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Illinois
Riparian Rights

Alderson v Fatlan, 231 Ill 2d 311, 898 NE2d 595, 325 Ill Dec 548 (Ill 2008).

Facts:In 1966, Leo Fatlan opened a sand quarry abutting an 11-acre property owned by the McElvain family. Fatlan unknowingly excavated across the property line and onto the McElvain property. The parties did not discover the incursion onto the McElvain property until 1970. Fatlan had a conversation with James McElvain about acquiring the subject portion of the property; however, McElvain took no action and made no demands against Fatlan.

In 1974 Fatlan stopped the quarry operations and allowed the area to fill with water. The portion of the McElvain property that had been excavated also filled with water. There is no indication of whether Fatlan had permission to flood the McElvain property. Since 1974, the water-filled quarry had been used exclusively as a recreational lake for swimming, boating, and fishing. However, there was nothing in the record indicating whether anyone from the McElvain family used the water-filled quarry for the purposes of a recreational lake.

In 1981, Fatlan sold four residential lots at the south end of the lake to family friends. A few years later the homes and lake were rezoned as a planned unit development. According to the terms of the planned unit agreement, the lake was to remain open as a conservation easement.

In 1998, the Aldersons purchased the 11-acre property from the McElvains. Within a week of the Aldersons' purchase, they placed "No Trespassing" signs and concrete barriers on the section of the lake pathway that crossed their property. Fatlan and the other homeowners tried to purchase the property from the Aldersons, but the Aldersons refused to sell. Eventually an action seeking to eject the Aldersons and quiet title was filed by Fatlan and the other homeowners. Fatlan and the other homeowners alleged they were entitled to the quarried area and the pathway around the lake on the Aldersons' property through adverse possession. The court rejected the adverse possession claim because it determined Fatlan received permission from James McElvain in 1970 to quarry across the property line.

After the unfavorable decision for Fatlan and the other homeowners, Fatlan installed a cable fence along the length of the Aldersons' property line where it ran through the lake. The Aldersons then filed a four-count complaint action against Fatlan and the four other homeowners. The first count sought a declaration that the Aldersons have a right to reasonable use and enjoyment of the surface waters of the entire man-made lake. The second count 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. The third count alleged the cable fence was a public nuisance, and the fourth count alleged the installation of the fence amounted to an intentional infliction of emotional distress. The circuit court granted judgment in favor of the Aldersons citing the rule that all owners of a private, nonnavigable lake bed have the right to reasonable use and enjoyment of the surface waters of the entire lake.

However, on appeal the appellate court reversed the judgment of the circuit court citingNottolini v LaSalle National Bank, 335 Ill App 3d 1015, 782 NE2d 980, 270 Ill Dec 421 (2d D 2003), which 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 natural origin or a part of a watercourse." The appellate court held the water-filled quarry was not of natural origin and therefore not a lake making the rule in theBeachamcase not applicable. The Supreme Court of Illinois granted the Aldersons' petition for leave to appeal.

Holding:Affirmed. On appeal the Aldersons' primary contention was that the appellate court decision erroneously deprived them of the riparian rights, as defined inBeacham, to use the surface waters of the entire lake. Riparian rights refer, in general, to the rights of owners of land that borders on a body of water or watercourse to the use of the water.

UnderBeacham v Lake Zurich Property Owners Ass'n, 123 Ill 2d 227 (Ill, 1988), all owners of a private, nonnavigable lake bed have the right to reasonable use and enjoyment of the surface waters of the entire lake. Here, the court found the water-filled quarry was an artificial lake. The issue then was whether riparian rights in general, and whether the rule inBeachamin particular, may be extended to a man-made lake.

The appellate court noted the general principle that riparian rights do not to extend to artificial bodies of water. The rationale for this principle is that, unlike a natural body of water, an artificial body of water is the result of someone's labor. Therefore, it would be inequitable to grant rights to another person's labor solely because the grantee's property abuts the water.

However, in some cases, riparian rights can arise in land abutting an artificial body of water. InSaelens v Pollentier, 7 Ill 2d 556 (Ill, 1956), a landowner had the right to an artificial ditch that had ran through his land and had been in existence for more than 50 years to allow the escape of water. There the court stated three criteria to find an artificial waterway could give rise to riparian rights, as follows: (1) whether the waterway is temporary or permanent; (2) the circumstances under which it was created; and, (3) its use.

Here, the Aldersons did not use the artificial body of water long enough to establish "use" under this criterion. Their dispute did not arise until 1998, when the Aldersons purchased the property. Also, the Aldersons could not tack on to the period of time the McElvains lived on the property because they never used the artificial body of water either. The court found that the Aldersons' use since 1998 was insufficient.

Finally, the Aldersons contended the ownership of the lake bed was all they needed to establish their riparian rights. The court disagreed, finding it would be unfair to the owners of property in the planned unit development, who were the intended beneficiaries of the riparian rights. Instead the Aldersons had a cause of action for any damages against the developer who caused the encroachment.

[Last update: 6-16-09]