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Monday, August 16, 2021

Boundary-Line Agreements and Possession: The Extraordinary and Ordinary Story Behind Chicago’s Lake Shore Drive

The following post is by Joseph Kearney (Dean, Marquette) and Thomas Merrill (Columbia). It is the latest in a series of guest posts about  Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press).

This is the fourth of five posts in a guest series exploring the power of possession in property law. Our basis is empirical: the history of the Chicago lakefront, which we chronicle more comprehensively in our new book, Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press 2021). This post examines an extraordinary legal device that emerged during the construction of Lake Shore Drive and associated parks up and down the better part of the city’s lakefront (north and south in Chicago along Lake Michigan, that is). The device—called a boundary-line agreement—was used repeatedly to extinguish the riparian rights of persons who owned lakefront property. The story of the development, flourishing, and, finally, desuetude of the boundary-line agreement is a fascinating one. We will relate enough of the story here to advance the purpose of this series: using Lakefront to draw out some illustrative and instructive points respecting the perhaps-ordinary power of possession in property.

Let us begin by framing the problem that confronted government entities in Chicago in the late nineteenth and early twentieth centuries, as they wished to build lakefront parks and an associated drive. It was not a lack of a legal right to fill submerged land in Lake Michigan for these purposes: Various cases in the 1890s had established that the State of Illinois owned the land under Lake Michigan and could grant it to local government entities (such as the Lincoln Park District) for this purpose; these cases included the landmark Lake Front Case—the U.S. Supreme Court’s 1892 decision, Illinois Central Railroad Co. v. Illinois, which announced the American public trust doctrine.

The problem, rather, involved the legal rights of those who owned the property along the shore. These riparian rights, such as the rights to access and view the water, long have been regarded as especially valuable property rights, and courts often say that the government can extinguish them only by paying just compensation.

To be clear on the point and the problem: In order for the park districts to fill the submerged land granted them by the state, and thereby extend existing parks and build Lake Shore Drive, they had to acquire the riparian rights of the landowners on the shore (the riparian owners, as they may be called). But both the Lincoln Park District on the North Side and the South Park Commission on the South Side were short on money.

The ingenious primary device for solving this problem involved boundary-line agreements. In form, these were contracts specifying the boundary between the land of the riparian owner and the submerged land owned by the government (first the state and then the park district) and slated to be filled for the new parks. In substance, the boundary-line agreements were a quid pro quo in which riparians traded their rights for additional land.

How could that be? It all depended on where the parties agreed to draw the line. Here is how it worked: The park district would agree to set the boundary line in the lake—typically about 100 feet east of the original shoreline. (This was facilitated by the fact that erosion and, in particular on the North Side, accretion had obscured the original shoreline in parts.) For its side of the deal, the riparian would convey its riparian rights to the park district.

The agreement then would be presented to a court, typically quietly and with little public awareness (there being no adversity in this litigation, with an exception immaterial here). Upon being approved by the court, the agreement—now a judgment—would establish a new and permanent boundary between the previously riparian land and the new parkland to the east (abutting the lake). Indeed, the state statutes providing for this process decreed that the new boundary line could never be challenged based on where the shoreline had been at any time in the past or according to whether the former riparian owner had, at the time of the agreement, proper title to accretions.

Once the boundary was set, both the riparian and the park district were free to start filling the lake: the former to solidify their new holdings next to (east of) their original land, the latter to build the expanded park and the drive between the new boundary line and Lake Michigan to the farther east. In fact, we might now call the former “the former riparians,” as there now (or soon) were supposed to be a park and a roadway between their property and the lake.

This brings us to the power of possession: As experience with these boundary-line agreements grew, it became clear that establishing possession was important on both sides of the deal. For the former riparians, there was every incentive to begin filling the new land almost immediately. Indeed, our research unearthed that many, perhaps most, commenced filling the lake up to the boundary line well before the park district was able to start filling, east of the boundary line, for the parks and the drive.

The incentive of the former riparians to fill quickly was both economic and legal. The reason for giving up their riparian rights had been the promise of more land, even if it was in the interests of both sides not to publicize this. The sooner the former riparians secured or established that land, the more value they could extract from the deal. Legally, the former riparians may have worried that the agreements would be publicized and that public condemnation would lead to a demand to reverse the deals.

Even to leave aside the earlier reaction to the Lake Front Act of 1869 (decrying it as the Lake Front Steal and leading to its repeal in 1873), there was a basis for this worry in very recent history. When an explicit conveyance of submerged land was used to fund an earlier extension of Lake Shore Drive, just north of the Chicago River, in Streeterville, in the 1890s, a major public controversy erupted that led to litigation and calls for legislative reform.

The legal instincts of the former riparians would be vindicated many decades later, when the Illinois courts reformulated the public trust doctrine as a prohibition against any conveyance of public rights—quintessentially, submerged land under Lake Michigan—for private gain or private use. (These have gone beyond dicta: One such legislative grant, involving the South Works plant in the 1960s and 1970s, was judicially invalidated on this basis, after the grantee waited a decade to try to take active possession of submerged land once the state gave it the title.) Yet no one has ever suggested that the conveyances of submerged land to private riparian owners in the early decades of the twentieth century—whose land is now well west of the lake, given the park and the drive in between—should be reversed under this revised public trust doctrine. Possession, as we saw in the first post in this series, operates as a kind of unspoken statute of limitations on public trust claims.

What about the other side to the deals—the park districts? Their contrasting fate is similarly instructive. Recognizing that all of the primary conduct is recounted in detail in Lakefront (though not with an unwavering eye on possession), let us look at enough of it here to make the point.

Unlike the riparian owners, the park districts failed to take rapid possession of the submerged land outside the newly agreed boundary lines. The dilatoriness of the Lincoln Park District, on the North Side, has a simple explanation: it did not have the money. The park district had been able to overcome the financial cost of acquiring riparian rights, it is true, by using boundary-line agreements. But it still had to pay for landfilling, roadbuilding, landscaping, and a seawall. Consequently, years and often decades would pass before the park district commenced construction.

The delay in taking possession of the submerged land designated for the drive and new parks would prove to have fatal consequences.

As the years rolled by (this was all largely during the first quarter of the twentieth century), without action by the park district near their particular property, many riparians grew angry. One irritation was storm damage to their land. They had been led to believe that their land, old or new, would be protected against storm damage from the lake by a new park and seawall constructed by the park district. Instead, they often had to pay for protection and, in some cases, land restoration, themselves. In a practical sense, if you will, they were unhappy that they were not yet former riparians.

Another and more consequential irritation was a major change in the plans of the Lincoln Park District. Whether to build support for higher tax assessments or simply on the merits, the district announced plans for a greatly expanded park and drive. The original 1895 plan for expanding Lincoln Park northward called for a strip of park roughly 1,000 feet wide (west to east) along the shore of the lake. The new plans, as they began to emerge in the mid-1920s, projected filling approximately four times as much land, in order to accommodate a variety of recreational opportunities, such as a golf course, picnic areas, lagoons, and harbors. And instead of a narrow pleasure drive running along the water, at the eastern edge of the park, the new plans depicted Lake Shore Drive as a multilane limited-access highway running along the park’s west edge—adjacent to the boundary line with the former riparians.

Some riparians sued, alleging that the failure to protect their land from storm damage and the radically changed conception of the project constituted a breach of the original boundary-line agreements. The Illinois Supreme Court agreed, enabling various disgruntled landowners to rescind the agreements.

So the Lincoln Park District (and its successor, the unified Chicago Park District) had to find some other way to acquire riparian rights. It tried condemnation, but this proved to be too expensive and time-consuming. It tried negotiating new, much-sweetened boundary-line agreements. But this too ran into resistance, as riparian owners along the lakeshore, north of Hollywood Avenue (5700 North in Chicago), began constructing high-rise apartment buildings, whose market value was closely tied to direct views of the lake.

In short, the failure of the park district to take possession of the submerged land designated for park purposes soon after it was authorized to do so—1895 on the North Side—is directly responsible for the fact that Lake Shore Drive ends at Hollywood, well short of Devon Avenue (6400 North), the latter having been the original and longtime projected terminus of the extension of the drive and Lincoln Park. In areas where the park district could show only an abstract right to fill the lake and various planning documents about future intentions, former riparians successfully sued for rescission. In areas where the park district had succeeded in filling the lake and constructing some kind of park and drive—that is, where it had taken possession—there was no suit for rescission that we have discovered.

The boundary-line device also played a major—indeed, monumental—role on Chicago’s South Side, in the work of the South Park Commission. We use the emphasized word because it is the device of the boundary-line agreement that made possible the construction of the Field Museum, which opened in 1921, and the subsequent development of the Museum Campus. All of that, too, is an extraordinary story, but a separate one for our purposes here.

Lakefront tells that chapter as well, including how the stories meet in the middle—with the construction in the 1930s of the bridge over the Chicago River, connecting the north and south portions of Lake Shore Drive, as the roadway would soon be uniformly denominated. Its formal name was expanded by Chicago just this summer, to be Jean Baptiste DuSable Lake Shore Drive, “in honor of the Black trader cited as the first non-Indigenous settler of the Midwestern city.”

Our next (fifth) and final post will consider how possession functions as a kind of statute of limitations—a de facto type of adverse possession—in defeating claims of public rights. It will complement not only this fourth post in this series but also the first post, which showed that defendants who had established possession of submerged land prevailed in early public trust controversies, while those who had not established possession lost; the second post, which explained that the same appears to be true of public dedication controversies involving the construction of the buildings in Grant Park; and the third post, which highlighted the perceived advantages that possession plays in motivating persons to be the first to possess some valuable resource.

Posted by Howard Wasserman on August 16, 2021 at 09:31 AM in Books, Property | Permalink


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