Bohne v. La Salle Nat'l Bank

• Decision Date: 30 March 2010
• Docket Number: No. 2-09-0282.,2-09-0282.
• Parties: Mark BOHNE, Susan Bohne, Eugene Bohne, Doris Fletcher, Robert Cundiff, Juanita Cundiff, Irmgard Hauser, Louretta Nash, Julie Morgan, Robert Belluomini, Richard Genz, and Geraldine Genz, Plaintiffs-Appellees and Cross-Appellants,v.LA SALLE NATIONAL BANK, as Trustee Under Trust No. 39201, and William Dwyer, Defendants-Appellants and Cross-Appellees (Kevin Hauser and Richard Reuter, Plaintiffs; Dorothy Dwyer, Defendant).
• Court: United States Appellate Court of Illinois

399 Ill.App.3d 485

926 N.E.2d 976

339 Ill.Dec. 501

Mark BOHNE, Susan Bohne, Eugene Bohne, Doris Fletcher, Robert Cundiff, Juanita Cundiff, Irmgard Hauser, Louretta Nash, Julie Morgan, Robert Belluomini, Richard Genz, and Geraldine Genz, Plaintiffs-Appellees and Cross-Appellants,v.LA SALLE NATIONAL BANK, as Trustee Under Trust No. 39201, and William Dwyer, Defendants-Appellants and Cross-Appellees (Kevin Hauser and Richard Reuter, Plaintiffs; Dorothy Dwyer, Defendant).

No. 2-09-0282.

Appellate Court of Illinois Second District.

March 30, 2010.

COPYRIGHT MATERIAL OMITTED

Patrick M. Kinnally, Michael W. Lenert, Kinnally, Flaherty, Krentz & Loran, P.C., Aurora, IL, for Eugene Bohne, Mark Bohne, Susan Bohne, Juanita Cundiff, William, La Salle National Bank.

Alfred Y. Kirkland Jr., Brady & Jensen, Elgin, IL, for Robert Belluomini, Robert Cundiff, Doris Fletcher, Geraldine Genz, Richard Genz, Kevin Hauser, Julie Morgan, Louretta Nash.

Presiding Justice ZENOFF delivered the opinion of the court:

In July 2005, plaintiffs, Mark Bohne, Susan Bohne, Eugene Bohne, Doris Fletcher, Robert Cundiff, Juanita Cundiff, Kevin Hauser, Louretta Nash, Julie Morgan, Richard Reuter, Robert Belluomini, Richard Genz, and Geraldine Genz,¹ filed a multicount complaint against defendants, La Salle National Bank, William Dwyer, and Dorothy Dwyer,² seeking a declaration of plaintiffs' rights to use a quarry, located on property held in trust by La Salle National Bank (La Salle) for the benefit of William Dwyer (Dwyer). Following a bench trial, the trial court entered judgment for defendants on eight of plaintiffs' counts. On one count, the trial court entered a declaratory judgment in favor of plaintiffs, stating that plaintiffs and their successors-in-interest have the right to use all of the surface waters of the quarry for recreational purposes and that defendants do not have the right to unreasonably interfere with plaintiffs' use of the quarry. Defendants appeal from the judgment in favor of plaintiffs, and plaintiffs cross-appeal from the judgment in favor of defendants. For the reasons that follow, we affirm.

I. BACKGROUND

Due to the voluminous nature of the record, we recite here only those facts necessary for a basic understanding of the case and the issues addressed in this decision. Any other facts necessary to the disposition of the issues will be discussed as required.

A. Quarry History

Many of the relevant facts of this case are undisputed. In 1925, Paul Froetscher and Frank Casurella platted the Fox River Beach Subdivision in South Elgin, Illinois. Lot 55 of the subdivision consisted mostly of a former limestone quarry that had been allowed to fill with water. Lot 55 was surrounded by residential lots. Froetscher and Casurella marketed the subdivision as a resort community with a clubhouse and other amenities, and they advertised that the purchase of a residential lot included a free undivided interest in the “Mammoth Swimming Pool,” i.e., the quarry, for recreational activities such as swimming, boating, fishing, and skating. While not all of the amenities of the full resort community that Froetscher and Casurella envisioned were realized, over the years all of the residential lots surrounding lot 55 were purchased, including those quarryside lots owned by plaintiffs at the time of trial.

From the late 1920s until approximately 2005, people who owned property in the subdivision, including property not located directly on the quarry, regularly used the quarry for recreational purposes. Some of the owners with property on the quarry made improvements to their properties to facilitate their access to and use of the quarry. With respect to plaintiffs specifically, the Hausers improved their property by constructing a pier and installing a cement retaining wall and stairs along the quarry; the Fletchers installed stairs, laid a cement slab, and put in sand and gravel; Morgan floated a raft in the quarry near her property; the Cundiffs put pea gravel in the shallow water along their property, cleaned debris out of the water, and put copper sulfate in the water to get rid of algae and seaweed; the Bohnes put in a new retaining wall and added a cantilever deck; Belluomini installed retaining bricks, a waterfall, and a sand beach; and Nash put in sand and several piers. All plaintiffs believed they had the right to use the quarry for recreational purposes, based upon their and others' past use of the quarry, although none of plaintiffs' deeds to their properties contained any language expressly granting them rights to use the quarry.

In 1950, Dwyer's father, Frank, owned lot 7, which was located on the west side of the quarry, and Froetscher held title to lot 55. (Froetscher actually owned only an undivided one-half interest in lot 55. The last known owner of the other one-half interest was Casurella. The current status of Casurella's interest is unknown.) On May 1, 1950, Frank and Froetscher executed an agreement under which Frank would be permitted to utilize lot 55 in his operation of a public bathing beach on lot 7. Through lot 7, members of the public would be permitted to access lot 55 for swimming in exchange for paying an admission fee. Paragraph 4 of the agreement, however, provided:

“All persons owning lots in said Fox River Beach Subdivision shall be admitted to said Lot 7 for the purpose of exercising such right and privilege of ingress and egress to and from said Lot 55 and the Quarry without charge, but no fishing privileges are to be extended to any such persons, with exception of second parties, in connection with their right of ingress and egress, as herein provided.”

Although the original term of the 1950 agreement was for only a little over one year, Frank and Froetscher subsequently extended the term of the agreement until May 1958.

On May 1, 1958, Frank and Froetscher's wife, Elsa (Froetscher died in 1957), entered into another agreement under which Frank would be permitted to utilize lot 55 in his operation of a public bathing beach on lot 7 until October 1968. This agreement contained the same paragraph 4 as the 1950 agreement.

On June 19, 1969, Frank and Elsa executed a contract in which Elsa sold lots 24 and 55 to Frank. Included in that contract was a provision that provided: “This property is subject to the rights of other property owners of said subdivision for bathing, swimming and fishing for said Lot 55, Block 3, aforesaid.” On the same day, Elsa executed a deed to lots 24 and 55, which stated that it was “[s]ubject to the conditions contained in the Real Estate Contract Dated 19th day of June, A.D., 1969.” Before selling lot 55 to Frank, Elsa told her daughter that when she sold lot 55, she wanted to make certain that the subdivision property owners' “water rights” in the quarry were protected. Soon after the Bohnes purchased their property on the quarry in 1971, Elsa told the Bohnes that when she sold lot 55 to Frank, she wanted to preserve forever the rights of the subdivision property owners to use the quarry. The public concession on lot 7 ceased operations in the 1970s.

Following his purchase of lot 55, Frank put the lot into a trust with La Salle, of which he was the sole beneficiary. When Frank's health began to fail, Dwyer was added as a co-beneficiary of the trust. Upon Frank's death in 2000, Dwyer became the sole beneficiary.

From the 1980s through 2005, Dwyer distributed to people who owned property on the quarry rules and regulations regarding its use. Following the drowning of a trespasser in the quarry in 1997, Dwyer's concern over the safety of the quarry and his potential liability increased. Dwyer requested that the owners of property along the quarry erect fences to prevent trespassers from accessing the quarry. While many of the property owners complied, the Nottolinis, owners of a lot on the quarry, did not. In response to the Nottolinis' failure to erect a fence on their lot, Dwyer erected a fence between the quarry and the Nottolinis' lot, thereby denying the Nottolinis access to the quarry.

In July 1999, the Nottolinis filed a complaint in the trial court, seeking a declaration that because they owned a portion of the quarry bed, they had riparian rights entitling them to the reasonable use and enjoyment of the surface waters of the entire quarry. (“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.” Alderson v. Fatlan, 231 Ill.2d 311, 318, 325 Ill.Dec. 548, 898 N.E.2d 595 (2008).) Under the case of Beacham v. Lake Zurich Property Owners Ass'n, 123 Ill.2d 227, 232, 122 Ill.Dec. 14, 526 N.E.2d 154 (1988), people who own a portion of a lake bed are entitled to the reasonable use and enjoyment of the entirety of the surface waters. The Nottolinis also sought an injunction requiring Dwyer to remove the fence and any other barriers that prevented them from using the quarry. The trial court granted the Nottolinis the requested relief, but we reversed on appeal, holding that because the quarry was man-made, it could not be considered a lake and the Nottolinis could have no riparian rights in it. Nottolini v. LaSalle National Bank, 335 Ill.App.3d 1015, 1018-19, 270 Ill.Dec. 421, 782 N.E.2d 980 (2003).

In 2003, Dwyer circulated a document entitled “Annual License and Permissive Use Agreement” (Permissive Use Agreement) to the owners of property surrounding the quarry. Among other things, the Permissive Use Agreement purported to give those property owners who signed it permission to use the quarry waters for recreational purposes for a term of one year, in exchange for the property owners' naming Dwyer on their homeowners' insurance policies, indemnifying Dwyer from any liability or damages that might result from the use of the quarry, paying an annual license and assessment fee of $350, and complying with the rules and regulations set by Dwyer. Although several property owners...