Property

Lakefront and the Origins of the American Public Trust Doctrine

A new book begins by explaining the real origin story of the American public trust doctrine.

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Resources in the United States are generally held as private property, which gives the owner the right to exclude others. There is one glaring anomaly: certain resources are subject to a "public trust," prohibiting the authorization of private exclusion rights. Where did this doctrine come from, and how has it played out over time? We explore this issue in depth in our new book, Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press). We are most grateful for the opportunity, as guest-bloggers this week, to present some highlights from the book or reflections based on it.

The public trust doctrine's conventional origin story goes something like this: In 1869, a corrupt Illinois legislature granted 1,000 acres of submerged land in Lake Michigan, east of downtown Chicago, to the Illinois Central Railroad, including the right to build a new outer harbor in the lake. Four years later, a new legislature, voted in by an outraged citizenry in the midst of the Granger Movement, repealed this "Lake Front Steal." The U.S. Supreme Court, in a landmark decision in 1892, upheld the repeal, on the ground that the submerged land under a body of navigable water is held in trust for all the people, to ensure they always and forever have access to such waters.

The Court's decision became a model for various states to recognize this "trust" in certain resources that are "inherently public" (Professor Carol Rose's helpful term from 1986). The doctrine functions as a kind of anti-privatization rule: although most resources are subject to a right to exclude, public trust resources come with an inalienable right of the general public not to be excluded. Unsurprisingly, the public trust doctrine has become a favorite of environmentalists and other activists who would like to see public control extended over a variety of resources, ranging from wilderness areas to wildlife, cyberspace, and the climate or atmosphere itself.

Lakefront's in-depth research into the origin story and the monumental 1892 decision reveals a couple of surprising points. One is that the Illinois Central's 1869 manipulation of the state legislature was triggered by a change in the law: a most surprising 180-degree turn in property rights. Up to about 1860, the conventional view, following the common law of England, had been that the bed of Lake Michigan, like other submerged land in Illinois, was owned by whoever happened to be the riparian owner of the land bordering the water.

After 1860, the view shifted—not yet authoritatively but perceptibly—toward the State of Illinois as the owner of the bed of Lake Michigan. Since the state at that time had no capacity to develop this newly discovered right, a variety of machinations broke out to secure a grant from the legislature, transferring the rights to some private or local-government group. This was deeply threatening to the Illinois Central, which over a decade and a half (beginning in 1852) had made very significant investments in railroad and terminal facilities on landfill in the lake. So, having survived threats in the 1867 legislative session, the railroad in 1869 basically out-hustled, with some bribery likely involved, rival groups to secure a grant of the land for itself. The railroad's motivation, in other words, was largely defensive.

The second point concerns the odd fact that nearly twenty years passed between the repeal of the grant to the railroad (1873) and the Supreme Court decision upholding the repeal under the public trust doctrine—and even a decade between the repeal and the beginning of the lawsuit in 1883. The basic reason for this was that the Illinois Central had been convinced by its lawyers that the repeal was unconstitutional. After all, the Supreme Court had held in Fletcher v. Peck in 1810 that a completed grant of land by a state legislature is protected against repeal by the Contract Clause of the Constitution—even in the face of plausible allegations that the original grant was corrupt. The Court in its post-Civil War incarnation had reaffirmed this principle of vested rights. So the Illinois Central refused to compromise with the city of Chicago over whether the railroad had the right to construct an outer harbor protecting (and augmenting) its facilities along the lakefront.

When the issue finally reached the Supreme Court, the vote was close: 4 to 3. There were two recusals, one by a stockholder in the railroad (Justice Samuel M. Blatchford) and the other by Chief Justice Melville W. Fuller, who had represented the city against the railroad in the lower court—and who, apparently unbeknownst to all save (presumably) him, had been a principal in one of the earlier (1867) schemes to obtain a grant of the submerged land for a group of private investors. The dissenters, led by the newly appointed Justice George Shiras Jr., agreed with the railroad that the repeal was unconstitutional under established doctrine.

The majority opinion, by senior-most Justice Stephen J. Field, adopted the public trust idea, scarcely mentioned or developed in the litigation, and construed it as a principle embedded in the state's title—you will recall this title to have been only recently and not yet authoritatively recognized—to the land under Lake Michigan. Field's opinion resonates with his Jacksonian-Democrat suspicion of government grants creating monopoly franchises—hence the language in the opinion disapproving of the grant to a corporation favored by other generous government land grants and created for purposes other than constructing a harbor.

To obtain a fourth vote, Field needed Justice John Marshall Harlan, who had decided the case as circuit justice in the court below on the theory that the grant could be construed as conveying only a revocable license. Accordingly (we conjecture), Field tossed in a long paragraph describing the Harlan theory, without expressly endorsing it.

In short, by the narrowest possible margin, the public trust doctrine joined the police power as an exception to the vested-rights principle of the Contract Clause. The accumulating exceptions would contribute to the gradual demise of the once-powerful Contract Clause and the rise of substantive due process during the same era. Very soon after the Illinois Central decision, the Court decided that the public trust doctrine was a matter of state law, not federal constitutional law. So the doctrine gradually developed a number of variations in different states, which limited its visibility, but also opened it up to a variety of creative extensions.

Our next post will explore some of the ambiguities that emerged with the original public trust doctrine—for example, who the trustee is, who has standing to enforce it, and what resources are covered by the trust.

NEXT: Dean Joseph Kearney & Prof. Thomas Merrill Guest-Blogging About "Lakefront: Public Trust and Private Rights in Chicago"

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  1. Here I am, sitting by the northeast shore of Lake Michigan, diagonally across from the southwest corner (Chicago), enjoying the ability to legally walk along the shore in either direction (thanks Michigan Supreme Court) and eagerly awaiting the rest of the posts in this series.

    1. I’m here in the Thumb sitting on the west shore of Lake Huron, and will have to reread Glass v Goeckel. While the Public Trust Doctrine was certainly mentioned, I thought the primary discussion was on the attributes of jus publicum and jus privatum as recognized by the common law. My recollection, perhaps faulty, is that there was little question that submerged land was recognized as unrestricted jus publicum land until it possibly was exposed, then allowing attachment of certain jus privatum rights to the exposed land.

      I thus likewise will “eagerly awaiting the rest of the posts in this series.”

    2. *looks out his window over the bluff* “Hi, Lake Michigan!”

      Port Washington here, 30 minutes north of Milwaukee. Very interested to see what these posts have to say (especially since I worked with the authors 10 years ago on a project at law school).

  2. Interesting.

    I’m not sure how much I agree with this whole concept from a legal perspective, but what do I know. I must say though, the river walk of Chicago is beautiful. I generally make it a point to walk there when I get to the city.

  3. In 1869, a corrupt Illinois legislature

    …but I repeat myself. Take my wife…please!

    1. The Granger Movement came out of the Grange, which was a farmers advocacy group — see: https://en.wikipedia.org/wiki/National_Grange_of_the_Order_of_Patrons_of_Husbandry

      The Granger movement was very much like the MAGA movement, except that it was more bottom-up than top-down, it started with wanting to regulate railroad freight rates and obtaining rural free delivery of mail (which then included parcels — everything from live chicks to stuff from the Sears catalogue).

      1. So in other words it was very much not like the MAGA movement in any respect.

  4. An on-line chart indicates that the water off Chicago is less than 10 fathom — 60 feet — and a railroad could have hauled in stone to build a causway and/or built a bridge across there.

    A quick, high-speed bypass around Chicago for high speed trains — although they would still have to stop somewhere for water.

    Would this case have been decided differently if the railroad had started to build such a causeway? Or was their thoughts of perhaps doing it the reason why they challenged the law 20 years later, when RR tech had advanced to more powerful locomotives able to carry larger volumes of water?

  5. “By the law of nature these things are common to mankind—the air, running water, the sea and consequently the shores of the sea.” (Institutes of Justinian 2.1.1.) From this origin in Roman law, the English common law evolved the concept of the public trust, under which the sovereign owns all of its navigable waterways and the lands lying beneath them as trustee of a public trust for the benefit of the people.” Nat’l Audubon Soc’y v. Superior Ct., 33 Cal. 3d 419, 433-434 (1983) (interior quotation marks and some citations omitted).

    In California the public trust doctrine has been recognized since at least the 1850s — and likely applied even before California became a state. “Spanish law and subsequently Mexican law also recognized the public trust doctrine. … Commentators have suggested that the public trust rights under Hispanic law, guaranteed by the Treaty of Guadalupe Hidalgo, serve as an independent basis for the public trust doctrine in California.” Id n.15 (citations omitted).

    So, whatever was going on in Chicago in the 1870s or the US Supreme Court, in the 1890s, it would be misleading to suggest that the public trust doctrine was a new idea conjured up by Justice Field and existing as a concept in American law only only because his opinion carried the Court “by the narrowest possible margin.”

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