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Paepcke v. Public Building Com.

OPINION FILED SEPTEMBER 29, 1970.

ELIZABETH NITZE PAEPCKE ET AL., APPELLANTS,

v.

THE PUBLIC BUILDING COMMISSION OF CHICAGO ET AL., APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. WALTER P. DAHL, Judge, presiding.

MR. JUSTICE BURT DELIVERED THE OPINION OF THE COURT:

Plaintiffs, who are citizens, residents, taxpayers and property owners of the city of Chicago appeal from an order of the circuit court of Cook County dismissing their complaint by which they sought to prevent defendants, Public Building Commission of Chicago, the City of Chicago, the Board of Education of Chicago and the Chicago Park District from implementing plans to construct school and recreational facilities in Washington and Douglas parks. This court has jurisdiction on direct appeal because of the constitutional questions involved.

The facts are to be gathered from statements in the complaint which are admitted by defendants' motion to dismiss and from joint exhibits admitted into evidence at the request of all of the parties. In 1869 the General Assembly passed "An Act to Provide for the Location and Maintenance of a Park for the Towns of South Chicago, Hyde Park and Lake" which was approved and in force February 24, 1869. (Private Laws, 1869, vol. 1, p. 358.) The statute provided that five persons, to be appointed by the Governor, be constituted a board of public park commissioners for the towns in question to be known as the "South Park Commissioners". The act authorized the commissioners to select certain lands which are specifically described by metes and bounds and provided in section 4 thereof that the lands "when acquired by said Commissioners, as provided by this act, shall be held, managed and controlled by them and their successors, as a public park, for the recreation, health and benefit of the public, and free to all persons forever." Pursuant to the granted authority the commissioners proceeded to acquire, among other lands, those which presently constitute Washington Park which is now held by the Chicago Park District as successor to the South Park Commissioners. The deeds by which the property was originally acquired by the commissioners purport to convey an unrestricted title in fee simple without mention of park usage. Washington Park as presently constituted contains 371 acres. It is located on the south side of the city of Chicago and is bounded by 51st Street on the north, Cottage Grove Avenue on the east, 60th Street on the south and Martin Luther King Drive on the west.

In 1869, the same year in which the South Park Commission was created, the General Assembly passed an act entitled "An Act to amend the charter of the city of Chicago, to create a board of Park Commissioners, and authorize a tax in the town of West Chicago, and for other purposes", approved and in force February 27, 1869. (Private Laws of 1869, vol. 1, p. 342.) By this legislation a board of public park commissioners to be known as "The West Chicago Park Commissioners" was created with power and authority to acquire certain designated lands with the stipulation in section 5 thereof "that said board shall have power, and it is made their duty and they are hereby authorized to select and take possession of, and to acquire by condemnation, contract, donation or otherwise, title forever in trust for the inhabitants, and for the public, as public promenade and pleasure grounds and ways." After their appointment by the Governor the commissioners acquired, among other lands, those which now constitute Douglas Park, presently held by the Chicago Park District as successor to the West Chicago Park Commissioners. This park, consisting of 181.99 acres, is situated on the west side of the city of Chicago bounded on the north by Roosevelt Road, on the east by California Avenue, on the south by 19th Street and on the west by Albany Avenue. The land comprising this park was acquired by 10 deeds, six originals and two reconstructions of which were received in evidence. The remaining deeds were not found in the records of the recorder due to the Chicago fire. Each of the six originals admitted was on the same printed deed form and contained the same restrictive language as that found in section 5 of the act as above quoted. In two of these the restrictive language had been crossed out. In the remaining four it had been unaltered. No restrictions appear in the reconstructed deeds.

The Public Building Commission of Chicago, at the request of the Board of Education of the City of Chicago has undertaken a program involving the construction, alteration, repair, renovation and rehabilitation of public schools in the city, together with park, recreational, playground and other related public facilities which will be leased by the Building Commission to the Board of Education, the Chicago Park District and other governmental agencies. The commission has selected, located and designated sites within the territorial limits of the city of Chicago as sites to be acquired for the erection and construction of elementary, middle and high schools to serve about 30,000 pupils, together with park, recreational and playground facilities. Each of the sites has been recommended by the Department of Development and Planning of the City of Chicago in accord with the comprehensive plan for the city of Chicago and in cooperation with the Board of Education of the City of Chicago and also the Chicago Park District in connection with the sites in which the Chicago Park District is involved. Some of these sites have already been approved by the city council of the city of Chicago.

A site has been designated in Washington Park for the erection of a school-park facility. The Chicago Park District proposes to convey to the Public Building Commission of Chicago for such purposes a total of 3.839 acres located in the northwest portion of the park about 250 feet from the northern boundary. On 2.586 acres of this site the building commission proposes to construct a middle school for approximately 1500 students to be leased to the Board of Education of the City of Chicago. The remaining 1.253 acres would be utilized in the construction of a gymnasium and recreational facilities which will be leased to the Chicago Park District. Construction had started on this site at the time suit was filed but had not proceeded to a point where original use of the land would no longer be possible. Of the sites thus far selected by the Public Building Commission of Chicago and approved by the city council of the city of Chicago only the 2.6 acres in Washington Park involves property in a park which is to be used for school construction. No site has been designated in Douglas Park but one is under consideration at the present time.

Plaintiffs' complaint alleges a class action brought on behalf of three classes of citizens: (1) those named who are citizens, residents and taxpayers of the city of Chicago; (2) those named who are citizens, taxpayers and residents of areas of the city served by a large regional city park such as Washington Park and (3) those named who are citizens, taxpayers and residents of an area served by a large regional city park, such as Washington Park, and who own real property bordering on or in the immediate vicinity of said park in respect to which there is a plan to construct a schoolhouse within the boundaries of such park. It is plaintiffs' theory that the parks in question are so dedicated that they are held in public trust for use only as park or recreational grounds and that those of them who are property owners adjacent to or in the vicinity of a park dedicated by the acts of 1869 have a private property right to the continuation of the park use of which even the legislature cannot deprive them. They further contend that all plaintiffs who are citizens and residents of any area of the city have a public property right to enforce the public trust existing by reason of the dedication of the parks as aforesaid and to require that no change of park use be permitted because the legislature has not explicitly and openly so provided by statute. Additionally, plaintiffs contend that the Public Building Commission Act does not authorize construction by the commission of local school houses in Chicago's regional parks under the plan proposed by defendants and that controlling statutes make this scheme invalid for both the Board of Education and the Chicago Park District. Finally, it is alleged that the Public Building Commission Act is unconstitutional as being too vague and indefinite.

In sustaining defendants' motion to dismiss the complaint the trial court, in its judgment order, rejected all of plaintiffs' contentions and specifically found that plaintiffs in each of the three classifications asserted had no such interest in Washington Park or Douglas Park sufficient to enable or entitle them, or any of them, to maintain the action "except as taxpayers."

We think it is clear from the undisputed facts in this case that there has been a dedication by the General Assembly of the lands in question for use as public parks. This is so notwithstanding the fact that the deeds by which the South Park Commissioners and the West Chicago Park Commissioners obtained title did or did not contain any of the restrictive language found in the legislative enactments. The authority of the commissioners in either case to receive title existed solely by virtue of the provisions of the statutes which created the respective municipal bodies for the sole purpose of acquiring the lands for the purposes specified. Both acts in substance specified that the lands when acquired should be devoted to park purposes though the language was not the same in each case. Such a dedication having been made by the sovereign, the agencies created by it hold the properties in trust for the uses and purposes specified and for the benefit of the public. See: Illinois Central Railroad Co. v. Illinois, 146 U.S. 387, 36 L.Ed. 1018, 13 S.Ct. 110; Bliss v. Ward, 198 Ill. 104, 115; Sax, "The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention," 68 Mich. Law Rev. 471-566.

In his extensive discussion of the "public trust doctrine" in the article just cited, the author, Professor Joseph L. Sax, had occasion, at pps. 489-491, to analyze the decision in Illinois Central Railroad Co. v. Illinois, 146 U.S. 387, which he refers to as "The Lodestar of American Public Trust Law". According to this authority the central substantive thought in public trust litigation as derived from this case is: "When a state holds a resource which is available for the free use of the general public, a court will look with considerable skepticism upon any governmental conduct which is calculated either to reallocate that resource to more restricted uses or to subject public uses to the self interest of private parties". However, in discussing the question whether the government can or should be viewed as having made any irrevocable commitments about the use of particular governmental resources, i.e. whether any formal governmental acts can accomplish the result of changing or abolishing the use (and observing that the question had apparently never been adjudicated with respect to national parks) the author says, at p. 482: "To accept such claims of property rights would be to prohibit the government from ever accommodating new public needs by reallocating resources. Certainly any such notion strikes at the very essence of governmental power, and acceptance of such a theory by a court would be as unwise as it is unlikely. It is important to recognize that the assertion of a taking is not a mere claim to compensation, for the objectors do not want cash; rather, it is a claim that when a resource is dedicated to public use, that dedication is irrevocable. However strongly one might feel about the present imbalance in resource allocation, it hardly seems sensible to ask for a freezing of any future configuration of policy judgments, for that result would seriously hamper the government's attempts to cope with the problems caused by changes in the needs and desires of the citizenry". Finally, in discussing the state of the authorities on the question, the author says at p. 485-486: "One who searches through the reported cases will find many general statements which seem to imply that a government may never alienate trust property by conveying it to a private owner and that it may not effect changes in the use to which that property has been devoted". Then, after examining quotes from two cases, the author continues. "But a careful examination of the cases will show that the excerpts just quoted and almost all other such statements are dicta and do not determine the limits of the state's legitimate authority in dealing with trust lands. Unfortunately, the case law has not developed in any way that permits confident assertions about the outer limits of state power. Nonetheless, by examining the diverse and often loosely written opinions dealing with public lands, one may obtain a reasonably good picture of judicial attitudes".

With this much of background we approach the first question presented in this appeal: Have plaintiffs who are property owners adjacent to or in the vicinity of the parks dedicated by the acts of 1869 a private property right to continuation of the park use of which even the legislature cannot deprive them? This question must be answered in the negative. The mere dedication by the sovereign of lands to public park uses does not give property owners adjoining or in the vicinity of the park the right to have the use continue unchanged even though, when the park was established, abutting or adjoining owners were assessed for special benefits conferred. (Reichelderfer v. Quinn, 287 U.S. 315, 77 L.Ed. 331, 53 S.Ct. 177.) In the cited case Rock Creek Park in the District of Columbia had been created by act of Congress providing that the lands "were perpetually dedicated and set apart as a public park or pleasure ground for the benefit and enjoyment of the people of the United States". A later act of Congress authorized the Commissioners of the District of Columbia to construct a fire engine house in the park. The Supreme Court held that the plaintiffs derived no rights against the government and had no interests protected by the constitution against diminution by the government, however unreasonable its action might be. Also, as far as the private rights of adjoining owners are concerned, see: Thayer v. City of Boston, 206 Fed. 969, (schoolhouse in park); Fielding v. Board of Education of Paterson, 76 N.J. Super. 50, 183 A.2d 767, (schoolhouse in park); Carlson v. City of Freemont, 180 Neb. 262, 142 N.W.2d 157, (fire station in park); Stevens v. Mayor and Council of City of Vinita (Okla. 1957), 315 P.2d 776, (fire station in park). As to rights of adjoining owners in lands devoted to public uses generally see: Horn v. City of Chicago, 403 Ill. 549; Doane v. Lake Street Elevated Railroad Co., 165 Ill. 510; Stetson v. Chicago and Evanston Railroad Co., 75 Ill. 74.

In asserting a private property right plaintiffs cite South Park Commissioners v. Montgomery Ward & Co., 248 Ill. 299; City of Jacksonville v. Jacksonville Railway Co., 67 Ill. 540 and Nichols v. City of Rock Island, 3 Ill.2d 531. None of these cases fairly supports plaintiffs' contention.

South Park Commissioners v. Montgomery Ward & Co., is the last of a long line of cases wherein the owners of property on the west side of Michigan Avenue in the city of Chicago were able to prevent the construction of buildings in Lake Front Park (later Grant Park). A reference to some of the earlier cases, especially City of Chicago v. Ward, 169 Ill. 392, 397-398, shows that the legislature, by act creating the city of Chicago, provided that no encroachments should be made on any land or water west of a line 400 feet east from the west line of Michigan Avenue and parallel thereto, and that any person being an owner of any lot fronting on Michigan Avenue should have the right to enjoin the company (the railroad) and all other persons and corporations from violations of the section of the statute in question and in his or their own name or otherwise enforce the provisions of said ordinance (which defined railroad's rights) and this section and recover damages etc. There were to be no encroachments without consent of all owners. It thus appears that the adjoining owners in these cases had a "built in" cause of action and special property rights given by statute. In South Park Commissioners v. Montgomery Ward & Co., the holding is that the interests held by these adjoining owners could not be condemned because it would amount to a taking of private property for an illegal use. In this case there is no showing that plaintiffs have any special property rights or interests by contract or otherwise. On the contrary the allegation is only that they own property adjacent to or in the vicinity of the parks. The South Park Commissioners case is therefore clearly distinguishable. In the Jacksonville case no question was raised or passed upon relative to the private rights of property owners abutting on the square or park. The action was brought by the city to restrain the railroad from extending its trackage through the square, and the holding is that the legislature had no right to give the railroad rights which were contrary to the terms of dedication by the original grantors. This court held that the injunction requested by the city should have been issued. Any statement or inference that the abutting owners had special property rights is pure dictum. As to the Nichols case, no legislative action is involved and therefore no issue is presented as to abutting owners being deprived of their property rights by legislative action. It further appears that plaintiffs claimed a perpetual easement by way of a special property right. As already indicated, no such claim is made here. This court decided in the Nichols case that the construction of a swimming pool, bath house and parking lot in the park in question was consistent with the public uses intended.

The second question is whether all of plaintiffs, including citizens who are residents of any area of the city, have a public property right to enforce the public trust here and to require that no change of park use be permitted because the legislature has not explicitly and openly so provided by statute. If we understand plaintiffs' position correctly they do not contend, as far as the rights of the public in public trust lands are concerned, that the legislature could never, by appropriate action, change or reallocate the use in any way. (This would be contrary to well established precedent. See: Droste v. Kerner, 34 Ill.2d 495; People ex rel. Moloney v. Kirk, 162 Ill. 138; People ex rel. Bransom v. Walsh, 96 ...


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