Alderson v. Fatlan

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Alderson v. Fatlan

State: Illinois

Court: 3rd District Appellate

Docket No: 3-06-0115 NRel

Case Date: 02/08/2007

Preview:No. 3--06--0115

IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT A.D., 2007 ROBERT L. ALDERSON and WANDA S. ALDERSON, ) ) ) Plaintiffs/Counter) Defendants-Appellees, ) ) v. ) ) ) LEO E. FATLAN, IRENE AGAZZI, ) JOANN POLCYN, HOWARD E. REEVES, ) HENRY TAMELING, and THE FIRST ) NATIONAL BANK OF JOLIET as ) Trustee under a trust agreement ) dated March 21, 1981, and known ) as Trust No. 1855, ) ) Defendants/Counter) Plaintiffs-Appellants. ) Appeal from the Circuit Court of the 12th Judicial Circuit Will County, Illinois

No. 03--CH--1872

Honorable Herman S. Haase Judge, Presiding

JUSTICE HOLDRIDGE delivered the Opinion of the court:

Leo Fatlan, Irene Agazzi, Joann Polcyn, Howard Reeves, Henry Tameling and the First National Bank of Joliet in its capacity as trustee of Trust No. 1855 (hereinafter collectively referred to as Fatlan), the owners of a flooded quarry, appeal from a judgment of the circuit court of Will County granting summary judgment to adjacent landowners in a declaratory judgment action seeking right to use the surface waters of the quarry. Fatlan

maintains that the trial court erred as a matter of law in finding that the adjacent landowners have rights to the surface of the flooded quarry. We reverse and remand. Leo Fatlan mined a sand

The facts herein are undisputed.

quarry beginning in 1966, purchased the quarry in 1968 and has owned the property in trust ever since. When active quarry In

operations ceased, the quarry gradually filled in with water. 1998, Alderson purchased a parcel of property adjacent to the quarry.

Alderson's property included a "sliver" of quarry which Alderson used the surface water of At some point

encroached onto his property.

the entire quarry for recreational activities.

Fatlan erected a fence to prevent Alderson from accessing the surface of the flooded quarry. Alderson filed the instant action

for declaratory judgment, seeking a declaration that he had rights to the reasonable use of the surface of the quarry, and seeking an injunction against Fatlan for removal of the fence. The trial court granted judgement in Alderson's favor and Fatlan now appeals. This matter turns solely on whether the body of water at issue is a lake. If this body of water is a "lake" it is quite It is

clear that Alderson has some rights to the entire surface. well-settled that owners of any portion of a lake bed have a

right to the reasonable use and enjoyment of the surface waters of the entire lake, provided that such use does not unduly 2

interfered with the reasonable use of the lake by the other owners. Beacham v. Lake Zurich Property Owners Association, 123

Ill. 2d 227 (1988). The question before the court is whether the body of water at issue is a "lake." In Nottolini v.LaSalle National Bank, 335

Ill. App. 3d 1015 (2003), the court addressed the issue of whether a man-made quarry which subsequently floods can be considered a lake and whether the rule articulated in Beacham should apply to a quarry. The Nottolini court held that man-made

quarries are not "lakes" and that the rule articulated in Beacham should not apply. We agree with the analysis articulated by the

court in Nottolini. In Nottolini, the question before the court was the same as we must address in the instant matter, i.e., whether adjoining land owners to a flooded quarry have rights to the surface of the entire quarry. The Nottolini court articulated the following

well-reasoned analysis: "We note initially that no Illinois court has determined whether a water filled quarry may be considered a lake. Nor are we aware of

any other foreign courts that have considered this precise question. Similarly, no

Illinois courts have defined a lake generally. However, other courts that have 3

defined the term "lake" have described it as being a body of water of natural origin. [citation omitted]. * * * we prefer to define 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." Jur. 2d Waters section 108 (2002). 78 Am. Based on

this latter definition, defendant's water filled quarry is not a lake. It is not a

natural body of water existing in a natural depression in the earth. Rather, it is entirely man-made and, thus, does not meet the definition of a lake as set forth herein." 1015. The Nottolini court, having determined that a water-filled quarry was not a lake, noted well-settled law with regard to riparian and littoral rights to artificial bodies of water: "Moreover, riparian or littoral rights do not extend to artificial bodies of water, such as man-made lakes. [citations omitted]. As Nottolini, 335 Ill. App. 3d at

defendants' quarry at issue herein is clearly 4

man-made, plaintiffs do not have any rights in it. Nottolini, 335 Ill. App. 3d at 1019.

In the instant matter, we see no material distinction between the facts herein and Nottolini. court erred as a matter of law. We find that the trial

We reverse the trial court's

entry of summary judgment in favor of Alderson and remand for entry of summary judgment in favor of Fatlan. For the foregoing reasons, the judgment of the Will County circuit court is reversed and remanded for entry of summary judgment in favor of defendants. Reversed and remanded with direction. SCHMIDT, J., concurs, and MCDADE, J., dissents.

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No. 3--06--0115 Filed February 8, 2007. IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT A.D., 2007 ROBERT L. ALDERSON and WANDA S. ALDERSON, ) ) ) Plaintiffs/Counter) Defendants-Appellees, ) ) v. ) ) ) LEO E. FATLAN, IRENE AGAZZI, ) JOANN POLCYN, HOWARD E. REEVES, ) HENRY TAMELING, and THE FIRST ) NATIONAL BANK OF JOLIET as ) Trustee under a trust agreement ) dated March 21, 1981, and known ) as Trust No. 1855, ) ) Defendants/Counter) Plaintiffs-Appellants. ) JUSTICE McDADE, dissenting: Appeal from the Circuit Court of the 12th Judicial Circuit Will County, Illinois,

No. 03--CH--1872

Honorable Herman S. Haase Judge, Presiding.

In determining whether a water-filled quarry may be considered a lake, I believe that the majority, and the Second District in Nottolini v. LaSalle National Bank, 335 Ill. App. 3d 1015, 782 N.E.2d 980 (2003), have made unnecessary and unwarranted distinctions between a manmade water-filled depression and a water-filled depression of natural origin. For me, the real question is: what possible relevance or significance attaches to whether the hole that forms the bed of a body of water was created by nature or by man when determining how to apportion the rights of co-owners of the bed to use the surface waters? Because Nottolini fails to address or

answer this question, I respectfully dissent from the majority's decision in the instant case, which relies exclusively and uncritically upon that holding. The majority in the present case adopts the narrow definition announced in Nottolini, which defines 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." Nottolini, 335 Ill. App. 3d at 1018, 782 N.E.2d at 982, citing Am. Jur. 2d Waters

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