Rensselaer Journal, Volume 12, Number 23, Rensselaer, Jasper County, 13 November 1902 — GAYLORD LOSES DRAINAGE SUIT [ARTICLE]

GAYLORD LOSES DRAINAGE SUIT

Judge Hilscher Dismisses Case Against Chicago Channel Trustees. NO RIGHT TO DEVELOP POWER Holds Use to Which It Was Proposed to Put Privilege Sought to Be Acquired Is Not In Accordance With Public Policy. Chicago dispatch: Ths Gaylord syndicate has lost its suit against the sanitary district of Chicago. In a decision handed down Judge R. W. Hilcher, sitting in the Circuit court of Will county, ruled that on the showing made Gaylord and his associates had no right to develop power caused by the flow of the drainage canal, and for this reason Gaylord’s petition for condemnation was dismissed. Judge Hilscher’s decision is short but pointed. His ruling was based on a contention that the waterway cannot be converted to private uses. The attorneys for the syndicate announced that an appeal would be taken to the Supreme court and that an effort would be made to induce an early ruling from that tribunal. Gist of the Decision. Judge Hilscher’s decision was as follows: “I have not prepared an opinion discussing the various questions raised and the argument of this motion, for the reason that the conclusion I have reached renders it necessary that the questions Involved be submitted to the Supreme court before any further steps be taken in the proceedings. Admitting the constitutional right of petitioners -in a proper case to take private property by condemnation for a grist mill and navigation purposes, in order to make the case a proper one the purpose of such taking must be for a public use. It is clearly the duty of the court in this kind of a case to determine whether the purpose of taking is for a public or private use. If the purchase is in fact for a private use, though under cover oi pretense for a public use, then it is the duty of the court to deny the exercise of the right of eminent domain. / Dismisses the Suit. I After a‘careful consideration of the petition and evidence and the authority cited as well as the mill act and th(e sani|ary. district act and the wellknown industrial conditions, of which it is the duty of the court to take notice, I am led to the unavoidable conclusion that the purpose of the determination as sought in this case is not to acquire property for a public use, but is to acquire public property for a private use. “Even if the public use be admitted, I have the most serious doubt as to whether the use to which it is proposed to put the property sought to be taken is not inconsistent with and destructive of the public use for which it was acquired and is held. “The motion to dismiss will therefore be sustained.” Belongs to the People. The litigation involved the right of the drainage board to develop the water power at Lockport and Joliet for public use. Concerning the matter Trustee Baker said: “I have never doubted that the courts would sustain us in our contention that the water power of the drainage board belonged to those who created it, the taxpayers of the city of Chicago. I feel sure that the Supreme court will confirm the opinion of Judge Hilscher.” During the progress of the suit charges were made frequently that big Chicago interests were supporting Gaylord in his fight.