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FRUIN-COLNON CORP. v. VOGT

October 22, 1980

FRUIN-COLNON CORPORATION AND GRANITE CONSTRUCTION COMPANY, D/B/A A JOINT VENTURE, PLAINTIFFS,
v.
BERNARD J. VOGT, JAMES H. VOGT, NORBERT VOGT, AND SHARON K. VOGT, DEFENDANTS.



The opinion of the court was delivered by: Foreman, Chief Judge:

  ORDER

This case presents before the Court a narrow issue of law: whether activity on a navigable waterway by construction barges building a bridge paid for almost entirely by federal money yet contracted by the State, can constitute a trespass on an adjacent owner's riparian rights in the riverbed and shore.

Plaintiffs' complaint sought declaratory, injunctive and damage relief in the following requests: (1) a declaration that plaintiffs' past and intended uses of the Mississippi and connecting navigable waters are authorized by law; (2) an injunction forbidding defendants from unlawfully interfering with plaintiffs' efforts; and (3) an order that defendants pay for damages caused by their wrongful interference with bridge construction. Defendants denied that the uses were lawful or that they had unlawfully interfered with bridge building activities. Defendants also counterclaimed in the amount of $200,000 for damage caused by the trespasses, and sought an injunction preventing further trespass.

Jurisdiction, alleged by plaintiffs to lie under 28 U.S.C. § 1333, was contested. The Court, by order of May 21, 1979, found admiralty jurisdiction proper, and plaintiffs' election to identify their claims in admiralty invalid under Rule 9(h) of the Federal Rules of Civil Procedure.

Bench trial was held on September 18, 1980, at which time testimony was heard and exhibits were admitted. The parties also submitted lengthy trial briefs. Plaintiffs' essential contention in their brief and at trial is that the title of defendant riparian owners to the riverbed is subject to the federal "navigational servitude," and that their activities on the water are within the ambit of the navigational servitude. Defendants argue in reply that the project is a state project, federal funding notwithstanding, and that since it is not a federal project, the federal navigational servitude does not apply. Defendant further argues that federal law governing federally funded highway construction requires that state law be applied in this instance, and that Illinois law is dispositive in defendants' favor.

A review of the arguments, pleadings and testimony indicates that the Court must decide in favor of defendants and the Court thereby refuses to grant the relief requested by plaintiffs.

FACTS

The facts were largely undisputed and were stipulated to at the pretrial conference of September 4, 1980. The Court hereby ADOPTS the following findings of fact.

1. Plaintiff, Fruin-Colnon Corporation, is a Missouri corporation with its principal place of business in the City of St. Louis, State of Missouri.

2. Plaintiff, Granite Construction Company, is a California corporation with its principal place of business in the County of Santa Cruz, State of California.

3. Defendants are each Illinois residents residing at R.R. # 2, Columbia, Illinois.

4. Defendant, Norbert Vogt, is the father of defendants, Bernard J. Vogt and James H. Vogt.

5. Defendant, Sharon K. Vogt, is the wife of defendant, Bernard J. Vogt.

6. On March 30, 1977, defendants, Bernard and Sharon Vogt, executed a written instrument entitled "Dedication of Right-of-Way for a Freeway."

7. On July 15, 1977, the State of Illinois Department of Transportation awarded a contract to plaintiffs authorizing plaintiffs to furnish materials for and construct the substructure for the three lane bridge carrying the westbound traffic of Federal-aid Interstate Route 270 over the Mississippi River at Jefferson Barracks, and to construct certain piers for the three lane bridge carrying the eastbound traffic. Said bridge construction work shall be sometimes referred to as the "Jefferson Barracks Bridge Project."

8. The plans designate boundaries for a right-of-way within which the two three lane bridges are to be located (hereafter said right-of-way shall be referred to as "the right-of-way area"). The right-of-way area shown on the plans extends into the Mississippi River.

9. James Vogt and Bernard Vogt are fee simple owners of real property located in Monroe County, Illinois, adjacent, both north and south, to the right-of-way dedicated to the State of Illinois for this project, although the exact description of the land belonging to ...


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