises granted in its original charter and withdraw from it the
additional powers given by the act of 1869 for the accomplishment
of certain public objects."
If the act in question
Page 146 U. S. 462
be treated as a mere license to the company to make the
improvement in the harbor contemplated as an agency of the state,
then we think the right to cancel the agency and revoke its power
is unquestionable.
It remains to consider the claim of the City of Chicago to
portions of the east waterfront, and how such claim, and the rights
attached to it, are interfered with by the railroad company.
The claim of the city is to the ownership in fee of the streets,
alleys, ways, commons, and other public grounds on the east front
of the city bordering on the lake, as exhibited on the maps showing
the subdivision of fractional sections 10 and 15, prepared under
the supervision and direction of United States officers in the one
case, and by the canal commissioners in the other, and duly
recorded, and the riparian rights attached to such ownership. By a
statute of Illinois, the making, acknowledging, and recording of
the plats operated to vest the title to the streets, alleys, ways,
and commons and other public grounds designated on such plats in
the city, in trust for the public uses to which they were
applicable.
Trustees v. Havens, 11 Ill. 556; Chicago v.
Rumsey, 87 Ill. 354.
Such property, besides other parcels, included the whole of that
portion of fractional section 15 which constitutes Michigan Avenue,
and that part of the fractional section lying east of the west line
of Michigan Avenue, and that portion of fractional section 10
designated on one of the plats as "Public Ground," which was always
to remain open and free from any buildings.
The estate, real and personal, held by the trustees of the Town
of Chicago was vested in the City of Chicago by the Act of March 4,
1837. It followed that when the Lakefront Act of 1869 was passed,
the fee was in the city, subject to the public uses designated, of
all the portions of sections 10 and 15 particularly described in
the decree below. And we agree with the court below that the fee of
the made or reclaimed ground between Randolph Street and Park row,
embracing the ground upon which rest the tracks and the
Page 146 U. S. 463
breakwater of the railroad company south of Randolph Street, was
in the city. The fact that the land which the city had a right to
fill in and appropriate by virtue of its ownership of the grounds
in front of the lake had been filled in by the railroad company in
the construction of the tracks for its railroad and for the
breakwater on the shore west of it did not deprive the City of its
riparian rights. The exercise of those rights was only subject to
the condition of the agreement with the city under which the tracks
and breakwater were constructed by the railroad company, and that
was for a perpetual right of way over the ground for its tracks of
railway, and, necessarily, the continuance of the breakwater as a
protection of its works and the shore from the violence of the
lake. With this reservation of the right of the railroad company to
its use of the tracts of ground reclaimed by it and the continuance
of the breakwater, the city possesses the same right of riparian
ownership, and is at full liberty to exercise it, which it ever
did.
We also agree with the court below that the City of Chicago, as
riparian owner of the grounds on its east or lakefront of the city,
between the north line of Randolph Street and the north line of
block 23, each of the lines being produced to Lake Michigan, and in
virtue of authority conferred by its charter, has the power to
construct and keep in repair on the lakefront, east of said
premises, within the lines mentioned, public landing places,
wharves, docks, and levees, subject, however, in the execution of
that power, to the authority of the state to prescribe the lines
beyond which piers, docks, wharves, and other structures, other
than those erected by the general government, may not be extended
into the navigable waters of the harbor, and to such supervision
and control as the United States may rightfully exercise.
It follows from the views expressed, and it is so declared and
adjudged, that the State of Illinois is the owner in fee of the
submerged lands constituting the bed of Lake Michigan, which the
third section of the Act of April 16, 1869, purported to grant to
the Illinois Central Railroad Company, and that the Act of April
15, 1873, repealing the same, is valid and effective
Page 146 U. S. 464
for the purpose of restoring to the state the same control,
dominion, and ownership of said lands that it had prior to the
passage of the Act of April 16, 1869.
But the decree below, as it respects the pier commenced in 1872,
and the piers completed in 1880 and 1881, marked 1, 2, and 3, near
Chicago River, and the pier and docks between and in front of
Twelfth and Sixteenth Streets, is modified so as to direct the
court below to order such investigation to be made as may enable it
to determine whether those piers erected by the company, by virtue
of its riparian proprietorship of lots formerly constituting part
of section 10, extend into the lake beyond the point of practical
navigability, having reference to the manner in which commerce in
vessels is conducted on the lake, and if it be determined upon such
investigation that said piers, or any of them, do not extend beyond
such point, then that the title and possession of the railroad
company to such piers shall be affirmed by the court; but if it be
ascertained and determined that such piers, or any of them, do
extend beyond such navigable point, then the said court shall
direct the said pier or piers, to the excess ascertained, to be
abated and removed, or that other proceedings relating thereto be
taken on the application of the state as may be authorized by law,
and also to order that similar proceedings be taken to ascertain
and determine whether or not the pier and dock constructed by the
railroad company in front of the shore between Twelfth and
Sixteenth Streets extend beyond the point of navigability, and to
affirm the title and possession of the company if they do not
extend beyond such point, and if they do extend beyond such point,
to order the abatement and removal of the excess, or that other
proceedings relating thereto be taken on application of the state
as may be authorized by law.
Except as modified in the particulars mentioned, the decree
in each of the three cases on appeal must be affirmed, with costs
against the railroad company, and it is so ordered.
THE CHIEF JUSTICE, having been of counsel in the court below,
and MR. JUSTICE BLATCHFORD, being a stockholder in the Illinois
Central Railroad Company, did not take any part in the
consideration or decision of these cases.
[
Footnote 1]
This Court, in its opinion,
infra, 146 U. S. 434,
says of this statement:
"We agree with the court below that, to a clear understanding of
the numerous questions presented in this case, it was necessary to
trace the history of the title to the several parcels of land
claimed by the company. And the court, in its elaborate opinion, 33
F. 130, for that purpose referred to the legislation of the United
States and of the state, and to ordinances of the city and
proceedings thereunder, and stated with great minuteness of detail
every material provision of law and every step taken. We have with
great care gone over the history detailed, and are satisfied with
its entire accuracy. It would therefore serve no useful purpose to
repeat what is, in our opinion, clearly and fully narrated."
After this full endorsement, the Reporter has thought it his
duty to make use of this statement, making such few changes, mostly
verbal, as have been found necessary to adapt it to the issues
settled by the opinion of the Court in this case.
[
Footnote 2]
"An act in relation to a portion of the submerged lands and Lake
Park grounds lying on and adjacent to the shore of Lake Michigan on
the eastern frontage of the City of Chicago."
"SECTION 1.
Be it enacted by the People of the state of
Illinois, represented in the General Assembly, That all right,
title and interest of the state of Illinois in and to so much of
fractional section fifteen (15), township thirty-nine (39), Range
fourteen (14) east of the third (3d) principal meridian, in the
City of Chicago, County of Cook, and State of Illinois, as is
situated east of Michigan Avenue and north of Park Row, and south
of the south line of Monroe Street, and west of a line running
parallel with and four hundred feet east of the west line of said
Michigan Avenue -- being a strip of land four hundred feet in
width, including said avenue along the shore of Lake Michigan, and
partially submerged by the waters of said lake -- are hereby
granted, in fee, to the said City of Chicago, with full power and
authority to sell and convey all of said tract east of said avenue,
leaving said avenue ninety (90) feet in width, in such manner and
upon such terms as the common council of said city may, by
ordinance, provide,
provided that no sale or conveyance of
said property, or any part thereof, shall be valid unless the same
be approved by a vote of not less than three-fourths of all the
aldermen elect."
"§ 2. The proceeds of the sale of any and all of said lands
shall be set aside, and shall constitute a fund, to be designated
as the 'Park Fund' of the said City of Chicago, and said fund shall
be equitably distributed by the common council between the South
Division, the West Division and the North Division of the said city
upon the basis of the assessed value of the taxable real estate of
each of said divisions, and shall be applied to the purchase and
improvement in each of said divisions, or in the vicinity thereof,
of a public park or parks, and for no other purpose
whatsoever."
"§ 3. The right of the Illinois Central Railroad Company,
under the grant from the state in its charter, which said grant
constitutes a part of the consideration for which the said company
pays to the state at least seven per cent of its gross earnings,
and under and by virtue of its appropriation, occupancy, use and
control, and the riparian ownership incident to such grant,
appropriation, occupancy, use and control in and to the lands
submerged or otherwise lying east of the said line running parallel
with and four hundred feet east of the west line of Michigan Avenue
in fractional sections ten (10) and fifteen (15), township and
range as aforesaid, is hereby confirmed, and all the right and
title of the state of Illinois in and to the submerged lands
constituting the bed of Lake Michigan, and lying east of the tracks
and breakwater of the Illinois Central Railroad Company, for the
distance of one mile, and between the south line of the south pier
extended eastwardly and a line extended eastward from the south
line of lot twenty-one, south of and near to the roundhouse and
machine shops of said company, in the South Division of the said
City of Chicago, are hereby granted, in fee, to the said Illinois
Central Railroad Company, its successors and assigns,
provided,
however, that the fee to said lands shall be held by said
company in perpetuity, and that the said company shall not have
power to grant, sell or convey the fee to the same, and that all
gross receipts from use, profits, leases or otherwise of said lands
or the improvements thereon or that may hereafter be made thereon
shall form a part of the gross proceeds, receipts and income of the
said Illinois Central Railroad Company, upon which said company
shall forever pay into the state treasury, semi-annually, the
percentum provided for in its charter, in accordance with the
requirements of said charter,
and provided also that
nothing herein contained shall authorize obstructions to the
Chicago harbor, or impair the public right of navigation, nor shall
this act be construed to exempt the Illinois Central Railroad
Company, its lessees or assigns, from any act of the General
Assembly which may be hereafter passed regulating the rates of
wharfage and dockage to be charged in said harbor,
and provided
further that any of the lands hereby granted to the Illinois
Central Railroad Company, and the improvements now or which may
hereafter be on the same, which shall hereafter be leased by said
Illinois Central Railroad Company to any person or corporation, or
which may hereafter be occupied by any person or corporation other
than said Illinois Central Railroad Company, shall not, during the
continuance of such leasehold estate or of such occupancy, be
exempt from municipal or other taxation."
"§ 4. All the right and title of the state of Illinois in
and to the lands, submerged or otherwise lying north of the south
lice of Monroe Street, and south of the south line of Randolph
Street, and between the east line of Michigan Avenue and the track
and roadway of the Illinois Central Railroad Company, and
constituting parts of fractional sections ten (10) and fifteen (15)
in said township thirty-nine (39), as aforesaid, are hereby granted
in fee to the Illinois Central Railroad Company, the Chicago,
Burlington and Quincy Railroad Company, and the Michigan Central
Railroad Company, their successors and assigns, for the erection
thereon of a passenger depot and for such other purposes as the
business of said company may require,
provided that upon
all gross receipts of the Illinois Central Railroad Company from
leases of its interest in said grounds or improvements thereon or
other uses of the same, the percentum provided for in the charter
of said company shall forever be paid in conformity with the
requirements of said charter."
"§ 5. In consideration of the grant to the said Illinois
Central, Chicago, Burlington and Quincy, and Michigan Central
Railroad Companies of the land as aforesaid, said companies are
hereby required to pay to said City of Chicago the sum of eight
hundred thousand dollars, to be paid in the following manner,
viz.: two hundred thousand dollars within three mouthy
from and after the passage of this act; two hundred thousand
dollar, within six months from and after the passage of this act;
two hundred thousand dollars within nine months from and after the
passage of this act; two hundred thousand dollars within twelve
months from and after the passage of this act; which said sums
shall he placed in the Park Fund of the said City of Chicago and
shall be distributed in like manner as is hereinbefore provided for
the distribution of the other funds which may be obtained by said
city from the sale of the lands conveyed to it by this act."
"§ 6. The Common Council of the said City of Chicago is
hereby authorized and empowered to quitclaim and release to the
said Illinois Central Railroad Company, the Chicago, Burlington and
Quincy Railroad Company, and the Michigan Central Railroad Company
any and all claim and interest in and upon any and all of said land
north of the south line of Monroe Street, as aforesaid, which the
said city may have by virtue of any expenditures and improvements
thereon or otherwise, and in case the said common council shall
neglect or refuse thus to quitclaim and release to the said
companies as aforesaid within four months from and after the
passage of this act, then the said companies shall be discharged
from all obligation to pay the balance remaining unpaid to said
city."
"§ 7. The grants to the Illinois Central Railroad Company
contained in this act are hereby declared to be upon the express
condition that said Illinois Central Railroad Company shall
perpetually pay into the Treasury of the State of Illinois the
percentum on the gross or total proceeds, receipts or income
derived from said road and branches stipulated in its charter, and
also the percentum on the gross receipts of said company reserved
in this act."
"§ 8. This act shall be a public act and in force from and
after its passage."
MR. JUSTICE SHIRAS, with whom concurred MR. JUSTICE GRAY and MR.
JUSTICE BROWN, dissenting.
Page 146 U. S. 465
That the ownership of a state in the lands underlying its
navigable waters is as complete, and its power to make them the
subject of conveyance and grant is as full, as such ownership and
power to grant in the case of the other public lands of the state I
have supposed to be well settled.
Thus, it was said in
Weber v.
Commissioners, 18 Wall. 57,
85 U. S. 65,
that
"upon the admission of California into the union upon equal
footing with the original states, absolute property in, and
dominion and sovereignty over, all soils under the tidewaters
within her limits passed to the state,
with the consequent
right to dispose of the title to any part of said soils in
such manner as she might deem proper, subject only to the paramount
right of navigation over the waters, so far as such navigation
might be required by the necessities of commerce with foreign
nations or among the several states, the regulation of which was
vested in the general government."
In
Hoboken v. Pennsylvania Railroad, 124
U. S. 657 -- a case in many respects like the present --
it was said:
"Lands below high water mark on navigable waters are the
absolute property of the state, subject only to the power conferred
upon Congress to regulate foreign commerce and commerce between the
states, and
they may be granted by the state, either to
the riparian proprietors or to a stranger, as the state may see
fit,"
and accordingly it was held
"that the grant by the State of New Jersey to the United
Companies by the Act of March 31, 1869, was intended to secure, and
does secure to the respective grantees the whole beneficial
interest in their respective properties for their exclusive use for
the purposes expressed in the grants."
In
Stevens v. Paterson & Newark Railroad, 34
N.J.Law 532, it was declared by the Court of Errors and Appeals of
New Jersey that it was competent for the state to grant to a
stranger lands constituting the shore of a navigable river under
tidewater below the tidewater mark, to be occupied and used with
structures and improvements.
Langdon v. New York City, 93 N.Y. 129, 155, was a case
in which it was said by the Court of Appeals of New York:
"From the earliest times in England, the law has vested the
Page 146 U. S. 466
title to and the control over the navigable waters therein in
the Crown and Parliament. A distinction was taken between the mere
ownership of the soil under water and the control over it for
public purposes. The ownership of the soil, analogous to the
ownership of dry land, was regarded as
jus privatum, and
was vested in the Crown. But the right to use and control both the
land and water was deemed a
jus publicum, and was vested
in Parliament. The Crown could convey the soil under water so as to
give private rights therein, but the dominion and control over the
waters, in the interest of commerce and navigation, for the benefit
of all the subjects of the kingdom, could be exercised only by
Parliament. In this country, the state has succeeded to all the
rights of both crown and Parliament in the navigable waters and the
soil under them, and here the
jus privatum and the
jus
publicum are both vested in the state."
These citations might be indefinitely multiplied from
authorities both federal and state.
The State of Illinois, by her information or bill of complaint
in this case, alleges that
"the claims of the defendants are a great and irreparable injury
to the State of Illinois as
a proprietor and owner of the bed
of the lake, throwing doubts and clouds upon its title thereto
and preventing an
advantageous sale or other disposition
thereof,"
and in the prayer for relief, the state asks that
"its title may be established and confirmed, that the claims
made by the railroad company may be declared to be unfounded, and
that the State of Illinois may be declared to have the sole and
exclusive right to develop the harbor of Chicago by the
construction of docks, wharves, etc., and to
dispose of such
rights at its pleasure."
Indeed, the logic of the state's case as well as her pleadings
attributes to the state entire power to hold and dispose of, by
grant or lease, the lands in question, and her case is put upon the
alleged invalidity of the title of the railroad company arising out
of the asserted unconstitutionality of the act of 1869, which act
made the grant, by reason of certain irregularities in its passage
and title, or, that ground failing, upon the right of the state to
arbitrarily revoke the grant, as a
Page 146 U. S. 467
mere license, and which right she claims to have duly exercised
by the passage of the act of 1873.
The opinion of the majority, if I rightly apprehend it, likewise
concedes that a state does possess the power to grant the rights of
property and possession in such lands to private parties, but the
power is stated to be in some way restricted to "small parcels, or
where such parcels can be disposed of without detriment to the
public interests in the lands and waters remaining." But it is
difficult to see how the validity of the exercise of the power, if
the power exists, can depend upon the size of the parcel granted,
or how, if it be possible to imagine that the power is subject to
such a limitation, the present case would be affected, as the grant
in question, though doubtless a large and valuable one, is,
relatively to the remaining soil and waters, if not insignificant,
yet certainly, in view of the purposes to be effected, not
unreasonable. It is matter of common knowledge that a great
railroad system like that of the Illinois Central Railroad Company
requires an extensive and constantly increasing territory for its
terminal facilities.
It would seem to be plain that if the State of Illinois has the
power, by her legislature, to grant private rights and interests in
parcels of soil under her navigable waters, the extent of such a
grant and its effect upon the public interests in the lands and
waters remaining are matters of legislative discretion.
Assuming, then, that the State of Illinois possesses the power
to confer by grant upon the Illinois Central Railroad Company
private rights and property in the lands of the state underlying
the waters of the lake, we come to inquire whether she has
exercised that power by a valid enactment, and if so whether the
grant so made has been legally revoked.
It was contended on behalf of the state that the act of 1869,
purporting to confer upon the railroad company certain rights in
the lands in question, did not really so operate, because the
record of proceedings in the Senate does not show that the bill was
read three times during its passage, and because the title of the
bill does not sufficiently express the purpose of the
Page 146 U. S. 468
bill, both of which are constitutional requisites to valid
legislation.
It is unnecessary to discuss these objections in this opinion,
because the court below held them untenable and because the opinion
of the majority in this Court adopts the reasoning and conclusion
of the court below in this regard.
It was further contended on behalf of the state that even if the
act of 1869 were a valid exercise of legislative power, yet the
grant thereby made did not vest in the railroad company rights and
franchises in the nature of private property, but merely conferred
upon the company certain powers for public purposes, which were
taken and held by the company as an agency of the state and which
accordingly could be recalled by the state whenever, in her wisdom,
she deemed it for the public interest to do so, without thereby
infringing a contract existing between her and the railroad
company.
This is a question that must be decided by the terms of the
grant, read in the light of the nature of the power exercised, of
the character of the railroad company as a corporation created to
carry out public purposes, and of the facts and circumstances
disclosed by the record.
It must be conceded
in limine that in construing this
grant, the state is entitled to the benefit of certain well settled
canons of construction that pertain to grants by the state to
private persons or corporations, as for instance that if there is
any ambiguity or uncertainty in the act, that interpretation must
be put upon it which is most favorable to the state; that the words
of the grant, being attributable to the party procuring the
legislation, are to receive a strict construction as against the
grantee, and that as the state acts for the public good, we should
expect to find the grant consistent with good morals and the
general welfare of the state at large, and of the particular
community to be affected.
These are large concessions, and of course, in order to defeat
the grant, they ought not to be pushed beyond the bounds of reason
so as to result in a strained and improbable construction.
Reasonable effect must be given to the language employed, and the
manifest intent of the enactment must prevail.
Page 146 U. S. 469
By an Act of Congress approved September 20, 1850, 9 Stat. 466,
c. 61, the right of way not exceeding 200 feet in width through the
public lands was granted to the State of Illinois for the
construction of a railroad from the southern terminus of the
Illinois and Michigan Canal in that state (at La Salle) to Cairo at
the confluence of the Ohio and Mississippi Rivers, with a branch
from that line to Chicago, and another, via the City of Galena, to
Dubuque, in the state of Iowa. A grant of public lands was also
made to the state to aid in the construction of the railroad and
branches, which by the terms of the act were to
"be and remain a public highway for the use of the government of
the United States, free from toll or other charge upon the
transportation of any property or troops of the United States."
It was also provided that the United States mail should at all
times be transported on the said railroad, under the direction of
the Post Office Department at such price as the Congress might by
law direct.
This act of Congress was formally accepted by the legislature of
the state February 17, 1851. Laws 1851, pp. 192, 193. Seven days
before the acceptance -- February 10, 1851 -- the Illinois Central
Railroad Company was incorporated for the purpose of constructing,
maintaining, and operating the railroad and branches contemplated
in the act of Congress.
By the second section of its charter, the company was authorized
and empowered
"to survey, locate, construct, complete, alter, maintain, and
operate a railroad, with one or more tracks or lines of rails, from
the southern terminus of the Illinois and Michigan Canal to a point
at the City of Cairo, with a branch of the same to the City of
Chicago, on Lake Michigan, and also a branch via the City of Galena
to a point on the Mississippi River opposite the Town of Dubuque,
in the State of Iowa."
It was provided in the third section that
"the said corporation shall have right of way upon, and may
appropriate to its sole use and control for the purposes
contemplated herein, land not exceeding two hundred feet in width
through its entire length; may enter upon and take possession of
and use, all and
Page 146 U. S. 470
singular, any lands, streams, and materials of every kind, for
the location of depots and stopping stages, for the purpose of
constructing bridges, dams, embankments, excavations, station
grounds, spoil banks, turnouts, engine houses, shops, and other
buildings necessary for the construction, completing, altering,
maintaining, preserving, and complete operation of said road. All
such lands, waters, materials, and privileges belonging to the
state are hereby granted to said corporation for said purposes, but
when owned or belonging to any person, company, or corporation, and
cannot be obtained by voluntary grant or release, the same may be
taken and paid for, if any damages are awarded, in the manner
provided in 'An act to provide for a general system of railroad
incorporations,' approved November 5, 1849, and the final decision
or award shall vest in the corporation hereby created all the
rights, franchises, and immunities in said act contemplated and
provided."
The eighth section had the following provision:
"Nothing in this act contained shall authorize said corporation
to make a location of their track within any city without the
consent of the common council of said city."
By the fifteenth section, the right of way and all the lands
granted to the state by the act of Congress before mentioned, and
also the right of way over and through lands owned by the state,
were ceded and granted to the corporation for the "purpose of
surveying, locating, constructing, completing, altering,
maintaining, and operating said road and branches." There was a
requirement in this section (clause 3) that the railroad should be
built into the City of Chicago.
By the eighteenth section, the company was required, in
consideration of the grants, privileges, and franchises conferred,
to pay into the treasury of the state, on the first Monday of
December and June of each year, five percentum of the gross
receipts of the road and branches for the six months then next
preceding.
The twenty-second section provided for the assessment of an
annual tax for state purposes upon all the property and assets of
the corporation, and if this tax and the five percent charge upon
the gross receipts should not amount to seven percent
Page 146 U. S. 471
of the total proceeds, receipts, or income of the company, it
was required to pay the difference into the state Treasury, "so as
to make the whole amount paid equal at least to seven percent of
the gross receipts of said corporation." Exemption was granted in
that section from "all taxation of every kind, except as herein
provided for."
The Act of November 5, 1849, referred to in the third section of
the charter, provided a mode for condemning land required for
railroad uses, and contained an express provision that upon the
entry of judgment the corporation "shall become seised in fee of
all the lands and real estate described during the continuance of
the corporation." 2 Laws of Illinois, 1849, p. 27.
The consent of the common council to the location of the
railroad within the City of Chicago was given by an ordinance
passed June 14, 1852.
On the 16th of April, 1869, an act was passed by the Legislature
of Illinois entitled
"An act in relation to a portion of the submerged lands and Lake
Park grounds lying on and adjacent to the shore of Lake Michigan,
on the eastern frontage of the City of Chicago."
The third section of this act provided as follows:
"SEC. 3. The right of the Illinois Central Railroad Company,
under the grant from the state in its charter, which said grant
constitutes a part of the consideration for which the said company
pays to the state at least seven percent of its gross earnings, and
under and by virtue of its appropriation, occupancy, use, and
control, and the riparian ownership incident to such grant,
appropriation, occupancy, use, and control, in and to the lands
submerged or otherwise lying east of the said line running parallel
with and four hundred feet east of the west line of Michigan
Avenue, in fractional sections ten (10) and fifteen, (15), township
and range as aforesaid, is hereby confirmed, and all the right and
title of the State of Illinois in and to the submerged lands
constituting the bed of Lake Michigan, and lying east of the tracks
and breakwater of the Illinois Central Railroad Company for the
distance of one mile, and between the south line of the south pier
extended eastwardly and a line extended eastward from the south
line
Page 146 U. S. 472
of lot twenty-one, south of and near to the roundhouse and
machine shops of said company, in the south division of the said
City of Chicago, are hereby granted, in fee, to the said Illinois
Central Railroad Company, its successors and assigns,
provided,
however, that the fee to said lands shall be held by said
company in perpetuity, and that the said company shall not have
power to grant, sell, or convey the fee to the same, and that all
gross receipts from use, profits, leases, or otherwise of said
land, or the improvements thereon, or that may hereafter be made
thereon, shall form a part of the gross proceeds, receipts, and
income of the said Illinois Central Railroad Company, upon which
said company shall forever pay into the state Treasury,
semiannually, the percentum provided for in its charter, in
accordance with the requirements of said charter,
and provided
also that nothing herein contained shall authorize
obstructions to the Chicago harbor, or impair the public right of
navigation, nor shall this act be construed to exempt the Illinois
Central Railroad Company, its lessees or assigns, from any act of
the General Assembly, which may be hereafter passed, regulating the
rates of wharfage and dockage to be charged in said harbor,
and
provided further that any of the lands hereby granted to the
Illinois Central Railroad Company, and the improvements now or
which may hereafter be on the same, which shall hereafter be leased
by said Illinois Central Railroad Company to any person or
corporation, or which may hereafter be occupied by any person or
corporation other than said Illinois Central Railroad Company,
shall not, during the continuance of such leasehold estate or of
such occupancy, be exempt from municipal or other taxation."
Ill.Laws 1869, pp. 245-247.
By this act, the right of the railroad company to all the lands
it had appropriated and occupied, lying east of a line drawn
parallel to and four hundred feet east of the west line of Michigan
Avenue, in fractional sections ten and fifteen, was confirmed, and
a further grant was made to the company of the submerged lands
lying east of its tracks and breakwater, within the distance of one
mile therefrom, between the south line of the south pier extended
eastwardly and a line extended eastward from the south line of lot
twenty-one.
Page 146 U. S. 473
What is the fair and natural import of the language used?
So long as the act stands in force, there seems to me to exist a
contract whereby the Illinois Central Company is to have
and enjoy perpetual possession and control of the lands in
question, with right to improve the same and take the rents,
issues, and profits thereof, provided always that the company shall
not have the power to sell or alien such lands, nor shall the
company be authorized to maintain obstructions to the Chicago
harbor, or to impair the public right of navigation; nor shall the
company, its lessees of assigns, be exempted from any act of the
General Assembly which may be hereafter passed regulating the rates
of wharfage and dockage to be charged in said harbor, and whereby,
in consideration of the grant of these rights and privileges, it
shall be the duty of the company to pay, and the right of the state
to receive, seven percent of the gross receipts of the railroad
company from "use, profits, leases, or otherwise, of said land, or
the improvements thereon, or that may be hereafter made
thereon."
Should the railroad company attempt to disregard the restraint
on alienating the said lands, the state can by judicial proceeding
enjoin such an act or can treat it as a legal ground of forfeiting
the grant, or, if the railroad company fails or refuses to pay the
percentum provided for, the state can enforce such payment by suit
at law, and possibly by proceedings to forfeit the grant. But so
long as the railroad company shall fulfill its part of the
agreement, so long is the State of Illinois inhibited by the
Constitution of the United States from passing any act impairing
the obligation of the contract.
Doubtless there are limitations, both express and implied, on
the title to and control over these lands by the company. As we
have seen, the company is expressly forbidden to obstruct Chicago
harbor, or to impair the public right of navigation. So, from the
nature of the railroad corporation and of its relation to the state
and the public, the improvements put upon these lands by the
company must be consistent with their duties as common carriers,
and must be calculated to
Page 146 U. S. 474
promote the efficiency of the railroad in the receipt and
shipment of freight from and by the lake. But these are incidents
of the grant, and do not operate to defeat it.
To prevent misapprehension, it many be well to say that it is
not pretended, in this view of the case, that the state can part,
or has parted, by contract, with her sovereign powers. The railroad
company takes and holds these lands subject at all times to the
same sovereign powers in the state as obtain in the case of other
owners of property. Nor can the grant in this case be regarded as
in any way hostile to the powers of the general government in the
control of harbors and navigable waters.
The able and interesting statement, in the opinion of the
majority, of the rights of the public in the navigable waters and
of the limitation of the powers of the state to part with its
control over them, is not dissented from. But its pertinency in the
present discussion is not clearly seen. It will be time enough to
invoke the doctrine of the inviolability of public rights when and
if the railroad company shall attempt to disregard them.
Should the State of Illinois see in the great and unforeseen
growth of the City of Chicago and of the lake commerce reason to
doubt the prudence of her legislature in entering into the contract
created by the passage and acceptance of the act of 1869, she can
take the rights and property of the railroad company in these lands
by a constitutional condemnation of them. So, freed from the
shackles of an undesirable contract, she can make, as she expresses
in her bill a desire to do, a "more advantageous sale or
disposition to other parties," without offense to the law of the
land.
The doctrine that a state, by making a grant to a corporation of
her own creation, subjects herself to the restraints of law
judicially interpreted has been impugned by able political thinkers
who may perhaps find in the decision of the Court in the present
case some countenance of their views. But I am unable to suppose
that there is any intention on the part of this Court to depart
from its doctrine so often expressed.
Page 146 U. S. 475
"We have no knowledge of any authority or principle which could
support the doctrine that a legislative grant is revocable in its
own nature, and held only
durante bene placito. Such a
doctrine . . . is utterly inconsistent with a great and fundamental
principle of a republican government -- the right of the citizens
to the free enjoyment of their property legally acquired."
"A private corporation created by the legislature may lose its
franchises by a
misuser or
nonuser of them, and
they may be resumed by the government under a judicial judgment
upon a
quo warranto to ascertain and enforce the
forfeiture. . . . But that the legislature can repeal statutes
creating private corporations or confirming to them property
already acquired under the faith of previous laws, and by such
repeal can vest the property of such corporations exclusively in
the state or dispose of the same to such purposes as they may
please, without the consent or default of the corporators, we are
not prepared to admit, and we think ourselves standing upon the
principles of natural justice, upon the fundamental laws of every
free government, upon the spirit and the letter of the Constitution
of the United States, and upon the decisions of most respectable
judicial tribunals, in resisting such a doctrine."
Terrett v.
Taylor, 9 Cranch 43.
In
Stone v. Mississippi, 101 U.
S. 814, Chief Justice Waite, in delivering the opinion
of the Court, said:
"It is now too late to contend that any contract which a state
actually enters into when granting a charter to a private
corporation is not within the protection of the clause in the
Constitution of the United States that prohibits states from
passing laws impairing the obligation of contracts. The doctrines
of
Trustees of Dartmouth College v.
Woodward, 4 Wheat. 518, announced by this Court
more than sixty years ago, have become so imbedded in the
jurisprudence of the United States as to make them, to all intents
and purposes, a part of the Constitution itself."
The obvious conclusion from the foregoing view of the case is
that the act of 1873, as an arbitrary act of revocation, not passed
in the exercise of any reserved power, is void; that the
Page 146 U. S. 476
decree of the court below should be reversed, and that that
court should be directed to enter a decree dismissing the bill of
the State of Illinois and the cross-bill of the City of
Chicago.
I am authorized to state that MR. JUSTICE GRAY and MR. JUSTICE
BROWN concur in this dissent.
