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WARD - 1911

SOUTH PARK COM’RS v. MONTGOMERY WARD & CO. et al.

SAME v. S. KARPEN & BROS. et al.

(Supreme Court of Illinois. Dec. 21. 1910. Rehearing Denied Feb. 8, 1911.)

1.Words and Phrases— "PARK.”

In the common understanding, a ‘park” is a piece of ground in or near a city or town for

ornament and as a place for the resort of the public for recreation and amusement, and it is usually laid off in walks, drives, and recrea¬tion grounds.

2.EMINENT DOMAIN (Sec. 1) — NATURE OF RIGHT

The right of eminent domain is an inherent power of the sovereign to appropriate private property to the public use existing independently of written Constitutions or statutory laws though regulated by appropriate legislation, and limited only by the constitutional provision for compensation extending to every kind of property.

3.EMINENT DOMAIN (Sec.  67)—QUESTIONS OF NECESSITY AND PROPRIETY.

Questions of the necessity and propriety of the exercise of the right of eminent domain are legislative and not judicial.

4.EMINENT DOMAIN (Sec. 67) — PUBLIC USE — DETERMINATION OF QUESTION BY COURT.

In exercising the right or eminent domain, the Legislature is restricted by the requirements that the use shall be public and lawful and not abused to the injury of well-recognized private rights, and its actions in such respect are subject to court review.

5.        DEDICATION (Sec. 64)—_EFFECT—USF OF PROPERTY.

Where an owner dedicates land to the public for a particular use, specifying the use and imposing restrictions, if the dedication is accepted, the land cannot be applied to any other use or the restrictions disregarded.

6.JUDGMENT (Sec. 713)—RES JUDICATA.

The doctrine of res judicata extends not only to every matter that was actually determined in the former suit, but to every matter that might have been raised and determined in it.

7.EMINENT DOMAIN (Sec. 749) —CONDEMNATION —CONSEQUENTIAL DAMAGES.

If injury results to property not actually taken for a public use by condemnation, the owner has no right to have his property condemned and his consequential damages paid before entry can be made upon the property sought to be taken.

8.JUDGMENT (Sec. 713)—RES JUDICATA.

Where the owner of property abutting on a public park sued to enjoin threatened erec¬tion of a building therein by the city in violation of the terms of the dedication, if he had no right to an injunction except a limited one, until his damages could be ascertained in condemnation proceedings and paid, it was the duty of defendants to present the question and claim their rights, and where they failed to do so, and the injunction was made perpetual, and it was held that the Legislature could not authorize construction of buildings in the park, the judgment was res judicata in a subsequent suit seeking to condemn the property right of abutting owner in the restriction of the use of the park, so that structures might be erected therein.

Dunn, Hand, and Carter, JJ., dissenting. (not included because of errors after OCR scanning.)

Appeal from -Superior Court, Cook County; William H. McSurely, Judge.

Actions by the South Park Commissioners against Montgomery Ward & Co and others, and by the same against S. Karpen & Bros. and others. Judgments of dismissal, and plaintiff appeals. Affirmed.

Tolman, Redfleld & Sexton (John P. Wilson, Edgar Bronson Tolman, Leonard A. Busby, and John Barton Payne, of counsel) for appellant. George P. Merrick and Elbridge Hanecy, for appellees Montgomery Ward & Co. and others. Mayer, Meyer, Austrian & Platt (Levy Mayer, of counsel), for appellees S. Karpen & Bros. and others.

CARTWRIGHT, J. The appellant, the South Park Commissioners, a municipal corporation having charge and control of Grant Park, in the city of Chicago, appealed from four judgments of the superior court of Cook county dismissing its petitions for the condemnation of the rights and easements to have the park kept free from buildings, and to preserve it for the purposes of the original dedications which the petitions alleged were rested in Montgomery Ward and others as owners of lots in Ft, Dearborn addition, and S. Karpen & Bros. and Levy Mayer as own¬ers of lots in Fractional Section 15 addition to Chicago, opposite the park, and, inasmuch as a material question in all the cases is the same, they have been heard together. They bring up again the question of the right to erect buildings in the park, which was adjudicated as between the city and Montgomery Ward in City of Chicago v. Ward, 169 Ill. 392, 48 N. E. 927, 38 L. R. A. 849, 61 Am. St. Rep. 185, as between commissioners of the state and Ward in Bliss v. Ward, 198 III. 104, 64 N. E. 705, and as between Ward and the appellant and the Field Museum in Ward v. Field Museum, 241 Ill. 496. 89 N. E. 731. Two of the petitions prayed for the ascertainment of the compensation to be paid to the owners of lots for the rights and easements, interests, and property to be taken by the erection and maintenance of the Field Museum of Natural History in the park, and two contained like prayers for the ascertainment of the compensation to be paid for the same rights to be taken by the erection and maintenance of the Crerar Library in the park. They were flied in pursuance of the provisions of the Acts of 1903 (Laws 1903. p. 263), permitting the location of this museum and public libraries in the park. The act of 1903, which was under consideration in Ward v. Field Museum, supra, authorizing park commissioners to permit the directors or trustees of a museum at that time located in a public park to erect and maintain such museum within any public park under the control or supervision of such park commis¬sioners, also provided that if any owner or owners of any lands or lots abutting or fronting on such public park had any private right, easement, interest, or property in such park which would be interfered with by the erection and maintenance of such museum, or any right to have the park remain open or vacant and free from buildings, the author¬ities having control of the park might condemn the same under the act providing for the exercise of the right of eminent domain Laws 1903, p. 263. There was a similar provision in the act of 1903 authorizing park commissioners to permit any free public library to be erected in any public park under their control. Laws 1903, p. 262. On January 5, 1910, the petitioner passed on ordinance for acquiring, by condemnation, all rights and easements in the park requisite for the construction of the museum, which was to occupy a space 1,300 feet long north and south and 800 feet wide front east to west, and another ordinance for condemning such easements for the construction and maintenance of the John Crerar Library in the park, between Madison and Monroe streets extended east. The defendants, claiming that the petitioner bad no lawful right to permit the erection of buildings in the park, filed their motions to dismiss the petitions; denying that the proposed uses were public in their nature; alleging that the acts of the Legislature under which the proceedings were instituted were in conflict with the Constitution and therefore void (and particularly that the act in regard to the museum was unconstitutional as applying only to the Field Museum, and granting to a private corporation an exclusive privilege or franchise, and that the prior judgments against the petitioner, or those represented by it and with whom it was in privity, were final adjudications against the right to disregard the restrictions of the original dedications. The court sustained the motions and dismissed the petitions. Inasmuch as a determination of the question whether the Legislature could authorize the erection of buildings in Grant Park contrary to the terms of time dedications of the property for park purposes will dispose of the cases, other questions will not be considered.

The Field Museum is a private corporation, and the act authorizing the erection of its building in the park, which limited the privilege to museums located in a public park on the 1st day of July, 1903. was intended to apply, and as a matter of fact did apply, only to that corporation. The superior court was of the opinion that the act was in violation of the Constitution, as granting an exclusive privilege to the corporation, but if the Legislature could not by any act authorize the erection of a building in the park, any question of a special privilege is not material. There are also questions as to the nature amid limits of public uses, and in Ward v. Field Museum, supra, a great deal of evidence was taken to prove that such buildings as museums were situated in various public grounds called parks, in different parts of the world. We declined to consider that question, and said that questions concerning the proper uses of public parks and what buildings had been erected in other parks were not involved in that case. In the common understanding, a. park, in this country, is a piece of ground in or near a city or town for ornament, and as a place for the resort of the public for recreation and amusement, and it is usually laid out in walks, drives, and recreation grounds. Village of Riverside v. MacLain, 210 Ill. 308, 71 N. E. 408, 66 L. R. A. 288, 102 Am. St. Rep. 164; Webster’s Dict; 29 Cyc. 1684; 21 Am. & Eng. Ency. of Law (2d Ed.) 1006. Whether a public library which is not for amusement or recreation but for educational purposes, or a museum maintained mainly for scientific investigation and instruction in geology, ethnology, and other kindred sciences, and in which entertainment and amusement is only incidental, is a legitimate part of a park might be proper questions for consideration in some cases; but if the only right which the defendants have consists of easements, in connection with their property, of an unobstructed view, and such easements can be taken from them by condemnation, it is not material to them what the uses of the building are. If buildings should be erected not proper in a public park, and therefore a public nuisance, they might be abated at the suit of any one aggrieved, but the material question in these cases is the right to erect any sort of building in the park.

The right of eminent domain is an inherent attribute of sovereignty, existing independently of written Constitutions or statutory laws, although it is regulated by appropriate, legislation. It is the power of the Sovereign to appropriate private property to the public use, limited only by the constitutional provision for compensation. It extends to every kind of property, including not only that which is tangible, but all rights and interests of any kind, including easements. Johnson v. Joliet & Chicago Rail¬road Co. 23 Ill. 202; Metropolitan City Rail¬way Co. v. Chicago West Division Railway Co., 87 Ill. 317; Sholl v. German Coal Co., US Ill. 427, 10 N. E. 199, 59 Am. Rep. 379. Questions of the necessity and propriety of the exercise of the right are legislative and not judicial. Chicago, Rock Island & Pacific Railroad Co. v. Town of Lake, 71 ill. 333; Pittsburgh, Ft. Wayne & Chicago Railway Co. v. Sanitary District, 218 Ill. 286, 75 N. E. 892, 2 L. II. A. (N. S.) 226. But the power is not unrestricted and without bounds. The Legislature are restricted by the requirement that the use shall be public and lawful, and the power cannot be abused to the injury of well-recognized private rights. The Legislature cannot authorize the taking of the property of the citizen for illegal uses, and the courts are not without power to determine that question. A use might be public, in the broadest sense, as being open to all alike upon the same terms and conditions, and the right of the public to use and enjoy the property taken from the citizen be an absolute right and not a mere favor, and yet the use be against public policy because destructive of the health, morals and welfare of society, or subversive of natural or constitutional right. The courts have a right to determine such questions, and may decide whether the use to which it is sought to appropriate the property is a public use; whether such use or purpose would justify the exercise of the compulsory taking of private property under the statute and Constitution; and, where the power is attempted to be exercised by a corporation, whether the power has been delegated to the corporation by the Legislature, and whether the uses and purposes for which the power is sought to be exercised fall within the legislative grant of powers. Chicago, Rock Island & Pacific Railroad Co. v. Town of Lake, supra; South Chicago Railroad Co. v. Dix, 109 Ill. 237; Chicago & Eastern Illinois Railroad Co. v. Wiltse, 116; Ill. 449. 6 N. E. 49; Pittsburgh, Ft. Wayne & Chicago Railway Co. v. Sanitary District. supra; County of Mercer V. Wolff. 237 Ill. 74, 86 N. E. 708. Accordingly, a, railroad company invested with power to exercise the right of eminent domain, but having no right to locate its road on a particular piece of property, has not been permitted by the courts to exercise such right for the purpose of appropriating that property to its use. Lake Shore & Michigan Southern Railway Co. v. Baltimore & Ohio & Chicago Railroad Co., 149 Ill. 272, 37 N. E. 91; Chicago, Burlington & Quincy Railroad Co. v., City of Chicago, 149 Ill. 451, 37 N. E. 78; Cairo, Vincennes & Chicago Railway Co. v. Woodyard, 226 Ill. 331. 80 N. E. 882. The ground of those decisions was that there was no power to appropriate the particular property to the contemplated use.  If the Legislature had no power to change the uses of Grant Park, and to disregard the terms of the dedications by authorizing the erection and maintenance of buildings in the park there could be no condemnation of the rights of the defendant that the park should be kept free from buildings, whatever the nature of such rights might be. It is not thought that the state can divest itself of the right of eminent domain to take private property for public use; but the settled law of this state is that if the owner of private property offers to donate it to the public for a specified public use, and the offer is accepted, and the property devoted to such use, the state cannot change the use and apply the property to some other use inconsistent with the dedication. Grant Park is already devoted to a public use, and the only question to be decided is whether that use can be changed.

Disregarding, for the present, the question of res judicata, the general question whether property dedicated to a particular public use can be diverted to a different use has been before this court in a number of cases, and with uniform results. In the early case of City of Alton V. Illinois Transportation Co., 12 Ill. 38, 52 Am, Dec. 479, certain lands lying between Front street and the Mississippi river, in the town of Alton. had been dedicated to the public as a public landing place, and the court declared the doctrine that, whatever title to the same might be vested in the city of Alton. the city had not the unqualified control and disposition of them; that they were dedicated to the public for particular purposes, and only for such purposes could they be rightfully used, and that for those purposes alone the city might improve and control them.

In city of Jacksonville v. Jacksonville Railway Co., 67 Ill. 540, land had been dedicated for us public square, and by an act of the Legislature the railway company was authorized to construct and operate its railway over and across any public grounds and squares within the town. The railway company attempted to exercise the power so given by the Legislature, but was perpetually enjoined from all attempts to do so. This court held that a power could not exist in the Legislature to divert property from the purpose for which it was donated; that the donation in that case was made for a certain specific and defined purpose; that it must be preserved, or the land must revert to the original proprietors; and that a court of equity would enforce the execution of the trust, either upon the application of the owners of lots abutting upon the square or of the city. Under the law as there declared, if the Legislature should, contrary to the expressed terms on which the public grounds in Ft. Dearborn addition were dedicated, appropriate the same to inconsistent uses, the lands would revert to the United States, the original dedicator, and lands of incalculable value might be lost to the public.

The question in United States v. Illinois Central Railroad Co., 154 U. S. 225, 14 Sup. Ct. 1015,38 L. Ed, 971, was whether the United States, as grantor of the public grounds in Ft. Dearborn addition, retained such an interest therein as entitled them to control and regulate the execution of the trusts created in the dedication, and it was held that they did not, but there was no intimation that there was not a possibility of reverter upon a violation of the condition of the dedication.

In Village of Princeville V. Anten, 77 Ill. 325, the village board of trustees attempted to locate a town hall on a public square. Although the plat did not indicate the manner in which the public might enjoy the dedication, the intention of the dedicators was proved by their oral declarations, and it was held that the village trustees had no authority to appropriate the square, in whole or in part, as a site for buildings against the wishes of any citizen interested.

In Village of Riverside v. MacLain, supra, where a tract in the village of Riverside had been dedicated as a public park, and the proprietors exhibited maps and plats showing such dedication in the sale of lots, the village, having power to lay out streets, attempted to lay one across the park. The park was a small one, set with trees and bushes, and the proposal was to put a roadway through it at an elevation of five feet, cutting the park in two and destroying its usefulness as a park. It was not permitted although there was no express prohibition in the dedication. The court pointed out the distiction between cases where property is dedicated to public uses without restriction or has been established under statutory provisions, and cases where the dedication is restricted to particular purposes by the original owner and the dedication is accepted. Presumably the dedicator, would not make the donation to the public except upon terms and conditions which he specifies, and the pubic authorities having their election to accept or reject the donation, are bound, if they accept it, to apply the property to the declared use. It was held that the village, under its authority to lay out streets, could not lay out a street across the park. It is only where property is dedicated generally, without restriction, to the use of time public that it may be applied to such uses as the public may desire. Chicago, Rock Island & Pacific Railroad Co. v. City of Joliet, 79 Ill. 25.

These cases settle the law of this state to be that an owner making a donation of his land to the public for a particular use has a right to specify the use and impose restrictions, and, if the dedication is accepted, the land cannot be applied to any other use or the restrictions disregarded. Where a proprietor subdivides his land and sells lots with a dedication of a portion for the common use of the owners of lots, such portion is not a part nor public property, nor exempt from taxation (McChesney v. People, 99 Ill. 216), and a case like United States v. Certain Lands (C. C.) 112 Fed. 622, has no relation to the question, here involved. There is in such a dedication no acceptance by the public for a specified use.  In that case it was held that the erection and use of a fortification for coast defense which did not directly encroach upon private property was not a taking of property requiring compensation, and the claims were dismissed except as to a right to go upon and pass over o certain lot which was taken. The police power, which is not exercised through the right of eminent domain, is not involved in this controversy.

The question has also been finally adjudicated with respect to this particular park and between the same parties concerned in this litigation. In 1890 Montgomery Ward filed his bill in the superior court of Cook county to enjoin threatened violations of the terms of the dedications by the city, a local governmental agency of the state, and a final decree was entered restraining the city from erecting or causing to he erected, any building or structure upon the premises described in the bill, extending from Randolph street to Park Row, with certain exceptions, and that decree was affirmed in City of Chicago v. Ward, 169 Ill. 392, 48 N E. 927, 38 L. R. A. 849, 61 Am. St. Rep. 185. It is urged against the application of the doctrine of res judicata that the question of the right to erect buildings in the park upon ascertaining the compensation to be paid to Ward was not considered or decided in that case or the subsequent cases. That is true, but the basic question whether the Legislature could authorize the construction of buildings in the park, which lies at the foundation of the right to condemn, was determined. If the Legislature had no right to erect the buildings, which are now alleged to be a public use, they could not provide for taking the right of any person or appropriating his property for such use. To say that having acquired the right to ascertain and pay the damage to the property of Ward gives the right to change the use and violate the restriction which did not before exist would be reasoning backward. A superstructure does not support the foundation, and a lawful public use lies at the very foundation of the right to appropriate property or property rights. Moreover, the existence of an act authorizing a proceeding to condemn was immaterial. If it were conceded that Ward merely had a property right in the nature of an easement, which could be taken by process of condemnation, he could not have had an injunction against the erection of buildings in the park. Ward did not own or claim to own the fee in the park or any part of it, and if injury results to property not actually taken for a public use, the owner has no right to have his property condemned, but is left to his action at law. The Constitution forbids taking or damaging property for the public use without just compensation, but if no portion of a lot or tract of land is taken for the public use, the owner is not entitled to have proceedings instituted to ascertain what damages his property will sustain. An abutting owner has rights in a street for ingress and egress and easements of light and air, but the public authorities are not bound to stop and litigate with him the question of his damages nor institute a proceeding for condemnation. Penn Mutual Life Ins. Co V. Heiss, 141 Ill. 35 31 N. E. 138, 33 Am. St. Rep. 273; Stetson v. Chicago & Evanston Railroad Co., 75 Ill. 74; Peoria & Rock Is¬land Railway Co. v. Schertz, 84 Ill. 135; County of Mercer v. Wolff, supra. In the case last cited it was said: "But when no part of the land of an abutting owner is taken, the Constitution does not require the ascertainment and payment of his consequential damages before entry can be made upon adjoining property.” Rigney had rights in a street which were interfered with by the construction of a viaduct cutting off access from his house and lot to an intersected street except by means of stairs, and he was permitted to recover damages for the injury to his property (Rigney v. City or Chicago 102 Ill. 64), but he could not have had an injunction against the construction of the viaduct.  So, also, the city interfered with the ingress and egress to the property of Jackson by changing the grade of the street in the construction of a subway under a track elevation ordinance, and he was permitted to recover his damages, but could not have had an injunction. City of Chicago v. Jackson, 196 Ill. 496, 63 N. E. 1013, 1135. In the second case, Bliss v. Ward, 198 Ill. 104, 64 N. E. 705, the Legislature had undertaken to authorize the construction of an armory and parade grounds in the park, so that the Legislature had made a direct attempt to change the use and disregard the restriction, but it was held that the Legislature did not have such power. If the in¬jury to Ward consisted merely in damages to his property, and his only right was to have compensation for such damages, the commissioners of the state would never have been enjoined from building the armory. The act of 1861, amending the charter of the city of Chicago (Priv. Laws 1861, p. 136), did not give a right to an injunction, except to prevent violations of section 64 and a certain ordinance forbidding encroachments by any railroad company on the land between Michigan avenue and the Illinois Central Railroad. Ward acquired no right by that act to enjoin the building of the armory or Field Museum. When the last case (Ward v. Field Museum, supra), was instituted, the act providing for condemnation of his rights had been passed, and, if the fact was of any importance, it was the duty of the appellant and the Field Museum to set it up and claim such rights as it gave them. In fact, it was set up by answer and cross-bill, and if the act was valid and the Legislature had power to change the use by compensating Ward for the depreciation of his property, there could have been no injunction, except one restraining the erection of the building, until his compensation should be ascertained and paid. The doctrine of res Judicata extends not only to every matter that was actually determined in the former suit, but to every other matter which might have been raised and determined in it. Rog¬ers v. Higgins, 57 Ill. 244; Harmon v. Audi¬tor of Public Accounts, 123 Ill. 122, 13 N. E. 161, 5 Am. St. Rep. 502; Harvey v. Au¬rora & Geneva Railway Co., 186 Ill. 283, 57 N.E. 857; Ward v. Field Museum, supra; People v. Superior Court, 234 Ill. 186, 84 N. E.. 875.  If Ward had no right to an injunction, except a limited one, until his damages would be ascertained and paid, it was the duty of the defendants to present that question and claim their right under the act. The injunction was made perpetual, and all questions that might have been raised were determined adversely to the petitioner in this case, although, as we have already seen, a court of equity would not have given Ward an injunction if the proposed use had been lawful. The question considered in the former cases was simply whether the Legislature, or any of its subordinate agencies, could disregard the prohibition against buildings in the park, and that was the question decided. It was determined in each case that he occupied a position which gave him a right to enforce the restriction as one having a special interest in having it enforced. It was decided in the previous suits that there was no lawful authority for the erection of buildings in Grant Park, and without such authority there could he no valid law authorizing the condemnation of property for that purpose. If the provisions contained in the first sections of the two acts of 1903 for the erection of the museum and public libraries in the park were beyond the power of the Legislature, they were not brought within it by filing petitions under the other provisions of the same sections.

The judgments are affirmed.

Judgments affirmed.

There were several dissenting minority opinions that were not proofread for errors after OCR scanning.

Note this important distinction, that the Illinois Supreme Court had already ruled in 3 previous Grant Park cases (1897, 1902, and 1909) that the Legislature and any govermental body created by the Legislature (City of Chicago, Chicago Park District, etc.) could NOT change the uses of Grant Park or disregard the terms of the dedication restrictions by authorizing the erection and maintenance of buildings in the park." 

After reading these  4 decisions, could any reasonable person conclude that a private pay-for-play children's learning center could be given protected public park land for their exclusive permanent-use forever?

We should be reminded that the Children's Museum is also a private corporation.

The armory was to be build on the same public ground that is now identified as the Daley Bicentennial Plaza. The 1902 decision did not allow the Legislature (or any governmental unit created by them) to "change the use and disregard the restriction". Note the clear lack of mention of whether the armory was above ground or below ground ---- just like it will not matter if the Children's Museum is below the ground of either Upper Randolph (+53 CCD) or the Daley Plaza (+34 CCD Chicago City Datum)

The intended use of Grant Park land in the dedication restrictions is NOT a private pay-for-play children's interactive learning center.

Disclaimer - The 5 Illinois Supreme Court Decisions that are presented on this neweastside.org website were scanned from very poor quality PDF files, then scanned using OCR (Optical Character Recognition) software, and converted to a DOC file for inputing into HTML by the Homestead Software. Because of the historical poor quality of repeated copying, after the OCR conversion, several hundred errors were proofread and corrected. Therefore, there could be minor errors in this presentation. I certify that there are no major errors that would change the interpertation of this decision.

        Richard F. Ward, December, 2007

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