The first of the above-named causes is a suit in equity in the name of the people of the state of Illinois against the Illinois Central Railroad Company, the city of Chicago, and the United States of America. It was commenced in the circuit court of Cook county, Illinois, and subsequently, on the petition of the railroad company, was removed into this court. A motion-to remand the cause was denied, upon grounds indicated in State v. Railroad Co., 16 Fed. Rep. 881. The railroad company and the city filed answers, and the latter also filed a cross-bill for affirmative relief against the state and its co-defendants. To that cross-bill the company filed an answer, as did also the attorney general of Illinois in behalf of the state. The United States has not appeared, either in the original or cross suit. This cause may be regarded as under submission for final decree as between the state, the railroad company, and the city in the original suit; also as between the city and the railroad company in the cross-suit. Notwithstanding the appearance in the cross-suit of the attorney general of Illinois in behalf of the state, some question is made as to the jurisdiction of the court to give to the city any affirmative relief against the state. But that question need not be decided, since all the issues between the state and the city can be finally determined in the original suit brought by the state. The last named of the causes is an information in equity by the United States against the Illinois Central '"-iVoad Comuany, the Michigan Central Railroad Company, the Chicago, Burimgxui* dz; Q.uiney Railroad Company, the Baltimore & Ohio Railroad Company, ana the city of Chicago.
The genera] object of these suits is to obtain a judicial determination of the rights of the parties in respect to certain lands on the east or Jake front of the city of Chicago, south of Chicago river, upon some of which are tracks, depots, warehouses, piers, and other structures erected by the Illinois Central 'Railroad Company; and also in respect to the submerged lands within the limits of the city of Chicago, and of the slate of Illinois, “constituting the bed of Lake Michigan, and lying east of the tracks and breakwater” of that company, “for the distance of one mile, and between the south line of the south pier [near Chicago river] extended eastwardly, and a line extended eastward from the south line of lot 21, south of and near the round-house and machine-shops of said company.” The cases, besides, involve an inquiry as to the right of the railroad company, for the promotion as well of its own business as of commerce and navigation generally, to erect and maintain wharves, piers, and docks in the harbor of Chicago. Some of these lands were formerly a part of what was known as “Fort Dearborn Military Post,” or the S. W. i of fractional section 10, near the mouth of Chicago river; others, a part of fractional section 15; while others arc in section 22,—all of,said sections being in township 39 N., range 14 JB. of the third P. M., and on the shore of Lake Michigan, in the order named. It-is necessary to a clear understanding of the numerous questions presented for determination that wo 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.
1. vis to the Lands Embraced in the Fort Dearborn Reservation. In the year 1804, the United States established the military post of Fort Dearborn, immediately south of Chicago river, and near its mouth, upon the S. W. fractional I 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 lie 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 sité or sites, shall thereafter cease.” 3 St. 520. In 1824, upon the written request of the secretary of war, the S. W. \ 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 salo, and for military purposes. Wilcox v. Jackson, 13 Pet. 499, 452. 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
The lots designated on this plat were sold and conveyed by the United States to different purchasers. The sale and conveyance (to use the words of the information filed by the United States) was “by and according to the said plat, and with reference to the same.” But it should be stated that at the time of the first sales, the United States expressly reserved from sale all of the Fort Dearborn addition (including the ground marked for streets) north of the south line of lot 8 in block 2, lots 4 and
2. As to the Lands in Controversy Embraced in Fractional Section 15.' This section is on the lake shore, 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 qr way-ground 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. Laws Ill. 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
“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 tovm lots.
“Sec. 33. And the said board of canal commissioners shall, on the 20th day of June next, proceed to sell the lots in the town of Chicago, and such parts of the lots in the town of Ottowa, 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. * * *” Laws Ill. 1836, p. 149.
. 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. Laws Ill. 1836, p. 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. A .map (the official certificates as they appear on the original map as recorded being in the margin1) is reproduced as “Map B.”
It is proper to say that upon some of the maps in evidence, and duly certified, the words “Michigan Avenue” are nearer to the shore-line than they appear to be on may B. This fact tends to show that the entire space between the shore-line and the lots into which fractional section 15 was subdivided was originally intended as an avenue,-or public grounds or commons. At the time this map was made and recorded, fractional
This brings us, in the chronological order of events relating to this litigation, to the incorporation of the Illinois Central Railroad Company, and the location of its road within the limits of the city of Chicago. Congress having, by an act approved September 20,1850, (9 St. 466, c. 61,) made a grant of land to Illinois for the purpose of aiding 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 branches to Chicago and Dubuque, the Illinois Central railroad Company was incorporated February 10, 1851, and made the agent of the state to construct that road. Priv. Laws Ill. 1851, p. 61. It was granted power by its charter “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,
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 Port Dearborn addition in said city; upon which said grounds shall be located the depot of said railroad within the city, and such other buildings, 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 lino 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 par
At the time tills 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 wiihiu the distance of one mile thereof into the lake, and the Chicago river and its branches to their respective sources.” Laws 111. 2d Sess. 1849 and 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 steam-boats, 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, steam-boat, 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 he, 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.” Id.
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 shore-line, 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 1121 feet. Since that time the space between the shore-line 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 lino 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.
“ An act in relation to a portion of the submerged lands and Luke Park grounds, lying on and adjacent to the shore of Lake Michigan, on the easlern frontage of ihe city of Chicago.
“Section 1. Re it enacted by the people of the state of Illinois, represented in tiie general assembly, that all right, title, and interest of the state of Illinois in and to so much of fractional section 15, township thirty-nine, range fourteen east of the third 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,—aro 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 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.
“8ec. 2. The proceeds of the sale of any and ail of said lands shall be set asitie, 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.
“Sec. 6. The right of the Illinois Central Railroad Companyunder the grant from the state in its charter, which said grant constitutes apart 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 400 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 IllinoisPage 746in 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 round-house 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 per centum 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 aud 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 alny 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.
“Sec. 4. All the right and title of the state of Illinois in and to the lands, submerged or otherwise, lying north of the south line 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 and fifteen in said township thirty-nine, as aforesaid, are hereby gianted 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 per centum provided for in the charter of said company shall forever be paid in conformity with the requirements of said charter.
“Sec. 5. In consideration of the grant to the said Illinois Central, Chicago, Burlington and Quincy, and Michigan Central Railroad Companies of this land as aforesaid, said companies are hereby required to pay to said city of Chicago the sum of eight hundred thousand dollars, to ba paid in the following manner, viz.: Two hundred thousand dollars within three months from and after the passage of this act; two hundred thousand dollars 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 be 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.
“Sec. 6. The common council of the said city of Chicago is hereby authorized and empowered to quitclaim and release to the said Illinois Central RailPage 747road Company, the Chicago, Burlington and Quincy Railroad Company, and the Michigan Central Railroad Company any all claim and interest in and upon any and all oí said land north oí 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 ease 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.
“Sec. 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 per centum on the gross or total proceeds, receipts, or income derived from said road and branches stipulated in its charter, and also the per centum on the gross receipts of said company reserved in this act.
“Sec. 8. This act shall bo a public act, and in force from and after its passage.
“Passed, over veto, -16th April, 1869.”
As early as May, 1869, the railroad company caused to be prepared a plan for an outer harbor at Chicago. On the 12th of July of the same year the Illinois Central Railroad Company, tlie Michigan Central Railroad Company, and the Chicago, Burlington & Quincy Railroad Coim pany, 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 bo thereby waived, or its interest in any manner prejudiced, and placed the money in bank oil 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 18, 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 Ms 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 I he railroad companies, he returned it to them. No other money than the §200,000 delivered to Kimball was over 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 tlie 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 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.”
Following these transactions were certain proceedings, commenced about July 1, 1871, by information filed in this court 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 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
The state, in.the original suit, asks a decree establishing and confirming her title to the bed of Lake Michigan, and her 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 dot 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, wharv.es,-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 Randolph street and fractional section 15; 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 relief sought by the United States is a decree declaring the ultimate title and property in the “Public Ground” shown on the plat of the Fort' Dearborn addition, south of Randolph street, and also in' the open space shown on the plat of Fractional Section 15 addition, to be in the United States, with the right of supervision and control over the harbor and navigable waters aforesaid; that the railroad companies and the city be enjoined from exercising any right, power, or control over said grounds, or over the waters or shores of the lake; that the Illinois Central Railroad Company be restrained from making or constructing any piers, wharves, or docks, and from driving piles, building walls, or- filling, with earth or other materials, in the said lake,' or from using any made-ground, or any piers, wharves, or other constructions made
In disposing of the questions discussed by counsel, it will be convenient to consider first those relating to the lands or grounds embraced in the Fort Dearborn addition to Chicago. It it apparent, from the facts stated,, that whatever title the Illinois Central Railroad Company has to the water lots in that addition, between Randolph street and the Chicago river, is derived, as to some of them, directly, and, as to others, remotely, from the United States. It is, however, insisted, in behalf of the United States, that the subdivision and platting of Fort Dearborn reservation into blocks, lots, streets, and public grounds by Birchard was unauthorized by the act of 1819, under which alone he proceeded, or could have proceeded. The point made is that upon the secretary of war was conferred the power to dispose of military sites found to be useless, and that such power could not be delegated to or exercised by an agent, although specially appointed by him for that purpose. In this view the court does not concur. The. direction in the act was that the secretary “cause to be sold” such military sites as were useless,— language implying that he might discharge the duty imposed by congress through the, agency of some one representing him. It certainly could not have been expected that he would visit Chicago, and personally superintend the sale. The plat shows upon its face, and the United States admits in their information, that Birchard acted in the premises for the secretary of war; and only as his agent. It further appears that he acted under a power of attorney executed under the direction of the president.
But it is contended that the power to cause these lands to be sold did not authorize the secretary to dedicate a part of it to the public as streets and public grounds. And, in this connection, the district attorney maintains that the subdivision and platting by Birchard was not in conformity with the Illinois statute of February 27, 1833, for the recording of town plats. By the fifth section,of that act, the plat or map, when made out and certified, acknowledged, and recorded, as required by the statute, was to be deemed, as to every donation or grant to the public.therein specified, a sufficient conveyance to vest in the city the fee-simple of the lands so designated, and operated as a general warranty. It also declared that “the land intended to be for streets, alleys, ways, commons, or other public uses, in any town or city, or addition thereto, shall be held in the corporate name thereof, in trust to and for the uses and purposes set forth and expressed or intended.” It is contended that the dedication of the streets and the public grounds south of Randolph street, on the lake shore, did not conform to the statute, and was, at most, a dedication at common law> in which event, it is insisted, the
What has been said is sufficient to shoAV that the United States have long since parted with all jurisdiction over or title to the lands embraced
What rights did the railroad company have in virtue of such ownership? There can be no doubt that, upon her admission into the Union, the state of Illinois became the owner of, and acquired jurisdiction over, all the lands within her boundaries covered by the waters of Lake Michigan, subject only to such supervision and control of the use of such waters as might result from the exercise by congress of its powers to regulate commerce with foreign nations and among the several states. Pollard's Lessee v. Hagan, 3 How. 212; Martin v. Waddell, 16 Pet. 867; Den v. Jersey Co., 15 How. 426; Mumford v. Wardell, 6 Wall. 436; Weber v. Harbor Com'rs, 18 Wall. 57; County of St. Clair v. Livingston, 23 Wall. 68; Barney v. Keokuk, 94 U. S. 339; Van Brocklin v. State of Tennessee, 117 U. S. 151, 167,468, 6 Sup. Ct. Rep. 670. Upon this ground both the state and the railroad company rest their respective claims. But it is insisted, and we think rightly, that, in the absence of any legislative or governmental direction as to the manner of the occupancy of the bod of the lake within the state, the railroad company, as the riparian owner of the water lots north of Randolph street, had the right, in virtue of such ownership, and as part of its purchase of such lots, to connect the shore-line by artificial constructions with outside waters that were navigable In fact; although the exercise of that right is at all times subject to to such regulations—at least, those not amounting to prohibition—as the state may establish. These principles find support in numerous cases. Dutton v. Strong, 1 Black, 24; Railroad Co. v. Schurmier, 7 Wall. 272: Yates v. Milwaukee, 10 Wall. 497; Weber v. Harbor Com'rs, 18 Wall. 57; Atler v. Packet Co., 21 Wall 389; Delaplaine v. Railway Co., 42 Wis. 214; 1 Dill. Mun. Corp. §§ 70-77. In Fates v. Milwaukee, one of the questions was as to the rights of riparian owners of lots on Milwaukee river, near Lake Michigan, within the city of Milwaukee, with respect to wharves, piers, and other structures affecting the navigation of that river. The court said: “But, whether the title of the owner of such a lot extends beyond the dryland or not, he is certainly entitled to the rights of a riparian proprietor whose land is bounded by a navigable stream; and among those rights are access to the navigable part of the river from the front of his lot, the right to make a landing, wharf, or pier for his own use, or for the use of the public, subject to such general rules and regulations as the legislature may see proper to interpose for the protection of the rights of the public, whatever those may be.” Again: “This riparian right is property, and is valuable; and, though it must be enjoyed in due subjection to the rights of the public, it cannot be arbitrarily or capriciously destroyed or impaired. It is a right of which, when once vested, the owner can only be deprived in accordance with established law, and, if necessary that it be taken for the public good, upon due compensation.” It is difficult to perceive any reason why these doctrines are not applicable to the Great Lakes of our country. It was in the exercise of these
In respect to the company’s right of way from Randolph street to the north line of block 28, the triangular pieces of ground south of Randolph street, and the structures erected by the company south of Park row, but little need be said, in view of the conclusions already announced by the court. The right of way was located in the open waters of the lake. The state consented, in the charter of the company, that the bed of tho lake might be used by the company for a right of way; provided the city assented to tho location of the tracks within its limits. The city gave its consent by the ordinance of 1852. Nothing more is requisite to show tlmt tho tracks of the company wrere legally located on the line designated for a right of way. The use of such ground, in perpetuity, as a right of way simply, does not violate any right of the state, of the city, or of the United States. Upon the same grounds,—the power given to the company in its charter to enter upon and use any land or waters belonging to the state for a right of way of a prescribed width, and for the location of depots, and for the purpose of constructing station grounds, turnouts, buildings, etc., necessary to the complete operation of its road, and the consent of tho city, as manifested in the ordinances of 1855 and 1856,—the occupancy of the two triangular pieces of ground south of Randolph street for the purposes of right of way must bo sustained as legal. It would be waste of time to set out the evidence showing that these two pieces of ground are essential to the operation of tho road. Without them, as tho ordinances of 1855 and 1856 upon their face indicate, the trains of tho company could not. conveniently approach its passenger depot, freight-yards, and piers.
What has been said upon this branch of tho case is decisive of tho question before the court in respect to the structures erected by the railroad company south of Park row and north of Sixteenth street. The company is shown to be the owner of all the water lots in front of which such structures have been made. The breakwater there constructed was, according to tho evidence, necessary to protect the railroad from the'waters of the lake; the old breakwater having become insufficient, under the ordinance of 1852, which, it must be remembered, required tho shore to be protected by a continuous stone wall or structure of stone masonry, pier-work, or other material, outside of the track of the road, as might be “expedient,” and as would be of tho strength and magnitude requisite
The questions next to be examined relate to the subdivision, in 1836, of fractional section 15 by'the canal commissioners. We have seen that the canal commissioners had express legislative authority to make the subdivision, and to sell and convey the lots embraced in it. It was made in conformity, in all material respects, with the Illinois statute of 1833. That is substantially conceded on all hands. ,As the plat or map of the subdivision was made out, certified, acknowledged, and recorded as required by that act, the fee-simple to the streets, alleys, ways, commons, or other public grounds vested by force of the statute, and without a formal conveyance, in the town of Chicago, in trust for the public uses affixed to them. Section 5; Canal Trustees v. Havens, 11 Ill. 556; Gebhart v. Reeves, 75 Ill. 304; City of Chicago v. Rumsey, 87 Ill. 354; Zinc Co. v. City of La Salle, 117 Ill. 411, 8 N. E. Rep. 81. And to the estate, real and personal, vested in, or belonging to, or held in trust by, the trustees of the town, the city of Chicago succeeded, under the act of March 4, 1837. So that, when the Lake Front act of 1869 was passed, the fee was in the city of Chicago, subject to the public uses indicated, of all the then open ground south of the middle line of Madison street, and north of Park row, and east of the west line of Michigan avenue. And so, also, is the fee in the city of the made or reclaimed ground between Randolph street and Park row, including the ground upon which rest the tracks and breakwater constructed by the railroad company south of Randolph street. The grant to the city of power to establish “wharves and slips at the ends of
This brings ns to the consideration of numerous questions arising out of the Lake Front act of 1869. If that act contained no other provisions than those relating to tins express grant to the Illinois Central Railroad Company of the submerged lands described in section 3, the first and principal question to be determined would be as to the validity of the repealing aet of 1873. But, as will be seen, the former act did something more than grant the right and title of the state in the submerged lands constituting the bed of the lake within certain limits. It confirmed, by the third section, certain rights which the railroad company had previously acquired in other lands. As, in our judgment, the repeal of 1873, for
The constitution of that state, adopted in 1848, and 'in force in 18.69, contained these provisions: “Each house shall keep a journal of its proceedings. The yeas and nays of the members on any question shall, at the desire of any two of them, be entered, on the journals.” Art. 3, § 13. “Bills may originate in either house, but may be altered, amended, or rejected by the other; and on the final passage of all bills the vote shall be by ayes and noes, and shall be entered on the journal; and no bill shall become a law without the concurrence of a majority of all the members in each house.” Id. § 21. “Every bill shall be read on three different days in each house, unless, in case of urgency, three-fourths of the house where such bill is so depending shall deem it expedient to dispense with this rule; and every bill, having passed both houses, shall be signed by the speakers of their respective houses; and no private or local law which may be passed by the general assembly shall embrace more than one subject, and that shall be expressed in the title.” Id. § 23. It is contended that the general assembly, in passing the Lake Front act, did not meet these requirements, and consequently that the act never became a law. The claim is that the bill was not read on three different days in each house, and that its subject is not expressed in the title. The facts upon which this claim rests will now be stated.
On the 13th of January, 1869, a bill was introduced into the house entitled “An act to enable the city of Chicago to enlarge its harbor, and to grant and to cede all the rights, title, and interest of the state in and to certain lands of the state, lying on and adjacent to the shore of Lake Michigan.bn the eastern frontage of said city.” This bill expressesadesire that the harbor be enlarged, and commerce and navigation on the lake promoted, by the construction of docks, piers, breakwaters, and other works, according to such plans as might be made by the secretary of war. To that end it granted and ceded to the city all the right, title, and interest of the state in and to the submerged lands constituting the bottom of Lake Michigan, lying on the eastern front of the city, for the space of one league eastwardly from the shore-line; such grant and cession being upon the express condition that the city should not, on any account, alien, sell, or convey the said lands, but hold them in trust forever for the uses and purposes above stated; with the juivilege, however, of leasing the same for a period not exceeding 99 years at any one time, upon the same terms as the school lands belonging to the city. The Dili also granted and ceded to the city all the right, title, and interest of the state in and to the lands and grounds between the east line of Michigan
The earliest caso in the supreme court of Illinois upon this general, subject to which our attention has been called is Spangler v. Jacoby, 14 Ill. 297. The court there said: “ In our opinion, it is clearly competent to show from the journals of either branch of the legislature that a particular act was not passed in the mode prescribed by the constitution, and thus defeat its operation. The constitution requires each house to keep a journal, and declared that certain facts made essential to the passage of a law shall be stated therein. If those facts are not set forth, the conclusion is that they did not transpire. The journal is made up under the immediate direction of the house, and is presumed to contain a full and complete history of its proceedings. If a certain act receive the
The next inquiry, under this head, is whether the act of 1869 is a private or local law; if so, whether the title sufficiently expresses the subject thereof. I n entering upon this inquiry, we lay out of view the eighth section of the act declaring it to be a public act; for the mere declaration of the legislature that it was a public act would not make it such, or preclude the, determination of its character by the courts. Railroad Co. v. Gregory, 35 Ill. 28. On behalf of the railroad company, it is contended that the word “private” is used as contradistinguished from “public,” and “local” as contradistinguished from “'general;” that the act in question is both public and general, because it concerns the interests of the public at large, contains a grant of the public domain of the state, provides for a revenue to bo applied for state purposes only, and has in view the improvement of a harbor, in which object as well the people of Chicago as of the entire country and of foreign countries are interested. We recognize the force of this argument. But, if it be sound, it would follow that every act, or at least the great body of acts, referring in any way to municipal corporations, and to railroads constructed and maintained un
The rules to guide us in solving the question whether the subject of an act is sufficiently expressed seem to bo well established by numerous decisions of the supreme court, of Illinois. In Railroad Co. v. Gregory, 15 Ill. 20, it was said that the provision of the constitution must receive “a fair and reasonable construction,—one which will repress the evil designed to be guarded against, but which at the same time will not render it oppressive or impracticable.” In City of Ottawa v. People, 48 Ill. 233, that, while the subject must he expressed, “the adjuncts to that subject, or the modus operctndi, need not be.” In Binz v. Weber, 81 Ill. 288, that the question whether an act contains more than one subject is to be determined by the controlling purpose of the law; not by the various provisions made for carrying that purpose into effect. In Johnson v. People, 83 Ill. 431, that the constitution “does not require that the subject of the bill must be specifically and exactly expressed in the bill; hence we conclude that any expression in the title which calls attention to the subject of a bill, although in general terms, is all that is required.” In Blake v. People, 109 Ill. 504, that the clause of the constitution under consideration has uniformly been “construed liberally in favor of the validity of enactments; and the fact that many things of a diverso nature arc authorized or required to be done is unimportant, provided the doing of them may fairly bo regarded as in furtherance of the general subject of the enactment.” And in Mix v. Railroad Co., 116 Ill. 502, 6 N. E. Rep. 42, that “it is sufficient, that the act is fairly covered by its title. The constitution does not require that all the legal effects of an act, such as repeals by implication, should bo expressly slated in the title. Such a thing would be utterly impracticable. The general rule is illustrated in numerous cases in the state court, to some of which it will be well to refer. In Railroad Co. v. Gregory, 15 Ill. 20, “An act to incorporate the Belleville and Illinoistown Railroad Company” was held to contain hut one subject, although one of its provisions conferred upon a named city and county authority to subscribo to the stock of the company, and although another section authorized the company to unite with any other railroad then or thereafter to be constructed in the state. Bo was “An act to incorporate the Eiremen’s Benevolent Association, and for other purposes,’’which contained a provision requiring the agents of all foreign insurance companies doing business in Chicago to pay to the association 2 per cent, on the amount of all premiums received by sueb agents. Association v. Lounsbury, 21 Ill. 511. In O’Leary v. County of Cook, 28 Ill. 534, “An act to amend an act entitled ‘An act to incorporate the Northwestern University,’” which contained a prohibition upon the sale of ardent sprits within a distance of four miles of the university,
Applying these principles to the act of 1869, we are satisfied that it embraces one subject only, namely, the disposal of lands or grounds lying on and adjacent to the shore of Lake Michigan on the east front of the city of Chicago. Every clause and section of the act relate to that general subject. The title gives notice that the act relates.to that subject, and therefore was information to all that the act was to deal with it. What disposition was to be made of the lands and grounds referred to in the title appears from the body of the act.
It is insisted, however, that the effect of the act is, by implication, to enlarge the corporate powers of the Illinois Central Railroad Company, Dy permitting it to become, for all practical purposes, a wharf 'or dock
Some doubt arose, on the argument, as to whether the first part of section 8, and sections 4, 5 and 6, did not embrace subjects that were unexpressed in the title. Tlio title refers “to submerged lands and Lake Park grounds.” The railroad company in. 1869 occupied, used, and controlled grounds north of Randolph street, which never constituted part of Lake Park grounds, nor wore they at that time submerged lands. And the same observation may he made as to the “public grounds” on the shore, east of Michigan avenue, and between Madison and Randolph streets. Hence it was argued that the above sections embraced subjects —that is, lands not submerged, nor part of Lake Park grounds'—which are unexpressed in the title. On the other hand, it may be fairly, and we think properly, contended that the general subject, expressed in the title, is lands or grounds “lying on and adjacent to the shore of the lake, on the eastern frontage of the city of Chicago;” that all the lands or grounds described in the body of the act, whether submerged or not, are covered by that description; that the legislature, in referring to submerged lands, may have intended to describe them as they were when fractional sections 10 and 15 were subdivided and platted; and that to limit the general description by a literal interpretation of the words “submerged lands and Lake Park grounds” is inconsistent with the liberal construction which the supreme court of the state has always given to the constitutional provision in question. What -was said by the supreme court of the United States in Montclair v. Ramsdell, 107 U. S. 147, 2 Sup. Ct. Rep. 391, may bo here repeated, namely: That “the objection should be grave, and the conflict between the statute and the constitution palpable, before the judiciary should disregard a legislative enactment upon the sole ground that it embraced more than one object, or, if but one object, that it was not sufficiently expressed by the title.”
It is also contended that no act could, under the constitution, become a law, unless it bore, during the whole period of its pendency in and passage through each, branch of the legislature, an appropriate title; that is, a title which sufficiently expressed the subject of the act. It will be remembered that the bill, when first introduced, bore the title of “An act to enable the city of Chicago to enlarge its harbor, and to grant and to cede all the rights, title, and interest of the state in and to certain lands lying on and adjacent to Ihe shore of Lake Michigan on the eastern frontage of said city.” According to the house journal, the bill, after the second reading, was referred lo a committee, which subsequently reported
Another objection to the act of 1869, based upon the local law, rests upon sections ! and 2 of article 11 of the constitution of Illinois, adopted in 1870, which provide:
“Section 1. No corporation shall bo created by special laws, or its charter extended, changed, or amended, except those for charitable, educational, penal, or reformatory purposes, which are to be and remain under the patronage and control of the state; but the general assembly shall provide, by general laws, for the organization of all corporations hereafter to be created.
“8ee. 2. All existing charters or grants of special or exclusive privileges under which organization shall not have taken place, or which shall not have been in operation within ten days from the time this constitution takes effect, shall thereafter have no validity or effect whatever. ”
Those sections of the constitution took effect August 8, 1870. It is contended that neither at that time, nor within ten days thereafter, was there a valid or binding acceptance by the railroad company of the provisions of the act of 1869; consequently, it is argued, the act Jell, so far as it gave the company the right to hold property which it was not previously entitled to hold for the purposes specified in its charter, and so far as it enlarged its corporate powers. The constitutional provisions just cited have, no bearing upon the present caso. The act of 1869 is not a “grant oí special or exclusive privileges,” within the meaning of those provisions. It. is a grant of lands to a railroad corporation, to be used, part of them as passenger depot grounds, and part of them for the purpose of improving a harbor, and thereby promoting commerce and na vigation upon public navigable waters. That the act had the effect to increase the corporate powers of an existing corporation, and enable it to engage in business not embraced in its original charter, does not bring the act within the operation of section 2 of article 11. Section 2 is to be interpreted in connection with section 1; and, so interpreted, it is clear that the framers of the constitution intended to strike down all corporations then existing which, within 10 days after that instrument took effect, were still unorganized, or were not in operation as corporations. There was no purpose to take away any additional special or exclusive privileges granted to corporations, organized and in actual operation, as was the Illinois Central Railroad Company, at the time the constitution
An argument much pressed in behalf of the state and the city is that a mere legislative grant of lands cannot be made effectual for any purpose; since by section '25, art. 4, Const. 1848, “all grants and commissions shall be sealed with the great seal of the state, signed by the governor, or person administering the government, and countersigned by the secretary of state. ” The contention is that the issuing of a completed patent was necessary to vest the title; and whether it should issue even after the legislature had expressed the intention of parting with the state’s title was, under the constitution, for the governor to determine; and that until that determination was evidenced by a'grant signed by him, or by the person administering the government, and sealed with the great seal of the state, no title passed. A similar question arose in Rutherford v. Greene’s Heirs, 2 Wheat. 196, 199. In 1780, the state of North Carolina passed an act reserving a certain tract of country for the officers and soldiers of the line of that state. In 1782, another act was passed for the relief of the officers and soldiers of the Continental line, the tenth section of which allotted and gave 25,000 acres of land to Maj. Gen. Nathaniel. Greene, his heirs and assigns, within the bounds reserved for the use of the army, to be laid off by commissioners, as a mark of the high sense which North Carolina entertained “of the extraordinary services of that brave and gallant officer.” In opposition to the title of Greene’s heirs, it was contended that the legislative enactment was ineffectual as a grant, under the provision of the constitution of that state which declared “that there shall be a seal of this state, which shall be kept by the governor, and used by him as occasion may require; and shall be called the ‘ Great Seal of the State of North Carolina, ’ and be affixed to all grants and commissions.” Chief Justice Marshall, speaking for the whole court, said: “This legislative act, it is said, cannot amount to a grant, since it wants a formality required by the constitution. This provision is so obviously intended for the completion and authentication of an instrument attesting a title previously created by law—which instrument is obviously the mere evidence of prior legal appropriation, and not the act of original appropriation itself—that the court would certainly have thought it unnecessary to advert to it had not the argument been urged repeatedly, and with much earnestness, by counsel of the highest respectability.” The court held that the act of the legislature vested a title in Gen. Greene to 25,000 acres; and that the survey thereof, made pursuant to the statute, gave precision to that title, and attached it to the land. This case was referred to with approval in Fremont v. U. S., 17 How. 542, 559. We are of opinion that whatever may be the scope of the provision of the state constitution declaring that all “grants” shall be sealed with the great seal of the state, and signed by the governor, or the person administering the government, it was not 'intended to withhold from the legislature the power, by statute, to pass a complete legal title to lands belonging to the state.
Proceeding, then, to the examination of questions involving the construction of the Lake Front act of 1869, and the effect of the repealing act of 1873, we observe that the third section of tho act of 1869 confirm “tho right of the Illinois Central 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 to such grant, appropriation, occupancy, use, and control in and to the lands, submerged or otherwise, lying east of tho said line, running parallel with and 400 feet east of tho west line of Michigan avenue in fractional sections 10 and 15.” This confirmation covers all that was done by the railroad company prior to April 16,1869, in the way of filling in the lake, and constructing wharves, slips, piers, tracks, warehouses, etc., between Chicago river and the north line of Randolph street. It also covers the occupancy and use by it for way-ground of t-lie two triangular pieces of ground immediately south of Randolph street. We have already expressed the opinion that what was done in these respects by the railroad company was to be justified by its riparian ownership, by its charter, and by the city ordinances of 1855 and 1856. If, however, we should be in error in so holding, its is clear that its action, in the particulars just stated, was legalized by the confirmatory clause of section 3 of the act of 1869. If what was done by the railroad company prior to April 16,1869, in the localities discussed in that clause, had been done under legislative authority previously conferred, the company would undoubtedly have acquired thereby property rights that could not have been taken from it except upon compensation. But subsequent legisla.tive ratification or confirmation of what was done is equivalent to original authority. Grenada Co. Sup’rs v. Brogden, 112 U. S. 271, 5 Sup. Ct. Rep. 125; Anderson v. Santa Anna, 116 U. S. 364, 6 Sup. Ct. Rep. 413. This being so, it was beyond the power of the state, consistently with tho constitution of Illinois, or the constitution of the United States, to revoke that confirmation, as was attempted to be done by the repealing act of 1873. .But the most important provision in tho act of 1869 is the one granting in fee to the Illinois Central Railroad Company, its successors and assigns, all the right and title of the state in and to the submerged lands on the east front of the city of Chicago, constituting the bed of Lake Michigan, and lying east of the breakwater of the company, for the distance of one mile, and between the south line of the south pier [near Chicago river] extended eastward!/ and a line extended eastward from the south line of lot 21, south of and near to the round-house and machine-shops of said company. This and other grants to the Illinois Central Railroad Company in the act of 1869 were declared therein to be upon the express condition that the company shall “perpetually pay into the treasury of tho state the per centum on the gross or total proceeds,
What was the effect of the repealing act of1873 upon the grant of submerged lands? Jt is contended by the railroad company that the repealing act of 1873 is inoperative and void, for the reason, among others, that its provisions are repugnant to that clause of the constitution of Illinois, in force at the time of the passage of the act of 1869, which provides that “no contract, obligation, or liability of the Illinois Central Railroad Company to pay any money into the state treasury, nor any lien of the state upon or right to tax property of said company, in accordance with the provisions of the charter of said company, approved February 10, in the year of our Lord 1851, shall be released, suspended, modified, altered, remitted, or in any manner diminished or impaired by legislative or other authority.” The repeal of the act of 1869 does not purport to release, suspend, modify, alter, remit, diminish, or impair any contract, obligation, or liability of the company, or any lien of the state, or any right of the state to tax the property, arising under the company’s charter of 1851. Consequently the repeal is not in violation of the constitutional provision referred to. The company also insists that it was beyond the power of the legislature to withdraw this grant, especially after the company’s acceptance of the act of 1869, and after it had incurred, as it claims to have done, large expenditures, upon the faith that 'the provisions ‘of said act would be respected by the state and the city. Upon a careful consideration of all that has been said upon this important and difficult question, the court is of opinion that, as respects the submerged lands constituting the bed of the lake, and expressly granted by the third section of the act of 1869, the repealing act of 1873 did not infringe any legal right of the company, and was a valid exercise of legislative power.
It is clear that, in respect to these submerged lands, the act of 1869 imposed upon the company no duty or obligation that was enforceable by legal proceedings. The act was passed before the general government had, in the interest of commerce, adopted any plan for an outer harbor at the city of Chicago. And we agree with one of the learned counsel of the railroad company when he says that, looking at the terms of the grant, the nature and situation of the land granted, and all the attendant circumstances of which the court may properly take cognizance, it is manifest that the intention of the legislature was 'to enable that company, in the interest of commerce, and therefore for public pmrposes, to construct an outer harbor at Chicago, and to invest it with power to build, maintain, and lease wharves and docks for the use of shipping. The ownership of the soil under the lake would have been of no practical value to the railroad company for any purpose, except those just stated. A trust -was ingrafted upon the fee in the submerged lands for the benefit of the public, and hot for the aggrandizement of the railroad company. This interpretation of the act is fortified by the prohibition upon the company’s granting, selling, or conveying the fee,—a restriction upon
The only suggestion of weight against the validity of the repealing act of 1873 is to the effect that after the passage of the act of 1869, and before its repeal, the railroad company had made extensive and costly improvements upon the faith of the grant of the submerged lands, and that the repeal operates to take from it property interests without compensation being made. If the repealing 'act were attended by any such result, the court would not hesitate to hold that the company could not be deprived of the use of any structures erected or improvements made upon these lands on the faith of the act of 1869, except upon compensation being made to it. But, in fact, no such case is presented, in respect to the submerged lands granted by the third section of the act of 1869, except that an insignificant part of those lands, east of the company’s breakwater of 1869, marked on Map C, “Built 1873,” was reclaimed from the lake by filling in before the act of 1873 was passed. The structures erected after the passage of the act of 1869, and before its repeal, between Chicago river and Randolph street, and those south of Park row, were erected, as we have seen, either under the power conferred upon the company by its charter, or with the consent, express or implied, of the city, or in the exercise of its rights as riparian owner of lots or ground on the shore of the lake. Indeed, it is apparent, with the slight exception just stated, that no expenditures were incurred by the railroad company, prior to the repealing act of 1873, distinctly upon the faith of the grant of submerged lands in the third section of the act of 1869.
In support of the position that the legislature could not constitutionally recall this grant of submerged lands, counsel for the company confidently rely upon Fletcher v. Peck, 6 Cranch, 87. In that case, it was said, among other things: “The contract between Georgia and the purchasers was executed by the grant. A contract executed, as well as one which is executory, contains obligations binding on the parties. A grant, in' its own nature, amounts to an extinguishment of the right of the grantor, and implies a contract not to reassert that right. A party is therefore always estopped by his own grant. Since, then, in fact, a grant is a contract executed, the obligation of which still continues, and since-the constitution uses the general term ‘contract,’without distinguishing between those which are executory and those which are executed, it must be construed to comprehend the latter as well as the former.” This general language must be interpreted with reference to the facts and issues in the particular case in which it was used. The case of Fletcher v. Peck was this: A statute of Georgia directed certain portions of the vacant lands of that state to be sold to James Gunn and others, constituting the Georgia Company, at a named price. Upon the payment of $50,000 by the purchasers, the governor was required to is
Upon the whole case, we are of opinion that the effect of the repealing act of 1873 was to withdraw from the railroad company as well the grant of the submerged lands described in the third section of the act of 1869, as the additional powers therein conferred upon it, by implication, to engage in the business of constructing and maintaining wharves, piers, and docks for the benefit of commerce and navigation generally, and not in the prosecution of its business as defined and limited by its original charter; saving to the company the right to hold and use, as part of its way-ground, or right of way, the small part of the submerged lands, outside of its breakwater of 1869, between Monroe and Washington streets, extended eastwardly, which was reclaimed—-presumably upon the faith of the act of 1869-—from the lake in 1873, and is marked on Map C, “'Built, 1873.” Such repeal was attended with the further result that while the city of Chicago may, under its charter, preserve the harbor, prevent obstructions being placed therein, and make wharves and slips
Several important questions wore made in reference to the grant in the fourth section of the act of 1869 to the Illinois Central Railroad Company, the Chicago, Burlington & Quincy Railroad Company, and the Michigan Central Railroad Company of all the right and title of the state in and to the lands, submerged or otherwise, lying north of the south line 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. But for the purpose of disposing of this branch of the case it is only necessary to say that construing sections 5 and 6 in connection with section 4, it is clear that this grant was upon condition that those railroad companies would pay to the city a named sum, in installments, and within a fixed time; and if the tender of the first installment, of $200,000, to the comptroller, was binding upon the city, the subsequent- return of the money to the railroad companies, at their request, deprived them of whatever benefit accrued from that tender, leaving them in the attitude of never having performed the conditions upon which they were to acquire the title to those lands. So that the title remains just where it was before the passage of the act of 1869, namely, in the city of Chicago, in virtue of the recorded subdivision into lots, streets, and public grounds of fractional section 15, and of -the S. W. i- of fractional section 10.
In the case of U. S. v. Illinois Cent. R. Co., it may be said that, upon the demurrer which has been filed, the court can only take into considei’ation the allegations of the information, and such matters as are within its judicial knowledge. It cannot bring into that case, as now presented, facts which may have been proven in other cases. The demurrer is sustained, except as to that part of the information which alleges, in substance, that the Illinois Central Railroad Company claims the absolute ownership of, and threatens to take possession of, use, and occupy, the outer harbor of Chicago. It is the opinion of the court that the general government, upon the showing made by it, has no title to' any of the streets or grounds described in said information, and has no standing in court, except so far as it seeks to protect the said harbor against obstructions that would impair the public right of navigation, or interfere with any plan devised by the United States for the development or improvement of the harbor.
What has been said is sufficient to dispose of all the questions in these causes which, in the judgment of the court, it is necessary to decide. Counsel will prepare and submit to the court such orders or decrees as will be in conformity with the foregoing views.
1.
Fort Dearborn addition to Chicago, as represented on the adjacent plat, is laid out into blocks, lots, and streets upon, and embraces the whole of, the south-west fractional quarter of section ten, (10,) township thirty-nine (39) north, range No. fourteen (14) east of the 3d principal meridian. The largest figures on said plat indicate the number of the blocks. The next smaller figures, near the center of the lots, show the number of the lots, respectively, in each block. The next size of figures, still smaller, in the interior side of the boundary of the several streets, and on the division lines of ■ the lots, represent the measurement of the respective lots in feet and inches. The figures written transversely to and in the streets and alleys show the width of the same in feet at different- points, and the figures on the exterior lines of the blocks represent the measurement of the blocks upon which they stand. From the west boundary of the said fraction of section (10) is laid off and appropriated 60 feet in width, as an addition to State street; and from the south boundary of said section, 40 feet, as an addition to Madison street. The width of the rear of the water lots bounded upon the Chicago river is determined and established by posts set at the intersection of the lines of the lots and streets, with meanders of the river, as shown bythe notes thereof entered upon the meander lines. The lines between the lots in block (2) are run at right angles to the N. W. line of River street. The public ground between Randolph and Madison streets, and fronting upon Lake Michigan, is not to be occupied with buildings of any description. At the S, E. corner of block (13) at the angle of Wabash and Washington streets is set a lime-stone, 4 by 6 inches, and 2 feet long, at least 18 inches below the natural surface of the ground; also another stone of similar description is set at the angle formed by the junction of River with South Water street, in block (3;) and also one other stone of like dimensions at the N. E. Corner of block (7,) at the angle of South Water street and Michigan avenue. At the corner of sections 9,10,15, and 16 is a stone near the center of State street, which was set by the commissioners of the Illinois and Michigan canal in 1836. The bearing of south Water, Lake, Randolph, and Washington is N., 83° E. The bearing or course of Madison street is N., 82° E. The course of River street from South Water street to Harbor street is N., 29° E.; thence to Lake Michigan, N., 83° E. Course of State and Wabash streets and Michigan avenue is N., 8° 5' W. All bearings were taken without any variations of the compass.
For J. R. Poinsett, Sec. at War.
M. Bibohabd, Agent So Atty.
State of llTAmois, Cook Coimty: Be it remembered that on this seventh day of June, in the year of our Lord one thousand eight hundred and thirty-nine, before me, Henry Brown, a justice of the peace in and for said county, came Matthew Birchard, solicitor of the general land-office and agent of the war department of the United States, to me personally known, and exhibited a power of attorney from the secretary of the department of war of the United States, executed officially by said secretary under the seal of said department, by direction of the president of the United States, authorizing Mm, the said Mathew Birchard, to cause to be surveyed, platted, duly acknowledged, and recorded as an addition to the town of Chicago, Illinois, the south-west fractional quarter of section ten, heretofore reserved for military purposes, and the site of Fort Dear-born, and the same to sell, etc., and acknowledged the foregoing map to be the map and plat of the Fort Dearborn addition to the town of Chicago, and that the United States of America are the sole proprietors and the owners of the same.
Heney Bkown, Justice of the Peace.
1.
State of RTAnois, Cook, County—ss.: We, the undersigned, commissioners of the Illinois ana Michigan canal, in pursuance of the statute in such case made and provided, have caused fractional section number fifteen, (15) township thirty-nine north, range fourteen east, adjoining or cornering with the original town of Chicago, to he laid off into lots, etc., as appears by the above plat. Planted stones as designated at different corners, from which to make future surveys. And we do hereby acknowledge the same the full width and length of the lots, and width of the streets and avenues, as marked, delineated, and laid down, as and for the true plat or map of the subdivision of said section.
Given under our hands and seals at Chicago, the thirteenth day of June, A. D. 1836.
Signed;
Beal.. W. F. Thornton.
'Seal/ W. B. Archer.
'Seal. G. S. Hubbard.
of Recorder's ’Office, Cook County, Rlinois—ss.: I certify that the foregoing' map fractional section 15 was filed for record on the 18th day of June, 1836, and was duly recorded on the 20th day of July, 1836, in Book H, page 230.
[Signed] Richard J. HAirmrbN, Recorder Cook County, Illinois.
- State.of Illinois, County of. Cook—ss.: On this thirteenth day of June, in the year one thousand eight hundred and thirty-six, personally appeared before the undersigned, one of the justices of the supreme court of the state of Illinois, W. F. Thornton, W. B. Archer, and G. S. Hubbard, known to the undersigned to be the same persons who have signed and sealed this map, .who severally acknowledged the same to be the true and original map of 'fractional section- number fifteen, township thirty-nine north, rangePage 740f ourteén east of tlie third principal meridian, as surveyed and subdivided by them pursuant to law.
Given at Chicago the day and year before recited.
[Signed] Theophilus W. Smith.
I, Edward B. Talcott, assistant engineer in the employment of the board of commissioners of the Illinois and Michigan canal, do hereby certify that the above is a correct plat or map of fractional section number fifteen, township thirty-nine north, range fourteen east of the third principal meridian, adjoining or cornering with the original town of Chicago, as subdivided and laid off into lots, etc., under the direction of said board of commissioners, and that the same portrays and sets forth the size, width, and length of the lots, also the true and fixed width of the streets and avenues. Tho letter “S ” at the corners of tho section and blocks, as marked, denotes where stones are planted deep in the ground, from which to make future surveys.
Given under my hand at Chicago, the 13th day of June, A. D. 1836.
[Signed] Edward B. Talcott, Assistant Engineer.
Filed June 18, 1836.
I, Robert Milne, secretary of the board of canal commissioners, certify that the above map or plat, with the certificates annexed of W. F. Thornton, W. B. Archer, and G. S. Hubbard, Edward B. Talcott, assistant engineer, Richard J. Hamilton, recorder, and Theophilus W. Smith, is a true copy of the original now in this office.
Witness my hand and the seal of the board of canal commissioners, this 19th day of February, A. D. 1873.
[Signed] Robert Milne, Secretary.
Ganal Office, Lochport, Illinois, Februa/ry 19,1873.