Chapter 4

The Significance of the Illinois Central Case--The Intertidal Land of an Entire State Cannot Be Alienated


Chapter 4 examines the U. S. Supreme Court case Illinois Central Railroad v. Illinois. This case outlines the trust duties of states with respect to lands held by the state in trust for the public. In 1869, as marine commerce was burgeoning in Chicago, the Illinois Central railroad persuaded the Illinois legislature to grant it virtually all of the bed of Chicago harbor to build wharves, warehouses, rail and marine terminal facilities. Four years later (after some facilities utilizing lake bed areas had been built) the legislature repealed this over-generous grant replacing it with a more modest grant that would allow future facilities to be built in defined areas of the harbor. The railroad company brought suit claiming the repeal measure violated the U.S. Constitution’s contracts clause and amounted to a taking of its property.

At the outset the Illinois Central court makes clear that the ownership of beds underlying navigable waters (lakes or rivers) is identical with the ownership of beds underlying tidal waters—title is held by the state in trust for the public. Citing an earlier Supreme Court case, Pollard v. Hagen, the Illinois Central court notes:

 “It is the settled law of this country that the ownership of and dominion and sovereignty over lands covered by [navigable or] tide waters, within the limits of the several states, belong to the respective states within which they are found with theconsequent right to use or dispose of any portion thereof, when that can be done without substantial impairment of the interest[s] of the public….”    

The Illinois Central court goes on to note that any alienation of land beneath intertidal or navigable waters can only be made by the legislative arm of government; it cannot be accomplished by a “judicial usage” or by what Maine courts described as a “piece of judicial legislation.”

The Illinois Central case is most noteworthy for the balance it struck between public rights in/on intertidal and lake bed lands, and the obvious public benefits that enhanced marine commerce use of these lands would give rise to. The court saw the alienation of essentially all of Chicago harbor as an abdication of the state’s trust duties to the public. It noted: “A grant of all lands under the navigable waters of a state has never been adjudged to be within the legislative power; any attempted grant of the kind would be held, if not absolutely void on its face, as subject to revocation.” The court avoids striking down the 1869 enactment as a breach of the state’s public trust duties by characterizing this enactment (and the subsequent 1873 enactment) as a “license.” This allowed the adjacent upland owner (Illinois Central) to obtain title to defined bed areas only when and if they are actually filled to facilitate marine commerce. Title to remaining bed areas (the largest portion of Chicago Harbor) continued to be held by the state in trust for the public. This balancing approach has been widely followed in subsequent Supreme Court holdings, and by most state legislatures. Had the Bell courts embraced this approach, the lion’s share of Maine’s intertidal lands would now be held by the State in trust for the public. Marine commerce—past, present or future would suffer no injury.

In sum, if all of the bed of Chicago harbor cannot be alienated (even by the Illinois legislature) it would seem to follow that all of the intertidal land in an entire state cannot be alienated by a “judicial usage”. But in its zeal to wrap its arms around Massachusetts intertidal land law, the holding and reasoning of Illinois Central was totally ignored by the Bell courts. Supreme Court decisions deserve more respect from Maine’s highest court.