kayak over defendants property the civil war rule provides a riparian owners on a national body of water have the right to reasonable use and enjoyment of the entire service of the body of the war we believe applying an important natural resource whom you know climb the civil law rule to them isn't in this case will not grant the public access nor will it while the homes to do anything other than briefly float over the water above defend property does not allow the homes to remove any resources from defend its property either briefly the facts of this case the homes on two properties on was on river there are upstream of defendants in the prison run from south to north so it's a bit confusing if you look at a map but the lower property the homes own is lamb so what the homes do is they put their kayaks in at the access property they float downstream to the  limit property which has all these really neat fossils and they collect the fossils they put them in the kayak but they have no way to get back upstream because the kayaks are so heavy with fossils so what they do is they float downstream to a public access point where they pull their kayak out or however to get to that point they have to pass over the missouri river which runs over defend its properties then it is not public access point it's i believe it's just a lead underneath the viaduct of a bridge so the public owns property humble sides of the bridge they have a right away and saying that this is a private waterway a private body of water point is is probably not the right term it's publicly in that they're taking their boats out i'm not i'm not access point is wrong the public is not x accessing them isn't river at that point  which is your client's right and your opposition clients have the right to your body of water park their adjacent property correct isn't that the issue here that is the full enjoyment of the property by all the owners it also noted that if you do apply the common law role you could potentially have fences and booms set up all over the lake but for people trying to exclude the other because it decided that it restricted the you so much that it really didn't serve the purpose of everyone enjoying the lake to get together and i realized that a lake in a river  different a river you feed you can clearly delineate boundaries it would be that are just because you've got a linear piece of water in most cases but i think the reasoning in beecham still applies to a river honestly and it really has the same kind of benefit if you plot a civil law or rule because it allows every red herring owner on that river to use it in a reasonable manner what about but if you do apply the civil law everyone on a limited basis would get to use the missouri river if there were a pair who are it creates a narrow class of users you can only go over the surface waters only riparian owners and their licensees can do so and only can do so in a reasonable way it doesn't create a right of access them isn't for the public it doesn't allow repairing or to remove anything from another area owner's riverbed and really the burden on the landowners is trying to just having watched the kayaks go by it's really not a huge burden oh so many right lee so it doesn't mean that because applying the civil law a rule only allows you to enter the creek off of your property it doesn't allow you to kayak ten miles down and then lift your kayak off on someone else's property which you have the person's permission so you really have a limited access an entry access point and exit point so while yes take your argument is every time they come to a bridge or call her as long as it's publicly maintained property they can get in and out there sure i do think because it's public and because there are not repairing owners to it that wouldn't be exercising their right to exclude you i think that would be because technically i guess if it is owned by let's say grown each county or the state they would have to give those individuals from mission access that water well i don't think they own anything and i think that probably got a right to unless it you know so it's just a right away i don't know that it even have read period rights attached to that that is probably correct depending on up and down are so in this case i'm saying kayaking presumably in the civil lot rule does have a reason ability reasonable as components so again how it's used i reason kayaking because that's a specific specific use in this case and we would argue that kayaking is reasonable i've been on jet skis before they're very loud and obnoxious so i think he would have a good argument that cruising up and down the river right next to people's houses on a jet ski would not be reasonable but again that that would there is a place in the civil law to make that determination now but st if you do apply the common law rule to the resign really severely limits the ability of individuals on that body of water to really do anything in the water because you alluded she was se again if you do apply the common law you could have people putting up fences all across the river if they on both sides or if the agreement the person on the other side would be the problem but mine the land recreational purpose right or kayaking which is a recreational purpose i do use the term interchangeably in my brief  landowners along the twenty eight mile stretch of that the mizzen creek that own property on both sides such that they could erect fences maybe for purposes of watering livestock i believe so i'm not sure mr levy can probably answer that because i believe i think one of his clients me own property and will side but i do believe there are property owners and will sites so how does your client get from the permission until he gets to defend its properties but that's where the problem started that's where the call the police happen and that's where really the conflict bit your clients brought the action correct to ration that they have the right as much as owners with riker and rights to traverse a body of water in front of the defendant's right yes or go through lot i think at some point the creep does get pretty low to the point where you're not driving to just be over it so i think it varies a lot a private property owner should have the right to exclude others from accessing the service of a not matter goble creek or river that runs adjacent to private property i really do think the specific issue that is presented to this court is a matter of st impression is obvious because it's a grid anomaly yes yes and i and i and i think there is an important distinction between a creek and a lake that we touched on of course in that brief but the fact that we're dealing with a creek or you know a stream or a river obviously has different physical properties than a lake that are that are meaningful here that are very well what are but i think well i think as the beach and court discussed and the way i view the beach in case is really an exception to this general rule of allowing exclusive use to read perry and owners when i obviously with the lake you're dealing with with a body of water that has an enclosed perimeter it's i mean not literally round  certainly you have a limited number of people who can actually access the body of water in terms of there's a limited number of people who actually own lakefront property but practically speaking as the beach in court makes clear and as other cases i've made clear going back over a century there are practical problems trying to divide up a lake as compared to a stream that just on a lake  it frankly doesn't really work and it would be a mass to try to divide up a lake among property owners but those same types of practical problems don't exist in this particular  case because we're dealing with with a creek and it's it's a lot easier from a practical perspective to divide up property lines and boundary lines when you're dealing with the creek and i think what's important here is looking back at illinois law that goes back well over one hundred years really the law does support in my view a squarely report support the conclusion that the trial court reached  which was to protect the defendants private property interests i do want to point out and really start with that with a discussion of some important facts and you know we used in the  briefs the term access property and land locked property to describe the plainest properties and i don't want there are i'm assuming this is this is clear but just so it's clear on the record when we talk about the plaintiff's landlocked property the plaintiffs do not need to access or go over any of the defendants portion of the mizzen creek in order to access what we described or are named the land locked property the plaintiffs can access that land locked property from their own property and if they wanted to they certainly could return to the access property after spending some time on the creek that runs next to on that property downstream the property of the artifacts of her well d i think it's land locked in the sense that you can't access that property from elsewhere on the land but the the distinction that i want to make is that we are we are the trial court's decision that protected defendants private property here does not prevent the plaine from accessing their own property they can still get to their own land lot of property by simply going going through their what we call the access property so they are not prevented from using their own property and council made an interesting  and that's really the theory that we're advancing and the focus of our case of course is really present preventing access to the river that runs or the creek rather that runs next to our property not one person who owns property on both sides it's it's a group of defendants that own the both sides of the river refuse me that the creek at the portion of them is a creek that we're dealing with with fossils and that it would be too heavy that they really wouldn't be able to go back upstream in there and they're kayaks and i just want to point out there's no basis in the record to say that the plaintiffs would be prevented from kayaking upstream and the trial court already rejected that argument there's certainly nothing factually in the record to support this idea that the plants would somehow be prevented from kayaking downstream and then back upstream for any reason so i think the way the record reads is they certainly would be able to do that and we're not limiting their ability to use use their own property and i know this was touched on in the st part of the argument but it actually is we're dealing with private property interests here i'd like to turn to some of the trial court's findings just briefly that i'd like to highlight the trial court of course agreed that we are dealing with a non and that's an important term that i'm going to talk about the bet but this exclusive ownership of the surface rights of the water that run adjacent to property that is owned by by the defendants the trial court also concluded  that simply having the right to access that right perry and owners have that is not a superior right to private ownership that the defendants are seeking to protect in this particular case of course the concluded that the beach in case the not apply just because of the impracticalities of trying to apportion a lake which which don't apply to a creek or a river and i think at the end of the day the trial court correctly agreed after having an opportunity to review what i describe as a comprehensive body of case law going back over one hundred years of the illinois law does support the protection of private rights in this case you know in terms of you know trial court's decision i think some of the key issues the key legal issues that support the trog course decision really boy boil down to thirty three main points you know the st point is illinois law has long recognized generally speaking the concept of protecting private property interests in this this interest has extended to protecting private property interests and not navigable bodies of water cooling rivers and lakes rivers and streams and i think that's important because the defense is not asking this honorable court to adopt a radical change in the law or to adopt some new new rights that's never before been recognized the rights that we're seeking to protect here have been recognized in illinois for a very very long period of time the nd point i think that is important to highlight is the fact that because we're dealing with a non that of the body of water there is no public easement or public right of access generally speaking along this portion of the design creek so again the law is recogniz the fact that protecting private property interests in circumstances like this is is important you know and finally you know we had a whole host of cases in our brief that really go to water in front of their property and that term exclusive is very important that term is used throughout cases going back over one hundred years and in fact is actually used in the beach in case as well when the court talk about the common law s the idea of having these exclusive rights has been recognized for a long period of time in the cases that we talk about and i think this is important because it addresses something that plants council brought up and in their reply brief but the cases that that we talk about certainly the case that go back many years really advanced this protection for private property owners to keep people from coming on their  take sand or anything and i realize that's not what the plaintiffs are specifically asking for in this case but the reason that i bring it up is because there is not any exception in the case law that allows riparian owners some some rights of access or use when it comes to the water that runs adjacent to another parent right during owner's property so i think that's really an important point here what the plaintiffs are asking  trust yes i agree and i think the point there and i think this is very important and you know planet so obviously want to advance the right to the right for recreation but what we are advancing and what i think is grounded in a lot of illinois law to address your question i hope is protecting private property rights and justice right you brought up this point earlier about what if we're dealing with somebody who wants to jet ski or we can all imagine the different uses a recreation of somebody might want and i think that's a really important point to consider because what the players started dancing here is an argument that would protect their right to kayak but what if somebody five miles ten miles up the maisano wants to blair by on a jet ski or wants to bring their family on water ski or things of that nature who don't even have to use your imagination the plaintiffs here may decide that they're tired of rowing heavy kayaks and they want to get a fishing boat with a motor yes yes exactly i have acquisition for a year about how far we need to consider how much we have to consider whether the right perry an owner to the center of the creek or owns all the water across the creek because in this case your clients all agree to restrict their access and they live at those that sides of the creek so what if we rule in your favor we don't have to decide whether they get the  yes that is not a specific issue that would have to be decided by the court today because the defendants collectively own property on both sides of them is on creek that we're dealing with here so that that specific issue really  before this this court and then terms of public policy this doesn't mean that they can never kayak down that creek it just means you have to have a good relationship with your neighbors and get permission yes i presume you could contractually work out some sort of an agreement for an easement absolutely absolutely but but the point of course and i view is that it affords the protection and that the protection of private property interests in people who own that property and they can decide to do what they like with a privacy interest to some people really like to use their property you know peace and quiet maybe they like to sunbathe without a lot of clothing or something and you know they just don't want people passing by so i think that's the exact privacy interests that we're seeking to protect here ok thank you  we i will tell you that is not factually in the record there was not any discovery that was conducted we proceeded to motion hearings before there was any discovery like i don't have a factual answer for you whether they want to know it's well established that she went to the middle of the river in case law so you wouldn't need to worry about ruling on that now as far as mr layton's arguments one of the things i didn't want to talk about was this kind of idea that the homes could kayak down kayak back out of it really wasn't developed in the record there was a back and forth between the homes trial council and trial court regarding whether that is actually a possibility because i guess judge doherty is a i'm sure kayaker and suggested he could get back up the river if you needed to  anything but i believe that is the breadth of the record on that issue mr lay did talk a little bit about how the case law prior to beech dealing with iraq carrying owners right to exclude people does favor exclusion and he's correct in saying that a lot of those cases dealt with excluding non recurring owners from taking stuff from people's property his ice timber stuff like that but i disagree that the courts haven't dealt with the relationship of red herring owners in this situation because beach in essentially deals with it and there are any cases in the common law that say no arrive hereon or doesn't and that is that there's just not a case that decides it other than beach so that is why it's case of the only case that really deals with red herring owners and access to water is beechen there's no prior cases like the eighteen hours where a referee owner was asking for access for other purposes  so that's really what we're dealing with and in that case again i know it's a leg but these free court shows to apply the civil law or rule and allow access  it did look into you know the rights recreation stuff like that the value that a lot of the cases are for so old that really recreation wasn't something that came into the courts consideration it just wasn't a thing back then people respect mr layton's arguments regarding private property rights and that only courts in cases do tend to protect that but we're not asking for a very expansive  usually can access right right i would think that it was because those property owners weren't in the suit that maybe that's why he said that it wasn't isn't the river with justice holder just question we were thinking along the same lines i'm not sure that necessity plays a role here wasn't the property land locked when they acquired it this isn't a creek that has changed its course and something that they could access easily is now landmark so i'm wondering why do you think necessity even comes into play whether your kayak is heavy and whether you can row upstream or not why is