United Statess v. Chicago

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Dissenting Opinion

United States Supreme Court

48 U.S. 185

United Statess  v.  Chicago

THIS case came up, on a certificate of division in opinion, from the Circuit Court of the United States for the District of Illinois.

In 1839, soon after the decision of the Supreme Court in Wilcox v. Jackson, 13 Pet. 498, deciding that southwest fractional quarter-section ten, township thirty-nine north, range fourteen east, in the Chicago land district, having been selected and used for military purposes, was not subject to pre emption, the Secretary of War, in virtue of the authority vested in him, directed the sale of a portion thereof.

The act under which the Secretary of War derived this authority is the act of the 3d of March, 1819, entitled 'An act authorizing the sale of certain military sites,' which enacts, 'that the Secretary of War be, and he is hereby, authorized, under the direction of the President of the United States, to cause to be sold such military sites, belonging to the United States, as may have been found, or become, useless for military purposes. And the Secretary of War is hereby authorized, on the payment of the consideration agreed for into the Treasury of the United States, to make, execute, and deliver all needful instruments conveying and transferring the same in fee; and the jurisdiction which had been specially ceded for military purposes to the United States by a State over such site or sites shall thereafter cease.'

Mr. Birchard, then Solicitor of the Treasury, was appointed by the Secretary of War to make the sale, and to cause the land to be surveyed and platted, as an addition to Chicago. A plat was accordingly made, dividing the land into blocks and lots, with intersecting streets. This plat, together with a description of the same, was recorded in the office of the recorder of Cook county, under the title of 'Fort Dearborn addition to Chicago.'

By this plat, several streets then existing in Chicago were prolonged, and laid out through all the property which belonged to the government. Lots were also laid off upon both sides of the projected streets. But a portion of the property was expressly reserved from sale, and marked by dotted lines lettered 'Line of reservation.' Within the reserved line, there were many public buildings belonging to the United States.

On the 11th of April, 1845, the following proceedings were had by the Common Council of the city of Chicago:--

'Alderman Ogden, from committee on the judiciary, reported in favor of the petition of E. Bowen and others, for the removal of obstructions at the north end of Michigan Avenue. Received and laid on the table. And,

'On motion of Alderman Scammon, it was ordered, that the street commissioner be directed forthwith to open the street (Michigan Avenue), and remove the obstructions therefrom; and that the city attorney be directed to prosecute all persons offering any resistance to the street commissioner whilst opening said street.'

The city of Chicago was incorporated by an act of the Legislature of Illinois of the 4th of March, 1837. See Session Laws, 1836-37, p. 50. By the first section it is enacted, 'That the district of country in the county of Cook, in the State aforesaid, known as the east half of the southeast quarter of section thirty-three, in township forty, &c., . . . and fractional section ten, excepting the southwest fractional quarter of section ten, occupied as a military post, until the same shall become private property, &c., . . . in township thirty-nine north, range number fourteen east, of the third principal meridian, in the State aforesaid, shall hereafter be known by the name of the city of Chicago.'

The inhabitants are incorporated by the name of the city of Chicago, and the corporation is authorized to take, hold, purchase, and convey such real and personal estate as the purposes of the corporation may require.

The twenty-fourth section prescribes the duties of the street commissioner,-'to superintend the making of all public improvements ordered by the Common Council, and to make contracts for the work and materials which may be necessary for the same, and shall be the executive officer to carry into effect the ordinances of the Common Council relative thereto,' &c.

The powers of the Common Council over streets are conferred by the thirty-seventh, thirty-eighth, fortieth, and forty-third sections. The thirty-seventh enacts, that 'the said Common Council shall have the exclusive power to regulate, repair, amend, and clear the streets and alleys of said city, bridges, side and cross walks, and of opening said streets, and of putting drains and sewers therein, and to prevent the encumbering of the same in any manner, and to protect the same from encroachments and injury,' &c.

The thirty-eighth enacts, that 'the Common Council shall have power to lay out, make, and assess streets, alleys, lanes, highways, in the said city, and make wharves and slips at the end of streets on property belonging to said city; and to alter, widen, contract, straighten, and discontinue the same; but no building exceeding the value of one thousand five hundred dollars shall be removed in whole or in part without the consent of the owner. They shall cause all streets, alleys, lanes, or highways laid out by them to be surveyed, described, and recorded in a book to be kept by the clerk, and the same, when opened and made, shall be public highways.' The remainder of the section prescribes the manner in which the damages shall be assessed to the owners of land taken.

The fortieth enacts, that 'the Common Council shall have power to cause any street, alley, lane, or highway in said city to be graded, levelled, paved, repaired, macadamized, or gravelled,' &c.

And the forty-third enacts, that 'the land required to be taken for the making, opening, or widening of any street, alley, lane, or highway, shall not be so taken and appropriated until the damages assessed therefor shall be paid or tendered to the owner or his agent.'

A few days after the passage of the ordinance by the Common Council, directing the street commissioner to open Michigan Avenue, the United States filed their bill of complaint in the Circuit Court, setting their case fully forth, and praying for a writ of injunction against the city of Chicago, its officers, agents, servants, counsellors, and solicitors, to restrain them from entering upon the unsold and reserved portion of the southwest fractional quarter-section ten aforesaid, embraced within the dotted lines of the small map, marked 'Line of reservation,' for the purpose of opening 'Michigan Avenue,' or the other proposed streets, or from committing any waste or spoil upon said land, buildings, or inclosures.

The district judge granted the injunction, and on hearing a motion for its continuance in the Circuit Court, the opinions of the judges were opposed upon the following points:--

1st. Whether the corporate powers of the city of Chicago have a right to open the streets through that part of the ground laid out in lots and streets, but not sold by the government.

2d. Whether the corporate powers of the city are not limited to that part of the plat which, by sale of the government, has become private property.

3d. Whether the streets laid out and dedicated to public use by Birchard were not, by his surveying the land into lots and streets, making and recording a map or plat thereof, did not convey the legal estate in the streets to the city of Chicago, and thereby made the ground embraced by said streets 'private property,' so as to authorize said city of Chicago to keep said streets open.

The cause was argued by Mr. Toucey (Attorney-General), on behalf of one United States, no counsel appearing for the city of Chicago.

Mr. Toucey presented the following points:--

1st. The city of Chicago has no jurisdiction within Fort Dearborn.

2d. There was no dedication of any street within the fort.

3d. The fort being reserved, there was no power to dedicate a street within it.

4th. The State of Illinois has no power to remove the buildings of the United States within the fort, or to make a highway there.

I. The city has no jurisdiction within the fort. The part sold became private property. The lots were sold by their numbers, and were, in fact, bounded on the streets. The title passed to the centre of the streets, subject to the easement. The adjoining proprietors own to the centre, subject to the way, as if it had been laid out by public authority. This is the legal presumption, liable to be rebutted. English authorities: Goodtitle v. Alker, 1 Burr. 143; Pring v. Pearsey, 7 Barn. & Cres. 306; Stevens v. Whistler, 11 East, 51; Cook v. Green, 11 Price, 136. Maine: Howard v. Hutchinson, 1 Fairfield, 335. New Hampshire: Makepeace v. Worden, 1 N. Hamp. R. 16. Massachusetts: United States v. Harris, 1 Sumner, 21; Adams v. Emerson, 6 Pick. 57. Connecticut: Peck v. Smith, 1 Conn. R. 103; Watrous v. Southworth, 5 ib. 305; Hart v. Chalker, 5 ib. 311; Chatham v. Brainard, 11 ib. 60. New York: Cortelyou v. Van Brundt, 2 Johns. 357; Gedney v. Earl, 12 Wend. 98; Willoughby v. Jencks, 20 ib. 96. Virginia: Bolling v. Mayor, 3 Rand. 563. South Carolina: Witler v. Harvey, 1 McCord, 67.

When the highway is dedicated, the title of the land remains in him who dedicates, and will pass to his grantee. The public take an easement only. Lade v. Shepherd, 2 Stra. 1044; Cincinnati v. White, 6 Pet. 437; Barclay v. Howell's Lessee, ib. 513; Hobbs v. Lowell, 19 Pick. 408, Shaw, C. J.; Pearsall v. Post, 20 Wend. 126, 131, 132, Cowen, J.


This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).