653 F.

2d 292

The COMMISSIONERS OF HIGHWAYS OF the TOWNS OF

ANNAWAN, et
al., Plaintiffs-Appellants and Cross-Appellees,
v.
UNITED STATES of America, et al., Defendants, Cross
Claimants, Third-Party Plaintiffs, Appellees and
Cross-Appellants,
v.
Daniel WALKER, Individually, and as Governor of the State of
Illinois, et al., Defendants, Cross-Defendants and Appellees,
v.
The STATE OF ILLINOIS, Third-Party Defendant-Appellee.
Nos. 80-2168, 80-2190.

United States Court of Appeals,

Seventh Circuit.
Argued April 29, 1981.
Decided July 7, 1981.

Ronald Butler, Chicago, Ill., for plaintiffs-appellants and cross-appellees.

Herbert Lee Caplan, Chicago, Ill., for defendants, cross-defendants and
appellees.
Robert L. Klarquist, Dept. of Justice, Washington, D. C., for intervenor.
Before PELL and BAUER, Circuit Judges, and CAMPBELL, Senior
District Judge.*
BAUER, Circuit Judge.

During the 1890's the United States exercised eminent domain over lands held
by the Commissioners of Highways of several Illinois towns to obtain land to
construct the Illinois-Mississippi Canal.1 The condemnations were authorized

by the River and Harbor Act. The condemnation decrees awarded the
Commissioners $1.00 and required the United States to construct and forever
maintain bridges across the Canal for use as public highways.
2

The United States opened the Canal and 74 highway bridges in 1907. As early
as 1938, the Government considered abandoning the Canal because it was
obsolete. After several years of negotiations, the United States agreed to
transfer title to the Canal to Illinois, and Illinois agreed to release the United
States from any further obligation to maintain the Canal. The conveyance
agreement was signed on December 14, 1960,2 but actual transfer of title did
not occur until August 1970. From 1945 until 1970 the United States performed
only minimal custodial maintenance on the Canal bridges.

In 1974 plaintiff Commissioners of Highways 3 filed this suit against the United
States to enforce the 1890 condemnation decrees. The United States filed a
third-party complaint against Illinois alleging that Illinois had released the
United States from its obligation to maintain the bridges when it accepted title
to the Canal in 1970. The parties submitted the case to the district court, the
Honorable George N. Leighton presiding, on an agreed statement of facts. The
court entered final judgment on April 29, 1980. The district court found that the
obligation to maintain the bridges across the Canal was a covenant running
with the land. Comm'rs of Highways of Towns of Annawan, et al. v. United
States, 466 F.Supp. 745, 763-64 (N.D.Ill.1979). The court held that Illinois
became responsible to maintain the bridges when it accepted title to the Canal.
The court further held, however, that transfer of title did not transfer the United
States' past due obligation to maintain the bridges from 1945 to 1970. Id. at
766-67. The court ordered the United States to pay $2,812,658 plus interest, the
amount needed to put the bridges in the condition in which they should have
been when the Canal was conveyed in 1970. Upon payment of the damage
sum, the United States would be released from all future liability for
maintenance of the bridges. Comm'rs of Highways of Towns of Annawan, et al.
v. United States, No. 74 C 1861, slip op. at 12 (N.D.Ill. Apr. 29, 1980).

Commissioners and the United States cross-appeal from the judgment of the
district court. Commissioners claim that the district court erred in finding that
the obligation to maintain the bridges is a covenant running with the land.
Plaintiffs urge us to reverse this portion of the court's judgment and hold the
United States perpetually bound to comply with the 1890 condemnation
decrees. The United States claims that Illinois assumed all of its obligations to
maintain the bridges, both future and past, when it accepted title to the Canal
and, thus, the district court erred in ordering the United States to pay the
maintenance costs for repairs not performed between 1945 and 1970. The

United States also claims that the court erred in awarding plaintiffs certain
enumerated litigation costs. For the reasons discussed in this opinion, we affirm
the judgment of the district court in part and reverse in part.
5

* We address first the Commissioners' claim that the district court erred in
finding that the obligation to maintain the bridges, which was memorialized in
the 1890 condemnation decrees, is a covenant running with the land.
Commissioners argue that the obligation to maintain the bridges was the
compensation for the taking of Commissioners' land, and the United States'
attempt to avoid this obligation by transferring title to Illinois amounts to an
uncompensated taking of the Commissioners' property in violation of the Fifth
Amendment.

We agree with Commissioners that the obligation to maintain the bridges is not
a covenant running with the land. A covenant running with the land is a
promise concerning the use and enjoyment of land agreed to by parties in
privity. Leverich v. Roy, 402 Ill. 71, 73, 83 N.E.2d 335, 336 (1949); Purvis v.
Shuman, 273 Ill. 286, 294-95, 112 N.E. 679, 682 (1916); Thompson on Real
Property 3152, 3155 (1962); Tiffany on Real Property 851 (1939).
"Strictly speaking, it is an agreement by deed to do or not to do some particular
act." Thompson on Real Property 3150 (1962). The district court concluded
that the obligation to maintain the bridges is a covenant running with the land
merely because the obligation concerns the use and enjoyment of the Canal
lands. Comm'rs of Highways of Towns of Annawan, et al. v. United States, 466
F.Supp. at 763. Whether a condition affects the use and enjoyment of the land,
however, is only one of three necessary qualities of a covenant that runs with
the land. In this case, the first necessary quality, an agreement by deed, is
lacking for there is no agreement between the United States and the
Commissioners to create a covenant. Rather, the obligation to maintain the
bridges was imposed by the district court in the 1890 condemnation decrees,
which are not agreements by deed. See Harris v. Commissioner, 340 U.S. 106,
110-12, 71 S.Ct. 181, 183-84, 95 L.Ed. 111 (1950). Therefore, the obligation to
maintain the bridges cannot properly be considered a covenant running with the
land.

Although we find that the district court erred in concluding that the obligation
to maintain the bridges is a covenant running with the land, we agree with the
court's conclusion that the United States is no longer bound by the terms of the
condemnation decrees. In 1955 the Illinois General Assembly enacted
legislation authorizing the Illinois Departments of Conservation and of Public
Works and Buildings to accept title to the Canal from the United States.
Ill.Rev.Stat., ch. 105, 482a-482d. The legislation provided that the local

municipal corporations responsible for maintaining the roads of which the

Canal bridges are a part would be responsible for maintaining the bridges after
the State accepted title. Id. at 482d. In 1958 Congress amended the River and
Harbor Act authorizing the United States to convey the Canal to Illinois. The
Act decreed that upon transfer the United States would have "no further
obligations" with respect to the Canal. On December 4, 1960, Illinois agreed to
accept title to the Canal and release the United States from any further
obligations with respect to the Canal. The United States quitclaimed the Canal
to Illinois in August 1970. Upon Illinois' acceptance of title, the United States'
obligation to maintain the Canal bridges ceased.
8

Commissioners claim that the conveyance agreement releasing the United

States from its obligation to maintain the bridges deprives them of their
property without just compensation. It is not clear whether the property to
which plaintiffs' argument refers is the land taken in 1890 or the
Commissioners' property interest in the United States' duty to maintain the
bridges. Regardless of on which property interest plaintiffs rely, their claim
mischaracterizes the issue before us. The United States has not deprived
plaintiffs of any property without just compensation. Plaintiffs were
compensated for the original taking by the decree awarding them $1.00 and
requiring the United States to maintain the bridges across the Canal for the
Commissioners' benefit. Nor has the United States deprived plaintiffs of their
property interest in perpetual maintenance of the bridges, for it is the State, not
the United States, that has taken Commissioners' property by releasing the
United States from its obligation to maintain the bridges.

Commissions of Highways, which are legislatively created municipal

corporations, Ill.Rev.Stat. ch. 121, 6-107, 6-112, are creatures of the State,
possessing only those powers and privileges which the State may choose to
grant. Trenton v. New Jersey, 262 U.S. 182, 187, 43 S.Ct. 534, 536, 67 L.Ed.
937 (1923); Heffner v. Cass & Morgan Counties, 193 Ill. 439, 448, 62 N.E.
201, 204 (1901). "A (municipal corporation) is merely a department of the
State, and the State may withhold, grant or withdraw powers and privileges as it
sees fit. However great or small its sphere of action, it remains the creature of
the State exercising and holding powers and privileges subject to the sovereign
will." Trenton v. New Jersey, 262 U.S. at 187, 43 S.Ct. at 536 (citation
omitted).

10

As plaintiffs' creator, the State retains the power to control the disposition and
use of its creatures' property. Hunter v. Pittsburgh, 207 U.S. 161, 28 S.Ct. 40,
52 L.Ed. 151 (1907); Worcester v. Worcester Consol. St. Ry. Co., 196 U.S.
539, 25 S.Ct. 327, 49 L.Ed. 591 (1905). See also Trenton v. New Jersey, 262

U.S. 182, 188, 43 S.Ct. 534, 537, 67 L.Ed. 937 (1923); Mount Pleasant v.
Beckwith, 100 U.S. 514, 525, 25 L.Ed. 699 (1879); People v. Ill. Toll Highway
Comm., 3 Ill.2d 218, 234, 120 N.E.2d 35, 44 (1954); Gasaway v. N. Branch
Lake Fork Special Drainage Dist., 339 Ill. 103, 107, 170 N.E. 721, 723 (1930).
11

In Worcester v. Worcester Consol. St. Ry. Co., 196 U.S. 539, 25 S.Ct. 327, 49
L.Ed. 591 (1905), the City of Worcester complained that the State was
unconstitutionally interfering with its property rights. Worcester Consolidated
Street Railway had contracted with the City to repair and maintain City streets
in exchange for use of City property. The state legislature passed an act
releasing the railroad from its contractual obligation. The City sued the
railroad, seeking to enforce the original contract terms. Worcester claimed that
the state statute was void because it impaired an obligation of contract in
violation of the Constitution and thus did not release the Railroad from its
contractual duty to repair the City streets. Rejecting the City's argument, the
Supreme Court held that the statute released the Railroad from all further
obligations to the City arising under the contract. The Court held that the State
had "the same right to terminate (the contract) with the consent of the railroad
company, that the City itself" had. 196 U.S. at 551-52, 25 S.Ct. at 330-31. The
Court recognized that the contract created a property right in favor of the City
but held that the property right was not absolute as against the state's right to
alter or abolish it. Id. at 552, 25 S.Ct. at 331. To hold otherwise, the Court
noted, "would very largely diminish the right of the legislature to deal with its
creature in public matters, in a manner which the legislature might regard as for
the public welfare." Id.

12

Similarly, in Hunter v. Pittsburgh, 207 U.S. 161, 28 S.Ct. 40, 52 L.Ed. 151
(1907), Pittsburgh claimed that the Pennsylvania General Assembly was
depriving it of its property without due process of law. Id. at 177, 28 S.Ct. at
46. The General Assembly enacted legislation ordering Pittsburgh to
consolidate with Allegheny, Pennsylvania. The Supreme Court held that the
State's taking of its municipalities' property without their consent did not violate
due process. Id. at 178-79, 28 S.Ct. at 46-47. The Supreme Court explained
that:

13
(m)unicipal
corporations are political subdivisions of the State, created as
convenient agencies for exercising such of the governmental powers of the State as
may be entrusted to them. For the purpose of executing these powers properly and
efficiently they usually are given the power to acquire, hold, and manage personal
and real property. The number, nature and duration of the powers conferred upon
these corporations and the territory over which they shall be exercised rests in the
absolute discretion of the State.... The State, therefore, at its pleasure may modify or

withdraw all such powers, may take without compensation such property, hold it
itself, or vest it in other agencies, expand or contract the territorial area, unite the
whole or a part of it with another municipality, repeal the charter and destroy the
corporation. All this may be done, conditionally or unconditionally, with or without
the consent of the citizens, or even against their protest. In all these respects the
State is supreme, and its legislative body, conforming its action to the state
constitution, may do as it will, unrestrained by any provision of the Constitution of
the United States.
14

Id. (emphasis added).

15

Nothing in the United States Constitution prohibits the State from taking its
creatures' property without providing compensation. Williams v. Mayor of
Baltimore, 289 U.S. 36, 40, 53 S.Ct. 431, 432, 77 L.Ed. 1015 (1933); Hunter v.
Pittsburgh, 207 U.S. at 161, 179, 28 S.Ct. at 40, 46 (1907). That is precisely
what Illinois has done in this case. As the Supreme Court noted in Hunter v.
Pittsburgh, Commissioners must look to the Illinois Constitution, not the
United States Constitution, for relief in this case. Id. at 179, 28 S.Ct. at 46. If
the statute imposing the duty to maintain the bridges on the Commissioners
comports with the requirements of the Illinois Constitution, petitioners are
without any remedy. Id. That question, however, is not before us.4 The question
before this Court is whether the United States has deprived Commissioners of
their property without just compensation. We find that the United States
compensated Commissioners for the original taking by building and
maintaining the bridges across the Canal. In 1970, Illinois released the United
States from its continuing obligation to compensate Commissioners by
maintaining the bridges when Illinois accepted title to the Canal pursuant to the
terms of the conveyance agreement and the Illinois statute. Ill.Rev.Stat. ch.
105, 482a-482d. We agree with the district court that after 1970 the United
States had no duty to maintain the bridges across the Canal.

II
16

The United States in its cross-appeal claims that the district court erred in
holding it liable for maintenance costs required to put the bridges in the
condition in which they would have been in 1970 if the United States had
maintained and repaired them between 1945 and 1970. The Government argues
that its obligation to maintain the bridges, including past due maintenance,
ceased when Illinois accepted conveyance of title in 1970. In support of its
argument, the United States relies on clause 4 of the 1960 conveyance
agreement which provides that upon Illinois' acceptance of title the United
States "shall have no further obligation with respect to the Canal," and on the

River and Harbor Act, incorporated by reference in the conveyance agreement,

which states that "(u)pon such conveyance the United States shall have no
further obligation with respect to the canal."
17

The district court found that the United States was urging it to construe the
conveyance agreement as an indemnity contract. Applying federal contract law
principles, United States v. Seckinger, 397 U.S. 203, 209, 90 S.Ct. 880, 884, 25
L.Ed.2d 224 (1970); United States v. Allegheny, 322 U.S. 174, 183, 64 S.Ct.
908, 913, 88 L.Ed. 1209 (1944), the court opined that it should not infer that
Illinois intended to indemnify the United States for past due maintenance
unless a mutual intent to that effect appeared with clarity on the face of the
contract. Any ambiguity in the contract concerning the parties' intent should be
construed against the drafter, the United States. Comm'rs of Highways of
Towns of Annawan, et al. v. United States, No. 74 C 1861, slip op. at 3-4 (Apr.
29, 1980). The court held that the conveyance agreement was not an indemnity
agreement and that the United States was liable for the costs of past due bridge
maintenance. We agree.

18

The United States' reliance on clause 4 of the 1960 conveyance agreement is

misplaced for that agreement was modified by the parties on December 30,
1963. The language cited by the United States was stricken from the
agreement. In the 1963 supplemental agreement, clause 4 provides that upon
Illinois' acceptance of title to the Canal, the United States will perform "any
further work hereafter authorized ... with funds made available through
subsequent Federal legislation." This later expression of the parties' intent,
memorialized in the modified contract, is controlling. In 1970 Congress
amended the River and Harbor Act authorizing the United States to expend "an
additional sum of $6,528,000 ... for the repair, modification, and maintenance
of bridges." When the 1963 supplemental agreement and the River and Harbor
Act appropriations are read in conjunction, it appears that both the United
States and Illinois intended for the United States to retain some responsibility to
repair the bridges. We find that the district court's conclusion that the
conveyance agreement did not indemnify the United States for past due
maintenance is not clearly erroneous. United States v. United States Gypsum
Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948).

III
19

Finally, the United States claims that the district court erred in including
attorney travel expenses and expert witness fees as costs against the United
States. We agree.

20

Litigation costs may be taxed against the United States, 28 U.S.C. 2412, but
the award of costs is limited to those items enumerated in 28 U.S.C. 1920.
Attorney travel expenses are not among the listed items, and, thus, they are not
recoverable. Wahl v. Carrier Mfg. Co., Inc., 511 F.2d 209, 217 (7th Cir. 1975);
Kiefel v. Las Vegas Hacienda, Inc., 404 F.2d 1163, 1170 (7th Cir. 1968), cert.
denied, 395 U.S. 908, 89 S.Ct. 1750, 23 L.Ed.2d 221, reh. denied, 395 U.S.
987, 89 S.Ct. 2128, 23 L.Ed.2d 776 (1969). Witness fees are among the items
listed in 28 U.S.C. 1920, but the amount of recovery is limited by 28 U.S.C.
1821. The prevailing party is entitled to recover only $30 per day attendance
allowance plus the amount of the witness' travel and board expenses. 28 U.S.C.
1821(b), (c), (d); Adams v. Carlson, 521 F.2d 168, 172 (7th Cir. 1975). See
28 U.S.C. 2412(d)(2)(A) (effective Oct. 31, 1981; recovery of reasonable
expert witness fees to be permitted). The district court erred in including
$4,186.36 expert witness fees and $1,808.45 attorney travel expenses in the
judgment for costs against the United States.

IV
21

For the reasons discussed in this opinion, the judgment of the district court is
affirmed in part and reversed in part. We reverse only that part of the judgment
assessing $1,808.45 attorney travel expenses and $4,186.36 expert witness fees
against the United States. The parties are ordered to bear their own appeal
costs.

22

AFFIRMED IN PART AND REVERSED IN PART.

The Honorable William J. Campbell, Senior Judge of the United States District
Court for the Northern District of Illinois, is sitting by designation

The factual history of this controversy is extensively discussed in the district

court opinion. Comm'rs of Highways of Towns of Annawan, et al. v. United
States, 466 F.Supp. 745 (N.D.Ill.1979). We incorporate that portion of the
opinion by reference

This agreement was subsequently amended on December 30, 1963, December

16, 1964, and April 27, 1971

Plaintiffs are Bureau, Henry, and Whiteside Counties and the Commissioners
of Highways of the towns of Annawan, Alba, Atkinson, Coloma, Colona,
Concord, Edford, Fairfield, Gold, Geneseo, Montmorency, Mineral, Tampico,
and Wyanet. They are the successors in interest to the Commissioners involved

in the 1890 condemnation actions

4

The district court dismissed without prejudice Commissioners' pendant

jurisdiction claim challenging the Illinois statute on state constitutional
grounds. Comm'rs of Highways of Towns of Annawan, et al. v. United States,
No. 74 C 1861, slip op. at 6 (N.D.Ill. Apr. 29, 1980). Commissioners have not
appealed that portion of the district court judgment