mr chief justice may please the court members of the supreme court this morning my name is carl bock and i represent robert and wanda alderson the issue presented to you today is whether or not the origin of a body of water or a non navigable private body of water is relevant when determining the co owners surface rights the plaintiffs in this case rhonda and wanda alderson her also the opponents here today and they would argue t you that the origin of that body of water is irrelevant to this case comes to you following procedurally following motions for summary judgment cross motions for summary judgment at the trial court the trial court heard arguments of counsel and rejected the holding in not only the motions for summary judgment were principally based on the two cases that have been briefed by the parties the beach in case and the not only need case the court distinguished now in a case based on the ownership of the co ownership of the body of water and found that the beech judgment in their favor as i said the issue before us whether the body of water is origin should be considered when determining the co on or surface water rights factually speaking this is a case where a small creek emptied into a small depression and was then mined by an individual named mr fattah and he purchased the property in one thousand nine hundred sixty eight mines the property for a period of years and constructed approximately a twenty acre la after he was done mining the quarry he sold off several lots to the other defendants in this case in one thousand nine hundred one there was a parcel of land that remained to a third party a farmer and that parcel of land was bought it boat ramp they've constructed a swimming dock they've constructed a retaining wall along the beach that separates the beach from their actual grass area and they've used a pontoon boat jet skis similar to those used and take this case away from the beach and decision and more into the realm of no it does not because there was a portion of a quarry that was owned by third party the record will reflect that not only do they admit that the plaintiffs and defendants  owners of portions of the kauri but also that it was the defendants in the construction of the what i would call the earthen box that was the corey actually constructed that area that then became and it was on the third party's property that then became part of this now body of water that we're arguing about connection is referred to as this is a sliver that it's important in the breeze mr stevens mr stevenson my opponent characterizes it as a sliver yes or it's difficult to do but could you describe the piece of property for us yes or i think that's a different question but if you can it would be to give you a graphic depiction it is a large enough piece of land so as to allow for a boat dock on the surface in the water and the beach and actually if you were to look at the individual frontage of each of these parties both the plaintiffs and the defendants the plaintiffs  two hundred forty feet and it's a twenty acre lake i don't know the actual circumference the lake i apologize the alderson's are situated on one side and the five defendants are situated on the other side was decided we knew that this issue had to be addressed because there is no point going any farther if this issue wasn't addressed that would be part of the declaratory judgment in the declaration of rights of the parties once this issue regarding surface water rights is determine the ra in this case i would suggest to you those are the facts and i don't believe there's any dispute as to those facts and arguments would there be anything to prevent the tenants here from their ordinance that the lake will be preserved as open space and i have cited to the record that portion of the staff report which was relied on for the great thing about play and you know development which states that because it will be preserved as open space it will not they would have to overcome the burden of the negative impact of operating a kori on what is now it was eventually about me and i would also point out that in the record it is clear that one of the defendants has actually sold their property they listed for sale as a lake property and now there's they have not been brought into this lawsuit as we proceed through the appellate proceedings but they would be a six party and this is part of my argument they have now one of those defendants is now sold their property to somebody who bought it as a residence advertised for lake use so i would argue to you factually they will not be able to meet that burden and legally they cannot change it either and they have taken the actions to do that now the beach in case i would argue he was controlling here and i would  does not necessarily have to overturn nataline i think that not only me and beecham can actually peacefully coexist the nataline case was decided by making a finding that the body of water was not natural was manmade i don't think i would suggest you that the second district had to make that finding in the not only case it was found that there was only one owner central to the supreme court's decision in the beach and case was the fact that there  case the single owner certainly had a right now i would argue to you had a right to put a fence around his property not only need does not have to be overturned for you to state that the beach in case which to find a body of water not awake but in its holding a body of water can be extended to those situations which are now before you in this case that being what is arguably a manmade body of water the third district council yes or initially really this was my conclusion that the ultimate issue in the case was whether the definition of lake had to be a lake was natural and if it was manmade it wasn't  without regards of whether it was manmade or that's correct are you is that your position as well by the way it is my position because i do not believe i would argue to you that you do not have to define the origin because we're talking about a property right we're talking about callers of wait bad over which there is a body of water and this was this was man this particular property was man made because first they dug the hole huge hole yes or and then the creek came in and filled up the quarry and the rain there is a large lake and southern or a large body of water in southern illinois that's from from surface mining yes and i think it's a kind of a resort area called round lead and i and my serious question it is regardless of the size of this lake if it's manmade it would it would not be for legal purposes a lake and the law that effects lakes would not would not affect that large body of water and if there were if the definition of lake is manmade that would be true with that yes whatever ice that's that you're correct there and that's the way that because the beach in case doesn't specifically address the body of the origin of legs or it makes  finding that the only supreme court was going to adopt the simple rule as opposed to the common law rule for that body of water and because it's silent as to its limitation if you will on a natural body of water that question is out there and there is case law that says if it is a manmade then repairing a literal rights to not apply that's clearly the law i would not to screw with you at all what we're arguing here is that the intent of beecham was to preserve natural resources and give the most access and make them the most beneficial for all parties involved and in this case you have a court which has now been turned into or in your case a strip mine which has now been turned into a recreational body of water i will do my very best  not confuse it but it is now a recreational body of water what the defendants proposed and what the now legal case suggests is that when you determine that it's manmade you can then put up fences and you can section it off and you can subvert what was the and purpose behind the beach in case which is to have the greatest number of people using the greatest amount of surface water argument to us that that should not be the case that the origin of the body water is irrelevant when you look at first ownership and weight that they have they pay taxes on their portion of the lake they have constructed a boat ramp they've constructed a dock they've run a boat on the property they're on jet skis on the property they've swam in the water they've used the was to determine that they did not own the water that went into lake bed and that is that the defendants had acquired that by adverse possession that was their argument and quite frankly it is not been through the summary judgment stage and the appellate court stage an argument from either side that these parties are not adjacent property owners of a portion of the court like that mr stevenson argues in one point he puts a percentage on it ninety nine percent to one in the circus it was two hundred forty acres of which twenty percent i would argue based on my recollection from my days in law school that principles like this are tested by cases that push it to the extremes and i would say to you that the first argument has to be either co owners of the way if they are co owners excuse me by water  other corners of the body of water if there are corners of the body of water what is its use in this case the defendants by their very own conduct have turned it into a recreational body of water they have enacted in an ordinance a p u g they have rezone the property and preserved it as open space for that purpose so clearly everyone's intent if there's an element of intent that we're getting to here is to operate this as a recreational facility in conjunction with the residential homes i think the i would argue too that in the third district in the house will bring case there's two individuals in that case and there's one pond there's three individual owners there's one pond a fellow to the north mr paulding and then a fella to the south mr house will bring in that third district case this is one of the cases i relied on mr balding at the top actually increased his portion of the pond and in following the beecham case for the purposes of deciding a case which dealt with  also dealt with surface water rights the third district followed the common or excuse me the civil rule that was announced in beecham and they also did that in this case that the third district the fifth district in the case of  had a two property owners were awake split their property at their property i split the lake excuse me and in that case the defendant wanted to put up a fence to hold in their cattle the defendant in that case did not prevail the plaintiff prevailed the fence got removed but the defendant made the specific argument that the beecham case was limited only to natural bodies of water and the fifth district court rejected it they said no we've looked at that there's no support for that contention and that's right in the decision where they reject the contention that beecham is limited and it gets back to my previous argument as to why beecham should not be limited to beach and should not be limited because the first question is ownership and in this case  the defense totally rely on not only the third district totally relied on not only they never focused on the true question of ownership the second district never had to get to the origin of the body of water because they just solely looked at the issue of ownership they would have decided the case right there and i would thank you i would i would bring that up to you because in the defendant's argument they bring to your attention on a case from iowa your case and in that case iowa adopted a common law rule with respect to this type of situation where a court was then turned into a recreational lake and the reason that i would suggest to you that that rule should not be adopted here is because you will then have two separate rules that will have to be applied you'll have a civil war civil war rule for natural lakes and you have a common law rule for manmade lakes and a wall at another level of contention that will add another level of confusion if you will to what is now a very straightforward decision you look at the body of water you decide who owns it from there you determine whether or not one party or the other is interfering with the reasonable use and enjoyment of the other party's right to use the surface waters it's a very straightforward test under beach minutes should not be disturbed their argument that not only  applies essentially create or revive the common law rule for the purposes of all these natural resources which are now being created as a result of the regeneration of these quarries and strip mines that are now being turned into recreational lakes  and that will create more confusion and add what i would suggest you unnecessary arguments regarding who has surface water rights and what the surface water rights are for those reasons we would ask that you would reverse the decision there was a natural body of water it was a leak two hundred forty acres multiple owners the minority owner being twenty percent of the lake bed now the second in the third district court below in this instant case in essence really correctly followed the application of the civil law all rule because if you look at other states that have also adopted the civil law the supreme court of minnesota for example said civil law applies to natural bodies of water when they were confronted with a manmade body of water in the lake mill locke's investment case they reverted to the common law that is what is important basically there's two grounds on which we would suggest this this court look at one is first of all origin and secondly disproportionate ownership and i would point out that in the beecham case this court in one thousand nine hundred eight recognized disproportionate ownership in the in in their decision they said here's the civil law here's the become the common law we know that the common law is generally applied to those cases in which there is disproportionate ownership they then went on to discuss the pros and cons and said in this case we're going to apply the civil law rule because of there is no disproportionate ownership and it is a natural body of water with regard to the ownership there or at least five or so these are five owners around this body of water is it correct what what happened your honor is back in the seventy's mr fett when operated  quarry when he decided to retire he created five separate parcels at the south end of this particular corey and those are individually owned by his friends they all own record itself through a trust and they pay the taxes they pay the insurance premiums they pay them eight once they paid to stock the fish ok so then the so that the owners of the lake that except for the sliver that was which was they used the term de new did from plant life because of the constant wash of the water up on the shoreline but they said they didn't really need to get to whether that was ownership or not because they looked at the origin and they your your honor was describing a strip mine only down downstate i mean there's a similar strip mines in the area of coal city in which residential give you is that those would be manmade lakes though those are manmade made bodies of water absolutely and i and i slightly disagree with mr buck as far as the origin of the water that filled this quarry it was actually filled from rain i mean there's no stream north or south of it  it flows overland into some ditches but that's just because there's a depression that was created by a person to specifically mr fenton with a steam shovel and the only reason and i use the word sliver because when you look at the at the record you'll see it is a tiny little sliver he said one percent i believe my words are far less than one percent in comparison to the twenty one acres of  person one of the five correct shared in the ownership of the quarries correct and when that person sold they also passed along with the deed the rights through the trust there is no such no such passage of that in this case with the owner since none whatsoever no the other civil law states such as minnesota does not extend the civil law will two manmade structures and as i said that's the lake mills like investment case i've also cited west virginia and virginia within the west virginia case they talk about the virginia case in which there is also no civil all rule for dispute disproportionate ownership and as i indicated the beach from the one nine hundred eighty eight beecham court recognized this now why treat them differently why treat natural bodies of water differently than man made number one i would suggest that lake zurich which was dealt with in in the beach and case was probably created by glaciers we know without effect that the  here was created by the toil of human labor sweat time money you should treat them differently to recognize and respect that human endeavor respect the effort by respecting the ownership rights secondly i believe it's important to restrict leak the term way to natural bodies of water in light of the new numbers of of artificial detention ponds that are be created and also in the in light of the fact that now we are getting artificial are artificially corrected created bodies of water with residential subdivisions built around them you know it's important to recognize the rights of the owners and of the homeowners associations in these situations especially the right to restrict and regulate where they've taken maybe an existing wetland and expanded it for the detention purposes or an existing small body of water and expanded it it's important to respect those homeowners rights to protect themselves against liability three i think that we need to continue to recognize the long standing property rights and i cited my case i believe it city of dixon back in early one thousand nine hundred you know owners pay taxes on this twenty one acre kori they pay insurance premiums they pay police they started with this lawsuit in one nine hundred ninety eight the lawsuit started it ended with a two thousand and three third appellate court decision which i believe was based on the evidence provided in that adverse possession case you know i was not involved in the case at that time but when i first read it my first inclination was my god how much more open and notorious possession of wind can you have than to take a steam shovel and take it away but i believe that rule twenty three decision was based on the type of evidence now that rule that decision came out in two thousand and three the beginning lawsuit in this case was also begun in two thousand and three the first one was fat one versus alderson an adverse possession this is all the sin versus fenlon under different issues all right so there has been a continuous objection to the trespass from the very from the very very beginning point three acres versus twenty eight acres they saw that is disproportionate ownership the alderson's own far less than that in the hours case which comes from west virginia which i've cited in my brief they used the terminology of two percent versus ninety eight percent again if you look at the survey which is a part of the record the amount the sliver that is owned by the altar since fars fall less far less than one percent and in fact the zero he said they put in a boat dock they couldn't even float a boat in their part because they had to dredge it out in order to have a boat afloat and i just need to correct just slightly mr mr buck came up  with his new box theory actually when you build the sand corey it's a giant v and it's the deepest in the very center because sand flows down i learned that from my client so in this particular case that sliver is actually the edge of the upper most part of the quarry wall which at its deepest point extends approximately six feet in and extends not you know to my shovel and i believe in somewhere around i think it's two zero nine it shows pictorially in and it is it is a sliver getting back to why treat things differently i would submit that the protection of owners rights will serve a societal goal and the societal goal is to motivate people to want to create these type of habitats for bird life for wildlife you know there's there's it's clear that the wetlands have been decimated and this is this is a societal good and so to induce people to create these things to put in the sweat the money and the toil you should decide that since it's a  manmade structure that they are creating they should also have the rights that go along with it and lastly this twenty one acres prior korean it was clearly protectable as surface land i mean it was clearly protectable that you could put up a fence around it now some human labor was involved removing some of the sand to utilize it that exertion of human labor should not change the same protection that was there in the very beginning and i would submit that it is the exact same piece of property defined by meets and bounds in the original deed when it was flat land as opposed to what it is today so that the it's the use of that labor to quarry should not be used to remove the protection that it clearly had now with all due respect to justice  mcbride her suggestion of dictionary usages of to try to define the word lake i believe should remain in those type of cases where appellate courts are trying to determine what is the intent of the legislature and what is the common usage of words it's different in this type of case when you're looking at literal rights or right parian rights i would respectfully submit that we should look at they can clearly return to corning again and one of your others had a question about how it would affect surrounding property this property is located immediately adjacent to the braidwood nuclear plant i believe tiger woods could probably hit it with a good drive it's that close there would be no negative impact because this is an industrial area i mean after all this was a cory that after the people retired they put a little area which was residential so i would submit that there would be no negative impact and who knows i don't know maybe technology might change and this particular sand which was came out of this cory was specifically i guess it was a special kind of sand which was really good for road building at the time and that's what it was used for well maybe technology will find a way to take this sand and convert it to to energy and if that's the case in the future will be opened up as a quarry now council suggests that we look at current usage and my humble suggestion is even if we look at current usage this is a kori it's always been a kori it will continue to be a corey you cannot change this into a lake the glaciers are long gone my clients five retired couples you know peacefully peacefully existed for you know since the eighty's as i said pay taxes stock the fish paid insurance premiums and have immediately sought to prevent the trust passed of these adjacent property owners and really when you think about it what we have more than one i'm sorry one more than one homeowner there there are precipice of the home the well the trespasser the homeowners meaning the older cities and everybody they invite over their invitees and he really if you sit back and look at this what we're dealing with today is  request for a group of people who live adjacent to have free trust pass over twenty one acres of property that was created by someone else for free as i said it was it was a correct i agree exactly the i also want to want to add in my brief time left that i would also ask that you consider the justice an equitable principles  clearly argue that owners who toil and pay for a structure pay the costs associated with it should have the right to utilize that structure as well as protect their liability we need to remember that no leni started out unfortunately with a tragic drowning which it which then prompted the quarry owner to want to put the fence up the fat ones have been and their friends have been trying to prevent that from happening in this case they put up a fence and it was ripped out it's one of the issues that will be dealt with by the courts when this goes back now the order to case tells us that the civil rule came from scottish laws governing the locks and locks are naturally occurring over there probably created by glaciers likely leagues are to us but this will county is one hundred percent different and should be treated differently just as minnesota treats the based upon the case law from other states considering the history of the civil law rule as well as that quote from the beach in court acknowledging just proportionate ownership claims as well as principles of justice and equitable principles we respectfully ask that the appellate court ruling below be seen as having been correctly decided and that the law applicable was correctly applied and we respectfully request that the order the first thing i want to address is a comment that was made by my opponent he indicated that there was previously offense in the lake that was ripped out and i just want to be clear that so the court is clear that the defense in this case did construct a fence across the way and this action was filed and they voluntarily removed didn't i during the pendency of this action i believe that there's actually a picture in the record depicting the fence and you'll see the actual area of the lake that is cut off i just don't want any perception to be created in this court to the point it's a done anything contrary or illegal in terms of ripping down a fence or doing anything volatile against a defense that's clearly not the case in addressing mr stevenson's argument he points to exactly the reason that the beach in case was decided when you look at that decision first off he tries to make a point about disparate ownership in that case there was a twenty percent owner and eighty percent owner in that case the twenty percent owner was actually earning money on the lake running a boating business on the lake the adjacent property owner was a homeowners association that was paying dues to maintain insurance and the lake the court did not feel the supreme court did not feel that the disparity of ownership in that instance was sufficient to not apply the civil law and they in fact implied the civil law and when you read that decision and you go into that head note you're going to find that there isn't a discussion where they make a finding that this is not a disparate ownership issue that's not even discussed they pointed out as a rule that the common law states have a right issue that the common law states have acknowledged but it is not a determinative factor and i would argue to you today that it is ownership of the lake bed that is the pr determinant factor and that gets to my second point about beecham philosophically beecham was decided i would argue to you and adopted because the civil law promotes rather than hinders recreational use and enjoyment of the lake's that's right from the case that was the principle upon which feature was decided not to have a system under the common law which was if you have a lake and it the property the line runs right down the middle you have your surface water rights over your property and i have my surface rights over my property you know they said that doesn't make any sense the surface water rights should be shared by everybody because that promotes the use of the lake every single point that is raised by the defendants is an attempt to revert back to the common law argument and to deny people access and to really overrule beach and the intent of beecham which is to provide access which is to promote the use and certainly in situations i would it take exception with the council's argument that anybody is ever going to misinterpret or have a problem differentiating between a water detention pond in front of a strip mall and a court that has been turned into a residential subdivision with you know three or four hundred thousand dollar houses with docks and boats and is being used for recreational purposes those two things are mutually inconsistent so to have a definition as he suggests that requires or have a decision it requires a definition of a lake so people don't make those mistakes really is a logical the pope purpose behind beecham was to promote the use and in this with their deeds and does that make any difference i would suggest to you that it doesn't make a difference when you are acquiring your property pursuant to a deed that includes a description of the lake b in in years in this situation had the steam shovel not clear of the slope or the sliver which would your property have been on or would it have or would your owners any surface water rights in this case clearly whether it was through the act of the defendants in creating the riparian rights whether it was a christian or whether it was the but i guess that would decrease and absolving of the shoreline they had riparian rights they constructed a boat dock that is being knowledge by the defense so i do think it matters and for the purposes of answering your question i would argue but argue that they would not have in this case they do and the defendant the family or the alderson's acquired property with riparian rights they would have rights to the surface waters whether or not they would be able to boat and do things that might interfere with his reasonable use of enjoyment of the surface water rights as a court i mean i don't know how you could if it was actually a lake but let's just run this argument out that would be a determination and that's where you get into the second part of the beecham argument and i would suggest to you that the reason that the beach m k should be applied to situations like this where you have a manmade body of water is because that is an objective test you can determine ownership and then you can determine what is reasonable use in the stabber case it was you can't put up a fence for your cattle because that deprives person a person of the entire use of the water in the house will bring case the defendant wanted to empty it and turn it into a natural wetland and the two plaintiffs were successful in having the court find that that was interference with their reasonable use so i think that's why the  rule announced in beecham is the principle rule that should be applied in cases where you have a nine navigable private body of water that is not a natural origin i don't think the origin matters it should be ownership and then from there what is the reasonable use are you contending you're under my theory of the case yes because i would say that under peach um if they drained the water unless well yes they would drain if they drained the water they would deprive us of the use of the lake which was they have to bring a case that i wanted to drain the water he wanted to set up a wetland off of his property and they said no you can't do that so yes it would be because beecham would apply in that instance legally i would argue to you that because they have taken the affirmative steps to create the p d and they have consented to the ordinance to now preserve open space i may have a wholly other legal argument as to stoppel or some other argument that they can't do it based on the well county ordinance but to answer the question that we have before us because it would interfere with my reasonable  enjoyment of the surface water rights that they would not be able to do it which is exactly the hassling case you understand you very much for here in my argument today i would ask that you would reverse the third district