What Does the Public Dedication Doctrine Show Us About the Importance of Possession in Property?

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

This five-part guest series, introduced here, poses an overarching question: Is ownership or possession the better predictor of who ultimately gets to control valuable property resources? We draw on our recently published book, Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press 2021), which considers a number of episodes from the history of the Chicago lakefront, in our attempt to answer that question. These are original reflections, not mere excerpts.

Our previous post, focusing on the public trust doctrine, showed that a bare legal title to fill submerged land under Lake Michigan was vulnerable to repeal if the right had not been reduced to possession. Conversely, in a number of instances, extensive landfilling of the lake, accompanied by possession, was allowed to stand, even after the legal authority that arguably supported the right to engage in such filling disappeared.

In this post, we consider a different type of data. These, coming from the same general area of the Chicago lakefront, involve not the water but, rather, the history of Grant Park (here is a general map from Lakefront, prepared by Dennis McClendon of Chicago CartoGraphics, which may help orient the reader unfamiliar with Chicago). To be sure, some of this parkland was initially submerged, but we may leave that aside here (in light of this post’s not focusing on the public trust doctrine).

Here are the key facts: Early maps and plats of Chicago (such as Map A in the Supreme Court’s report of the Lake Front Case) showed the area as being open land and marked it “for ever to remain vacant of buildings” (the most official of the various phrases). Purchasers of land on Michigan Avenue, which forms the western boundary of the park (as shown also in Map B, depicting the area immediately to the south of Map A), relied on these representations. They paid a premium for the land on the expectation that it would perpetually enjoy an unobstructed view across the park looking toward the lake.

And here is the key law: An established precept in American law, called the public dedication doctrine, allowed such purchasers to sue in equity to enforce such “dedications.” For decades, into the twentieth century, the Michigan Avenue owners, most prominently Aaron Montgomery Ward, the catalog merchant, enjoyed great success in using the public dedication doctrine to block the erection of buildings in Grant Park (which was known as Lake Park until ca. 1900).

The relevant question for us, in this PrawfsBlawg series, is whether there was any difference in the judicial reaction when the owners sued to block a building before it went up, as opposed to when they sued to ask that a building be torn down. In the former situation, the defendant could hardly claim any interference with possession, there not yet being any building in existence. In the latter case, the defendant’s current possession would include a building, and any order to tear the building down would, to understate the point, interfere with that possession.

Both in Lakefront and in a Northwestern University Law Review article a decade before the book, we document a large number of cases in which the public dedication claim was adjudicated by the courts. By far the largest number of these suits were filed before the erection of any building. Indeed, in some cases a Michigan Avenue plaintiff urged that a symbolic stake be driven into the ground to establish that a concrete dispute was involved, allowing the issue to be resolved before the defendant could claim any interference with possession (and also enabling the defendant to escape the cost of constructing a building that it might be then ordered to tear down).

Overall, the suits that were filed before the erection of any building were remarkably successful. These successes were often achieved in the face of great opposition from the Chicago establishment. For example, Ward secured orders from the Illinois Supreme Court whose result was that the Field Museum of Natural History had to be located south of Twelfth Street, beyond the southern boundary of Grant Park, rather than in the center of the park, as city leaders wanted.

The primary exception to the string of victories obtained by Ward and others against proposed buildings in the lakefront park was when a plausible argument could be made that abutting landowners such as the plaintiff had consented to the building’s construction. It was on this basis, in the 1890s, that construction of the Art Institute was allowed to go forward and, as well, a temporary post office was permitted and, more than a century later, that various structures proposed for Millennium Park, in the northwest corner of Grant Park, were given the green light. Other suits against proposed structures failed because the construction, such as an air vent, was not a building.

In contrast, when suits were filed against buildings already in existence, the plaintiffs tended to lose. The cited reasons varied, as did of course the precise circumstances. Thus, in 1882, a small depot for the Baltimore and Ohio Railroad in Lake (subsequently known as Grant) Park was allowed to proceed, on the ground that the plaintiffs and other abutting landowners had passively acquiesced in the erection of a number of structures since the Chicago Fire of 1871—and, for an important point here, the depot was a successor to or replacement for the railroad’s existing use of a portion of the Interstate Exposition Building in the park. A number of suits against yacht clubs would also be rejected down the years, on the ground that the club buildings were located on pilings or in the lake and were therefore technically outside the boundaries of the park. Similarly, Ward’s suit against poles and wires for a trolley car system on Michigan Avenue was dismissed, on the ground that Michigan Avenue was likewise outside the protected area.

The only exception in which the public dedication doctrine was used to remove an existing structure was an action brought by the U.S. Attorney seeking to have a ballpark erected by Albert G. Spalding’s White Stockings baseball club torn down. The court allowed the club to finish playing in 1884, but ordered that it had to move elsewhere for the next season. Based on surviving depictions of the lakefront ballpark (such as that shown in Lakefront), it appears that it was composed of a wooden fence and grandstand. So, conceivably, the team may have been able to reuse much of the building material when it moved to a new location—the West Side Park—for the next season. In any event, the court may have concluded that the interference with possession in this instance was not that great.

One episode in particular illustrates, strikingly, how the equities of enforcing the public dedication doctrine may have been perceived differently—by plaintiffs and defendants alike—before and after a building went up.

For many years—call it three decades—the Chicago Park District wanted to construct a new band shell in Grant Park. A number of trial balloons were floated, but just about each time, one or more Michigan Avenue owners threatened to sue, and the park district backed off. In late 1977, Chicago Park District Superintendent Edmund L. Kelly announced that a “demountable” band shell would be erected for the coming summer. No one sued, evidently regarding a temporary band shell as not worth the effort.

After the concert season was over, the next fall, Kelly refused to “demount” the bandshell, claiming that this would be a waste of taxpayers’ money. Again, no one sued. Kelly had gambled that once a band shell was seen as being a permanent fixture in the park, it would not be challenged, or that, in the event of a challenge, the plaintiffs would lose. He was right. The Petrillo Music Shell remains in Grant Park to this day.

Overall, the pattern of outcomes in the Lakefront public dedication suits strongly confirms that possessory rights are more secure than purely legal or equitable rights. When plaintiffs sued before a building went up and thus before it became part of a defendant’s possessory interests, they were highly successful. When plaintiffs sued after a building was constructed, they generally lost. The correlation is not perfect. Sometimes pre-construction suits failed on other grounds. And the Chicago White Stockings club, alone among the defendants, had to tear down its “ballpark.”

But if the correlation is not perfect, the public dedication issue produced many more data points than the other examples that we will consider. So the support provided by these cases for the proposition that possession matters more than “paper rights” is quite powerful.