Cummings v. Chicago

The appellants, citizens of Illinois, brought this suit against the city of Chicago for the purpose of obtaining a decree restraining the defendant, its officers and agents, from interfering with the construction of a dock in front of certain lands owned by the plaintiffs and situated on Calumet river, within the limits of that city.

The city demurred to the bill upon the ground that it did not state facts entitling the plaintiffs to the relief asked. The demurrer was sustained, and the bill was dismissed for want of equity.

The controlling question in the case is whether the plaintiffs have the right, in virtue of certain legislation of Congress and of certain action of the Secretary of War, to which reference will be presently made, to proceed with the proposed work in disregard of an ordinance of the city of Chicago requiring the permission of its department of public works as a condition precedent to the construction of any dock within the limits of the city. The plaintiffs had not obtained any permit from that department.

The legislation of Congress and the action of the Secretary of War upon which the plaintiffs rely are very fully set forth in the bill, and are as follows:

In the river and harbor appropriation act of August 2d, 1882, chap. 375, will be found this provision: 'Improving harbor at Calumet, Illinois: Continuing improvement, thirty-five thousand dollars: Provided, That with a view to the improvement of the Calumet river, in the state of Illinois, from its mouth to the Fork at Calumet lake, the Secretary of War shall appoint a board of engineers who shall examine said river and report upon the practicability and the best method of perfecting and maintaining a channel for through navigation to said Fork at Lake Calumet, adapted to the passage of the largest vessels navigating the Northern and Northwestern Lakes, limiting and locating the lines of channel to be improved by the United States, and of docks that may be constructed by private individuals, corporations, or other parties, and clearly defining the same under the direction of the chief of engineers, United States Army; and the Secretary of War shall report to Congress the result of said examination, and the estimated cost of the proposed improvement; also what legislation, if any, is necessary to prevent encroachments being made or maintained within the limits of the channel designated as above provided for.' 22 Stat. at L. 194.

Thereafter, the bill alleges, the Secretary of War appointed a board of engineers, who surveyed the river and defined the lines of its channel and of docks to be constructed, under the direction of said chief of engineers; and the Secretary of War thereafter reported to Congress the estimated cost of the proposed improvement.

In the river and harbor appropriation act of July 5th, 1884, chap. 229, this provision was inserted: 'Improving Calumet River, Illinois: Continuing improvement, fifth thousand dollars: Provided, however, That no part of said sum shall be expended until the right of way shall have been conveyed to the United States, free from expense, and the United States shall be fully released from all liability for damages to adjacent property owners, to the satisfaction of the Secretary of War.' 23 Stat. at L. 133, 143.

Under these enactments, the bill alleged, the United States caused a plat to be made establishing the channel of the river and its lines, and fixing the dock lines thereof. That plat was approved by the chief of engineers of the Army and was duly recorded in the recorder's office of Cook county.

The above legislation was followed by this provision in the river and harbor act of August 5th, 1886, chap. 929: 'Improving Calumet River, Illinois: Continuing improvement, thirty thousand dollars; of which eleven thousand two hundred and fifty dollars are to be used between the Forks and one-half mile east of Hammond, Indiana;. . . Provided, however, That no part of said sum, nor any sum heretofore appropriated, except the said eleven thousand two hundred and fifty dollars, for the river above the Forks, shall be expended until the entire right of way, as set forth in Senate Executive Document Number Nine, second session Forty-seventh Congress, shall have been conveyed to the United States free of expense, and the United States shall be fully released from all liability for damages to adjacent property owners, to the satisfaction of the Secretary of War;. . .' 24 Stat. at L. 310, 325.

Without going into all the details set forth in the bill, it may be assumed that the deeds of conveyance which the above acts of 1884 and 1886 required to be made to the United States were in fact made and accepted.

The bill alleges that the United States by its duly authorized officials thereafter entered upon the improvement of Calumet river in accordance with the surveys and plans adopted by the chief of engineers of the United States Army, and 'thereby established said dock or channel line on the west line of said river in the manner and form shown by said plat approved by the said chief of engineers, and filed for record as aforesaid.'

By the 7th section of the river and harbor act of Congress approved September 19th, 1890, chap. 907, it was provided: 'That it shall not be lawful to build any wharf, pier, dolphin, boom, dam, weir, breakwater, bulkhead, jetty, or structure of any kind outside established harbor lines, or in any navigable waters of the United States where no harbor lines are or may be established, without the permission of the Secretary of War, in any port, roadstead, haven, harbor, navigable river, or other waters of the United States, in such manner as shall obstruct or impair navigation, commerce, or anchorage of said waters, and it shall not be lawful hereafter to commence the construction of any bridge, bridge-draw, bridge piers and abutments, causeway, or other works over or in any port, road, roadstead, haven, harbor, navigable river, or navigable waters of the United States, under any act of the legislative assembly of any state, until the location and plan of such bridge or other works have been submitted to and approved by the Secretary of War, or to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of the channel of said navigable water of the United States, unless approved and authorized by the Secretary of War: Provided, That this section shall not apply to any bridge, bridge-draw, bridge piers, and abutments the construction of which has been heretofore duly authorized by law, or be so construed as to authorize the construction of any bridge, drawbridge, bridge piers and abutments, or other works, under an act of the legislature of any state, over or in any stream, port, roadstead, haven, or harbor, or other navigable water not wholly within the limits of such state.' 26 Stat. at L. 426, 454.

Then, by the 10th section of the river and harbor act of March 3d, 1899, chap. 425, it was provided: 'That the creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States, is hereby prohibited; and it shall not be lawful to build, or commence the building of, any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the chief of engineers and authorized by the Secretary of War; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the chief of engineers and authorized by the Secretary of War prior to beginning the same.' 30 Stat. at L. 1121, 1151 (U.S.C.omp. Stat. 1901, p. 3541).

Subsequently, the plaintiffs and the Calumet Grain & Elevator Company-the latter also owning land on the Calumet river in front of which the proposed new dock would be built-caused plans of the dock to be prepared and submitted to the Secretary of War and the chief of engineers of the Army, and application was made to the former for permission to rebuild the dock along the front of their lands on Calumet river as shown by those plans.

Those plans were approved by the United states engineer stationed at Chicago, and were subsequently recommended by the chief of engineers of the Army. The Secretary thereupon issued and delivered to the plaintiffs and the Grain & Elevator Company the following instrument:

Whereas, by § 10 of an act of Congress, approved March 3d,     1899, entitled 'An Act Making Appropriations for the      Construction, Repair, and Preservation of Certain Public      Works on Rivers and Harbors, and for Other Purposes,' it is      provided that it shall not be lawful to build, or commence      the building of, any wharf, pier, dolphin, boom, weir,      breakwater, bulkhead, Jetty, or other structures in any port,      roadstead, haven, harbor, canal, navigable river, or other      water of the United States, outside established harbor lines,      or where no harbor lines have been established, except on      plans recommended by the chief of engineers and authorized by      the Secretary of War; and it shall not be lawful to excavate      or fill, or in any manner to alter or modify the course,      location, condition, or capacity of, any port, roadstead,      haven, harbor, canal, lake, harbor of refuge, or inclosure      within the limits of any breakwater, or of the channel of any      navigable water of the United States, unless the work has      been recommended by the chief of engineers and authorized by      the Secretary of War prior to beginning the same; and      whereas, D. M. Cummings, as executor of the estate of C. R.

Cummings, and the Calumet Grain & Elevator Company have     applied to the Secretary of War for permission to ribuild the      dock in front of that part of block 108, in sections 5 and 6,      T. 37, R. 15, E., fronting on Calumet river, south of 95th      street, Chicago, Illinois, along the lines shown on the      attached plans, which have been recommended by the chief of      engineers; now, therefore, this is to certify that the      Secretary of War hereby gives unto said D. M. Cummings, as      executor of the estate of C. R. Cummings, and the Calumet      Grain & Elevator Company permission to rebuild the dock, at      said place, along the lines shown on said plans, subject to      the following condition: That the work herein permitted to be      done shall be subject to the supervision and approval of the      engineer officer of the United States Army in charge of the      locality.

Witness my hand this 12th day of May, 1900.

Elihu Root,

Secretary of War.

The bill then alleged—

That after the granting of permission by the Secretary of War the plaintiffs became entitled, in virtue of that permission and the provision of the act of March 3d, 1899, to build the proposed dock in front of their premises, subject only to the condition that the work should be under the supervision and be approved by the engineer officer of the Army in charge of the locality;

That after the action of the Secretary of War they entered into a contract for the building of the dock, and were engaged in the prosecution of the work when, about the 15th of October, 1900, the city of Chicago, by its officers and agents, put a stop to the work by force and threats, asserting that it could not be prosecuted unless a permit therefor be issued by its department of public works;

That this action of the city was taken pursuant to certain ordinances theretofore passed by the city council, and which made it the duty of the city's harbor master to require all parties engaged in repairing, renewing, altering, or constructing any dock within the city to produce such permit, and in default thereof to cause the arrest of any parties engaged in the work and the removal of the dock; That the engineer officer in the department of public works of the city, having agreed that the city had no power to interfere with the plaintiffs or prevent the building of said dock by them, agreed that the work should not be interfered with by the city or its agents;

That the plaintiffs thereupon resumed the construction of the dock, but they were again stopped by the city through its police, and plaintiffs' contractors, agents, and servants were forced to discontinue the work, being threatened with arrest and violence if they should attempt to continue it further;

That the city by its officers and agents has notified the plaintiffs that they will not be permitted to continue the work or to build the dock in front of their premises, notwithstanding the permission or authority given to them by the Secretary of War, and that, by its police, it would forcibly prevent the building thereof, arrest those engaged in doing the work, and remove any dock built; and,

That the city wholly refuses to recognize the permission and authority given the plaintiffs by the Secretary of War to build said dock, and their right 'under the Constitution and laws of the United States, and more particularly under the said act of Congress of March 3d, 1899, to build it by virtue of the said authority and permission granted by the Secretary of War and the approval and recommendation of the plans therefor by the chief of engineers of the United States Army;'

That, in view of the action taken by the city and its police, they fear that attempts to continue their work will necessarily be futile and lead to breaches of the peace and conflicts between the men engaged in the work and the police of the city of Chicago; and that the right to build said dock in front of their premises in accordance with the permission and authority given them by the Secretary of War and on the lines recommended by the chief of engineers and within the dock line established by said survey and by the deed to the United States is a property right, which the plaintiffs have as the owners of the premises and of the land upon which the dock is to be built, and that the action of the city in thus preventing the building of the dock is a taking of the property of the plaintiffs 'without due process of law, and a taking thereof for public use without just compensation, in violation of the 5th Amendment of the Constitution of the United States.'

The relief asked was a decree enjoining the city, its agents and officers, from interfering with the building of the dock, and that upon the final hearing of the cause it be adjudged and decreed that under the acts of Congress the plaintiffs have the right, by virtue of the permission granted by the Secretary of War, to build the dock on the lines shown by the plans recommended by the chief of engineers, and that the city of Chicago has no right, power, or authority to interfere therewith.

Messrs. Warren B. Wilson and S. A. Lynde for appellants.

[Argument of Counsel from pages 418-421 intentionally omitted]

Messrs. Charles M. Walker and Henry Schofield for appellee.

[Argument of Counsel from pages 421-425 intentionally omitted]

Mr. Justice Harlan delivered the opinion of the court: