COM'RS OF HWYS. OF TOWNS OF ANNAWAN, ET AL. v. US

• Decision Date: 23 February 1979
• Docket Number: No. 74 C 1861.,74 C 1861.
• Citation: 466 F. Supp. 745
• Parties: The COMMISSIONERS OF HIGHWAYS OF the TOWNS OF ANNAWAN, ET AL., Plaintiffs, v. UNITED STATES of America, et al., Defendants, Cross Claimants and Third-Party Plaintiffs, v. Daniel WALKER, Individually and as Governor of the State of Illinois, et al., Defendants and Cross-Defendants, v. The STATE OF ILLINOIS, Third-Party Defendant.
• Court: U.S. District Court — Northern District of Illinois

466 F. Supp. 745

The COMMISSIONERS OF HIGHWAYS OF the TOWNS OF ANNAWAN, ET AL., Plaintiffs, v. UNITED STATES of America, et al., Defendants, Cross Claimants and Third-Party Plaintiffs, v. Daniel WALKER, Individually and as Governor of the State of Illinois, et al., Defendants and Cross-Defendants, v. The STATE OF ILLINOIS, Third-Party Defendant.

No. 74 C 1861.

United States District Court, N. D. Illinois, E. D.

February 23, 1979.

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Ellen Claire Newcomer, Ronald Butler and James I. Rubin, Winston & Strawn, Chicago, Ill., for plaintiffs.

Herbert L. Caplan, First Asst. Atty. Gen., John L. Gubbins, Asst. U. S. Atty., Chicago, Ill., for defendants.

LEIGHTON, District Judge.

Memorandum^*

This litigation arises from a dispute concerning the obligation of the United States to maintain highway bridges over the Illinois-Mississippi Canal in accordance with congressional legislation and certain condemnation decrees of this court. Plaintiffs are the Commissioners of Highways of the Towns of Annawan, Alba, Atkinson, Coloma, Colona, Concord, Edford, Fairfield, Gold, Geneseo, Montmorency, Mineral, Tampico, and Wyanet, all of them original parties to these decrees; and the Counties of Bureau, Henry, and Whiteside with whom the Commissioners share the rights and obligations of the towns within their borders for maintenance projects costing more than $1,000. The defendants are the United States, certain federal agencies and their officials. They have controverted the allegations of the complaint, filed a crossclaim, and have brought the State of Illinois into the controversy as a defendant in a third party complaint. The cause has been submitted to the court on an agreed statement of facts¹ which reveal that this dispute has developed from events involving more than one hundred years of Illinois history. For an understanding of the issues presented, it is necessary that this history be recounted.

I. History of the Dispute

A. Construction of the Illinois-Mississippi Canal

Expansion of the population and economy of the Northwest Territory and neighboring states in the nineteenth century created interest in a canal linking the Illinois and Mississippi rivers. Such a canal, it was believed, would provide a short, direct water route for commercial purposes between these two important waterways and thus furnish an economical means of transportation for the areas near the rivers and the Great Lakes. In response to this need, the United States in 1870 made the first of a series of surveys to determine the best route for the canal. The Secretary of War conducted additional studies and economic evaluations of the proposed canal pursuant to Acts of Congress adopted in 1882 and 1886.² In 1888, Congress authorized the Secretary of War to locate an Illinois-Mississippi Canal between Hennepin, Illinois and the Mississippi River north of Rock Island. He was directed to submit detailed plans and estimates for construction.³ The Secretary submitted a preliminary report two years later.⁴ In the River and Harbor Act of September 19, 1890,⁵ Congress authorized $500,000 for construction of the canal; and in 1892, authorized $500,000 which included funds for acquiring rights of way for the project.⁶

The 1890 Act directed the Secretary of War to acquire title to necessary lands by agreement, purchase, or voluntary conveyance from the owners, or by condemnation in this court, through proceedings governed by Illinois law.⁷ The 1892 Act added two important provisos:

"That in acquiring right of way the Secretary of War may make agreements for joint user sic where the canal crosses other lines of transportation if such agreements can be made upon reasonable terms: Provided further, That in acquiring the right of way by agreement or otherwise for the crossing of existing public highways over the parts of the canal constructed on land, the basis of agreement or condemnation shall be construction and maintenance of bridges by the United States Government, as provided for in the detailed plans and estimates heretofore submitted to Congress, but this provision shall not apply to bridges constructed over public waters of the United States now occupying part of the line of the said canal, nor to bridges constructed after the completion of said canal or part thereof adjacent to the bridge sites."

Accordingly, the United States initiated certain judicial proceedings in this court to obtain the right of way for the canal. These were suits for condemnation, United States v. Cass, No. 8913 (1896); United States v. Maxson ("Maxson I"), No. 9118 (1898); United States v. Galt, No. 9139 (1898); United States v. Howes, No. 9167 (1899); and United States v. Rickel, No. 377 (1900), (hereinafter referred to as "the condemnation proceedings" or "the condemnation decrees" collectively). The condemnation petition in Cass is representative of the pleadings filed by the United States in the other cases. It alleged

"that the United States of America in the course of its construction of said canal will construct, erect and forever thereafter maintain bridges for use as public roadways and highways at and along each of said lots hereinabove designated . . .."

The final decree ordered and adjudged that the taking and use of certain lots, which were portions of public highways, were to be subject to the petitioner's "agreements and stipulations set forth in the Amendment to its petition filed in this Court on the 18th day of May, 1896." In the amendment referred to, the United States stipulated and agreed with the Commissioners of Highways of Wyanet and Concord "that it will at its own expense construct and maintain iron or steel bridges" on the named lots. The court decree awarded the Commissioners of Highways one dollar for each such lot taken "in full satisfaction of all compensation to which they are entitled."

The decrees in Maxson I, Galt, Howes, and Rickel were similar. In each case, the awards of one dollar for each portion of public highway taken were adjudged "full and just compensation." All four decrees contain the following formulaic language:

"And it is further ordered and adjudged by the court that the United States shall build and maintain good and sufficient "substantial and suitable" in Rickel bridges . . . over and across said Canal, at or near the line of the present "upon the" in Maxson I public highways crossing the same, described in this judgment as list of pertinent lots, for the safe and convenient passage thereover at all times (except when said bridges are open for Canal traffic) of teams and vehicles."

These condemnation proceedings were brought by the United States to obtain rights of way as required for construction of the canal. Actual construction began after the first condemnation proceedings were initiated in 1892. By 1900, acquisition of the required land by condemnation had been completed, construction was well under way, and erection of the bridges had begun. In 1903, the Commissioners of Highways filed cross-petitions to the original condemnation proceedings in Maxson I. They claimed that the size, design, and location of bridges being built across the canal by the United States did not comply with the terms of the condemnation decree. Thereafter, the court's decree of February 9, 1906 "Maxson II", adopted and confirmed a Master's Report that contained the hearing of the cross-petitions. Among other things, the Master concluded that since the provisos of the 1892 Act, and the plans and specifications for construction of the proposed bridges which were filed by the United States were presented to the jury,

"it will be presumed that the nominal compensation fixed by the jury's verdict was also based upon the obligation assumed by the Government to construct bridges in accordance with such plans and specifications and thereafter maintain the same at the several highway crossings condemned."

B. Use and Maintenance of the Canal

The canal was completed and opened to navigation on October 24, 1907, replete with about 70 bridges that spanned highways over it. However, use of the waterway was disappointing from the outset, for a variety of reasons: railroads reduced their rates and improved bulk loading and haulage facilities; highways were improved and the trucking industry provided an additional, competitive means of transportation; newly developed vehicles for water transportation outstripped the capacity of the canal. Indeed, by 1930 it was so outmoded in comparison with water transportation facilities in use or under construction on the Illinois and Mississippi Rivers that Congress directed a study of the advisability and costs of its improvement.⁸ The result was a 1938 Army Corps of Engineers recommendation

"that the existing obsolete canal be no longer maintained as a navigable waterway of the United States, but that for the present the right of way be retained by the United States for future canal improvement when justified and in order that the United States may fulfill its obligations with respect to certain bridges and for the protection of property adjacent to the pools."⁹

From this time the Corps began to consider formal abandonment of the canal. But because traffic on it increased substantially during World War II, this possibility was deferred.

After the war, at the direction of Congress,¹⁰ the Corps undertook a review of previous reports concerning the waterway. At the same time, since traffic had again decreased radically, operation of the waterway was placed on a standby basis as an economy measure. Commercial and pleasure boat traffic was restricted; maintenance was "limited solely to the minimum required to prevent failure of the canal structure including the legal obligations to maintain bridges, culverts, aqueducts, fences, etc. . . ."¹¹ In February 1951, the Rivers and Harbors Board of the United States made a further study which recommended that improvement...