Votava v. Material Service Corp.

• Decision Date: 19 July 1979
• Docket Number: No. 78-489,78-489
• Citation: 392 N.E.2d 768,30 Ill.Dec. 113,74 Ill.App.3d 208
• Parties: , 30 Ill.Dec. 113 Richard J. VOTAVA, Plaintiff-Appellant, v. MATERIAL SERVICE CORPORATION, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 768

392 N.E.2d 768

74 Ill.App.3d 208, 30 Ill.Dec. 113

Richard J. VOTAVA, Plaintiff-Appellant, v. MATERIAL SERVICE CORPORATION, Defendant-Appellee.

No. 78-489.

Appellate Court of Illinois, Second District.

July 19, 1979.

Shearer, O'Brien, Blood, Agrella & Boose, Raymond Agrella, St. Charles, for plaintiff-appellant.

Lord, Bissell & Brook, Stephen A. Milwid, Chicago, for defendant-appellee.

RECHENMACHER, Justice:

This appeal arises out of a personal injury suit wherein the complaint filed is in three counts. Count I is for a maritime tort committed in navigable waters of the United States (Viz., negligent maintenance and operation of a submerged barge). Count II is for willful and wanton negligence in connection with the operation and maintenance of said barge and Count III was added by amendment on the eve of trial and is based on simple negligence.

The plaintiff is the owner of a seventeen-foot motor boat. On July 14, 1974 (a Sunday), he and three companions were operating this boat on the Illinois River, water skiing and swimming in the vicinity of the defendant's sand and gravel operation. Defendant operated a "wet" sand and gravel pit about 3,500 feet from the Illinois River which is reached from the Illinois River by means of a channel 100 to 300 feet wide. The pit had originally been a dry one but was converted to a "wet" pit after the channel was dredged out and the water entered, forming a body of water described as a "lake" which was several square miles in area.

A pontoon bridge had been erected by the defendant to block the quarry or pit area from the channel and prominent "No Trespassing" signs were at several points in the channel, as well as at the entrance to the quarry area, warning that this was private property and trespassers would be prosecuted. The pontoon bridge was not in place blocking the channel at all times but was maintained there on weekends, at least during daylight hours, to prevent water skiers and private pleasure boat operators from entering and using the quarry lake as a recreation area. After nightfall, when it was supposed that pleasure boats and skiers were no longer operating in the vicinity, the pontoon bridge was withdrawn so that the barges of the defendant and other barge operators could use the channel, either for delivery or for laying up during the night. There was testimony indicating that when trespassers were found in the quarry lake area, at the end of the day, they were required to leave and in one instance a boat which did not leave during daylight hours was kept in the lake by the pontoon bridge overnight.

There was a partly submerged barge located at one side of the lake area which was used for storing equipment and supplies of the defendant. The defendant testified that this barge had been in the same location for about fifteen years. There was testimony to the effect that on the Sunday in question the plaintiff and his friends, after water skiing in the river proper, decided they would like to ski in the quarry lake area. They approached the pontoon bridge and inquired of some tug crew members near the bridge whether they could enter. They were told that it was private property and they could not enter the quarry lake with the speed boat. At about 8:00 p. m., there being no pleasure boats in sight on the lake, the pontoon bridge was removed. Shortly thereafter, the plaintiff and his friends decided to enter the quarry lake area. While inside the lake area, at about dusk, they ran out of gasoline and when they managed to siphon enough gasoline out of two cans to start the engine of the motor boat, it was dark. Proceeding toward the entrance of the channel, they ran into the submerged barge in the quarry lake. One of the youths was killed and the plaintiff was seriously injured.

At the close of the plaintiff's case, the defendant moved to strike the complaint as to Count I, which motion the trial court eventually allowed. The plaintiff amended his complaint to add Count III on the eve of the trial and that count was also dismissed, leaving only Count II, the willful and wanton negligence count, to be presented as an issue to the jury. The jury returned a "not guilty" verdict on that count.

In this appeal, the plaintiff contends that the court erred: (1) in dismissing Count I on the basis that the waters where the accident occurred were not, in fact, navigable waters and (2) in dismissing Count III under the amended complaint on the ground that the defendant had not violated any duty to the plaintiff and, moreover, the plaintiff was guilty of contributory negligence.

As to Count I, sounding in Admiralty Law, the plaintiff contends that the evidence adduced at trial established that the public made frequent and uncontested use of the channel and the quarry lake in question for pleasure boating, with the knowledge and consent of the defendant. There was evidence that the defendant's attempts to keep the public from using the quarry lake for pleasure craft was less than efficient and was ineffective over a long period of years. Plaintiff contends that the use by the public, while not officially permitted, was condoned to an extent sufficient to raise a question regarding the navigability of the waters in question and present a jury issue.

We do not, however, regard the evidence adduced by the plaintiff as by any means sufficient to establish that the waters of the quarry lake were navigable waters. The lake in question was on private land and used for the defendant's private business purposes. It was not used in commerce generally but only for barges and by the defendant or by others associated with the defendant's business. The occasional use of the lake for pleasure purposes by members of the public was officially prohibited by the defendant and in practice was discouraged within the practical limits allowable, considering the need to keep the channel open for barges which arrived on irregular schedules. An occasional violation of the "No Trespassing" edict does not, in our opinion, amount to a dedication for public use so as to make the waters navigable. To constitute a dedication of a body of water for public use:

"There must be clear and satisfactory proof both of the intention of the owner to dedicate the land or waterway and the acceptance thereof by the public." DuPont v. Miller (1923), 310 Ill. 140, 146, 141 N.E. 423, 425.

Here there was obviously no intention to dedicate the quarry lake in question but on the contrary continuous efforts were made to prevent the lake from being used by the public. This is...