Kearney & Merrill on Private Rights in Public Lands

Joseph D. Kearney (Marquette) and Thomas W. Merrill (Columbia) have posted Private Rights in Public Lands: The Chicago Lakefront, Montgomery Ward, and the Public Dedication Doctrine, 105 Northwestern University Law Review (2011).  The abstract:

The Chicago Lakefront, along Grant Park, is internationally regarded as an urban gem. Its development - or, perhaps more accurately, lack of development - has been the result of a series of legal challenges and court rulings, most famously involving the landmark U.S. Supreme Court decision, Illinois Central R.R. v. Illinois (1892), and four decisions of the Illinois Supreme Court, from 1897 to 1910, involving Aaron Montgomery Ward. The former invented the modern public trust doctrine, which continues as much the favorite of environmental groups; the latter involved the now largely forgotten public dedication doctrine.

This article begins with a description of the evolution of what is now known as Grant Park. After tracing the origins of the public dedication doctrine in the nineteenth century, the article describes how the doctrine was invoked in controversies over the use of the Chicago lakefront before Montgomery Ward came on the scene. The article then details Ward’s remarkable crusade to save Grant Park as an unencumbered open space, which created a powerful body of precedent having a lasting impact on the use of the park. Next, the article describes the limits of the public dedication doctrine that was recognized in the Ward precedents. The article concludes with some brief observations about why the public trust doctrine eclipsed the public dedication doctrine, a comparison of the efficacy of the two doctrines in the context of the Chicago lakefront, and by offering general reflections about what this history tells us about the promises and pitfalls of recognizing 'antiproperty' rights to contest development of public spaces.

A terrific example of how legal history and land use case studies can illuminate important issues of legal doctrine.

Matt Festa