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Argument for Appellants.

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city of Chicago did not divest the United States of the fee in the public ground for the following reasons:

1. The act of March 3, 1819, c. 88, 3 Stat. 520, under which the Secretary of War acted, while it probably conferred authority upon him to lay out streets and alleys as fairly incidental to the power" to sell,” which power alone was conferred upon him in terms, did not authorize him to convey away the fee of a large tract to be used as a public ground. By the language of the act it was only “on the payment of the consideration” that the Secretary was authorized "to make, execute, and deliver all needful instruments, conveying and transferring the same in fee.”

2. The town-plat act of Illinois, of February 27, 1833, Revised Laws of Illinois, 1833, 599, provides only for cases in which “any county commissioners or other person or persons wish to lay out a town.” The United States are not fairly within the description of "person or persons,” and a plat made by or on behalf of the United States is not within the terms of the act. Note the penalties prescribed by sections 8 and 9, to which the United States could not be subject.

3. The act of Congress under which Fort Dearborn was sold authorized the Secretary of War “to cause to be sold” and “to make, execute, and deliver all needful instruments, conveying and transferring the same in fee,so that, if the Illinois statute covers this plat at all, the Secretary of War must be deemed to be “the person ” who is authorized by its first section “to lay out” the addition, and “the person” who is required under the fourth section to acknowledge the plat before one of the judicial officers named. It has been held that the statute does not authorize a plat to be made or acknowledged by an agent or attorney in fact. Gosselin v. Chicago, 103 Illinois, 623, 626. Only stone planting can be done through an agent. Ib. 626. The attempt of the Secretary of War to act through an agent and attorney was therefore ineffectual to accomplish a statutory dedication, assuming all the other requirements of the statute to have been complied with.

4. But if the Secretary of War could act through an attorney

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Argument for Appellants.

in fact, it was necessary to the validity of his power of attorney that it should be recorded under section sixteen of the “ Act concerning conveyances of real property.” Rev. Stat. III. 1833, 135, quoted'in 103 Mlinois, 627. Birchard's power of attorney does not appear to have been recorded.

5. Section 1 of the Illinois act requires the plat or map of the addition, and also the survey itself, to be made by the county surveyor. See also section 10 providing for his fees. On the Birchard plat the county surveyor certifies “that the foregoing field notes of the same (plat) are correct as done by me immediately preceding the date hereof,” but he does not certify that either the survey or the plat were made by him.

6. Section 4 requires that the surveyor, as one of "every person or persons whose duty it may be to comply with the foregoing requirements,” shall acknowledge the plat before one of the judicial officers named. No such acknowledgment was made by the county surveyor.

7. Section 4 requires that the plat or map shall be certified not only by the surveyor but by the county commissioners. It is suggested by counsel for the appellees that “and” in this section should be read “or." "

No decision is cited to support that contention. The same language requiring both the surveyor and the county commissioners to certify the plat is found in the Revised Statutes of Illinois, 1845, p. 115, c. 25, $ 20, and in statutes of Ilinois, 1869, (Gross's ed.,) c. 25, div. 1, $ 20. The object of the statute in requiring the certified approval of the county commissioners to the plat is obvious, otherwise it would be left to the option of individuals to lay out such additions to towns as they saw fit. Section 4 also requires, I submit, that the county commissioners shall acknowledge the plat before one of the judicial officers named. The Birchard plat contains neither the certificate of the county commissioners, nor the acknowledgment of the county commissioners required by this section.

II. If either of the foregoing points is well taken, the fee of the United States in the public ground has not been divested, for it has been held repeatedly that a dedication which does not conform to the requirements of the statute

Argument for Appellants.

does not divest the fee of the owner in streets and public grounds, but operates only as a common law dedication. By the express terms of section 5 it is only plats “ when made out and certified, acknowledged, and recorded, as required by this act,” that are effective to vest the fee. Banks v. Ogden, 2 Wall. 57; Gosselin v. Chicago, 103 Illinois, 623, 625; Manly v. Gibson, 13 Illinois, 308, 312; United States v. Illinois Central Railroad, 2 Bissell, 174, 177.

The information adinits that the United States have made a common law dedication - in other words, that although the United States are the owners of the fee in the public ground, they are estopped to prevent its use as public ground, or themselves to occupy it with buildings. But that is the extent of the estoppel or of the easement which they have granted, and as the owners of the fee, subject to such easement, they are clearly entitled to an injunction to prevent others from occupying it with a depot or other buildings.

III. But if the court holds that the plat is good as a statutory dedication, so as to vest the fee of the public ground in the city of Chicago, section 5 of the Illinois statute declares that such fee "shall be held in the corporate name thereof, in trust to and for the uses and purposes set forth and expressed or intended.” The Supreme Court of Illinois has held, in Zinc Company v. La Salle, 117 Illinois, 411, that the fee so vested is a base or determinable fee, and that upon the entire and permanent abandonment of the easement the property reverts to the dedicator.

I submit that the United States, not only as donors of the trust, but in view of the possibility of reversion, may maintain this bill to restrain an abuse of the trust and to prevent an occupation of the grounds with the buildings, even if they have parted with the fee. One who dedicates property to public uses is entitled in a court of equity to enforce the trusts declared by the dedication, whether he accompanied the dedication with a transfer of the fee to the municipality or retained the fee in himself.

Warren v. Lyons City, 22 Iowa, 351, 355, is a case in which the fee of a public square had vested in the city. The suit


Argument for Appellants.

was brought by the dedicator to enjoin the municipal authorities from selling the square or otherwise diverting it to uses and purposes foreign to those for which the dedication was made. The court said :

For the use contemplated, they may have parted with the fee — the “proprietary right,” but not for all purposes ; and, therefore, if the city authorities, as the claimed trustee of the public, should undertake to make gain by the sale, or to authorize its use for anything else but a “public square,” they violate the trust, and the original owners, in virtue of the terms of the grant, may demand that the trust shall be executed in good faith, and restrain any such proposed violation of the terms upon which the grant was accepted.

Nothing can be clearer than that if a grant is made for a specific, limited, and defined purpose, the subject of the grant cannot be used for another, and that the grantor retains still such an interest therein as entitles him in a court of equity to insist upon the execution of the interest as originally declared and accepted.

In Barclay v. Howell's Lessee, 6 Pet. 498, 507, Mr. Justice McLean, in denying the right of the dedicator to recover in ejectinent, said:

If this ground had been dedicated for a particular purpose, and the city authorities had appropriated it to an entirely different purpose, it might afford ground for the interference of a court of chancery to compel a specific execution of the trust, by restraining the corporation, or by causing the removal of obstructions.

In Hardy v. Memphis, 10 IIeiskell, 127, 128, where the original proprietors sought to recover land, first, because not dedicated, and second, if dedicated, because the use was claimed to have been abandoned, the court said a misuse of the land did not work a forfeiture, “nor entitle the original proprietors to any relief except, upon a bill properly filed, to have the buildings obstructing the proper use removed.”

IV. The United States seek to maintain this suit, not in the exercise of sovereignty or of governmental or police control, but solely by virtue of their title in and ownership of land,

Argument for Appellants.

just as any private owner might do. Fort Dearborn was land which the United States owned in propriety and could dispose of as Congress saw fit, and with respect to it, therefore, the United States are in the position of a private owner; and if a private owner, having dedicated the public ground, might maintain this bill, the United States can do so.

The distinction between the case at bar and the case of New Orleans v. United States, 10 Pet. 662, 736, is clearly recog. nized by Mr. Justice McLean in the following passage in his opinion: “If the common in contest, under the Spanish crown, formed a part of the public domain or the crown lands, and the king had power to alien it, there can be no doubt that it passed under the treaty to the United States, and they have a right to dispose of it, the same as other public lands. But if the King of Spain held the land in trust, for the use of the city," etc.

Neither that case nor Pollard's Lessee v. Hagan et al., 3 How. 212, relate to land which the United States ever held as property, with power to sell as part of the public domain.

In New Orleans v. The United States, 10 Pet. 662, relief was denied the United States upon the ground that the King of Spain had not power to alienate the public levee in New Orleans, that the treaty did not pass the title to the United States, and that the Federal government did not succeed to the limited police jurisdiction, which had been exercised by the King of Spain to regulate the use of the quay; in other words, that the United States never were owners of the quay; whereas at bar we have an abandoned military post, held as the property of the United States and sold and dedicated by them as such.

In United States v. Chicago, 7 How. 185, 194, this court recognized the right of the Federal government to hold the very land in question as a mere proprietor. The government is not claiming any municipal power or control over this public ground; but only the rights concerning it that an ordinary person would have, asserting merely the legal rights which grow out of its ownership as a proprietor.

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