# Petition for Writ of Certiorari — Hickey v. Illinois Central Railroad > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0225%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1967 - **Citation:** 386 U.S. 934 ## Text - ) | JOHN F. DAVIS, CLERK IN THE | or ‘ Supreme Court of the United States Oorossn Team, 1966. ay ; 4 ie _ LAWRENCE i ‘HICKEY GEORGE D. SULLIVAN, JR., | BURTON H. YOUNG, and THOMAS R. BENZ, Petitioners, ILLINOIS CENTRAL RAILROAD COMPANY,,. : - an Dlinois corporation, es . Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE SUHREME COURT OF ILLINOIS v ‘LEONARD R. HARTENFELD ie, .- 89 South LaSalle Street : Chicago, Illinois 60603 Attorney for Petitioners *) Of Counsel: > GEORGE F. ARCHER 7 South Dearborn Street - Chicagé, Llinois .60603 McCORMICK & HENDERSON, INC., CHICAGO _« ? rm ° ‘ . a a5 | “4 . \ { ' { : , 7 ; ae” : * » ; * | 4 4 e ’ t « . ‘ . ee ; . $ ; . - i: a . * ? . Pt ° . @ e ’ ; . ¢ = . i a . ; : ‘ ° o . Se . . es . . ‘iy 2 ‘eo : 4 : . é which was obtained by various ordinances (R. 3, page 188). But neither the’Charter from the State nor the ordinances ! purported to convey title to the railroad (R. 3, page 195). A portion of the lands were created by filling pier struc- tures, and slips between these structures, the railroad had built into the lake. This was in violation, of this Court’s permanent injunction issued in the Lake ‘Front Cases en- joining the ‘railroad from further filling in the slips and the waters of Lake Michigan, 184 U.S. 77, 87 (R. 3, page 185). ( The Court below appears to acknowledge this viola- ( tion (App. p. 11).) Upon. its admission to the Union in 1818, . Congress granted to the State of Illinois in trust for the People » the title to all of the submerged lands between the State’s - natural shoreline and the middle of the lake, 3 Stat. at Large 428 (April 18, 1818) —7T 3 Stat. at Large 536 (December 3, 1818) App.-2; (R:-8, page 187). The lands in question were filled in subsequent to 1818 and, by opera- tion. of law, such reclaimed submerged lands were im- pressed with the same trust in the public interest and the ~ State forthwith became the owner thereof (R. 3, page 187). The State has since prea held and does: now hold the title and ownership of fhese reclaimed lands in trust for the People of the State subject to such title thereto or other rights therein as may have been granted by the. State to the City of Chicago and subject further to the © railroad’s easement for railroad purposes only (R. 3, page © - 187). eee A * . title in fee to all of the lands encompassed in the decree The complaint: further alleges that in the Lake Front ) Cases, 146 U.S. 387; 184 U.S. 77, this Court adjudicated — that the reclaimed par submerged lands. encompassed by the 1888 decree, comprising a major portion of the lands involved in the instant case, were owned in fee by the State of Illinois in trust for the People of: the State for public purposes ;‘that the railroad had only an easement. for railroad purposes in these lands, and by reclaiming them from the submerged waters of Lake Michigan never . acquired any title thereto nor the right to dispose of same to others by. way of deed or otherwise; that said decree gave the railroad title to certain pier structures the rail- road had built out into the lake but not to the state owned © bed of the lake underneath the piers; that said decree per- petually enjoined the railroad from filling in the slips between the piers or any more of Lake Michigan; that since the Lake Front Cases the railroad removed the piers ‘and filled in the waters in- the area formerly occupied by said structures, afid also-the-water in the former slips, | presently constituting vast areas of reclaimed land between the Chicago River and 16th Street, all i m violation of said , perpetual. federal injunction. _ Farther, it is new wrongfully onlllevinia: the ownership and dominion over these. immensely valuable lands a id air eral right which should be protected by t (R. 3, pages 191- 192). ALLEGATIONS OF PETITIONERS’ COMPLAINT | RAISING FEDERAL QUESTIONS - The complaint emphasized that the Lake Front Cases were res judicata on the fact that the State owned the in trust for the People, subject to an easement in favor f ~ 10 of the votive for railroad purposes only; that in the ‘event the state court should fail to recognize and give full force and effect to said federal court adjudications by.de- claring and decreeing that the railroad had no title;to these reclaimed lands, such failure would constitute. an abroga- tion of the judicial power of the United States in violation. of Sections 1 and 2 of Article III of the Constitution of the United States and would. also deprive the people and | citizens, and-the plaintiffs in their various representative — capacities, of rights, privileges and ,immunities arjsing under the Fourteenth Amendment to the Constitution of the United States (R. 3, pages 193-195, 222, 232-284). ' The complaint also. alleges that the railroad claims title _ to these.lands under the 1930 and 1912- 1913 decrees entered a by Hlinois trial courts in non-adversary boundary line pro- _ ceedings referred to in the opinion of the court below (App. pp. 14, 8, 11); that these decrees were void because these _ proceedings were purely statutory in nature and the stat- _ ute expressly applied to, and became legally operative only . with respect to true owners of shorelands (and riparian rights appurtenant thereto), which the railroad was not, because the Lake Front Cases had adjudicated that: the State owned the shorelands-and riparian rights involved in these State proceedings (R. 3, pages 196-217). Further, that said state court decrees and the statute upon which they were based, as so construed by said decrees, were in violation of the Fourteenth Amendment to the Consti- tution of the United States as the effect of said decrees was to make a wrongful gift or donation to a’private cor- poration of these lands so adjudicated by the federal courts to be publicly owned, and as such constituted action by the State Government which deprived the People of the State, and the petitioners in their various representative capaci- ties, of property without due process of law (B. 3, page 232). 11 - The complaint sought a declaration by, the state court » that the lands and air rights’ in question. belong to the State and that the railroads be required to turn over to the State all proceeds from all sales which it had’ made of portions’ of these lands and air rights and that the * railroad: be enjoined from making any other r dispositions 7 of ‘this property (R. 3, pages 233-236). In 1962 the © City of Chicago intervened and adopted the ~ amended complaint of ‘petitioners (R. 3, pages 290-295). Subsequently, the Attorney General of the State of: Illinois - , intervened and filed in the trial court an intervening com- ° _. plaint expressly aligning the State of Illinois with, and in | support of the position of, the petitioners and the City of Chicago. The Attorney General’s complaint in substance ‘’ adopted petitioner’s complaint, except for the said federal éonstitutional alc mees (R. 4, pages: 334-367). THE PLEADINGS OF RESPONDENT The railroad filed a motion to dismiss the petitioners’ and City’s complaint (R..3, pages 2-6; 178, 271-275) and an answer to the State’s intervening complaint (R. 4, pages 368- 518). The State filed a reply -(R. 4, pages 518-528). Thereupon, the railroad filed a motion for judgment on the pleadings as against the State (R. 4, pages 532-535) and the trial court heard the motions simultaneously, as the complaints presented common legal issues be 4, pages. 535-536). The. railroad’s elerweabl pleadings directed against all the complaints asserted that the.railroad owned these lands by reason of the Lake Front Decisions, 146 U.S. 387, 184 U. 8. 77, which ‘the railroad conceded to he res judicata on the parties, the boundary lire decrees of 1930 and 1912-1913, and because of laches and estoppel arising out of the conduct of State and City officials. The rail- “12 '. road’s pleadings. denied any violation of this Court? s wer- manent injunction because the filling in of the slips was — done with the consent of the Department of Public Works of the State of Illinois, the City of Chicago and the Corps of Engineers (R. 3, page 9; R. 4, pages 389, 396, 397, 419). “The trial court’s decree in the case below granted both motions and adjudicated that ‘‘defendant Illinois Central ) Railroad’ Company is the owner in fee simple of all the lands claimed in this cause by the State of Illinois and the City of Chicago, or on their behalf, between the Chicago | River and the north: line of Randolph Street and south of 11th Place, or Park Row, in the City of Chicago, Cook . County, Illindis’? (R. 4, page 542). The -trial court in- _ terpreted the 1888 federal decree entered in the Lake Front cases as vesting title in‘ fee simple in the railroad (R. 4, pages 537-542) to all of that portion of the lands involved ' {nthe instant case encompassed by said decree. a The railroad has conceded - that the Lake Front Cases’ adjudicated that the City owned that portion of the original* — lands in question between Randolph Street and 11th Place, commonly known as Grant Park, subject to the railroad’s ‘ easement fér railroad purposes only. Accordingly, the said trial’court decree did not include that portion~of © " “the City owned lands (R. 4, pages 542-543). This, of course, was in accord with petitioners’ allegations. As a result, the only lands involved on the subsequent appeal _ to the Illinois Supreme Court were those claimed on behalf - of the State. ‘The trial court did not tebe on the oni of saline and estoppel raised by the railroad and its opinion makes no reference thereto (R. 4, pages 537-542). | Tite attempts of the taxpayers to havé discovery to dis- ‘prove the existence of innocent purchasers of value from 13 the railroad of the air rights herein involved were pro | -hibited by the trial court jams 3, pages 279-289, R. 4, seas : 528-536). aes ; On appeal to the Supreme Court. of Illinois by petitioners, _ the State of Illinois and the City of Chicago, acting jointly, that court affirmed the trial court’s decree solely on the ground of estoppel and laches. It carefully. noted that it was not passing upon the issue as to whether the Lake Front Cases gave title to these lands to. the State or the _ railroad (App.-p..23). i. -Instead, it held that the disavowal of the State’s title by various State and City agencies and officials (who had no authority to dispose of the State’s title) barred the State from asserting the title it claimed under the Lake Front Cases, 146 U.S.’ 387, 184 U.S. 77. In so doing, the court failed to pass upon the federal constitutional ques- — tions raised in. petitioners’ complaint hereinbefore men- tioned, and in ‘petitioners’ brief filed with the Supreme ~ Court of Illinois attacking the trial court s decree (Sup- plemental, Recerd, anil 2-4). ' 14 REASONS FOR GRANTING THE WRIT -- The judgment of the court below squarely presents to _this Court substantial federal questions involving a federal- _— ‘state conflict of national importance with reference to the submerged lands ‘of the Great Lakes. The answers to — these questions will decide whether the State of Illinois or the Illinois Central Railroad owns the. miles of lands and air rights involved in the instant case worth hundreds of millions of dollars and of crucial public importance. ; Hs tL _ The decision of the Illinois Supreme Court is in conflict. with the decisions of this Court in Illinois Central Railroad - Co. v. People of the State of Illinois and the City of Chi- cago, 146 U.S. 387, and Illinois ex rel. Hunt v. Illinois Cen- | tral R. Co., 184 U.S. 77, twice affirming on appeal the de- cree entered in 1888 by the then Circuit Court of the Unit- ed States for the Northern District of Illinois, 33 F. 730 (1888) .and the. United States Circuit Court of Appeals (7th Cir., 1899), 91 F. 955. These federal opinions, known as the ‘‘Lake Front Cases’’, involved the identical parties. and a crucial portion of the land as in the instant case, and are res judicata in favor of the State and the _—— as to | the i issues herein. ‘The case at bar is in the nature of a bill in equity in aid of the federal decree entered.in the Lake Front: Cases in 1888.' It is an appropriate method of securing on behalf . of the State of Illinois and the People the benefits of the Lake Front decree when subsequent events have made nec- essary. some further relief in order that the State and the People may enjoy the full fruits of their victory in the Lake. Front Cases. Independent Coal &. Coke Co. v. United . - States, 274 US. 640, -™, j A ‘B., eae The Lake Front aa held the vedlidiead and renin 7 lands. of Lake Michigan encompassed by the decree therein, - now of immense value se of Vast public importance, were -.owned in fee by the Stat@in trust for the People of Illinois ‘‘for purposes in-which the whole: People arg interested . . for public’use’’. 146 U.S. 452, 456 and 457.*: This Court further held that even.the. Illinois Legislature could not | nullify this trust. Title to these -lands could not be given: to the Ilinois Central Railroad for its private gam, for a non-publie purpose. 146 U. 8. 452-460. Yet, now, ‘sixty-four years” later, the Illinois Supreme. Court, ignoring. res judicata, nullifies the 1888 decree of the United States ‘Circuit Court, twice one by this Court i in‘the Lake Front Cases. . ; The principal i issue before the Court halew involved a con- struction of this 1888 decree as to whether it vested title to these lands in the State in trast for the People, .as the . petitioners contend, or ‘whether said decree vested title in. - the railroad, as the latter contends. The state court side- stepped this issue. It-ignored the holdings of the Lake | Front decisions. It innovated a doctrine of estoppel and . laches in an attempt {0 avoid the impact of the Lake Front > decree. The State now is precluded from asserting title to these lands because’ some public officials; who had no authority to dispose of title and rights to the lands, failed to protect the public trust from usurpation by ‘the railroad. Never before has the State of Illinois been stripped of any lands by this estoppel and laches emai, let alone * The only interest the railroad obtained by the 1888 decree 'v was .a railroad easement and title to certain piers and other structures,- but not the State’s: title.to the bed of the lake hades which ow, were constructed. .184 U.S. at t 85. a ANN Aa NA ial Aaa aN Se oat GN ed ic Diana ve tonnes hibnioncinniehis git wnabsid ia aes 16° So: reclaimed and submerged lands ‘subject to the federally endowed trust. & NATURE -OF THE TRUST The Lake Front Cases adjudicated that this trust is of ' -@ unique character: Ben nice ‘‘But it is a title different in character from that which the State holds in lands intended for sale .. . It is-a title held in trust for the People of the State ... The trust devolving upon the State for the public, and | which can only be discharged by. the A aos | and’. ‘ control of property in which the public has an interest,. | _ cannot be relinquished by a transfer of property. The - control of the State for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interest of the public therein, or can . be disposed of without any substantial impairment of the public interest in-the lands and waters remaining ... The State can no‘more abdicate tts trust over prop- . . - |. erty in which.the whole people are interested, like a navigable waters and sotls under them, so'as to leave. ' them entirely under the use and control of private parties, except in the instanée of parcels mentioned for the improvement of the navigation and use of the waters, or when parcels can be disp8sed of without . impairment of the public interest in. what remains, . than it can abdicate its police powers in the adminis- tration of government and the preservation of the peace ... The trust with which they are held, there- fore, is governmental and cannot be altenated, except in those instances mentioned of parcels used in the improvement of the interest thus held, or when par- eels can be disposed of without detriment to the pub- lie interest in the lands and waters remaining.’’ 146 ’ OLS. at 452,453, 455, and 456. (Emphasis’ added.) The: Lake Front decisions were a final determination, and res judicata, of the character of the fiust impressed upon” . the State’s title 6 the reclaimed and submerged. lands. | 4 Oo. | 17 This title is incapable of being destroyed through estoppel | or laches in the same manner as this Court held in United States v. California, 332 U.S..19. There it was decided * that the United States could not be estopped from asserting its title to its tide lands where federal agencies and offi- cials, over a period of many years, had disavowed the ownership of these lands. * “As a matter of fact, the record plainly demonstrates that until the California ‘oil issue began to be pressed in the thirties, neither the states nor the Government had reason to focus attention on the question of which of them owned or had paramount rights in or power over the three-mile belt. And even. assuming that Government agencies have been negligent in. failing to recognize or assert the claims of the Government at an earlier date, the great interests of the Govera- ment in this ocean area are not to be forfeited-as a result. The Government, which holds its. interests here as elsewhere in trust for all the people, is not to - be deprived of those interests by the ordinary court . rules designed particularly for the private, disputes over individually owned pieces of property; and offi- cers who have no authority at-all to dispose of Gov- _ “ernment property cannot by their conduct cause the Government to lose its valuable rights by their ac- quiescence, laches, or failure to act.’’ 332 US. 19, at 40. Likewise, in the instant case, none of ‘the public agencies or officials had any authority to dispose of State property. .. Nor were the aif rights herein (now worth hundreds of millions) of dollars, App. p. 5) of significance until just - prior to the filing of petitioners’ consplaint, : « Because the Lake. Front decisions were res judicata on the title to the lands owned by the State and upon the na-° ture of the trust impressed upon such title, the court: be- low lacked the jurisdiction and power to formulate a doc- oa 18 - trine of estoppel and laches under State law which for all practical purposes nullified the title the State received under the decree of 1888 in the Lake Front Cases. By at- tempting to do so, the Court below usurped the judicial powers vested in this Court by Sections 1 and 2, Article IM, and the Supremacy Clause (Article VI) of the heen States Constitution.. This trust, of federal origin, impressed upon all..the J submerged lands off its shores to the middle of Lake Michi- gan was granted to the State of Illinois by ‘Congressional Aets creating the boundaries of the State and granting _ the federal lands within such boundaries to the State. (146 U.S. 434, 435; 3 Stat. At Large 428, 536, App. pp. 1-2) The trust doctrine is founded upon the necessity of pré- serving to all the People the use of navigable waters, and - the submerged lands under the Lake owned by the State are subject always to the paramount right of Congress to control navigation in furtherance of the Congressional ' power to regulate. interstate and foreign commerce. 146 U.S. 435, 436 ‘and 437. Cf. Sanitary District of Chicago v. United States, 266 U.S. 405, 425, wherein this Court held that the United States may have an ‘‘ultimate sovereign interest”? in Lake Michigan. : . ‘It was sdlely on the basis of this ie, and the inability — of the.Staté Legislature to disavow said trust, that this | ‘ court held the constitutional rights of the Illinois Central Railroad were not violated by an Illinois Act repealing an earlier Act which attempted to grant to the railroad title . . to the submerged lands involved in.the Lake Front Cases for a non-public purpose. 146 U.S. at 460. | The Lake Front Cases therefore plainly involved a con- struction of the Federal Constitution and the nature of _the trust impressed upon the title the State received under 19 . - . the Congressional Acts. Thus, the petitioners in the instant case are seeking the vindication of federal rights adjudicat- ed by a federal decree in favor of the State. Petitioners having properly and: timely asserted in the | * State courts below the Lake Front Cases, and the federal e decree of 1888 entered therein, a8 res judicata, and the: Supreme Court of Illinois having refused to give said _ federal decisions and decree such effect,.a federal question ; reviewable i in this Court under 28 U.S.C. Section 1257 (3), | Rocherau, 21 Wall. 130, 134. .. exists. Stoll v. Gottlieb, 305 US. 165, 167; Dupasseur v. ~ “Moreover, semhathor a federal judgment — been given due force and effect in the state court isa federal question reviewable by this court which will determine for itself eneig such judgment’has been given due weight or other- "S ”” Deposit Bank v. Frankfort, 191 U.S. 499, 515. “The interpretation of the decree entered in the Lake Front. Cases concerning the title and the nature of the federal trust, and the methods by which the-title can be. . Shorn of: such trust, are matters ultimately within the. judicial powers of this Court. On the second appeal i in the- Lake Suet Cases, 184 U.S. | 77, this Court refused: to reopen the decree affirmed on the first appeal, 146 Uv, S. 387, for -the purpose of litigating © an igsue decided on the first appeal. This Court: on the second appeal held: ‘‘Hivery matter embraced . the original ines of the Circuit Court, and ak sige open by the decree of this court, was conclusive y determined; as between - the parties, by our former decree, and is not subject - to reexamination on this appeal. ” "184 US. at 93. When this Court so refused to reopen its own ‘decree, | it is evident that the Supreme Court of Illinois cannot now 20 do so by voiding said decree indireetly ‘iwenshs ened and laches. y ' Having adjudicated the title of the State to these lands under the federal decree in the Lake Front Cases, there can be no doubt whatsoever since Martin v. Hunter’s Les- see, 1 Wheat. 304, 4 L. Ed. 97 (1816), that this Court may . take whatever action it deems necessary to construe, pro- tect and enforce the title vested, by said decree against nullification by a State court. State recalcitrance can be met by entry of judgment in this case as in Martin v. Hunter’s Lessee. Cf. McCulloch v. Maryland, 4 Wheat. 316, 4 L. Ed. 579. (1819) ; Gavene vy. Ogden, 9 Wheat. 1, 6 L. | Kd. a8 (1824). "LACHES AND ESTOPPEL ARE PLAINLY . UNTENABLE The court below, in discussing what it states’ to be the vital question on the estoppel and iit App. P. 23, cites . Dill v. Widman, 413 Tl. 448: ‘‘The party claiming the estoppel must have lied upon the acts or representations of the~ other and: have had no — or convenient means of know- _ing the true fae There. can be no aeaee with this proposition o Illinois law, but it is inapplicable here, for the simple reason that the railroad was a party to the Lake Front Cases and, of course, had the * ’ fe sane wel et nat Gre nts stle wens. 21° - The yailroad having been a party to the Lake Front. Cases, ‘‘the basic concept of right and justice?’ should . preclude the railroad from avoiding the res judicata effects . | ofsthe Lake Front decree through any estoppel and laches. Furthermore, it is difficult to understand how “the ae is basic concept of right and justice’? favors the ‘Ygilroad -when it filled in a substantial portion of the lands in question after the Lake Front Cases. in violatién of the injunction issued in those cases perpetually enjoining the railroad from further filling in the lake, 184 U.S. 77, 87. Moreover, this Court ’s holding in United States v. Cali- ie forma, 332 U.S. 19, 40, is pertinent for another reason: - “We have not overlooked Califorpia’ S argument, but- tressed by earnest briefs on behalf of other states, that improvements have been made along and near ' the shores. at great expense to- public and~ private agencies. And we note the Government’s suggestion ° that the aggregate value of all these improvements are small in comparison with the tremendous value of*’ | the. entire three mile belt here in controversy. But however this may be, we are faced with the issue as to whether state or nation has paramount rights in anid power over this ocean belt, and that great national question is not dependent upon what expenses may have been.incurred upon mistaken assumptions.”’ In addition, in the instant case the relief sought against _. the railroad is a declaration that the State owns the lands and air rights in question and that the railroad be re- quired to pay the State such proceeds as the railroad re- . ceived from purported sales of the air rights to third _parties who have been innocent purchasers for value. The fact that the latter may exist (which has not been deter- Z| ’ a | | 29 a | ; — mined. to ‘date)* would create no’ estoppel or. laches in : i United States, 274 U.S. 640. _ For, the foregoing reasons, on the face of the opinion ; of the court below, and without resorting to the detailed denials of. the railroad’s. pleadings concerning laches and estoppel, the holding of that court with respect to the latter is plainly untenable. This Court cannot be deprived _ of its jurisdiction and power to review a state court judg- POM EDS Seah Km tie 4 ment interposing a non-federal ground of decision’ which is ; plainly untenable. Ward v. Love County, 253 U.S. 17, 22 | i and 23. in SA : ] : I. | :. . The extent to which the legislative, judicial and execu- tive branches of the states bordering on the Great Lakes i have the power to divest their respective states of titles ‘ to submerged ‘lands of the lakes held under the federal . Bee trust established by this Court in the Lake Front Cases, 4 “146 U.S. 387, 184 U.S. 77, id a substaiitial federal question _ inherent in this case not heretofore determined by this Court. . «& | | ’ * The Lake Front Cases held that this federal trust ap- plied to all of the Great Lakes, 146 U.S. at 435, 436 and\ — 437, and it prevented any Great Lake State from being _ divested of its title to’ submerged lands in these: lakes except for a public purpose in. the best interests of all the People, 146 U.S. at 452 and 453.. * Petitionefs were denied their requested discovery aimed at ascer- taining whether any innocent purchasers for value existed (R. 3, | : pages 279-289; R. 4, pages 528-536)... The trial court did not pass F on laches or estoppel _ (See — 31). & _ favor.of. the railroad. Ct... a Coal. Coke Co.v. | nome, £ rte ts : Fae. - npsal ~~-Jands-in. the Great Lakés, the states have assumed that ‘their state Jaws completely govern the disposition of these Notwithstanding the. federal trust imposed upon the . titles under which the various states hold their submerged lands. As a result there are no uniform safeguards ap- plicable to such dispositions, each state exercising its in-: dependent judgment. The Supreme Court of the State of Michigan, for example, State v. Venus of America Land Co., 160 ‘Mich. 680, 125 N.W.-770, has held, directly con- trary to the Supreme Court of the State of Illinois in — _ the case below, that estoppel and laches. will not apply with respect to the submerged lands in the Great Lakes owned by the State of Michigan. -¢ While state law might apply for purposes of deciding riparian rights and similar issues, it should ‘always, be subject to the federal trust: prohibitions against disposing of these lands to-private interests contrary to the public good. The judgment of the court below emphasizes the urgent : need for this Court to emphatically reaffirm the federal . trust in the submerged lands of the Great Lakes to pre- _ vent further unlawful encroachments on these lands by public officials and state legislatures. In no ‘other way can the submerged lands be protected from further violations of the federal trust, the local laws of the various states being inconsistent and inadequate for that purpose. In the instant case,. any portion of the lands- not en- compassed by the 1888 decree in the Lake Front Cases are still protected from usurpation by the railroad under | the doctrine of the federal trust of: submerged lands in’ the Great Lakes. The disavowal of such trust by public: . agencies and officials cannot be a legitimate basis for the estoppel and laches upon whieh the court below based its decision. 24 The trust, a federal right asserted in the court below, was disregarded,, This. Court then has the jurisdiction - and power to remedy this situation. As this Court held - in Ancient Egyptian Arabic Order N.M. 8. v. Michaua, 279 : _U. S. 732, at pages 744, 745: _- ‘The right thus specially a up in the state court is \ a federal right. Whether it was denied or not given due recognition by the challenged decree,.as affirmed, is a question on which the defeated claimants are en- titled to invoke the judgment of this court, as is done in their petition for certiorari. And it is our province to: inquire not only whether the right was denied in direct terms, but also whether it was denied. in: sub- stance and- effect by interposing a nonfederal ground of decision having no fair support.” | By ‘tail to give effect to the federal trust, and the federal decree ypheld by this Court in the Lake Front Cases, 146 U.S. 184 U.S. 77, the judgment of the court below deprived the petitioners and the People of Illinois, the beneficiaries of said trust, of these lands without due process of law in violation of the Fourteenth Amendment. - to the Constitution of the United States. The judgment of the court below exemplifies the dan- ger of having the submerged lands of the Great Lakes, important natural resources, depleted at the expense of the People in violation of said federal trust.: For the reasons ‘stated in Y this sstitinn, this Court has the ultimate power to interpret the federal decree in the Lake Front Cases, 146 U.S. 387, 184 U.S. 77, for the ‘pur pose of deciding whether the enormously valuable lands in question are owned by the State or by the railroad, and, ' thus, whether they are to be developed in the best in- terests of the People under public guidance or at the whim of the railroad for its private gain. Whatever this Court decides in this respect, at least there will have been a Sia a xX 25 decision on the merits of this case.- It would be grag and in frustration of the public interest,. for the. railro to be deemed the owner’.of these lands without the neces- | me of its proving title thereto. — : THE INTEREST OF THE: UNITED STATES The United States also has a substantial. teterest 1 in the outcome of this case, in addition to. the compelling virtue of - seeing that its decrees are respected. Petitioners’ complaint alleges that the City requires | the air rights over the railroad’s tracks at 25th Street, a ‘ portion of the air rights involved:in this suit, for the con-- _ struction of an overpass connecting important arterial _ highways in the City. This overpass will not interfere with the railroad’s use of its. tracks. The railroad. has demanded from the City $2,500;000.00 for these air rights, . in. spite of the decision of this Court in the Lake Front . Cases, 146 US. 387, 184 US. 17 (R. 3, Pagé 228). This overpass recently was built. If the duilaiinant of the court below stands, the City will have to pay the rail- road for these air rights. This Court may take judicial notice of the fact that under various federal aid programs | to municipalities and states a. principal portion. of the $2,500, 000. 00: will be -paid by federal matching funds. That this one example will. not be an isolated case is evident from the fact that the lands and air rights in. question comprise miles. of valuable lakefront lands. Un- questionably, i in the future a multitude of recreational, eul- . tural and other public projects will be built on portions of these lands and air- rights. In each case it will be néées- sary for. the public authorities ‘to condemn them for the projects, and federal aid will ‘be used. Over a period of - ° time such federal’ financial assistance could. . amount to many millions of dollars. a ee ey ee n - so | Of Counsel: CONCLUSION. — This Petition for a Writ of Certiorari is the last chance available to assert the title the State obtained under the \ - Lake Front Cases, 146.U.9. 387, 184 U.S. 77, to these most important lands and air rights. The decision below, unless _ reversed by this Court,/will be equivalent toa perpetual - denial of such title because the petitioners, taxpayers, the State of Illinois and the City of Chicago were all parties. The state court decision, if it stands, will be binding forever upon everybody who could . conceivably contest . the railroad’s usurpation, of these lands and air rights . owned by the State in trust for the People, For the reasons mentioned herein, this Petition for a Writ of Certiorari:-should be granted. _ Respectfully submitted, _ Lerowarp R. HArrenveip | Counsel for the Petitioners Georce F’. ARCHER --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0225%3A1. Public record. Not legal advice.