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bed of the lake, for the purposes of its business, east of and adjoining the premises between the river and the north line of Randolph street, and also north of the south line of lot 21; and also the right, by constructing and maintaining wharves, docks, piers, etc., to improve the shore of the lake for the purposes of its business and for the promotion generally of commerce and navigation. The state insisting that the company has, without right, erected, and proposes to continue to erect, wharves, piers, etc., upon the domain of the state, asks that such unlawful structures be directed to be removed, and the company enjoined from constructing others. The city, by its cross bill, insists that since June 7th, 1839, when the map of Fort Dearborn addition was recorded, it has had the control and use for public purposes of that part of section 10 which lies east of Michigan avenue and between Randolph street and fractional seetion 15; and that, as successor of the town of Chicago, it has had ession and control since June 13th, 1836, when the map of fractional section 15 addition was recorded, of the lands in that addition north of block 23. It asks a decree declaring that it is the owner in fee, and of the riparian rights thereunto appertaining, of all said lands, and has, under existing legislation, the exclusive right to develop the harbor of Chicago by the construction of docks, wharves, and levees, and to dispose of the same, by lease or otherwise, as authorized by law; and that the railroad company be enjoined from interfering with its said rights and ownership. The relief sought by the United States is a decree declaring the ultimate title and property in the ‘Public Ground' shown on the plat of the Fort Dearborn addition, south of Randolph street, and also in the open space shown on the plat of frac: tional section 15 addition, to be in the UnitF ed"States, with the right of supervision and control over the harbor and navigable wa
ters aforesaid; that the railroad companies and the city be enjoined from exercising any right, power, or control over said grounds, or over the waters or shores of the lake; that the Illinois Central Railroad Company be restrained from making or constructing any piers, wharves, or docks, and from driving piles, building walls, or filling with earth or other materials in the said lake, or from using any made-ground, or any piers, wharves, or other constructions made or built by or for it in or about the outer harbor, to the east of the 200-feet strip of its way-ground, or from taking or exacting any toll for such use; and that the Illinois Central Railroad Company be required to abate and remove all obstructions placed by it in said outer harbor, and to quit possession of all lands, waters, and made-ground taken and held by it without right as aforesaid. The state, the city, and the general government all unite in contending that the lake front act of 1869 is inoperative and void.” 33 Fed. 730, 750. A final decree was rendered in the circuit court on the 24th day of September, 1888. By that decree it was adjudged that the fee of certain streets, avenues, and grounds was in the city of Chicago in trust for public use; and that the city of Chicago, as riparian owner of such grounds on the east or lake front of said city, between the north line of Randolph street and the north line of block 23, each of the lines being produced to Lake Michigan, and in virtue of authority to that end conferred by its charter, had, among other powers, the power to establish, construct, erect, and keep in repair on the lake front, east of such premises, within the lines given, and in such manner as would be consistent with law, public landing places, wharves, docks, and levees, subject, however, in the execution of that power, to the authority of the state by legislation to prescribe the lines beyond which piers, docks, wharves, and other structures,
company pays to the state at least 7 per cent of its gross earnings, and under and by virtue of its appropriation, occupancy, use, and control, and the riparian ownership incident to such grant, appropriation, occupancy, use, and control, in and to the lands, submerged or otherwise, lying east of the said line, running parallel with and 400 feet east of the west line of Michigan avenue, in fractional sections 10 and 15, township and range as aforesald, is hereby confirmed ; and all the right and title of the state of Illinois in and to the submerged lands constituting the bed of Lake Michigan, and lyling east of the tracks and breakwater of the Illinois Central Railroad Company, for the distance of 1 mile, and between the south line of the south pier extended eastwardly and a line extended eastward from the south line of lot 21, south of and near to the roundhouse and machine shops of said company, in the south division of the said city of Chicago, are hereby granted in fee to the said Illinois Central Railroad Company, its successors and assigns: Provided, however, that the fee to said lands shall be held by said company in perpetuity, and that the said company shall not have power to grant, sell, or convey the fee to the same; and that all gross receipts from use, profits, leases, or otherwise of said lands, or the Im
provements thereon, or that may hereafter be made thereon, shall form a part of the gross proceeds, receipts, and income of the said Illinois Central Railroad Company, upon which said company shall forever pay into the state treasury, semiannually, the percentum provided for in its charter, in accordance with the requirements of said charter: and Provided, also, that nothing herein contained shall authorize obstructions to the Chicago harbor, or impair the public right of navigation; nor shall this act be construed to exempt the Illinois Central Railroad Company, its lessees or assigns, from any act of the general assembly which may be hereafter passed regulating the rates of wharfage and dockage to be charged in said harbor: and Provided, further, that any of the lands hereby granted to the Illinois Central Railroad Company, and the improvements now, or which may hereafter be, on the same, which shall hereafter be leased by said Illinois Central IRailroad Company to any person or corporation, or which may hereafter be occupied by any person or corporation other than said Illinois Central Railroad Company, shall not, during the continuance of such leasehold estate or of such occupancy, be exempt from municipal or other taxation."
other than those erected by the eral government, might not be extended into the waters of the harbor that were navigable in fact, and to such supervision and control as the United States might rightly exercise
#in and over such harbor, and subject also
• to the enjoyment by the Illinois*Central Railroad Company of the rights then to be defined and described. It was further adjudged: *That the Illinois Central Railroad Company is the owner in fee of all the wharves, piers, and other structures erected by it in the city of Chicago, east of Michigan avenuc, south of Chicago river, and north of the north line of Randolph street, extended eastwardly as shown upon said Morehouse map, including the station grounds lying west of the slip C, the pier marked C, lying east of slip C, and represented upon the Morehouse map to have been built in 1867, and piers 1, 2, and 3, lying east of pier 0 last mentioned, and represented upon said map to have becn built as follows: Pier 1 in 1872 and 1873, pier 2 in 1881, and pier 3 in 1880, and is also entitled to the use, for the purposes of its business, of the slips marked on said Morehouse map. “That said company is likewise the owner in fee of all the wharves, piers, and other works made and constructed by it in the city of Chicago, east of its main tracks, between the north line of block 23, in fractional section 15 addition to Chicago, and the center line of Sia-teenth street extended, including the pier or line of piling represented upon the said Morehouse map to have been built in 1870, and the station grounds lying west of the said pier and contiguous thereto; also of the wharf or pier projecting into the lake from the grounds last mentioned, and represented upon the said Morchouse map to have been built in 1885; which said wharves, piers, and other works so constructed and so far as constructed by the said Illinois Central Railroad Company, as aforesaid, are lawful structures and not encroachments upon the domain of the state of Illinois or upon the public right of navigation, or upon the property interests or estate of the said city of Chicago.” “And the court doth further find and declare, and it is hereby adjudged and decreed, that the 3d section of the act of the general assembly of the state of Illinois, passed over the governor's veto April 16, 1869, entitled, “An Act in Relation to a Portion of the Submerged Lands and Lake Park Grounds #Lying on and Adjacent to the Shore of * Lake Michigan, on the Eastern"Frontage of the City of Chicago,” so far, at least, as it confirms “the right of the Illinois Central Railroad Company under the grant from the state in its charter, and under and by virtue of its appropriation, occupancy, use, and control, and the riparian ownership incident to such grant, appropriation, occupancy, use, and control in and to the lands, submerged or otherwise, lying east of the said line running parallel with and 400 feet east of the west line of Michi
avenue in fractional sections 10 and 15,” is a valid and constitutional exercise of legislative power, and legalizes as well what was done by said company prior to April 16th, 1809, in the way of filling in the lake and constructing wharves, piers, tracks, warehouses, and other works between the Chicago river and the north line of Randolph street extended eastwardly, as its occupancy and use for way-ground of the two said triangular pieces of ground immediately south of Randolph street; and that the subsequent act of the general assembly of Illinois, passed April 15th, 1873, in so far as it sought by repealing the said act of April 16th, 1860, to revoke or annul said consirmatory clause of the last-named act, was void under the Constitution both of Illinois and of the United States; but the court is of opinion, and so adjudges and decrees, that the said act of April 15th, 1873, repealing said act of April 16th, 1869 had the effect in law to withdraw from said railroad company the grant to it, its successors and assigns, by the 3d section of said act of April 15th (16th), 1869, of ‘all the right and title of the state of Illinois in and to the submerged lands constituting the bed of Lake Michigan and lying east of the tracks and breakwater of the Illinois Central Railroad Company for the distance of 1 mile, and between the south line of the pier extended eastwardly and a line extended eastward from the south line of lot 21, south of and near to the roundhouse and machineshops of said company, in the south division of said city of Chi ;’ and to reinvest the state with such right and title as it had in and to said premises prior to the passage of said act of April 16th, 1869; and said repealing act had the further effect to withdraw from said company the additional power conferred upon it by said act of April 16th, 1869, to improve the harbor; of Chicago, and"to engage in the business of" constructing and maintaining wharves, piers, and docks for the benefit of commerce and navigation generally, and not in the prosecution of its business as defined and limited by its original charter and the laws of the state, saving, however, to said company as unaffected by said repeal the right to hold and use as part of its way-ground or right of way, and not otherwise, the beforementioned part of the submerged lands east of its breakwater between Monroe and Washington streets extended eastwardly, which was reclaimed from the lake in 1873, presumably upon the faith of the act of 1869, and is marked on the Morehouse map with the words “built 1873.” “It is further ordered, adjudged, and decreed that the defendant, the Illinois Central Railroad Company, be, and it is hereby, perpetually enjoined and restrained from erecting structures in or filling with earth or other materials any portion of the bed of Lake Michigan as it now eacists and as shown on said Morehouse map east or in front of said fractional sections 10 and 15, —that is, east or in front of the grounds now occupical and used by it between Chi
cago river and the north line of Randolph street eatended eastwardly, or east or in front of the grounds now occupied and used by it between the north line of IRandolph and the center line of Sia teenth street, each eartended eastwardly, except that said company may complete the slip or basin already commenced immediately north of Sixteenth street extended, with a wharf on each side of it not exceeding 100 feet in width each, where vessels coming into such slip or basin may load and unload, and upon which tracks of the company may be laid; and it is considered and ordered by the court that the Illinois Central Railroad Company and the city of Chicago each pay one half of the : herein, and that execution issue thereor.” The railroad company not having obtained all it claimed, the cause was brought by it to this court, which affirmed the decree of the circuit court carcept as modified in certain particulars, to be presently indicated. Illinois C. R. Co. v. Illinois, 146 U. S. 387, 449, 464, 36 L. ed. 1018, 1041, 1046, 13 Sup. Ct. Rep. 110, 117, 122. Referring to the 3d section of the act of • the Illinois"legislature of 1869 this court said: “The section in question has two obi. in view: one was to confirm certain aleged rights of the railroad company under the grant from the state in its charter and under and “by virtue of its appropriation, occupancy, use, and control, and the riparian ownership incident thereto, in and to the lands submerged or otherwise lying east of a line parallel with and 400 feet east of the west line of Michigan avenue, in fractional sections 10 and 15. The other object was to grant to the railroad company submerged lands in the harbor. The confirmation made, whatever the operation claimed for it in other respects, cannot be invoked so as to extend the riparian right which the company possessed, from its ownership of lands in sections 10 and 15 on the shore of the lake. Whether the piers or docks constructed by it after the passage of the act of 1869 extended beyond the point of navigability in the waters of the lake must be the subject of judicial inquiry upon the execution of this decree in the court below. If it be ascertained upon such inquiry and determined that such piers and docks do not extend beyond the point of practical navigability, the claim of the railroad company to their title and possession will be confirmed; but if they, or either of them are found on such inquiry to extend beyond the point of such navigability, then the state will be entitled to a decree that they, or the one thus extended, be abated and removed to the extent shown, or for such other disposition of the extension as, upon the application of the state and the facts established, may be authorized by law.” The modifications in the original decree of 1888 which this court directed to be made are distinctly shown by the following extract from our opinion: “It follows from the views expressed, and it is so declared and adjudged, that the
state of Illinois is the owner in fee of the submerged lands constituting the bed of Lake Michigan, which the 3d section of the act of April 16th, 1869, purported to grant to the Illinois Central Railroad Company, and that the act of April 15th, 1873, repealing the same, is valid and effective for the purpose of restoring to the state the same? control,” dominion, and ownership of said: lands that it had prior to the passage of the act of April 16th, 1869. “But the decree below, as it respects the pier commenced in 1872, and the piers completed in 1880 and 1881, marked 1, 2, and 3, near Chicago river, and the pier and docks between and in front of Twelfth and Sixteenth streets, is modified so as to direct the court below to order such investigation to be made as may enable it to determine whether those piers erected by the company, by virtue of its riparian proprietorship of lots formerly constituting of section 10, extend into the lake beyond the point of practical navigability, having reference to the manner in which commerce in vessels is conducted on the lake; and if it be determined upon such investigation that said piers, or any of them, do not extend beyond such point, then that the title and possession of the railroad company to such piers shall be affirmed by the court; but if it be ascertained and determined that such piers, or any of them, do extend beyond such navigable point, then the said court shall direct the said pier or piers, to the earcess ascertained, to be abated and removed, or that other proceedings relating thereto be taken on the application of the state as may be authorized by law; and also to order that similar proceedings be taken to ascertain and determine whether or not the pier and dock constructed by the railroad company in front of the shore between Twelfth and Sixteenth streets eartend beyond the point of navigability, and to affirm the title and possession of the company if they do not ertend beyond such point, and, if they do extend beyond such point, to order the abatement and removal of the excess, or that other proceedings relating thereto be taken on application of the state as may be authorized by law. Eaccept as modified in the particulars mentioned, the decree in each of the three cases on appeal must be affirmed, with costs against the railroad company; and it is so ordered.” Illinois Central R. Co. v. Illinois, 146 U. S. 387, 449, 464, 36 L. ed. 1018, 1041, 1046, 13 Sup. Ct. Rep. 110, 117, 122. The mandate of this court embodied the above extract from its opinion, and upon the return of the causes to the circuit court the parties took additional proof on the single matter so reserved for investigation. 3 * Upon final hearing in the circuit court,” May, 1896, a decree was entered by which it was found and adjudged “that the said piers and docks referred to in the aforesaid judgment and mandate of the Supreme Court and there described as piers marked 1, 2, and 3, near Chicago river, and the piers and docks constructed by the said railroad
company in front of the shore between Twelfth and Sixteenth streets, all in the city of Chicago, in the state of Illinois, do not extend, nor does either of them extend, into the lake beyond the point of practical navigability, having reference to the manner in which commerce in vessels is conducted on the lake. It is therefore ordered, adjudged, and decreed that the title and possession of the said Illinois Central Railroad Company to the said piers, and each of them and every part thereof, be, and the same is hereby, affirmed.” That decree was affirmed by the circuit court of appeals (34 C. C. A. 138, 91 Fed. 955), and the case is here upon appeal by the state of Illinois. No appeal was taken by the United States or by the city of Chicago. In view of these facts, what matters are open for consideration on this appeal? This question was fully discussed at the bar. It is not in our opinion difficult of solution. We have seen that by the original decree of the circuit court rendered September 24th, 1888, the railroad company was adjudged to be the owner in fee of the particular structures in question, namely, the piers marked 1, 2, and 3 on the Morehouse map, as well the piers and docks between and in front of Twelfth and Sixteenth streets, and were entitled to use and control them in its business. This court held that view to be correct, provided the structures did not “extend into the lake beyond the point of practical navigability, having reference to the manner in which commerce in vessels is conducted on the lake.” If, upon investigation, it was found that the structures referred to did in fact extend beyond that point, then the circuit court was directed to make such decree as would effect their removal “to the excess ascertained;” and if the contrary was found to be the case, then a decree was to be entered recognizing the right of the railroad company in respect of the structures in question to be such as were declared by the - original decree of the circuit court. F * As already shown, the circuit court found, upon full inquiry, that the structures did not extend beyond the point of practical navigability, having reference to the manner in which commerce was conducted on the lake; and in conformity with the mandate a decree was entered confirming the title of the railroad company. In Sibbald v. United States, 12 Pet. 488, 492, 9 L. ed. 1167, this court said: “A final decree in chancery is as conclusive as a judgment at law. l. Wheat. 355, 4 L. ed. 110; 6 Wheat. 113, 116, 5 L. ed. 219, 220. Both are conclusive on the rights of the parties thereby adjudicated. No principle is better settled, or of more universal application, than that no court can reverse or annul its own final decrees or judgments, for errors of fact or law, after the term in which they have been rendered, unless for clerical mistakes (3 Wheat. 591, 4 L. ed. 467; 3 Pet. 431, 7 L. ed. 731); or to reinstate a cause dismissed by mistake (12 Wheat. 10, 6 L. ed. 534); from which it 22 S. C.–20.
follows that no change or modification can be made which may substantially vary or affect it in any material thing. . . . . Whatever was before the court, and is disposed of, is considered as finally settled. The inferior court is bound by the decree as the law of the case, and must carry it into execution, according to the mandate. They cannot vary it, or examine it for any other purpose than execution, or give any other or further relief, or review it upon any matter decided on appeal for error apparent, or intermeddle with it, further than to settle so much as has been remanded. - After a mandate, no rehearing will be granted, and on a subsequent appeal nothing is brought up but the proceeding subsequent to the mandate. 5 Cranch, 316, 3 L. ed. 1.12; 7 Wheat. 58, 59, 5 L. ed. 397; 10 Wheat. 443, 6 L. ed. 362. In Roberts v. Cooper, 20 How. 467, 481, 15 L. ed. 969, 973, the court said: “On the last trial the circuit court was requested to give instructions to the jury contrary to the principles established by this court on the first trial, and nearly all the exceptions now urged against the charge are founded on such refusal. But we cannot be compelled on a second writ of error in the same case to review our own decision on the first. It has been settled by the decisions of this court, that after a case has been brought here and decided, and a mandate issued to: the court" below, if a second writ of error" is sued out it brings up for revision nothing but the proceedings subsequent to the mandate. None of the questions which were before the court on the first writ of error can be reheard or examined upon the second. To allow a second writ of error or appeal to a court of last resort on the same questions which were open to dispute on the first would lead to endless litigation. In chancery a bill of review is sometimes allowed on petition to the court; but there would be no end to a suit if every obstinate litigant could, by repeated appeals, compel a court to listen to criticisms on their opinions, or speculate of chances from changes in its members. We can now notice, therefore, only such errors as are alleged to have occurred in the decisions of questions which were peculiar to the second trial.” To the same effect are numerous cases, some of which are cited in the marin.f gi It is clear, under the adjudged cases, that upon the return of this cause to the circuit court nothing was before that court except to inquire whether the structures erected by the railroad company, and specifically described in the opinion and mandate of this court, extended into the lake beyond the point of practical navigability, having reference to the manner in which commerce in vessels
was conducted on the lake. That matter, and nothing more, has been or could have been determined by the final decree of the circuit court, and therefore on this appeal we can only inquire as to the soundness or unsoundness of its conclusion upon the sole uestion reserved for investigation. We erefore do not stop to consider, as the appellant insists we should do, whether this court erred in any particular "in its opinion or judgment on the former appeal, in respect of any matter then determined. Every matter embraced by the original decree of the circuit court, and not left open by the decree of this court, was conclusively determined, as between the parties, by our former decree, and is not subject to re-examination on this appeal. We come, then, to consider the merits of the case as involved in the only question now before us, namely, whether the structures referred to extend beyond the point of practical navigability, having reference to the manner in which commerce in vessels is conducted on the lake. Judge Showalter in the circuit court found that the facts relating to the structures north of Randolph street and those between Twelfth and Sixteenth streets fully protected the railroad company under the rule prescribed by the mandate of this court. Referring to vessels of the largest class continuously used in lake navigation, he said: “Such vessels, when ladened, require from 16 to 20 feet of water in which to float. A vessel drawing more than 12 feet, as I find from the evidence in the case, would hardly reach the structure here in question in the ordinary stages of water, and in the lowest water vessels requiring more than 10 feet could not reach or land at these docks. Without being specific as to the exact depth of the water, I find that the two piers and docks between Twelfth and Sixteenth streets do not extend into the lake beyond the point of practical navigability, having reference to the manner in which commerce in vessels is conducted on the lakes, and I make the same finding as to the piers and docks north of Randolph street. In the circuit court of appeals, Judge Jenkins, speaking for the court, said: “The right [of the riparian owner] is a relative right, having relation, in the language of the Supreme Court in this cause, “to the manner in which commerce in vessels is conducted on the lake.” To serve any useful purpose these piers must reach water of sufficient depth to float vessels when laden, and alongside of which vessels can be brought to be conveniently loaded or unloaded. A sufficient depth of water to float vessels such
as navigate the waters of the lake is essential,.. and "it is a necessary incident of the riparian" right that the pier shall penetrate the water to a distance from the shore necessary to reach water which shall float vessels, the largest as well as the smallest, that are engaged in the commerce of the lakes. Atlee v. Northwestern U. Packet Co. 21 Wall. 393, 22 L. ed. 620; Langdon v. New York, 93 N. Y. 151. . . . . We must have regard to the object for which this right is conferred. It is to reach out to accommodate the vessels that plow the waters of the lake. It is in aid of the commerce of the lake, and that right for that pu e should be liberally interpreted and upheld.” After referring to the harbor line adopted by the United States government at the request of the city of Chicago, the court proceeded: “Without undertaking to say to what extent these proceedings of the city of Chicago were authorized as between it and the people of the state of Illinois, it is sufficient to say that these things have been done without any adverse action on the part of the state of Illinois. If they have no other effect, they tend to strengthen, if support be needed, the general drift of all the evidence in the case, that the necessities of the commercial marine of the Great Lakes require substantially a depth of water of 20 feet to float the larger class of vessels, and indicate that that depth at the present time marks “the point of practical navigability, having reference to the manner in which commerce in vessels is conducted on the lake.” It is conceded that the piers in question do not intrude into the waters of the lake to that extent, and that the depth of water can be obtained at them only by dredging. Conceding, then, as we must, the right of the railroad company to reach that point of practical navigability, these structures were not and are not unlawful, and its rights to them must be sustained. The title to submerged lands resting in the state is held in trust in aid of navigation. Courts have at all times been diligent to protect and enforce rights of navigation, in aiding and protecting whatever may tend to build up and encourage commerce upon the seas. It does not comport with our sense of duty in the protection of a mere naked legal title to submerged land, to deny a conceded riparian right—conceded because so declared by the ultimate tribunal—when that? bare legal title is”held in trust for the very* purpose to which these structures are devoted, namely, the accommodation of the commerce of the lake. To compel the abatement or removal of these structures to the extent demanded, or to any extent, in view