The Origins of the American Public Trust Doctrine: What Really Happened in Illinois Central

INTRODUCTION

The public trust doctrine has always been controversial. The general rule in American law favors ownership of natural resources as private property. The public trust doctrine, a jarring exception of uncertain dimensions, posits that some resources are subject to a perpetual trust that forecloses private exclusion rights. For environmentalists and preservationists who view private ownership as a source of the degradation of our natural and historical resources, the public trust doctrine holds out the hope of salvation through what amounts to a judicially enforced inalienability rule that locks resources into public ownership.1 For those who view private property as the bulwark of the free enterprise system and constitutional liberty, the doctrine looms as a vague threat.2

Although proponents and detractors of the public trust doctrine dispute much, all agree that the leading case establishing the doctrine in the United States-the "lodestar" of the modern public trust doctrine3-is the United States Supreme Court's 1892 decision in Illinois Central Railroad Company v Illinois.4 The decision arose out of a dispute over control of the bed of Lake Michigan east of downtown Chicago. Four contestants wrangled over this resource: the Illinois Central Railroad Company, the City of Chicago, the State of Illinois, and the United States government. Each had a plausible legal theory supporting its claims, and each had reason to fear the consequences should another gain supremacy over development of the lakefront. Their struggle, beginning in the late 1860s, resulted in the enactment of the Lake Front Act by the Illinois legislature in 1869, which awarded the Illinois Central both a portion of the lakeshore for a new depot and over one thousand acres of submerged land for the development of an outer harbor for Chicago. Just four years later, however, during the populist agitation known as the Granger Movement, the grant was repealed. For this and other reasons the legal dispute continued, leading to the litigation that eventually worked its way to the Supreme Court in 1892.