No. 2--01--1380												  __________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

___________________________________________________________________

RICK NOTTOLINI, CHERYL		)	Appeal from the Circuit

NOTTOLINI, and ALECIA NOTTOLINI,		)	Court of Kane County.

		)	

	Plaintiffs and				) 

	Counterdefendants-Appellees,	)

		)

v.		)	No. 99--CH--588

		)

		)

LASALLE NATIONAL BANK, Trustee		)

under Trust No. 39201, and		)

WILLIAM DWYER,		)

		)	Honorable

	Defendants and 		)	Michael J. Colwell,

	Counterplaintiffs-Appellants.	)	Judge, Presiding.

___________________________________________________________________

	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 (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 right to

exclusively use and manage the quarry.

	A trial court's ruling in a bench trial will not be disturbed

on appeal unless it is against the manifest weight of the evidence. 

Commercial Mortgage & Finance Co. v. American National Bank & Trust Co. of Chicago, 253 Ill. App. 3d 697, 702 (1993).  For a ruling to be against the manifest weight of the evidence, the opposite result

must be clearly evident.  Hasselbring v. Lizzio, 332 Ill. App. 3d 700, 704-05 (2002).

	We note initially that no Illinois court has determined

whether a water-filled quarry may be considered a lake.  Nor are we

aware of any other foreign courts that have considered this precise

question.  Similarly, no Illinois court has defined a lake

generally.  However, other courts that have defined the term "lake"

have described it as being a body of water of natural origin.  See 

Block v. Franzen, 163 Neb. 270, 277, 79 N.W.2d 446, 450 (1956) (defining "lake" as a "reasonably permanent body of water

substantially at rest in a depression in the surface of the earth,

*** [with the] depression and body of water being of natural origin

or a part of a watercourse"); Keener v. Sharp, 95 S.W.2d 648, 652 (Mo. Ct. App. 1936) (a lake is an inland body of water of

considerable size, occupying a natural basin or depression in the

earth's surface below the ordinary drainage level of the region); Humphreys-Mexia Co. v. Arseneaux, 297 S.W. 225, 229 (Tex. 1927) (water that comes to rest permanently in basin made by nature

becomes a "lake" or "pond").  While these definitions are somewhat

helpful, we prefer to define a lake as "a reasonably permanent body of water substantially at rest in a depression in the surface of

the earth, if both depression and body of water are of natural

origin or a part of a watercourse."  78 Am. Jur. 2d Waters §108 (2002).  Based on this latter definition, defendants' water-filled

quarry is not a lake.  It is not a natural body of water existing

in a natural depression in the earth.  Rather, it is entirely man-

made and, thus, does not meet the definition of a lake as set forth

herein.

    Moreover, riparian or littoral rights do not extend to artificial bodies of water, such as man-made lakes. See Ours v. Grace Property, Inc., 186 W. Va. 296, 301, 412 S.E. 2d 490, 495 (1991); Publix Super Markets, Inc. v. Pearson, 315 So. 2d 98, 100- 01 (Fla. App. Ct. 1975).  As defendants' quarry at issue herein is

clearly man-made, plaintiffs do not have any rights in it.  See

Ours, 186 W. Va. At 301, 412 S.E. 2d at 495; Publix Super Markets, Inc., 315 So. 2d at 98.

	Because we hold that defendants' water-filled quarry is not a

lake, plaintiffs can have no lake bed or surface water rights in

the quarry.  Instead, defendants retain complete ownership rights

in the quarry.  See Save Our Little Vermilion Environment, Inc. v. Illinois Cement Co., 311 Ill. App. 3d 747, 749 (2000) (an owner of land is entitled to use the surface and all that is below it). 

This ownership right includes the right to drain the quarry in

order to allow the resumption of mining.  See Moore v. Bridgewater Township, 69 N.J. Super. 1,2,33, 173 A. 2d 430, 442 (N.J. Super. Ct. App. Div. (1961) (an owner of a quarry has the right to excavate from his land).  This ownership right also includes the right to erect a fence around the

water-filled quarry to keep others out.

	Based on our determination that defendants' quarry is not a

lake and that defendants retain complete ownership rights in the

quarry, we find that the trial court's awarding plaintiffs surface

water rights in defendants' quarry was against the manifest weight

of the evidence.  We also find that the trial court erred in

denying defendants' counterclaim for a declaration of their rights

in the quarry and an injunction prohibiting plaintiffs from

removing or altering the fence that had been installed between the

water-filled quarry and plaintiffs' property.  

	For the foregoing reasons, we reverse the judgment of the

circuit court of Kane County and remand with directions that the

trial court enter judgment in favor of defendants on their

counterclaim.

	Reversed and remanded with directions.

	HUTCHINSON, P.J., and BYRNE, J., concur.