Appeal from the Circuit Court of Pike County; the Hon. Cecil
J. Burrows, Judge, presiding.
JUSTICE MILLER DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 5, 1984.
Plaintiff filed a four-count complaint seeking injunctive relief to prohibit the construction of a highway bridge across the Illinois River near Valley City in Pike County. Defendants filed a motion to dismiss on the ground that the complaint was "substantially insufficient in law." Judge Burrows granted the motion and dismissed the complaint on November 23, 1982. On December 23, 1982, plaintiff moved to vacate the dismissal order and sought leave to amend counts III and IV of her complaint. On February 9, 1983, the trial court refused to vacate the order and denied leave to amend counts III and IV. This appeal followed.
This action arises out of a dispute over the proposed location of a bridge over the Illinois River. The bridge is a necessary link in the proposed Central Illinois Expressway which will connect Springfield and Quincy. Plaintiff owns farmland which borders on the Pike County Conservation Area (PCCA). Defendants propose that the bridge and connecting highway will be built through a portion of the PCCA known as Napoleon Hollow.
Plaintiff appeals from the order of the trial court concerning counts III and IV. Counts I and II of her complaint are not before this court. Count III of plaintiff's complaint alleged that the construction of the proposed bridge and highway would have an adverse impact on certain endangered species of plants and animals and on archaeological sites of great significance located within the PCCA. Plaintiff alleged that the State held title to wildlife and archeological remains as trustee for the public and that the planning and construction of the highway along its proposed route was a violation of its fiduciary duty to preserve the corpus of the trust. Count IV alleged that the acquisition of the land for the highway and the bridge was a violation of section 4-504 of the Illinois Highway Code (Ill. Rev. Stat. 1981, ch. 121, par. 4-504), which permits the taking of State land for highway purposes only if the taking does not interfere with the use of such land by the agency controlling the land.
Defendants filed a motion to dismiss on December 1, 1981, contending that plaintiff's complaint was "substantially insufficient in law." On November 23, 1982, Judge Burrows dismissed plaintiff's complaint. In his dismissal order, Judge Burrows discussed several cases involving the public trust doctrine and then dismissed count III, stating:
"The Court is of the opinion that Count III must be dismissed. The tests alluded to in [the] Paepcke case have never been implemented by a Court of Review, only cited as useful guides `for future administrative action.' Perhaps a harbinger of a possible ruling, however, absent such, this Court is loath to impose such standards on the exercise of executive discretion. It further appears that the policy for administrative action is the Illinois Highway Code. Count III be and it is hereby dismissed."
Judge Burrows also dismissed count IV on the ground that section 4-509 of the Illinois Highway Code (Ill. Rev. Stat. 1981, ch. 121, par. 4-509) provided "an escape hatch" from the prohibition against acquiring land held by another State agency contained in section 4-504.
A motion to vacate the dismissal order was denied on February 9, 1983. In its order denying the motion to vacate, the court stated that it was undoubtedly true that the State has a type of guardianship or trust over wildlife in the State. The court refused to intervene to monitor activities of the State affecting wildlife, however, holding that function to be better left to the executive and legislative branches of government.
We are faced with two issues on appeal: (1) whether the trial court erred in dismissing count III of plaintiff's complaint alleging a violation by the State of the public trust doctrine; and (2) whether the trial court erred in dismissing count IV of plaintiff's complaint.
The "public trust" doctrine provides that certain types of public property, for example, navigable waters, are held "in trust" by the State for the benefit of the public. The "lodestar" of the public trust doctrine in American law is Illinois Central R.R. Co. v. Illinois (1892), 146 U.S. 387, 36 L.Ed. 1018, 13 S.Ct. 110. In 1869 the Illinois legislature granted over 1,000 acres of submerged land extending one mile from the Chicago shoreline to the railroad in fee simple. A few years later the legislature repealed the original grant and the matter ended up in the courts>. The United States Supreme Court upheld the repeal of the grant because the grant had the effect of divesting the State of its authority over the entire Chicago waterfront; in essence, the legislature had abdicated its responsibility over navigation in that portion of Lake Michigan. The court said:
"The ownership of the navigable waters of the harbor and of the lands under them is a subject of public concern to the whole people of the State. The trust with which they are held, therefore, is governmental and cannot be alienated, except in those instances mentioned of parcels used in the improvement of the interest thus held, or when parcels can be disposed of without detriment to the public interest in the lands and waters remaining." 146 U.S. 387, 455-56, 36 L.Ed. 1018, 1043, 13 S.Ct. 110, 119.
In count II of their complaint plaintiff alleges that the State is a trustee of property it owns, including wildlife and archaeological relics, for the benefit of the citizens of this State. The State does not dispute its status as trustee for the public but does contend that it has the power and the authority to alter a particular use of the property subject to a public trust where the public interest requires such alteration. Plaintiff contends that the State, as trustee, has a duty to preserve the corpus of its trust and that the construction of the proposed highway and bridge through the PCCA will be a violation of that duty.
The power of the legislature over property subject to a public trust has been broadly interpreted. In Fairbank v. Stratton (1958), 14 Ill.2d 307, 152 N.E.2d 569, the court upheld a lease, pursuant to statutory authorization, of submerged lands in Lake Michigan held by the Chicago Park District to the agency overseeing the development of McCormick Place. The court held that property of a municipal corporation or political subdivision not restricted or dedicated to a particular use was subject to the will of the legislature. The planned facility was in the ...