The Trusted Adviser November 2010 | Volume 3 • Number 10



Riparian Rights; Subdivisions

Bohne v LaSalle Nat Bank, Ill App 3d 485, 926 NE2d 976, 339 Ill Dec 501 (2nd D, 2010).

Facts:In 1925, Paul Froetscher and Frank Casurella platted a subdivision in South Elgin, Illinois. Lot 55 was located at the center of this subdivision; this lot was completely surrounded by residential lots. Lot 55 contained an empty quarry that was allowed to fill with water and thereafter served as a man-made lake. Froetscher and Casurella used the quarry to advertise the subdivision as a resort community and built a clubhouse and other amenities.

In 1950, Frank Dwyer and Froetscher entered into an agreement that allowed Frank Dwyer to operate a public beach on Lot 7, which would allow beach access to the quarry-lake (Lot 55). Through 1969, this agreement was renewed several times with both Froetscher and, eventually, his widow, Elsa Froetscher. On June 19, 1969, Frank Dwyer and Elsa Froetscher contracted for Elsa to sell Lots 24 and 55 of the subdivision to Dwyer. This contract recognized the rights of other property owners in the subdivision to bathe, swim, and fish on Lot 55. Following the purchase, the property was put into a trust with LaSalle Bank, with Dwyer as the sole beneficiary. Frank Dwyer administered the quarry until his health no longer allowed him to do so, at which point control passed to his son, William Dwyer.

William Dwyer promulgated and enforced rules for the use of the quarry between 1980 and 2005. The drowning death of a trespasser in the late 1990s caused William to worry about his liability from the quarry. As a result, he asked the property owners to fence their yards to prevent quarry access. One family, the Nottolinis, failed to comply with that request. William therefore built his own fence between the quarry and the Nottolini lot and denied them access to the quarry. The Nottolinis unsuccessfully sued. The court in that case determined that while the Nottolinis may own a part of the quarry-bed, a man-made lake did not qualify them for riparian rights the way a natural lake would.

In 2005, Dwyer blocked the quarry access of the remaining property owners because they failed to contribute to his demands for liability insurance. The homeowners sued for declaratory and injunctive relief. The homeowners argued that, despite the result of the Nottolini case, the subsequent case ofAlderson v Fatlan, 232 Ill 2d 311 (2008), extended riparian rights to man-made bodies of water. The trial court agreed. Dwyer appealed.

Holding:Affirmed. The appellate court found that the trial court had properly relied onAldersonin making its decision.Aldersonstated that artificial bodies of water could become considered natural if used as though they were natural for long enough. The trial court had appropriately decided that, because the quarry was permanent and had been used as a lake since the 1920s - in a continuous and uncontested manner by the property owners of the subdivision--- it could be treated as natural for the purpose of determining riparian rights. The appellate court did not find that Dwyer's rules regarding the use of the quarry were dispositive of the trial court's findings regarding the use of the quarry.

The court further declined Dwyer's request to consider the matter of riparian rights on the quarry closed byres judicata. Dwyer argued that, because the court had previously considered the issue in the Nottolinis' suit, it was settledres judicatathat no riparian rights ever attached to the quarry in question. The appellate court, however, disagreed with this interpretation finding that because there was no identity of parties,res judicatacould not apply because the judgment cannot be binding on individuals who were not party to the original case, which the present homeowners were not. Furthermore, none of the factual findings in Nottolini were dispositive of the findings made in the case at hand.

As a result, the appellate court determined that the home owners could request a declaration of their riparian rights underAlderson. Furthermore, because they were not involved in the last action involving the quarry and riparian rights, they were not barred from making the argument byres judicata. Finally, none of the factual findings made by the trial court were unreasonable or otherwise unsupported by the facts. Therefore, the appellate court affirmed the judgment of the lower court finding that the plaintiffs did have riparian rights in the quarry-lake in question.






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[Last update: 11-15-10]