Alderson v. Fatlan

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Alderson v. Fatlan

State: Illinois

Docket No: 104772 Rel

Case Date: 09/18/2008

Preview: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.

It is unclear from the record whether James McElvain owned the 11acre 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

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