Nottolini v. LaSalle Nat. Bank

• Decision Date: 09 January 2003
• Docket Number: No. 2-01-1380.,2-01-1380.
• Parties: Rick NOTTOLINI, Cheryl Nottolini, and Alecia Nottolini, Plaintiffs and Counterdefendants-Appellees, v. LASALLE NATIONAL BANK, Trustee under Trust No. 39201, and William Dwyer, Defendants and Counterplaintiffs-Appellants.
• Court: United States Appellate Court of Illinois

782 N.E.2d 980

335 Ill. App.3d 1015

270 Ill.Dec. 421

Rick NOTTOLINI, Cheryl Nottolini, and Alecia Nottolini, Plaintiffs and Counterdefendants-Appellees, v. LASALLE NATIONAL BANK, Trustee under Trust No. 39201, and William Dwyer, Defendants and Counterplaintiffs-Appellants.

No. 2-01-1380.

Appellate Court of Illinois, Second District.

January 9, 2003.

Robert S. Kramer, Schnell, Bazos, Freeman & Kramer, Elgin, for William Dwyer, LaSalle National Bank.

Donald P. Hughes, Elgin, for Alecia Nottolini, Cheryl Nottolini, Rick Nottolini.

Justice KAPALA delivered the opinion of the court:

The instant controversy arose after defendants, LaSalle National Bank, trustee under trust No. 39201, and William Dwyer, erected a fence between a water-filled quarry that they owned and a vacant lot that plaintiffs, Rick Nottolini, Cheryl Nottolini, and Alecia Nottolini, owned in South Elgin. The fence prevented plaintiffs from accessing the water-filled quarry from their property. Plaintiffs thereafter filed a complaint in the circuit court of Kane County alleging that the defendants' quarry was a lake and that they had rights to use the lake because a portion of the water from the lake rested on their property. Plaintiffs sought a declaration of their rights and an order requiring defendants to remove all fences and other barriers that interfered with their use of the lake. Defendants filed a counterclaim, seeking a declaration that they had exclusive rights to the surface water in the quarry and an injunction prohibiting the plaintiffs from removing the fence defendants had installed. Following a bench trial, the trial court granted plaintiffs' requested relief and denied defendants' request. Defendants thereafter filed a timely notice of appeal. We reverse.

The record reveals that in the early 1900s there existed a limestone quarry in the South Elgin area near the Fox River. The quarry ceased operations in 1925 and subsequently filled with water. Title to the quarry, as well as some of the adjoining land, was acquired by defendant LaSalle National Bank. Defendant William Dwyer is the 100% beneficial owner of that trust. Defendants allowed the landowners whose property adjoined the water-filled quarry to use the quarry for swimming.

In 1981, plaintiffs purchased land adjoining the water-filled quarry. Their deed of conveyance neither reserved nor granted them any right to use the water-filled quarry. However, defendants permitted plaintiffs to swim in the quarry. Water from the quarry would frequently cover a few feet of plaintiffs' property so as to denude it of ordinary vegetation.

In 1997, a trespasser drowned in the quarry. Thereafter, defendants requested that all adjacent landowners to the water-filled quarry erect fences to prevent unauthorized access to the quarry and another drowning. Although most of the surrounding landowners erected a fence on their properties, plaintiffs did not. Defendants then erected a fence between the quarry and plaintiffs' property. The fence denied plaintiffs access to the quarry. On July 23, 1999, plaintiffs filed a complaint for a declaration of rights and a permanent injunction. Plaintiffs based their complaint on the claim that they owned a portion of the lake bed adjoining defendants' lake and, therefore, had a right to the reasonable use and enjoyment of the surface waters of the entire lake. Plaintiffs further alleged that defendants had deprived them of using the lake by erecting a fence between the lake and their property. Plaintiffs requested a declaration of their rights to the entire surface of the lake and an injunction that affirmatively required defendants to remove all fences and other barriers that deprived plaintiffs of the use of the lake.

On August 24, 1999, defendants filed an answer to the complaint and a counterclaim. Defendants maintain that their property was and continues to be a private quarry and not a lake and, therefore, adjacent property owners have no right to access the surface waters of the quarry without defendants' permission. Defendants requested a declaration that they had exclusive rights to use and control the surface waters of the quarry. Defendants also sought an injunction to prohibit plaintiffs from removing or altering the fence that had been installed between the quarry and plaintiffs' property.

On August 9, 2001, the trial court conducted a trial on plaintiffs' complaint and defendants' counterclaim. On September 13, 2001, the trial court ruled in favor of plaintiffs, holding that plaintiffs had the right to the reasonable use and enjoyment of the surface waters of the quarry. The trial court found the quarry to be a lake, permanently enjoined defendants from interfering with plaintiffs' use of the surface waters, and ordered defendants to remove all fencing that interfered with plaintiffs' access to the lake. The trial court also denied all the relief that defendants requested in their counterclaim.

The trial court explained that the water-filled quarry was a lake and that the water in the lake exceeded the quarry boundaries and extended onto various adjoining lots including plaintiffs'. The court found that the water on plaintiffs' property denuded that land of ordinary vegetation, which made it part of the lake bed. As owners of a portion of the lake bed, plaintiffs had a right to the reasonable use and enjoyment of the surface waters of the entire lake provided that they did not unduly interfere with the reasonable use of the waters by the other owners of the lake. See Beacham v. Lake Zurich Property Owners Ass'n, 123 Ill.2d 227, 122 Ill.Dec. 14, 526 N.E.2d 154 (1988). The trial court found, therefore, that the fence defendants had erected between the lake and plaintiffs' property unduly interfered with plaintiffs' use of the lake. Following the denial of their posttrial motion, defendants filed a timely notice of appeal.

On appeal, defendants' primary contention is that the trial court erred in finding that their water-filled quarry was a lake. Defendants argue that the trial court's determination improperly diminishes their ownership rights in the quarry. Specifically, defendants argue that the trial court's awarding plaintiffs surface water rights in the quarry deprives them of their...