Alderson v. Fatlan

• Decision Date: 18 September 2008
• Docket Number: No. 104772.,104772.
• Citation: 898 N.E.2d 595,231 Ill.2d 311
• Parties: Robert L. ALDERSON et al., Appellants, v. Leo E. FATLAN et al., Appellees.
• Court: Illinois Supreme Court

898 N.E.2d 595

231 Ill.2d 311

Robert L. ALDERSON et al., Appellants, v. Leo E. FATLAN et al., Appellees.

No. 104772.

Supreme Court of Illinois.

September 18, 2008.

Rehearing Denied November 24, 2008.

Carl R. Buck, of Rathbun, Cservenyak & Kozol, LLC, Plainfield, for appellants.

James P. Stevenson, Joliet, for appellees.

OPINION

Justice BURKE delivered the judgment of the court, with 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, 122 Ill.Dec. 14, 526 N.E.2d 154 (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, 311 Ill.Dec. 95, 867 N.E.2d 1081. 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.

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 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, 324 Ill.App.3d 1150, 282 Ill.Dec. 142, 805 N.E.2d 761 (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 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, 122 Ill.Dec. 14, 526 N.E.2d 154 (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, 311 Ill. Dec. 95, 867 N.E.2d 1081. 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, 311 Ill.Dec. 95, 867 N.E.2d 1081. Citing to Nottolini v. La Salle National Bank, 335 Ill.App.3d 1015, 270 Ill.Dec. 421, 782 N.E.2d 980 (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 natural origin or a part of a watercourse."'" 372 Ill.App.3d at 302, 311 Ill.Dec. 95, 867 N.E.2d 1081, quoting Nottolini, 335 Ill. App.3d at 1018, 270 Ill.Dec. 421, 782 N.E.2d 980, quoting 78 Am.Jur.2d Waters § 108 (2002). Relying on this definition, the appellate court held that the water-filled quarry at issue here...