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