Document Type

Article

Publication Date

2011

Abstract

When one thinks of how the law protects public rights in open spaces, the public trust doctrine comes to mind. This is especially true in Chicago. The modem public trust doctrine was born in the landmark decision in Illinois Central Railroad Co. v. Illinois,' growing out of struggles over the use of land along the margin of Lake Michigan in that city.2 Yet Chicago's premier park-Grant Park, sitting on that land in the center of downtown Chicago-owes its existence to a different legal doctrine. This other doctrine, developed by American courts in the nineteenth century, holds that owners of private property abutting land dedicated to a public use have a right to enjoin deviations from the dedication. This "public dedication" doctrine was invoked by Aaron Montgomery Ward, the famous Chicago catalog merchant, in a series of actions from 1890 to 1910 to block construction of a variety of structures in Grant Park.' The body of precedent that Ward created served for more than a century to keep Grant Park free of significant encroachments, saving it as open space for the use and enjoyment of future generations.

The Ward cases are an important chapter in the history of the Chicago lakefront. In 1887, Ward and his partner, George A. Thome, purchased property on the west side of Michigan Avenue facing Lake Michigan from which to operate their burgeoning mail-order business. The pair paid a premium for the land because it allowed them to construct a building favored with sunlight, fresh breezes, and lake views over the public land to the east. Ward became upset, or so the story goes, when he observed workers building scaffolding in the park to load garbage into railroad cars for transport out of the City.4 Ward sued, claiming that this activity violated language on a map of the original subdivision where his property was located which stipulated that the space east of Michigan Avenue would be "[p]ublic ground forever to remain vacant of buildings."' Ward was able to show that this language created a public dedication of the land and that he, as an abutting property owner, had standing to secure an injunction against violations of the dedication. The Illinois Supreme Court ruled in Ward's favor in four major decisions, enjoining the construction not just of loading platforms but also of a National Guard armory and a natural history museum.6

In the wake of Ward's victories, the public dedication doctrine was wielded by generations of Michigan Avenue landowners to fend off construction of public buildings in what became a 319-acre park. Only at the dawn of the twenty-first century were the Ward precedents overcome. Led by a mayor determined to bring more activity to downtown Chicago and promote tourism, the City, in conjunction with a consortium of wealthy private donors, constructed a $370 million project known as Millennium Park in the northwest corner of Grant Park, directly opposite the site of Montgomery Ward's original catalog warehouse.7 Millennium Park features, among other things, a 130-foot-tall stainless-steel music pavilion designed by Frank Gehry, a multipurpose theater, a restaurant, and a pair of fifty-foot towers emitting water from faces on giant LED screens.! The City obtained consents to the construction of Millennium Park from owners of property abutting the northwest corner of Grant Park, and these consents were held by a state court judge, in an unpublished order, to be an effective waiver of the public dedication.' It remains to be seen whether this bypass of the dedication will undermine the Ward precedents or even cause them to collapse altogether.

The public dedication doctrine is significant for reasons that go beyond understanding the historical development of the Chicago lakefront. It also provides a significant point of juxtaposition to the public trust doctrine, which by a remarkable coincidence emerged at roughly the same time and place as the Ward precedents."o Both the public trust doctrine and the public dedication doctrine are designed to preserve spaces dedicated to public uses." The public trust doctrine seeks to preserve public spaces by positing that certain resources are held in a restricted title that disables any transfer of these resources into the hands of private owners. 2 The public dedication doctrine pursues the same end by recognizing the right of a select group of landowners uniquely affected by public spaces to sue in equity to prevent departures from the dedicated use.

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