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Hickey v. Ill. Central R.r. Co.





APPEAL from the Circuit Court of Cook County; the Hon. WALKER BUTLER, Judge, presiding.


Rehearing denied October 27, 1966.

Shortly after dismissal of their similar suit in the Federal courts (Hickey v. Illinois Central Railroad, (7th cir., 1960,) 278 F.2d 529, cert. den. 364 U.S. 918) several taxpayers filed an action in the circuit court of Cook County against the Illinois Central Railroad Company alleging that title to a quite substantial amount of largely reclaimed land on Chicago's lake front between the Chicago River on the north and 51st Street on the south was vested in the State of Illinois or, as to portions thereof, in the city of Chicago. That complaint as ultimately amended requested a finding and declaration that the interest of the defendant railroad in the lands in question is limited to an easement for use and control for railroad purposes; that ownership and title are vested in the State of Illinois in trust for the inhabitants of this State and, to the extent granted or delegated by the State or otherwise obtained by the city, in the city of Chicago; that in the event of use or disposition of the lands by the railroad for other than railroad purposes, its easement terminates; that certain sales, leases, contracts and options granted by the railroad to portions of the questioned land and the air rights above said land for other than railroad purposes are null and void and that the railroad should be required to account to the State and city for the proceeds from such sales and be perpetually enjoined from making further sales, leases or other dispositions of the questioned property for nonrailroad purposes.

In 1962 the city of Chicago was allowed to intervene as an additional party plaintiff, and adopted the above-summarized complaint of the original plaintiffs as its own. Thereafter the defendant moved to dismiss the action, and the trial court so ordered, finding the State to be a necessary party to determination of the controversy, that the taxpayers had no standing to represent the State, and that the court could not constitutionally compel the State to intervene as plaintiff or defendant.

In the subsequent appeal to this court by the taxpayers and the city, the Attorney General filed a motion to dismiss, suggesting that plaintiff taxpayers had no standing to maintain the action. Following denial of that motion and while the case was pending upon our advisement docket, the Attorney General moved for leave to intervene. Since intervention by the State supplied the indispensable party whose prior absence constituted what then appeared to be the principal obstacle to maintenance of the suit, we remanded the cause for further proceedings. Hickey v. Illinois Central Railroad Co. 30 Ill.2d 163.

Thereafter the Attorney General filed in the trial court an intervening complaint substantially aligning the State of Illinois with the position of the taxpayer-plaintiffs and the city of Chicago. This complaint concludes with a prayer for a declaration of the State's title to all lands east of the 1852 Lake Michigan shoreline (roughly Michigan Avenue) between the Chicago River and Randolph Street and between 11th Place (Park Row) and Hyde Park Boulevard (51st Street) subject to the easement of the Illinois Central to such portions of these lands as are necessary to its railroad operations, requiring the railroad to account for the proceeds of its "wrongful" dispositions of such lands and air rights, that upon receipt by the State of such proceeds the rights of the grantees and lessees thereunder be confirmed, and permanently enjoining the Illinois Central from future sales, leases or other dispositions of the lands or air rights.

The railroad answered the intervening complaint, and, following a reply by the State, filed a motion for judgment on the pleadings. Its original motion to dismiss the taxpayers' and city's second amended and supplemental complaint on its merits was then undisposed of. Since it raised substantially the same points as the motion for judgment on the pleadings against the State, it was allowed to stand, and judgment was thereafter entered dismissing the taxpayers', city's and State's complaints for want of equity and declaring the defendant railroad to be the fee-simple owner of all of the lands in question between the Chicago River and Randolph Street and south of 11th Place.

The reclaimed lands involved herein are of immense value, and particularly is this so in view of the present practice of constructing large high-rise buildings over portions thereof where possible to do so without disturbing their use for railroad purposes. Rights to future development of the overlying air rights for nonrailroad purposes are determined by the fee ownership of the lands. If the State has retained the fee-simple title to the land, and the railroad has only a right-of-way for railroad purposes, the State owns and may sell the "air rights" over the property (which would otherwise be subject to control and sale by the railroad) for any purpose compatible with continued railroad usage.

This appeal by the State, city and taxpayers from that judgment presents substantial problems in a remarkably complicated context. Their resolution has necessitated a review of the history of the Chicago lake front and the Illinois Central Railroad since 1851. In that year defendant was incorporated by an act of the General Assembly which granted it a right-of-way 200 feet wide throughout the length of the State and required the consent of any city prior to location of the railroad tracks within such city's corporate limits. In 1852 the city of Chicago adopted an ordinance consenting to construction of the railroad along the lake front from the city's southern boundary (then 22nd Street) to the Chicago River, providing for the erection of "necessary and convenient buildings, slips or apparatus", giving the railroad the right to "extend their works and fill out into the lake" in specified areas and for specified distances. In return, the railroad was required to and did erect and maintain a breakwater east of its tracks from Randolph Street to the then southern boundary of the city. (This was later extended south to 49th Street.)

Thereafter the railroad acquired by purchase or condemnation the title to the private shorelands on the 1852 shoreline between the river and Randolph Street and south of 16th Street. As to the original shorelands between the Chicago River and Randolph Street, and between 11th Place and 16th Street, the State concedes that the railroad acquired the fee. Concerning the original shorelands south of 16th Street, the State admits that the railroad has, through the exercise of eminent domain and by virtue of various conveyances, purportedly acquired title, but does not admit that fee-simple title was actually acquired thereby. The Illinois Central's tracks, as originally constructed, were partially on land along the shore, and, particularly south of 12th Street, were supported by piling driven into the submerged lake bed. In 1864 the Illinois Central conveyed to the Michigan Central Railroad its interest in some of the filled lands east of Michigan Avenue between the river and Randolph Street, retaining some operating rights and leasehold interest therein. This property was subsequently repurchased at a substantial cost. In 1869 the General Assembly enacted a statute conveying to the Illinois Central all of the State's title to the submerged lands lying east of the tracks and breakwater of the railroad to a point one mile out in the lake between the river and approximately 1500 South. This statute also confirmed the rights of the railroad in certain land lying east of a line running parallel to and 400 feet east of the west line of Michigan Avenue between Monroe Street and 11th Place. This act was repealed in 1873, the repealing statute being held effective as to the conveyance, but not as to the confirmation, by the United States Supreme Court in the Lake Front Case hereinafter mentioned. Between 1870 and 1885 there was further filling of submerged land and building of piers by the Illinois Central.

In 1883, the Lake Front Case was initiated by the State of Illinois when it filed suit against the Illinois Central and the city to ascertain the rights of the respective parties in the lake front lands, both submerged and filled, and the then existing structures between the river and 16th Street. That litigation, originally brought in the circuit court of Cook County, was removed to the then United States Circuit Court for the Northern District of Illinois (People of the State of Illinois v. Illinois Central Railroad Co. (1888) 33 Fed. 730). Thereafter the cause was before the United States Supreme Court (1892) (146 U.S. 387, 36 L.Ed. 1018), again in the United States Circuit Court, the Circuit Court of Appeals (91 Fed. 955) and ultimately again before the Supreme Court of the United States (People ex rel. Hunt v. Illinois Central Railroad Co. (1902) 184 U.S. 77, 46 L.Ed. 440). The parties hereto are agreed that those decisions are res judicata as to the finding that the city owned the filled lands between Randolph Street and 11th Place, subject only to a right-of-way in the railroad, and as to the previously noted effect of the 1869 and 1873 statutes. They totally disagree concerning the disposition of title to the other lands, the Illinois Central arguing that the net effect of the Lake Front Case was to give it a fee-simple title to the property involved, and the State now vigorously contending that the true purport of the decisions was to construe the interest of the railroad as an easement for such uses as were reasonably necessary to its corporate purposes, including the right to build and maintain piers and wharves out to the point of practical navigability, leaving the fee in the State or city subject to such easement.

By 1912 the lake shore line between 11th Place and 49th Street was composed largely of filled land occupied by the Illinois Central which also claimed fee-simple title thereto. The Park Extension Act of 1907, "An Act authorizing park commissioners to acquire and improve submerged and shorelands for park purposes, providing for the payment therefor, and granting unto such commissioners certain rights and powers and to riparian owners certain rights and titles", (Laws of 1907, p. 433,) authorized park commissioners to construct parks over submerged State lands, and to acquire the "riparian or other rights of the owners" of shorelands adjacent to the public waters over which the improvement was to be built. The act provided the commissioners could obtain such rights from shore owners by an agreement establishing a boundary line in the lake between the proposed improvement and the lands of the shore owners, and that upon completion of such agreement the commissioners were required to file in the circuit court a petition for confirmation of such boundary line agreement. The owners of the "riparian rights and lands" were required to be made defendants, and the statute further provided if "upon a hearing, the court shall find that the rights and interests of the public have been duly conserved in and by such agreement, then the court shall confirm said agreement and establish such boundary line." Thereafter, to compensate the owners for the loss of their riparian or other rights, the act provided: "[T]he owners of said shorelands are hereby granted by the State of Illinois the title to the submerged lands lying between said boundary line when so established and the shore adjacent thereto, and they shall have the right to fill in, improve, protect, use for all lawful purposes, sell and convey said submerged lands up to the line so established, free from any adverse claim in any way arising out of any question as to where the shore line was at any time in the past, or as to the title to any existing accretions."

The South Park Commissioners desired to use submerged lands in the lake south of 11th Place for a park and boulevard connecting what is now Grant Park with Jackson Park. Since the Illinois Central then claimed ownership of the filled lands between the 1852 and 1912 shorelines and the riparian rights involved from 11th Place to 49th Street, the commissioners in 1912 entered into a comprehensive boundary line agreement with the railroad under which the railroad received, for "the release of its said riparian rights and its interest in the part of said lands penetrating into the said public waters beyond the said boundary line", the areas between the 1912 shoreline and the off-shore boundary line so established, to "have and hold the fee simple title" thereto "and to sell and convey the same". The agreement further provided that the commissioners might thereafter construct bridges, viaducts, boulevards, and railroad-track coverings over the Illinois Central tracks and lands at certain places and under specified conditions, that the railroad would move its 12th Street Station, dedicate certain land for park and boulevard purposes, and, in general, implemented the area's developmental scheme. Thereafter the commissioners petitioned the circuit court for confirmation of the agreement making the Illinois Central, among many others, parties defendant. The petition so filed asserted the railroad to be "the owner of the lands and riparian rights * * * upon the shore of said Lake Michigan on the inner or shore side of the boundary line". The railroad's answer admitted the allegations of the petition, and the court's final decree, after finding ownership of the shorelands and riparian rights to be vested in the railroad, declared fee-simple title to the therein described lands, submerged and otherwise, west of the boundary line to be vested in the Illinois Central. The State was not, as such, a party to these proceedings, although the transcript thereof contains the following statement by the judge: "Well, furthermore, the duly authorized representatives of the State, although they did not enter formal appearance in this case, did officially come into the courtroom and said to the court that in their opinion there was no interest of the State to be conserved in this case." Several taxpayers who had intervened in the proceedings and who denied the railroad's title to some of the shorelands without alleging State ownership thereof, prosecuted a writ of error to this court. It was dismissed on the ground that the statute contained no provision authorizing review. No. 8807, April 15, 1913.

It appeared in the 1912 proceedings that the railroad had not then acquired any title to some of the shorelands between 23rd and 25th Streets. Accordingly, it was necessary for supplementary proceedings to be held when conveyances to the railroad were subsequently made. This occurred in 1913, notice thereof having been given the Attorney General pursuant to the 1912 statutory amendment hereinafter commented on, and a complete boundary line agreement under the 1912 revision of the 1907 Park ...

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