Holm v. Kodat

• Citation: 448 Ill.Dec. 464,176 N.E.3d 1261,2021 IL App (3d) 200164
• Decision Date: 28 June 2021
• Docket Number: Appeal No. 3-20-0164
• Parties: Adam HOLM, Daniel Holm, Loretta Holm, and Nick Holm, Plaintiffs-Appellants, v. Peter KODAT, James Benson, Benson Marian Family Trust, Mark A. Norton, Wilfred K. Robinson, and Grundy County, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

2021 IL App (3d) 200164

176 N.E.3d 1261

448 Ill.Dec. 464

Adam HOLM, Daniel Holm, Loretta Holm, and Nick Holm, Plaintiffs-Appellants,

v.Peter KODAT, James Benson, Benson Marian Family Trust, Mark A. Norton, Wilfred K. Robinson, and Grundy County, Defendants-Appellees.

Appeal No. 3-20-0164

Appellate Court of Illinois, Third District.

Opinion filed June 28, 2021

Zachary Pollack, of Pollack Law Group, of Joliet, and John V. Schrock, of John Schrock Law LLC, of Plainfield, for appellants.

Chad J. Layton and Patrick F. Sullivan, of Segal McCambridge Singer & Mahoney, Ltd., and John J. Kohnke, of Hawkins Parnell & Young, LLP, both of Chicago, and Mark Rigazio, of Rigazio Law Office, of Morris, for appellees Peter Kodat, James Benson, Benson Marian Family Trust, Mark A. Norton, and Wilfred K. Robinson.

No brief filed for other appellees.

JUSTICE WRIGHT delivered the judgment of the court, with opinion.

OPINION

¶ 1 Plaintiffs and the individual defendants own separate parcels of property situated along the Mazon River in Grundy County, Illinois. Collectively, the individual defendants object to plaintiffs’ use of kayaks on the portions of the Mazon River that abut their parcels of property. Plaintiffs filed a declaratory action, seeking an order recognizing their right, as riparian owners, to kayak along the entire Mazon River. The trial court initially granted summary judgment for plaintiffs, then, on reconsideration, granted summary judgment for defendants. Plaintiffs appeal.

¶ 2 I. BACKGROUND

¶ 3 Plaintiffs own parcels of property situated along the Mazon River in Grundy County, Illinois. Plaintiffs’ parcels consist of 33 acres of unimproved, landlocked property (landlocked property) and 9.2 acres of unimproved, road-accessible property (accessible property). Plaintiffs use their parcels of property to operate a fossil hunting business. Plaintiffs routinely commute by kayak from the accessible property to the landlocked property, then from the landlocked property, past the individual defendants’ parcels of property, to the Pine Bluff Road Bridge. Once at the Pine Bluff Road Bridge, plaintiffs remove their kayaks from the Mazon River.

¶ 4 Defendant, Peter Kodat, "operates a competing fossil [hunting] business" on his parcel of property. Kodat allegedly organized the other individual defendants—James Benson, Benson Marian Family Trust, Mark A. Norton, and Wilfred K. Robinson—"to sign written trespass notices" for their parcels of property. Kodat, Benson, Benson Marian Family Trust, Norton, and Robinson (defendants) objected to plaintiffs kayaking on the portions of the Mazon River that abut their parcels of property. On one occasion, Kodat complained to the Grundy County Sheriff's Department about plaintiffs’ kayaking on the Mazon River past his property, resulting in the arrest of plaintiffs, Adam and Daniel Holm, for trespass.¹

¶ 5 On December 21, 2018, plaintiffs filed a first amended verified complaint for declaratory relief, requesting an order declaring plaintiffs’ "right of access to the whole of the Mazon River, including the right to kayak from the Access[ible] Property to the Landlocked Property and from the Landlocked Property to the Pine Bluff Road Bridge," free of trespass claims by defendants.²

¶ 6 A. Cross-Motions for Summary Judgment

¶ 7 On June 24, 2019, plaintiffs filed a motion for summary judgment relating to the declaratory relief requested in their verified complaint. On August 28, 2019, defendants filed a cross-motion for summary judgment.

¶ 8 In support of their cross-motion for summary judgment, plaintiffs asserted that they are riparian owners of property abutting the Mazon River. Therefore, as a matter of law, defendants are prohibited from restricting plaintiffs’ reasonable use and enjoyment of the entire Mazon River. In response, defendants agreed plaintiffs have the right "to access waters adjoining and within and upon [plaintiffs’] property." Defendants disputed that plaintiffs’ riparian rights allowed the unrestricted privilege of "navigating [the] waterways of adjoining landowners."

¶ 9 In addition, defendants’ cross-motion for summary judgment alleged it was undisputed that, together, certain defendants own property on both sides of the portions of the Mazon River, a nonnavigable waterway, that plaintiffs use for kayaking. Based on their undisputed status as riparian owners on the Mazon River, defendants argued that they could exclusively control the water and the property underneath the water that abutted their parcels of private property.³ By extension, since each defendant refused to grant plaintiffs permission to use those portions of the Mazon River, defendants argued they were entitled to summary judgment.

¶ 10 B. Decisions of the Trial Court

¶ 11 On October 9, 2019, the trial court held a hearing on the parties’ cross-motions for summary judgment. At the conclusion of the hearing, the trial court found summary judgment for plaintiffs was proper under Beacham v. Lake Zurich Property Owners Ass'n , 123 Ill. 2d 227, 122 Ill.Dec. 14, 526 N.E.2d 154 (1988). Consequently, the trial court declared plaintiffs’ right to the "use of the surface water only." The trial court found this right did not allow plaintiffs to leave their kayaks while en route for purposes of "digging and scrambling around for fossils or whatever it be."

¶ 12 On January 6, 2020, defendants timely filed an amended motion to reconsider and vacate the trial court's entry of summary judgment for plaintiffs. Relying on the uncontested fact that the Mazon River is a nonnavigable waterway, defendants argued the trial court's ruling, in reliance on Beacham , was contrary to longstanding common law precedent establishing defendants’ exclusive right to refuse access to the portions of the Mazon River that abut their parcels of property. The trial court held a hearing on the amended motion to reconsider and vacate on March 5, 2020. After receiving arguments, the trial court found as follows:

"This court originally had before it the *** Beacham case ***.

And I applied the reasoning in Beacham even though it was *** putting a square peg into a round hole *** because of the similarities that were involved.

* * *

And, therefore, I felt that [ Beacham ] being the Supreme Court of Illinois’ most recent expression on the rights of a landowner of the bed of the non-navigable body of water, that Beacham should control here ***.

Now it has been presented to me that there's an entire body of case law that has not been overruled and that establishes that the private ownership of a non-navigable body of water, like the parties have here, permits the parties who own that property to have the exclusive rights to the water in front of the property which they own.

That means that here [plaintiffs] have the exclusive rights to use and keep people from using the surface from their property that abuts their ownership of land, and the defendants *** would also enjoy those same rights and privileges.

* * *

I'm going to vacate the summary judgment that I granted for the plaintiffs and vacate the order that denied the defendants’ cross motion for summary judgment.

And based on the law that's been provided to me, I'm going to grant the defendants’ motion and deny the plaintiffs’ motion upon reconsideration on the grounds that the fact that the Mazon River is factually non-navigable and the fact that there is private ownership of the bed of the river, *** [which] carries with it the exclusivity of ownership in the water above the property owned by the abutting owners.

And that is supported by the case law that was cited in the brief requesting this court to reconsider its previous decision.

And I think that the riparian rights of access are not superior to the rights of private ownership.

And I don't believe that the Beacham case is controlling of the issue before the court as I did originally because of the variables that are in the Beacham case [and] because of *** the other cases which indicate that the creation of the property line in a lake is impossible to develop, whereas in a stream such [as] the Mazon River it is not impossible and, therefore, it can be done."

¶ 13 On March 10, 2020, the trial court signed an order granting defendants’ motion to reconsider, vacating its October 9, 2019, order, and granting defendants’ cross-motion for summary judgment while denying plaintiffs’ cross-motion for summary judgment. The trial court found defendants had "exclusive rights to all property owned by them, including the land, water, surface of the water, and any and all substance *** both upon the land and beneath the surface of the Mazon River." The trial court declared plaintiffs were "excluded from using or accessing, in any way, the surface of the Mazon River on the portion *** that runs adjacent to any property that is owned by" defendants. Plaintiffs were also "precluded from removing fossils or any other property that is located on the portion of the Mazon River that runs adjacent to any property that is owned by" defendants. Plaintiffs filed a timely notice of appeal on March 31, 2020.

¶ 14 II. ANALYSIS

¶ 15 On appeal, we must decide whether the trial court correctly granted summary judgment for defendants. In doing so, our court must determine whether downstream riparian owners of property on a nonnavigable river, in this case defendants, may lawfully bar other upstream riparian owners of property on that same river, in this case plaintiffs, from traversing the various segments of the river that comprise defendants’ private property. Based on well-established case law governing riparian rights and the navigability of Illinois rivers and streams, we conclude this question must be answered in the affirmative. As a result, the trial court's grant of summary judgment for defendants was correct and must be affirmed.

¶ 16 Under section 2-1005(c) of the Code of Civil Procedure (Code), summary judgment "shall be rendered without delay if the pleadings, depositions, and...