Alderson v. Fatlan ( 2008 )

Docket No. 104772.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
ROBERT L. ALDERSON et al., Appellants, v. LEO E. FATLAN et
al., Appellees.
Opinion filed September 18, 2008.
JUSTICE BURKE delivered the judgment of the court, with
opinion.
Chief Justice Fitzgerald and Justices Freeman, Thomas, Kilbride,
Garman, and Karmeier concurred in the judgment and opinion.
OPINION
The plaintiffs, Robert and Wanda Alderson, filed an action in the
circuit court of Will County in which they sought a declaration that
they have surface rights to a water-filled quarry that is used for
recreational purposes. Plaintiffs contended they are entitled to the
reasonable use and enjoyment of the entire surface waters because
they own a portion of the quarry bed. The circuit court granted
summary judgment for plaintiffs, reasoning that the case was
controlled by Beacham v. Lake Zurich Property Owners Ass’n, 123
Ill. 2d 227 (1988), wherein this court held that the owner of a portion
of a natural lake bed obtains rights to the surface waters of the entire
lake, subject to the reasonable use of other owners of the lake bed.
The appellate court, with one justice dissenting, reversed the
judgment of the circuit court. 372 Ill. App. 3d 300. The appellate
court concluded that the rule announced in Beacham had no
application to plaintiffs’ case because the body of water at issue is
man-made and, therefore, not a “lake” within the meaning of the law.
For the reasons that follow, we affirm the judgment of the
appellate court, although on somewhat different grounds.
Background
The following facts are taken from the parties’ pleadings and
supporting exhibits. In 1966, Leo Fatlan opened a sand quarry on
leased property in unincorporated Will County just south of
Braidwood, Illinois. At the time of its completion some years later,
the quarry covered approximately 20 acres and was roughly
rectangular in shape, with its longer sides running north and south.
Abutting the quarry on the north half of its east side was
approximately 11 acres of vacant property owned by the McElvain
family. Sometime after the quarry was begun, Fatlan unknowingly
excavated across the property line and onto the McElvain property.
In 1968, Fatlan purchased the original quarry property. In 1970,
after running a title commitment, Fatlan learned of the incursion onto
the McElvain property. Fatlan then had a conversation with James
McElvain1 in which he told him he had quarried across the property
line and that he “needed that property.” The record does not reveal
what McElvain said during this conversation. However, it is
undisputed that McElvain took no action and made no demands
against Fatlan.
1
It is unclear from the record whether James McElvain owned the 11-
acre property in 1970. In a previous appellate decision regarding a separate
issue related to the quarry, which is part of the record on appeal, the
appellate court referred to James McElvain as the owner. However, the
court also cited testimony from James’ brother in which he stated that his
father and uncle had purchased the property in the 1940s and that James
“managed” the property from 1966 to 1993. See Fatlan v. Alderson, No.
3–00–0890 (2001) (unpublished order under Supreme Court Rule 23).
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In 1974, Fatlan discontinued mining operations and allowed the
quarry to fill with water. Because of the previous excavation across
the McElvain property line, the water which filled the quarry covered
a portion of the McElvain property. Although measurements from
1974 are not available, it appears from plats in the record that, at
present, the portion of land across the property line that is covered
with water runs approximately 300 to 400 feet from north to south
and extends some 10 to 20 feet eastward. The depth of the water on
the property is approximately five feet.
The record does not reveal whether Fatlan obtained permission to
flood the McElvain property. There is no flowage easement or other
written instrument in the record and no indication that Fatlan spoke
to anyone from the McElvain family when the quarry filled with
water. Since 1974, the water-filled quarry has been used exclusively
as a recreational lake, employed for purposes such as swimming,
boating and fishing. The record is silent, however, as to whether
anyone from the McElvain family used it for these purposes.
In 1981, Fatlan sold four residential lots at the south end of the
man-made lake to family friends. Homes were built on the lots and,
on an adjacent lot, Fatlan built a fifth home for himself. After the
homes were built, the homeowners placed broken concrete around the
edge of the lake to prevent erosion, constructed a duck blind, and
placed no-trespassing signs on a pathway that went around the lake.
Some years later, in order to conform to the Will County zoning
ordinance, the homes and the lake were rezoned as a planned unit
development. According to the terms of the planned unit agreement,
the man-made lake is to remain open as a conservation easement. The
lake is presently owned in trust with rights shared by Fatlan and the
four other current homeowners.
In 1998, the 11-acre property owned by the McElvain family was
sold to the plaintiffs, Robert and Wanda Alderson. The record does
not reveal whether anyone spoke with the Aldersons about the lake or
whether any representations were made to the Aldersons regarding a
right of access to the surface waters.
Within a week of their purchase of the McElvain property, the
Aldersons placed no-trespassing signs and concrete barriers on the
section of the pathway around the lake that crossed their property.
Thereafter, Fatlan and the other homeowners sent two letters to the
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Aldersons requesting that they sell them the entire 11 acres of
property they had purchased from the McElvain family. The
Aldersons declined to sell the property and proceeded to construct a
home.
Shortly thereafter, Fatlan and the other homeowners filed an
action seeking to eject the Aldersons and to quiet title. Fatlan and the
homeowners alleged that they were entitled, through adverse
possession, to the portion of the Aldersons’ property that had been
quarried, as well as the portion of the property that contained the
pathway around the lake. Following a trial, the circuit court entered
judgment in favor of the Aldersons. Although the circuit court did not
determine whether Fatlan had been given permission to flood the
property in 1974, the court did find, among other things, that Fatlan
had been given permission to quarry across the property line by James
McElvain in 1970. In large part because the excavation of the
property was not adverse, the circuit court rejected the adverse
possession claim. The appellate court affirmed. Fatlan v. Alderson,
No. 3–00–0890 (2001) (unpublished order under Supreme Court Rule
23).
In 2003, Fatlan and the four other homeowners installed a cable
fence alongside the length of the Aldersons’ property line where it ran
through the lake. The fence blocked the Aldersons’ access to all but
that portion of the waters which lay above their own property.
In October of 2003, the Aldersons filed this action against Fatlan,
the four other homeowners and the lake trust (the defendants). The
Aldersons’ complaint contained four counts. Count I sought a
declaration that the Aldersons have a right to the reasonable use and
enjoyment of the surface waters of the entire man-made lake. Count
II sought an injunction to prevent defendants from taking any action
that would deprive the Aldersons of access to the surface waters of
the entire lake. Count III alleged that the cable fence was a public
nuisance, and count IV alleged that the installation of the fence
amounted to an intentional infliction of emotional distress.
Defendants filed an answer and a two-count counterclaim.
Defendants then moved for summary judgment on counts I, II and IV
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of plaintiffs’ complaint.2 The Aldersons, in response, moved for
summary judgment on the declaratory judgment count (count I) of
their complaint. In their motion, the Aldersons noted the rule set forth
in Beacham v. Lake Zurich Property Owners Ass’n, 123 Ill. 2d 227
(1988), that all owners of a private, nonnavigable lake bed have the
right to the reasonable use and enjoyment of the surface waters of the
entire lake. The Aldersons contended that they owned a portion of the
lake bed at issue and, consequently, that Beacham was dispositive of
their case.
Following a hearing, the circuit court granted judgment in favor
of the Aldersons. In so ruling, the court found that, because the quarry
at issue in this case had been allowed to fill with water and had been
dedicated for recreational purposes, it was, for all practical purposes,
a lake. The circuit court further found that, based on the prior rulings
of the court in the adverse possession case, the Aldersons owned a
portion of the lake bed. Based on these findings, the circuit court
concluded that the rule set forth in Beacham applied and the
Aldersons were entitled to the use of the surface waters of the entire
lake. Accordingly, the circuit court granted the Aldersons’ motion for
summary judgment, denied defendants’ motion, and expressly
forbade defendants from constructing a fence or other barrier in the
lake.
The appellate court reversed the judgment of the circuit court and
remanded for entry of summary judgment in favor of defendants. 372
Ill. App. 3d 300. The appellate court stated that the case before it
turned solely on “whether the body of water at issue is a ‘lake,’ ” and
explained that if the water-filled quarry is a lake, it is “quite clear”
that the Aldersons have rights to the entire surface. 372 Ill. App. 3d
at 301. Citing to Nottolini v. La Salle National Bank, 335 Ill. App. 3d
1015 (2003), the court then defined a lake as “ ‘ “a reasonably
permanent body of water substantially at rest in a depression in the
surface of the earth, if both depression and body of water are of
2
Defendants filed a separate motion to dismiss count III of the
Aldersons’ complaint in which they alleged that the Aldersons lacked
standing to pursue an action for public nuisance. That motion is not at issue
here. Defendants additionally moved for summary judgment on their
counterclaim. That motion also is not at issue.
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natural origin or a part of a watercourse.” ’ ” 372 Ill. App. 3d at 302,
quoting Nottolini, 335 Ill. App. 3d at 1018, quoting 78 Am. Jur. 2d
Waters §108 (2002). Relying on this definition, the appellate court
held that the water-filled quarry at issue here is not of natural origin
and, hence, is not a “lake.” Consequently, the appellate court
concluded that Beacham did not apply.
Justice McDade dissented. In her dissent, Justice McDade stated
that the majority opinion drew “unnecessary and unwarranted
distinctions” between man-made and natural lakes and, in addition,
that it “violate[d] the spirit and purpose of the supreme court’s
holding in Beacham.” 372 Ill. App. 3d at 302-06 (McDade, J.,
dissenting).
We granted the Aldersons’ petition for leave to appeal. 210 Ill. 2d
R. 315.
Analysis
This appeal is before us on the appellate court’s reversal of the
circuit court’s entry of summary judgment in favor of the Aldersons.
Summary judgment is appropriate where “the pleadings, depositions,
and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” 735 ILCS
5/2–1005(c) (West 2000). Our review of a grant of summary
judgment is de novo. Arangold Corp. v. Zehnder, 204 Ill. 2d 142, 146
(2003).
The Aldersons’ primary contention on appeal is that the appellate
court decision erroneously deprives them of their riparian rights, as
defined in Beacham, to the use of the surface waters of the entire
lake. The term “riparian rights” refers, in general, to the rights of an
owner of land that borders on a body of water or watercourse to the
use of the water. Black’s Law Dictionary 1352 (8th ed. 2004).3
3
Historically, the term “littoral rights” was used to refer to the water
rights which exist in property that abuts a lake. However, as in most
jurisdictions, contemporary Illinois cases use the term “riparian rights” to
refer both to rights which exist in land abutting rivers and land abutting
lakes. See, e.g., Knaus v. Dennler, 170 Ill. App. 3d 746, 750 (1988); R.
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Riparian rights originate, not by grant, but by operation of law, solely
because the land abuts the body of water. Bouris v. Largent, 94 Ill.
App. 2d 251, 256 (1968) (to be riparian property “it is only necessary
that the description of the property include or encompass the shore
line”).
At common law, “riparian rights of property owners abutting the
same body of water are equal, and no such property owner may
exercise its riparian rights in such a manner so as to prevent the
exercise of the same rights by other similarly situated property
owners.” Knaus v. Dennler, 170 Ill. App. 3d 746, 750 (1988). In
Beacham this court addressed the application of this principle where
the riparian owners’ property not only abuts the shore of the lake, but
also includes separate portions of the lake bed. We noted that other
jurisdictions had developed two different approaches to resolving the
rights of the riparians owners in this situation: a so-called common
law rule, and a so-called civil rule. Under the common law rule, the
owner of a part of a lake bed has the right to the exclusive use and
control of the waters above that property. Under the civil rule, in
contrast, the ownership of a portion of a lake bed entitles the owner
to the reasonable use of the entire lake surface. After discussing the
cases from other jurisdictions, we concluded that “[r]estricting the use
of a lake to the water overlying the owner’s lake bed property can
only frustrate the cooperative and mutually beneficial use of that
important resource” and, therefore, that the civil law rule was the
better approach. Beacham, 123 Ill. 2d at 232. Accordingly, we held
that “where there are multiple owners of the bed of a private,
nonnavigable lake, such owners and their licensees have the right to
the reasonable use and enjoyment of the surface waters of the entire
lake provided they do not unduly interfere with the reasonable use of
the waters by other owners and their licensees.” Beacham, 123 Ill. 2d
at 232
As noted, the appellate court below declined to apply Beacham to
this case based on its determination that, as a matter of law, a water-
filled quarry is not a lake. In our view, this analysis is inadequate. As
both the circuit court and the dissenting appellate justice below
Beck, Illinois Natural Resources Law: Coal, Oil and Gas, and Water 329
n.48 (1985).
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recognized, an artificial body of water may have all the physical and
functional characteristics of a lake and hence, for all practical
purposes, be a lake. Indeed, the Restatement (Second) of Torts, from
which the Nottolini court’s definition of a lake is ultimately derived
(see Nottolini, 335 Ill. App. 3d at 1018, citing 78 Am. Jur. 2d Waters
§108 (2002), citing Restatement (Second) of Torts §842 (1979))
expressly recognizes that its definition “does not include artificially
created lakes.” Restatement (Second) of Torts §842, Comment a, at
192 (1979). In this case, the water-filled quarry has been used
exclusively as a recreational lake since 1974 and, under the planned
unit agreement, will continue to be used as a lake for the foreseeable
future. Clearly, it is a man-made lake.
However, determining that the water-filled quarry is a man-made
lake does not end this case. The lake at issue in Beacham was a
natural, not artificial, one. Accordingly, we believe the issues to be
resolved in this case are best stated as whether riparian rights in
general, and whether the rule in Beacham in particular, may be
extended to a man-made lake.
Both Nottolini and the appellate court below briefly noted the
general principle that riparian rights do not extend to artificial bodies
of water.4 372 Ill. App. 3d at 302, quoting Nottolini, 335 Ill. App. 3d
at 1019; see generally Anderson v. Bell, 433 So. 2d 1202, 1204-05
(Fla. 1983) (collecting cases); 1 Waters & Water Rights §6.02(e), at
6–173, 6–174 (2007) (“It is axiomatic that riparian rights do not
attach to artificial waterbodies”); 78 Am. Jur. 2d Waters §37 (2002).
The commonsense rationale underlying this principle is that, unlike
a natural body of water, which exists because of natural processes, an
artificial body of water is the result of someone’s labor. An artificial
body of water is not a natural resource to be shared by all.
Consequently, as a general rule, it would be inequitable to grant a
property owner rights to an artificial body of water that has been
created by someone else solely because the property abuts the water.
4
This rule explains the Restatement’s definition of the word “lake.” The
Restatement limits the definition of a lake to natural bodies of water, not
because a man-made body of water can never be considered a lake, but
because, as a general rule, riparian rights exist only in property abutting
naturally occurring bodies of water.
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This is not to say, however, that riparian rights may never arise in
land abutting an artificial body of water. For example, in Saelens v.
Pollentier, 7 Ill. 2d 556 (1956), we considered whether the plaintiff
landowner had a right to have an artificial ditch that ran through his
land and had been in existence for more than 50 years remain open to
allow the escape of water. We stated:
“It is immaterial that this ditch in question is an artificial
ditch rather than a natural stream. We believe that the correct
applicable law is stated in 56 Am. Jur. p. 621, sec. 151,
to-wit: ‘An artificial waterway or stream may, under some
circumstances, have the characteristics and incidents of a
natural watercourse. In determining the question, three things
seem generally to be taken into consideration by the courts:
(1) whether the way or stream is temporary or permanent; (2)
the circumstances under which it was created; and, (3) the
mode in which it has been used and enjoyed. Where the way
is of a permanent character, and is created under
circumstances indicating an intention that it shall become
permanent, and it has been used consistently with such
intention for a considerable period, it is generally regarded as
stamped with the character of a natural watercourse, and
treated, so far as the rules of law and the rights of the public
or of individuals are concerned, as if it were of natural origin.’
***
*** While technically the ditch would not be a natural
watercourse, yet as above stated, it was an artificial waterway
which by long use became stamped with the character of a
natural watercourse, and treated, so far as rules of law and the
rights of the public or any individual are considered, as if it
were of natural origin.” Saelens, 7 Ill. 2d at 561-63.
See also, e.g., Gough v. Goble, 2 Ill. 2d 577 (1954) (right to have an
artificial culvert that had been in use for 40 years remain open);
Baumgartner v. Bradt, 207 Ill. 345 (1904); Beidler v. Sanitary
District, 211 Ill. 628 (1904); DuPont v. Miller, 310 Ill. 140 (1923);
Dessen v. Jones, 194 Ill. App. 3d 869, 878-80 (1990); United States
v. 1,629.6 Acres of Land, 503 F.2d 764, 768 n.9 (3d Cir. 1974)
(collecting cases); R. Beck, Illinois Natural Resources Law: Coal, Oil
and Gas, and Water, 330 (1985), (“[I]t is apparent that man-made
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bodies of water can come to be treated as natural bodies of water and
that private riparian rights can be acquired on man-made bodies of
water as well”); 1 Waters & Water Rights §6.02(e) (2007); 78 Am.
Jur. 2d Waters §252 (2002).
The “artificial-becomes-natural” rule recognized in the foregoing
authorities stems, in part, from the difficulties that can arise in trying
to distinguish the man-made from the natural, particularly with the
passage of significant amounts of time. See A. Evans, Riparian
Rights in Artificial Lakes and Streams, 16 Mo. L. Rev. 93, 107
(1951); see also Druce v. Blanchard, 338 Ill. 211, 213 (1930) (“the
hand of man had been operating in years previous to the bringing of
suit to affect the workings of the above [lake] system as it functioned
in a state of nature, such operations going so far back and being of
such sort as to make it difficult to conclude just how it did work in a
natural state”). More fundamentally, however, the artificial-becomes-
natural rule is justified by principles of fairness and equity. Simply
put, in some cases, where the usage of the artificial body of water has
long been settled, it may be appropriate to treat the artificial body as
the legal equivalent of a natural one. See generally 16 Mo. L. Rev. 93.
The artificial-becomes-natural rule has been called “somewhat
vague” (1,629.6 Acres of Land, 503 F.2d at 768), and “difficult to
apply” (J. Corbridge, Surface Rights in Artificial Watercourses, 24
Nat. Resources J. 887, 912 (1984)). We do not attempt to define the
rule with any completeness here. We note, however, that as a
minimum requirement, cases applying the rule have done so only in
situations where the party invoking the rule has relied upon use of the
artificial body of water without dispute for a lengthy period of time.
See, e.g., Saelens, 7 Ill. 2d 556 (more than 50 years of uncontested
use); Gough, 2 Ill. 2d 577 (40 years of uncontested use). The
Aldersons cannot meet this requirement. The Aldersons use of the
lake has been a matter of dispute since shortly after they purchased
the McElvain property in 1998. Nor can the Aldersons add the period
of time the McElvains used the lake to their own as there is nothing
in the record to indicate that anyone from the McElvain family ever
made use of the lake. We think it clear then, that on this record, the
Aldersons’ usage of the lake has not reached the type of settled
condition such that the artificial-becomes-natural rule may be applied.
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The Aldersons contend, however, that ownership of the lake bed
is all they need establish to be entitled to the use of the surface waters
of the entire lake. We disagree. The adoption of such a rule with
respect to man-made lakes would be unwise. Consider, for example,
the case of a property developer who sells residential lots to a small
number of people with the understanding that he will build a man-
made lake to which they will have exclusive access. The developer’s
engineers then miscalculate when constructing the lake and a portion
of property that was not intended to be flooded is overflowed. It
might be the case that the developer should be required to compensate
the owner of the flooded property. See, e.g., Bradbury v. Vandalia
Levee & Drainage District, 236 Ill. 36, 41 (1908) (“ ‘There can be no
doubt that every flowing back or throwing water upon the land of
another is such an act as entitles the individual injured to his
action’ ”), quoting Stout v. McAdams, 3 Ill. 67, 69 (1839). But it
would be unreasonable to acknowledge riparian rights based solely on
the developer’s error. Such an outcome would be inequitable to the
developer and, as importantly, would upset the settled expectations
of all the other people involved in the development. See generally
Anderson, 433 So. 2d at 1205-06 (noting that the immediate
recognition of riparian rights in land that has been overflowed would
create a general disincentive to improve property with artificial bodies
of water).
Finally, we note that rights to artificial bodies of water may arise
by means other than the riparian rights doctrine, such as grants,
easements by prescription, or easements by implication (see, e.g.,
Roketa v. Hoyer, 327 Ill. App. 3d 374 (2002)). The Aldersons do not
contend, however, that any of these other means are applicable in this
case.
Conclusion
For the foregoing reasons, the judgment of the appellate court is
affirmed.
Affirmed.
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