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Friday, August 13, 2021

The Power of First Possession in Property

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).

Our first two posts in this series presented evidence from our new book, Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press, 2021), that those who have established possession of resources are more likely to prevail in litigation than are parties who have only a paper title to such resources. Whether an owner or not, the history of the internationally famous Chicago lakefront suggests, the party in active possession is more likely to prevail. This is demonstrated in the context of claims involving the lakefront land that prompted the development of the American public trust doctrine (our first post) and the lakefront land that occasioned litigation based on the public dedication doctrine (our second post). We may leave aside here that some of this was the same land.

This post looks at possession from a different angle—namely, the strong intuition that the first person to establish possession of some resource has a powerful claim to retain that resource as against those who come later. The law reflects this intuition in a number of areas explored in first-year property courses but rarely encountered by practicing lawyers. Thus, the first person who captures a wild animal has a superior claim to retain the animal relative to later interlopers. The first person who finds a lost object has the right to retain the object against everyone save the true owner. It even appears that someone who steals an object has a superior right relative to another thief who subsequently steals it from him or her. All of these quirky situations reflect the principle of first in time, first in right.

Lakefront recounts two dramatic illustrations of how the first-in-time principle can powerfully motivate actors, whether or not they are familiar with the nuances of the law. The first involves the struggle for Streeterville, of local fame, and the other the reversal of the Chicago River, of international fame (and, for some, infamy).  

  1. The Story of Streeterville. The area of the lakefront north of the Chicago River and east of St. Clair Street (itself one block east of Michigan Avenue) was originally under Lake Michigan. When army engineers built piers into Lake Michigan from the north and south banks of the Chicago River in the 1830s, this combined with the counterclockwise current of the lake to cause new land to form by accretion on the north side of the north pier. The area was initially called “the Sands.” Later, in 1857, a company controlled by the Ogden family obtained a state charter to construct piers and a slip north of the river (the latter still exists today, called the “Ogden Slip”). This had the effect of magnifying the amount of accretion caused by the current of the lake.

In the summer of 1886, a scalawag named George Wellington Streeter grounded a boat on a sandbar outside the recently formed area of accretion. He announced to anyone who would listen that he had discovered new land, which he named “the Deestric of Lake Michigan.” He proclaimed the new land to be a territory independent of Illinois or at least of local governments (the claim varied). Along with a scruffy band of followers, he encouraged the dumping of refuse to augment the “Deestrict” (the spelling varied as well) and eventually made a living by such means as selling phony deeds to unsophisticated investors eager to cash in on a potentially prime area of real estate and by peddling soda pop, liquor, and copies of his “autobiography.”

Streeter’s basis for claiming entitlement to the new land varied also, but it was essentially one of original discovery. To bolster his claim, he intuitively appreciated, it was necessary to remain in possession of the land in some fashion. Thus, for nearly 30 years, Streeter and his gang maintained, on the land, a physical presence of some sort, whether by occupying the grounded boat, building a kind of fort on an old scow, living in a shack, or sleeping in a broken-down motor truck.

Streeter’s primary opponents in all this were wealthy Chicagoans who owned property on St. Clair Street. They were able to establish that they had legal title to the land formed by natural accretion. But they were understandably wary of making any claim to the land formed by illegal dumping. Part of their strategy was to try to oust Streeter from possession, either by hiring private detectives to do the job or by inducing the Chicago police to take action against Streeter’s alleged trespassing.

Streeter always fought back, usually with the formidable help of one of his three or four wives (in succession). On one occasion, a gun battle resulted in the death of a young guard, and Streeter was charged with murder. On another, Streeter was badly bloodied by the police but was charged with assault. Whatever the legal claim against Streeter, he was remarkably effective with juries, representing himself and beating the rap (although he did spend one year in the state penitentiary on a manslaughter conviction after securing a hung jury on the murder charge). We suspect that one reason Streeter evoked the sympathy of juries is that they secretly agreed with his central proposition, which he never tired of repeating: I was on the land first, and the rich folks with their detectives have no right to throw me off.

On his death in 1921, Chicago’s mayor, William Hale (“Big Bill”) Thompson, who had previously authorized the police to beat him up, led a forty-car motorcade to bury Streeter in Graceland Cemetery, the final resting place of the Chicago elite. The lakefront area occupied by Streeter up to 1915 is today known as “Streeterville,” and a statue honoring him has been erected in the center of the area, on McClurg Court. The wealthy St. Clair Street owners eventually succeeded in securing possession, to go along with their legal titles to the land, in a fascinating set of ways detailed in Lakefront, but it was not easy, and Streeter’s activity on the land was an important part of the reason.

  1. The Reversal of the Chicago River. Our second illustration of the first-in-time principle occurred at the opposite end of the social spectrum from “Cap’n Streeter.” By 1889, the Chicago establishment had concluded that the only way to protect the city from waterborne diseases was to reverse the flow of the Chicago River. In its natural state, the river flowed from west to east, with the result that human sewage and waste from packing plants flowed into the river, which emptied into the lake, potentially (and at times in fact) contaminating the city’s water supply. The solution was thought to be construction of a huge ditch or canal, which would cause the river to flow from east to west, taking the sewage and waste into the Des Plaines River and thence to the Illinois River and, thereafter, the Mississippi River.

The canal project, authorized by the Illinois legislature, got started in 1892, at great expense. At first, St. Louis, located on the Mississippi downstream from the junction with the Illinois River, took little notice. As the project drew closer to completion, the Missouri city became increasingly agitated. Chicago was effectively working to solve its disease problem by sending its waste in a way that, it seemed, would contaminate the St. Louis water supply.

When it became clear that St. Louis was plotting to take legal action to stop the Chicago project, the two cities embarked on a race to see who would be the first in one sense or another: Chicago, in getting the river reversed, or St. Louis, in getting to the Supreme Court of the United States to block the project. The one hastened to prepare its legal papers; the other scrambled in the dead of winter to finish the project and open the canal, so that the river’s flowing away from the lake would be an accomplished fact. This was not a battle over possession, strictly speaking, but it is unquestionable that both sides intuited that whoever acted first to lay claim to its preferred use of the waters would have the upper hand in whatever legal proceeding followed.

As it happened, the result was effectively a tie. Missouri, on behalf of St. Louis, filed an original action in the U.S. Supreme Court on January 17, 1900. The same day, perhaps an hour or two earlier, the Sanitary District of Chicago opened the Bear Trap Dam at Lockport, Illinois, allowing the water from the new Chicago Sanitary and Ship Canal to rush toward St. Louis.

The Supreme Court did not resolve the dispute by calculating who had obtained or claimed possession of the contested waters first. But the Court refused to issue a temporary injunction, and it took six years, until 1906, before evidence could be gathered and the Court made a final determination on the merits.

By then, the river-reversal project had long been the reality on the ground. Justice Oliver Wendell Holmes Jr. noted that because of pollutants entering the Mississippi River from the Missouri River, also north of St. Louis, the complaining city would have to build a water filtration plant no matter how the case came out. So Chicago prevailed, and the river flows from east to west to this day. (Some modern interest in a re-reversal especially involves concerns about ongoing ecological consequences of the reversed flow, not any continuing effects on St. Louis.)

In short, with respect to the Supreme Court decision in 1906: One cannot be sure, but at some level of intuition, the fact that Chicago had seized possession of the waters and had maintained that possession for six years may have influenced even the justices in determining the final resolution of the controversy.

* * * *

Our next post, the fourth in this five-part series, will consider the crucial role that possession played in the extraordinary way that Chicago’s famous Lake Shore Drive came to be built north of its original location in Lincoln Park—and why it does not extend as far north as was the plan.

Posted by Howard Wasserman on August 13, 2021 at 09:31 AM | Permalink


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