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Paepcke v. Public Bldg. Com.

Supreme Court of Illinois

September 29, 1970, Filed

No. 43240


 [*331]   [**13]  Plaintiffs, who are citizens, residents, taxpayers and property owners of the city of Chicago appeal from an order of the circuit court of Cook County dismissing their complaint by which they sought to prevent defendants, Public Building Commission of Chicago, the City of Chicago, the Board of Education of Chicago and the Chicago  [*332]  Park District from implementing plans to construct school [***2]  and recreational facilities in Washington and Douglas parks. This court has jurisdiction on direct appeal because of the constitutional questions involved.

The facts are to be gathered from statements in the complaint which are admitted by defendants' motion to dismiss and from joint exhibits admitted into evidence at the request of all of the parties. In 1869 the General Assembly passed "An Act to Provide for the Location and Maintenance of a Park for the Towns of South Chicago, Hyde Park and Lake" which was approved and in force February 24, 1869. (Private Laws, 1869, vol. 1, p. 358.) The statute provided that five persons, to be appointed by the Governor, be constituted a board of public park commissioners for the towns in question to be known as the "South Park Commissioners". The act authorized the commissioners to select certain lands which are specifically described by metes and bounds and provided in section 4 thereof that the lands "when acquired by said Commissioners, as provided by this act, shall be held, managed and controlled by them and their successors, as a public park, for the recreation, health and benefit of the public, and free to all persons forever." Pursuant [***3]  to the granted authority the commissioners proceeded to acquire, among other lands, those which presently constitute Washington Park which is now held by the Chicago Park District as successor to the South Park Commissioners. The deeds by which the property was originally acquired by the commissioners purport to convey an unrestricted title in  [**14]  fee simple without mention of park usage. Washington Park as presently constituted contains 371 acres. It is located on the south side of the city of Chicago and is bounded by 51st Street on the north, Cottage Grove Avenue on the east, 60th Street on the south and Martin Luther King Drive on the west.

In 1869, the same year in which the South Park Commission was created, the General Assembly passed an act  [*333]  entitled "An Act to amend the charter of the city of Chicago, to create a board of Park Commissioners, and authorize a tax in the town of West Chicago, and for other purposes", approved and in force February 27, 1869. (Private Laws of 1869, vol. 1, p. 342.) By this legislation a board of public park commissioners to be known as "The West Chicago Park Commissioners" was created with power and authority to acquire certain [***4]  designated lands with the stipulation in section 5 thereof "that said board shall have power, and it is made their duty and they are hereby authorized to select and take possession of, and to acquire by condemnation, contract, donation or otherwise, title forever in trust for the inhabitants, and for the public, as public promenade and pleasure grounds and ways." After their appointment by the Governor the commissioners acquired, among other lands, those which now constitute Douglas Park, presently held by the Chicago Park District as successor to the West Chicago Park Commissioners. This park, consisting of 181.99 acres, is situated on the west side of the city of Chicago bounded on the north by Roosevelt Road, on the east by California Avenue, on the south by 19th Street and on the west by Albany Avenue. The land comprising this park was acquired by 10 deeds, six originals and two reconstructions of which were received in evidence. The remaining deeds were not found in the records of the recorder due to the Chicago fire. Each of the six originals admitted was on the same printed deed form and contained the same restrictive language as that found in section 5 of the act as above [***5]  quoted. In two of these the restrictive language had been crossed out. In the remaining four it had been unaltered. No restrictions appear in the reconstructed deeds.

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46 Ill. 2d 330 *; 263 N.E.2d 11 **; 1970 Ill. LEXIS 487 ***; 2 ERC (BNA) 1291; 1 ELR 20172


Prior History:  [***1]  APPEAL from the Circuit Court of Cook County; the Hon. WALTER P. DAHL, Judge, presiding.

Disposition: Judgment affirmed.


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