The following post is by Joseph Kearney (Dean, Marquette) and Thomas Merrill (Columbia). It is the first in a series of guest posts about Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press).
“Possession is nine-tenths of the law,” a common version of an old saying holds. More recently, Carol Rose, one of our most distinguished property scholars, has argued that this understates the point. Possession matters, she has written, largely because when we see someone in possession of something, we assume that person to be its owner. (See her chapter in Law and Economics of Possession, Yun-chien Chang, ed., Cambridge University Press, 2015.)
Among its other virtues (we respectfully suggest), our new book, Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press), allows us to consider both the dictum and Professor Rose’s critique of it. In particular, the book documents a number of episodes in the history of Chicago (its lakefront, that is) in which someone either was in possession of some resource but had no clear right of ownership or, by contrast, had a fairly clear legal right of ownership but lacked possession. Who was more likely to prevail: the possessor without ownership, or the owner without possession?
With great thanks to Howard Wasserman and his PrawfsBlawg colleagues for the introduction and opportunity, let us proceed.
We can begin with the early part of the story, which involves the Illinois Central Railroad and its quest to secure a grant of submerged land under Lake Michigan to construct an outer harbor, supplementing the existing (inner) harbor of the Chicago River and the railroad’s lake trackage and lakefront facilities. In 1869, the railroad got what it wanted: With some skillful lobbying and at least a little graft (the former is quite clear, the latter clear enough), it persuaded the state legislature to grant it 1,000 acres of submerged land “in fee,” for purposes of building an outer harbor in the lake. In effect, in the Lake Front Act, the state granted the railroad ownership of the submerged land.
Because of dire economic conditions in the early 1870s, the railroad did little to implement the grant, i.e., to take possession of the submerged land and begin constructing a harbor. Chicago politicians, who had wanted the right to construct such an outer harbor themselves, capitalized on the railroad’s inactivity and public unhappiness and secured a repeal of the grant to the railroad in 1873 (the Lake Front Steal was the popular local name for the 1869 act, and the more general Granger Movement against the railroads helped the city).
The 1873 legislators were insufficiently impressed by the arguments of the railroad’s lawyers that the 1869 grant was a “vested right” that could not be repealed consistently with the Constitution’s Contracts Clause. Many of the legislators were lawyers, but it cannot have helped the railroad’s cause that its claim of ownership was not accompanied by possession.
Many years later, in 1892, the U.S. Supreme Court had to decide whether the 1873 repeal of the original grant was constitutional. Although the railroad’s lawyers had weighty precedent on their side in support of the claim of vested rights, a four–to–three majority of the Court held that the grant was, if not void altogether, properly revocable.
The winning point, as articulated for the Court