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
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 Bernard Vogt, to James Vogt and to both as co-owners
is in dispute.
10. On or about August 18, 1977, and on August 25, 1977,
Norbert Vogt, Bernard Vogt and James Vogt met at the Vogt's
residence with William Pierson and Robert Newsom, both agents
11. On August 31, 1977, Bernard and James Vogt sent a notice to
Fruin-Colnon Corporation which purported to describe the property
belonging to Bernard Vogt, individually, and to Bernard Vogt and
James Vogt, as co-owners. This notice further advised
Fruin-Colnon Corporation that any trespassing on or to the
premises so described, whether by Fruin-Colnon Corporation, its
agents, or employees, or anyone under its direction would be
"vigorously pursued by all legal means."
12. On October 26, 1977, the towboat Rebel, under the direction
of agents for plaintiffs, delivered a barge loaded with
construction materials to a point located within the right-of-way
area. In order to reach the construction site, the Rebel and its
tow traveled in a southwardly direction from the Mississippi
River and on a slough cutting through the Vogts' property
directly connecting the Mississippi River with the construction
site. After the barge was unloaded, the Rebel returned by means
of the same route.
13. On many occasions, the plaintiffs had work barges and other
river vessels situated on the Mississippi River, extending at
least in part, outside the right-of-way area in furtherance of
the bridge construction.
14. On October 26, 1977, Bernard Vogt contacted agents for
plaintiffs and complained that the traveling of the towboat Rebel
and its barge through the slough constituted trespassing against
15. In furtherance of the construction of the bridge piers and
other substructure work at the Jefferson Barracks Bridge Project,
plaintiffs have used a spud barge. A spud barge contains two
vertical steel beams or spuds, both aft and stern, which are
dropped into the riverbed to firmly anchor or "spud down" the
barge. A crane is mounted on the deck of the spud barge.
16. From March 10, 1978, through March 13, 1978, plaintiffs
anchored a spud barge in the riverbed on the Illinois side
outside of the channel and approximately 200 feet south of the
southern boundary line of the right-of-way area. The spud barge
so anchored was used by the plaintiffs in furtherance of the
construction of the Jefferson Barracks Bridge Project. The spud
barge was not tied to any trees or other structures on shore.
17. On March 13, 1978, Bernard Vogt made a complaint to the
Sheriff's Department of Monroe County claiming that the work
barge as situated was trespassing on his land. Mr. Vogt was then
referred to the Illinois State Highway Patrol. Two Illinois State
Highway Patrolmen then appeared
at the Jefferson Barracks Bridge Project, and cited Robert
O'Connor, an employee for plaintiffs, with criminal trespass
against land. Mr. O'Connor was then arrested.
18. On March 13, 1978, plaintiffs removed the spud barge from
its anchored location solely because of Mr. O'Connor's arrest.
19. On or about July 6, 1979, plaintiffs began dredging
operations within the right-of-way area on the Illinois side of
the Mississippi River and to the north of the existing Jefferson
20. In order to anchor the dredge barge, plaintiffs dropped
anchors upriver at a location outside of the right-of-way area.
21. On or about July 6, 1979, defendant, Bernard Vogt,
complained to Percy DeRousse, an agent for plaintiffs, that the
anchoring of the dredge barge outside the right-of-way area
constituted trespassing against the Vogts' property.
The dispositive questions in this litigation are essentially
questions of law. Plaintiff contends that this project is a
federal project, and so the federal "navigational servitude"
applies to the project; that the activities in constructing the
bridge are within the scope of the navigational servitude; that
defendants' riparian and riverbed ownership rights are
subordinate to the navigational servitude; that plaintiff is not
liable in any way for its activities because of the navigational
servitude; and that defendants are prohibited from interfering
with the activities because of the navigational servitude.
The existence of a federal navigational servitude on navigable
waterways is certainly not in doubt. It has its roots in the
commerce clause of the United States Constitution, Art. I, Sec.
8, cl. 3. Gilman v. Philadelphia, 70 U.S. (3 Wall.) 713, 724-25,
18 L.Ed. 96 (1865). Navigable waters "are incapable of ordinary
and private occupation, cultivation and improvement; and their
natural and primary uses are public in their nature, for highways
of navigation and commerce, domestic and foreign, and for the
purpose of fishing . . ." Shively v. Bowlby, 152 U.S. 1, 11, 14
S.Ct. 548, 551, 38 L.Ed. 331 (1893). Moreover, the power of
Congress to act in furtherance of navigation is not narrow.
Whether, under local law, the title to the bed of the
stream is retained by the State or the title of the
riparian owner extends to the thread of the
stream . . . the rights of the title holder are
subordinate to the dominant power of the federal
government in respect of navigation.
The power of Congress extends not only to keeping
clear the channels of interstate navigation by the
prohibition or removal of actual obstructions located
by the riparian owner or others, but comprehends as
well the power to improve and enlarge their
United States v. Chicago, Milwaukee, St. Paul & Pacific R.R. Co.,
312 U.S. 592, 596, 61 S.Ct. 772, 775, 85 L.Ed. 1064 (1941). It
apparently includes the right to erect lighthouses and jetties in
the bed of a navigable stream without compensating the owners.
South Carolina v. Georgia, 93 U.S. 4, 23 L.Ed. 782 (1876).
However, a threshold question is whether this bridge project
can be considered an Act or action of Congress, or the federal
government to which the navigational servitude applies. This
Court considers the project to be of a joint federal-state
nature, to which the navigational servitude does apply. While the
federal money is channelled through the Illinois Department of
Transportation, and the contracts were let and entered into by
the State, see 23 U.S.C. § 145 (1979), uncontradicted testimony
at trial indicated that the funding on the project was 90%
federal. Moreover, this project was initiated under the
Federal-Aid Highway Act, 23 U.S.C. § 101 et seq., a comprehensive
program designed so to promote "the prompt and early completion
of the National System or Interstate and Defense Highways, so
named because of its primary importance to the national defense
and . . . essential to the national
interest . . ." 23 U.S.C. § 101 (1978). Considering the Act's
importance and the sheer size of the federal payments mobilized
in furtherance of the Act, it seems obvious that this is
sufficiently federal a project for the navigational servitude to
Since the navigational servitude does apply to this project,
the next question is whether the bridge building activities are
within its scope. Defendant admits that activities such as
boating, swimming and fishing may be allowed on the water, but
contends essentially that bridge building is not enough like
navigation to be included within the navigational servitude. The
Court agrees with defendant.
The purpose of the navigational servitude is to allow Congress
to develop navigation on streams large enough to carry commercial
traffic for the benefit of all the States. While this project may
benefit the federal highway system and traffic movement between
Missouri and Illinois, that is, for the benefit of commerce in
general, it is hard to see how it aids navigation. In fact, the
presence of additional bridge supports in the water could be
expected to further complicate navigation. Plaintiff relies
heavily on United States v. 50 Foot Right of Way, 217 F. Supp. 882
(D.N.J. 1963), which broadly construed the navigational servitude
to allow construction of an interstate pipeline, authorized by
Congress, in navigable waters without compensation to the
riparian owner of the riverbed. However, that case was reversed
on appeal. United States v. 50 Foot Right of Way, 337 F.2d 956
(3d Cir. 1964). This Court can find no appellate court case
supportive of plaintiffs' interpretation of the navigational
servitude, save dicta from old cases which is not as persuasive
as the explicit holding of the Third Circuit in 50 Foot Right of
Way, supra. See, United States v. Chandler-Dunbar Water Power
Co., 229 U.S. 53, 62-63, 33 S.Ct. 667, 671-672, 57 L.Ed. 1063
(1913); Scranton v. Wheeler, 179 U.S. 141, 163, 21 S.Ct. 48, 45
L.Ed. 126 (1900). See also Kaiser Aetna v. United States,
444 U.S. 164, 100 S.Ct. 383 (1979).
Since the navigational servitude does not protect plaintiffs
from liability, it must be determined whether defendants'
riparian and riverbed ownership rights render plaintiffs liable
in any way. Relevant portions of the federal statute under which
the bridge project is being funded provide that:
The authorization of the appropriation of Federal
funds or their availability for expenditure under
this chapter shall in no way infringe on the
sovereign rights of the States to determine which
projects shall be federally financed. The provisions
of this chapter provide for a federally assisted
23 U.S.C. § 145 (1979). And further,
Notwithstanding any other provision of law, the
General Bridge Act of 1946 (33 U.S.C. § 525-533) shall
apply to bridges authorized to be replaced, in whole
or in part, by this section . . .
23 U.S.C. § 144 (1979). Under the General Bridge Act, the statute