⚫84 lake front act of 1869 is inoperative and void." 33 Fed. 730, 750. bed of the lake, for the purposes of its busi- |ters aforesaid; that the railroad companies ness, east of and adjoining the premises be- and the city be enjoined from exercising any tween the river and the north line of Ran-right, power, or control over said grounds, dolph street, and also north of the south or over the waters or shores of the lake; line of lot 21; and also the right, by con- that the Illinois Central Railroad Company structing and maintaining wharves, docks, be restrained from making or constructing piers, etc., to improve the shore of the lake any piers, wharves, or docks, and from driv for the purposes of its business and for the ing piles, building walls, or filling with promotion generally of commerce and navi-earth or other materials in the said lake, gation. The state insisting that the com- or from using any made-ground, or any pany has, without right, erected, and pro- piers, wharves, or other constructions made poses to continue to erect, wharves, piers, or built by or for it in or about the outer etc., upon the domain of the state, asks that harbor, to the east of the 200-feet strip of such unlawful structures be directed to be its way-ground, or from taking or exacting removed, and the company enjoined from any toll for such use; and that the Illinois constructing others. The city, by its cross Central Railroad Company be required to bill, insists that since June 7th, 1839, when abate and remove all obstructions placed by the map of Fort Dearborn addition was re- it in said outer harbor, and to quit possescorded, it has had the control and use for sion of all lands, waters, and made-ground public purposes of that part of section 10 taken and held by it without right as aforewhich lies east of Michigan avenue and be said. The state, the city, and the general tween Randolph street and fractional sec-government all unite in contending that the tion 15; and that, as successor of the town of Chicago, it has had possession and control since June 13th, 1836, when the map of A final decree was rendered in the circuit fractional section 15 addition was recorded, court on the 24th day of September, 1888. of the lands in that addition north of block By that decree it was adjudged that the fee 23. It asks a decree declaring that it is the of certain streets, avenues, and grounds was owner in fee, and of the riparian rights in the city of Chicago in trust for public thereunto appertaining, of all said lands, use; and that the city of Chicago, as ripa and has, under existing legislation, the exclu- rian owner of such grounds on the east or sive right to develop the harbor of Chicago lake front of said city, between the north by the construction of docks, wharves, and line of Randolph street and the north line levees, and to dispose of the same, by lease of block 23, each of the lines being proor otherwise, as authorized by law; and duced to Lake Michigan, and in virtue of that the railroad company be enjoined from authority to that end conferred by its charinterfering with its said rights and owner-ter, had, among other powers, the power to ship. The relief sought by the United establish, construct, erect, and keep in reStates is a decree declaring the ultimate pair on the lake front, east of such premtitle and property in the 'Public_Ground' ises, within the lines given, and in such manshown on the plat of the Fort Dearborn ner as would be consistent with law, public addition, south of Randolph street, and also landing places, wharves, docks, and levees, in the open space shown on the plat of frac- subject, however, in the execution of that tional section 15 addition, to be in the Unit- power, to the authority of the state by legis ed States, with the right of supervision and lation to prescribe the lines beyond which control over the harbor and navigable wa-'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 aforesaid, 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 ly. Ing 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 pler 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 IIInois 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 wharf. age 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 Railroad 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 con. tinuance of such leasehold estate or of such occupancy, be exempt from municipal or other taxation." 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 C last mentioned, and represented upon said map to have been 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. other than those erected by the general gov-| gan avenue in fractional sections 10 and 15,' ernment, might not be extended into the wa- is a valid and constitutional exercise of legters of the harbor that were navigable in islative power, and legalizes as well what fact, and to such supervision and control was done by said company prior to April as the United States might rightly exercise 16th, 1869, in the way of filling in the lake in and over such harbor, and subject also and constructing wharves, piers, tracks, to the enjoyment by the Illinois Central warehouses, and other works between the Railroad Company of the rights then to be Chicago river and the north line of Randefined and described. dolph street extended eastwardly, as its occupancy and use for way-ground of the two said triangular pieces of ground imme diately 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, 1869, to revoke or annul said confirmatory 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 Chicago;' 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 addi. tional 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.' "That said company is likewise the own er 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 Sixteenth 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 "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 exists 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 occupied and used by it between Chi cago river and the north line of Randolph | state of Illinois is the owner in fee of the street extended eastwardly, or east or in submerged lands constituting the bed of front of the grounds now occupied and used Lake Michigan, which the 3d section of the by it between the north line of Randolph act of April 16th, 1869, purported to grant and the center line of Sixteenth street, each to the Illinois Central Railroad Company, extended eastwardly, except that said com- and that the act of April 15th, 1873, repealpany may complete the slip or basin alreadying the same, is valid and effective for the commenced immediately north of Sixteenth purpose of restoring to the state the same street extended, with a wharf on each side control, dominion, and ownership of said of it not exceeding 100 feet in width each, lands that it had prior to the passage of the where vessels coming into such slip or basin act of April 16th, 1869. 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 costs herein, and that execution issue therefor." 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 cxcept 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. "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 part 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 navi Referring to the 3d section of the act of the Illinois legislature of 1869 this court said: "The section in question has two objects in view: one was to confirm certain alleged 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 ripa-gable point, then the said court shall direct rian 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 the said pier or piers, to the excess 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 extend beyond the point of navigability, and to affirm the title and possession of the company if they do not extend 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. Except 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. 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 judg ment 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 | follows that no change or modification can Twelfth and Sixteenth streets, all in the be made which may substantially vary or city of Chicago, in the state of Illinois, do affect it in any material thing. not extend, nor does either of them extend, Whatever was before the court, and is disinto the lake beyond the point of practical posed of, is considered as finally settled. navigability, having reference to the man- The inferior court is bound by the decree ner in which commerce in vessels is con- as the law of the case, and must carry it ducted on the lake. It is therefore ordered, into execution, according to the mandate. adjudged, and decreed that the title and They cannot vary it, or examine it for any possession of the said Illinois Central Rail- other purpose than execution, or give any road Company to the said piers, and each other or further relief, or review it upon of them and every part thereof, be, and the any matter decided on appeal for error apsame is hereby, affirmed." parent, 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. 112; 7 Wheat. 58, 59, 5 L. ed. 397; 10 Wheat. 443, 6 L. ed. 362. 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 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 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 prac-is sued out it brings up for revision nothtical 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. ing 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 opinAs already shown, the circuit court found, ions, or speculate of chances from changes upon full inquiry, that the structures did in its members. We can now nonot extend beyond the point of practical tice, therefore, only such errors as are alnavigability, having reference to the man-leged to have occurred in the decisions of ner in which commerce was conducted on questions which were peculiar to the second the lake; and in conformity with the man- trial." To the same effect are numerous date a decree was entered confirming the cases, some of which are cited in the mar title of the railroad company. gin.t 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. 1 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. 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 †Martin v. Hunter, 1 Wheat. 304, 355, 4 L. ed. 97, 110; Browder v. M'Arthur, 7 Wheat. 58, L. ed. 397; Washington Bridge Co. v. Stewart, 3 How. 413, 425, 11 L. ed. 658, 664; Chaires v. United States, 3 How. 611, 620, 11 L. ed. 749, 753; Corning v. Troy Iron & Nail Factory, 15 How. 451, 466, 14 L. ed. 768, 774; 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 question reserved for investigation. We therefore 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 de cree 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. 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. as navigate the waters of the lake is essential, the object for which this right is conferred. 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 navigaAbility, 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. 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 clared by the ultimate tribunal-when that bare legal title is held in trust for the very purpose to which these structures are de voted, 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 Peck v. Sanderson, 18 How. 42, 15 L. ed. 262; | 144 U. S. 458, 464, 36 L. ed. 504, 506, 12 Sup. Whyte v. Gibbes, 20 How. 541, 15 L. ed. 1016; Ct. Rep. 724; Gaines v. Rugg, 148 U. S. 228, Ex parte Dubuque & P. R. Co. 1 Wall. 69, 73, 241, sub nom. Gaines v. Caldwell, 37 L. ed. 432, sub nom. Dubuque & P. R. Co. v. Litchfield, 17436, 13 Sup. Ct. Rep. 611; Last Chance Min. L. ed. 514, 515; Noonan v. Bradley, 12 Wall. Co. v. Tyler Min. Co. 157 U. S. 683, 691, 39 L. 121, 129, 20 L. ed. 279, 281; Wayne County v. Kennicott, 94 U. S. 498, 24 L. ed. 260; Stewart v. Salamon, 97 U. S. 361, 24 L. ed. 1044; Brooks v. Burlington & S. W. R. Co. 102 U. S. 107, 26 L. ed. 91; Northern P. R. Co. v. Ellis, 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 The de ed. 859, 863, 15 Sup. Ct. Rep. 733: New Orleans v. Citizens' Bank, 167 U. S. 371, 396, 42 L. ed. 202, 210, 17 Sup. Ct. Rep. 905; Re Sanford Fork & Tool Co. 160 U. S. 247, 40 L. ed. 414, 10 Sup. Ct. Rep. 291. |
