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Thursday, August 19, 2021

Possession as Estoppel—Last of a Lakefront Series on Property Law

The following post is by Joseph Kearney (Dean, Marquette) and Thomas Merrill (Columbia). It is the final in their series of guest posts about  Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press). We thank them for sharing this series.

Our previous four posts in this five-part guest series, generously welcomed and introduced by Howard Wasserman, have shown that possession seems often to influence the outcome of fights over the use of resources along the Chicago lakefront. We have drawn on the cases and chronicles set forth in our new book, Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press 2021). In this wrap-up post, we will offer a more precise definition of what possession means in this context, and will try to pinpoint, in legal terms, what role possession seems to play.

According to a recent draft of the Restatement (Fourth) of Property approved by the American Law Institute, to be in possession is defined as having “established effective control over [a] thing” while manifesting “an intent to maintain such control to the exclusion of others.” (Tentative Draft No. 2, Vol. 1, Div. II, Ch. 1, § 1.1 (Apr. 7, 2021).) What does this mean in the context of the various disputes over the use of resources on the Chicago lakefront?

With respect to land under the lake, being in possession presumably means filling the submerged land and building a structure on it or otherwise excluding others from access to it without permission. Thus, the Illinois Central Railroad never secured possession of the submerged land granted to it in 1869 for construction of an outer harbor, because it never managed to fill the submerged land, let alone build the harbor (post one). Similarly, the park districts did not immediately take possession of the submerged land granted to them to construct north and south Lake Shore Drive, because they delayed filling the land for years (post four). In contrast, in those same Lake Shore Drive stories (so also post four), the riparian owners did secure possession of the submerged land inside the boundary-line agreements (made between them and the park districts), because they promptly filled the land and developed it for their own purposes, thereby excluding others.

With respect to bare land, like that of Grant Park, being in possession means constructing a building subject to limited access or policing the land to the exclusion of others (post two): Thus, the Art Institute obtained possession of a portion of the land once it built its museum on it, which was allowed to stand despite the public dedication doctrine. But the Field Museum never obtained possession in Grant Park, since it never got beyond driving a symbolic stake into the ground before the project was tied up in litigation and eventually enjoined.

The case of Cap’n Streeter and his gang of squatters, along the lakefront north of the Chicago River, is more complex (post three). Streeter probably succeeded in establishing possession of the boat, makeshift fortress, or broken-down motor truck that he variously occupied on the newly formed land. But he never established effective control over the full area he claimed—eventually determined to be 160 acres—because he did not command a large enough force to do so. Nor did he have the support of the police to back up his claim of possession to this larger area.

To pinpoint more precisely in legal terms what role possession seems to play in various lakefront controversies, we think that the best analogy may be estoppel.

Estoppel, an equitable doctrine, is most commonly invoked to bar individuals from asserting a legal claim contrary to what they have previously affirmed, by word or deed. In the context of the various disputes that we have cataloged, it seems that acquiescing in possession of something by others is seen as an implicit affirmation of their rights. Hence, the assertion of a contrary legal claim is more likely to be denied (by estoppel) than it would be otherwise.

The equation of possession with estoppel was made explicit in a momentous decision of the Illinois Supreme Court in 1966: Hickey v. Illinois Central Railroad Co., 35 Ill. 2d 427, 220 N.E.2d 415. The case involved the landfill created by the Illinois Central Railroad between Randolph Street and the Chicago River, east of Michigan Avenue, where it had constructed its primary terminal, among other facilities. The question became whether the Illinois Central only had an easement for railroad purposes or instead held full fee-simple title to the area. If only an easement, then the air rights above the area belonged to the state. If a fee simple, then the railroad could sell off the air rights for development of high-rise commercial buildings or condominiums.

Legally speaking, the state and the other plaintiffs had strong arguments that the railroad had only an easement. The problem with this assertion was that the railroad had been in possession of the land for as long as anyone could remember. Some of it had been used as a terminal going back to the 1850s. Some of it had been used for huge grain elevators, which were not essential elements of a railroad terminal. And more recently (in the mid-twentieth century), a state agency had signed off on projects to sell the air rights, in this area, for construction of the Prudential Building, then the tallest building in Chicago, and a large apartment house.

The Illinois Supreme Court in Hickey did not rule that the Illinois Central owned the air rights—it ruled, rather, that the state was estopped from denying that the Illinois Central owned the air rights. It cited a series of statements and actions by the government seeming to assume or understand that the railroad had full title to the contested land. These were said to reflect the “prevailing governmental attitude, both State and city, since near the beginning of this century,” which “has regarded the Illinois Central Railroad as the owner, in fee, of the now disputed lands.” Hence, “basic concepts of right and justice preclude the State from now asserting any claim to the lands involved in these proceedings.”

The Hickey court’s invocation of estoppel to rebuff the State’s claim to the air rights could have been written as a judgment conferring title by adverse possession. The general rule, however, is that one cannot claim title by adverse possession against the government. It is also unusual for a court to invoke estoppel against the government. But estoppel, as an equitable doctrine, is more susceptible to case-specific application. For this reason, estoppel may be a better description of the role of possession in resolving contests on the lakefront than the hard-and-fast rule of adverse possession, grounded in the passing of a statutory period.

In addition to the public trust controversies considered in the first post, consider the public trust cases decided since the Illinois Supreme Court announced an uncertain but more intrusive standard of review of such claims in 1970. In two cases involving a legislatively authorized proposal to fill submerged land, the courts held that this was prohibited by the public trust. One case involved a grant of submerged land to expand a steel plant on the South Side; the other a grant of land to expand a private university on the North Side (Loyola). In both cases (considered here as well as in Lakefront itself), the beneficiary of the legislative grant could not maintain that it had possession over the contested area.

In contrast, in two other cases, which involved, rather than filling, changes in the use of land previously dedicated to a different type of use, the court denied the public trust claim. One case entailed a proposal to use a portion of a public park to construct a new public school; the other involved a proposal to rebuild Soldier Field to accommodate the wishes of the primary tenant, the Chicago Bears. In both cases (considered in the same posts linked in the previous paragraph and in Lakefront), the party that successfully sought to change the existing use of existing land could fairly claim that it was already in possession.

In none of these four cases was estoppel cited, nor was existing possession. But the pattern continues to reflect the one that we have discerned in a variety of other contests. Courts are reluctant to interfere with possession. This is so, whatever may be the strength of the legal claim, or the public rights doctrine, pointing to a contrary conclusion. If there is no relevant claim of possession, public rights are more likely to be vindicated.

Posted by Howard Wasserman on August 19, 2021 at 09:31 AM in Books, Property | Permalink

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