Docket No. 104772.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

ROBERT L. ALDERSON et al., Appellants, v. LEO E. FATLAN et

al., Appellees.

Opinion filed September 18, 2008.

JUSTICE BURKE delivered the judgment of the court, with

opinion.

Chief Justice Fitzgerald and Justices Freeman, Thomas, Kilbride,

Garman, and Karmeier concurred in the judgment and opinion.

OPINION

The plaintiffs, Robert and Wanda Alderson, filed an action in the

circuit court of Will County in which they sought a declaration that

they have surface rights to a water-filled quarry that is used for

recreational purposes. Plaintiffs contended they are entitled to the

reasonable use and enjoyment of the entire surface waters because

they own a portion of the quarry bed. The circuit court granted

summary judgment for plaintiffs, reasoning that the case was

controlled by Beacham v. Lake Zurich Property Owners Ass’n, 123

Ill. 2d 227 (1988), wherein this court held that the owner of a portion

of a natural lake bed obtains rights to the surface waters of the entire

lake, subject to the reasonable use of other owners of the lake bed. 
 

1

It is unclear from the record whether James McElvain owned the 11-

acre property in 1970. In a previous appellate decision regarding a separate

issue related to the quarry, which is part of the record on appeal, the

appellate court referred to James McElvain as the owner. However, the

court also cited testimony from James’ brother in which he stated that his

father and uncle had purchased the property in the 1940s and that James

“managed” the property from 1966 to 1993. See Fatlan v. Alderson, No.

3–00–0890 (2001) (unpublished order under Supreme Court Rule 23).

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The appellate court, with one justice dissenting, reversed the

judgment of the circuit court. 372 Ill. App. 3d 300. The appellate

court concluded that the rule announced in Beacham had no

application to plaintiffs’ case because the body of water at issue is

man-made and, therefore, not a “lake” within the meaning of the law.

For the reasons that follow, we affirm the judgment of the

appellate court, although on somewhat different grounds.

Background

The following facts are taken from the parties’ pleadings and

supporting exhibits. In 1966, Leo Fatlan opened a sand quarry on

leased property in unincorporated Will County just south of

Braidwood, Illinois. At the time of its completion some years later,

the quarry covered approximately 20 acres and was roughly

rectangular in shape, with its longer sides running north and south.

Abutting the quarry on the north half of its east side was

approximately 11 acres of vacant property owned by the McElvain

family. Sometime after the quarry was begun, Fatlan unknowingly

excavated across the property line and onto the McElvain property.

In 1968, Fatlan purchased the original quarry property. In 1970,

after running a title commitment, Fatlan learned of the incursion onto

the McElvain property. Fatlan then had a conversation with James

McElvain1 in which he told him he had quarried across the property

line and that he “needed that property.” The record does not reveal

what McElvain said during this conversation. However, it is

undisputed that McElvain took no action and made no demands

against Fatlan.
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In 1974, Fatlan discontinued mining operations and allowed the

quarry to fill with water. Because of the previous excavation across

the McElvain property line, the water which filled the quarry covered

a portion of the McElvain property. Although measurements from

1974 are not available, it appears from plats in the record that, at

present, the portion of land across the property line that is covered

with water runs approximately 300 to 400 feet from north to south

and extends some 10 to 20 feet eastward. The depth of the water on

the property is approximately five feet.

The record does not reveal whether Fatlan obtained permission to

flood the McElvain property. There is no flowage easement or other

written instrument in the record and no indication that Fatlan spoke

to anyone from the McElvain family when the quarry filled with

water. Since 1974, the water-filled quarry has been used exclusively

as a recreational lake, employed for purposes such as swimming,

boating and fishing. The record is silent, however, as to whether

anyone from the McElvain family used it for these purposes.

In 1981, Fatlan sold four residential lots at the south end of the

man-made lake to family friends. Homes were built on the lots and,

on an adjacent lot, Fatlan built a fifth home for himself. After the

homes were built, the homeowners placed broken concrete around the

edge of the lake to prevent erosion, constructed a duck blind, and

placed no-trespassing signs on a pathway that went around the lake.

Some years later, in order to conform to the Will County zoning

ordinance, the homes and the lake were rezoned as a planned unit

development. According to the terms of the planned unit agreement,

the man-made lake is to remain open as a conservation easement. The

lake is presently owned in trust with rights shared by Fatlan and the

four other current homeowners.

In 1998, the 11-acre property owned by the McElvain family was

sold to the plaintiffs, Robert and Wanda Alderson. The record does

not reveal whether anyone spoke with the Aldersons about the lake or

whether any representations were made to the Aldersons regarding a

right of access to the surface waters.

Within a week of their purchase of the McElvain property, the

Aldersons placed no-trespassing signs and concrete barriers on the

section of the pathway around the lake that crossed their property.

Thereafter, Fatlan and the other homeowners sent two letters to the
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Aldersons requesting that they sell them the entire 11 acres of

property they had purchased from the McElvain family. The

Aldersons declined to sell the property and proceeded to construct a

home.

Shortly thereafter, Fatlan and the other homeowners filed an

action seeking to eject the Aldersons and to quiet title. Fatlan and the

homeowners alleged that they were entitled, through adverse

possession, to the portion of the Aldersons’ property that had been

quarried, as well as the portion of the property that contained the

pathway around the lake. Following a trial, the circuit court entered

judgment in favor of the Aldersons. Although the circuit court did not

determine whether Fatlan had been given permission to flood the

property in 1974, the court did find, among other things, that Fatlan

had been given permission to quarry across the property line by James

McElvain in 1970. In large part because the excavation of the

property was not adverse, the circuit court rejected the adverse

possession claim. The appellate court affirmed. Fatlan v. Alderson,

No. 3–00–0890 (2001) (unpublished order under Supreme Court Rule

23).

In 2003, Fatlan and the four other homeowners installed a cable

fence alongside the length of the Aldersons’ property line where it ran

through the lake. The fence blocked the Aldersons’ access to all but

that portion of the waters which lay above their own property.

In October of 2003, the Aldersons filed this action against Fatlan,

the four other homeowners and the lake trust (the defendants). The

Aldersons’ complaint contained four counts. Count I sought a

declaration that the Aldersons have a right to the reasonable use and

enjoyment of the surface waters of the entire man-made lake. Count

II sought an injunction to prevent defendants from taking any action

that would deprive the Aldersons of access to the surface waters of

the entire lake. Count III alleged that the cable fence was a public

nuisance, and count IV alleged that the installation of the fence

amounted to an intentional infliction of emotional distress. 

Defendants filed an answer and a two-count counterclaim.

Defendants then moved for summary judgment on counts I, II and IV
 

2Defendants filed a separate motion to dismiss count III of the

Aldersons’ complaint in which they alleged that the Aldersons lacked

standing to pursue an action for public nuisance. That motion is not at issue

here. Defendants additionally moved for summary judgment on their

counterclaim. That motion also is not at issue.

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of plaintiffs’ complaint.2 The Aldersons, in response, moved for

summary judgment on the declaratory judgment count (count I) of

their complaint. In their motion, the Aldersons noted the rule set forth

in Beacham v. Lake Zurich Property Owners Ass’n, 123 Ill. 2d 227

(1988), that all owners of a private, nonnavigable lake bed have the

right to the reasonable use and enjoyment of the surface waters of the

entire lake. The Aldersons contended that they owned a portion of the

lake bed at issue and, consequently, that Beacham was dispositive of

their case.

Following a hearing, the circuit court granted judgment in favor

of the Aldersons. In so ruling, the court found that, because the quarry

at issue in this case had been allowed to fill with water and had been

dedicated for recreational purposes, it was, for all practical purposes,

a lake. The circuit court further found that, based on the prior rulings

of the court in the adverse possession case, the Aldersons owned a

portion of the lake bed. Based on these findings, the circuit court

concluded that the rule set forth in Beacham applied and the

Aldersons were entitled to the use of the surface waters of the entire

lake. Accordingly, the circuit court granted the Aldersons’ motion for

summary judgment, denied defendants’ motion, and expressly

forbade defendants from constructing a fence or other barrier in the

lake. 

The appellate court reversed the judgment of the circuit court and

remanded for entry of summary judgment in favor of defendants. 372

Ill. App. 3d 300. The appellate court stated that the case before it

turned solely on “whether the body of water at issue is a ‘lake,’ ” and

explained that if the water-filled quarry is a lake, it is “quite clear”

that the Aldersons have rights to the entire surface. 372 Ill. App. 3d

at 301. Citing to Nottolini v. La Salle National Bank, 335 Ill. App. 3d

1015 (2003), the court then defined 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
 

3Historically, the term “littoral rights” was used to refer to the water

rights which exist in property that abuts a lake. However, as in most

jurisdictions, contemporary Illinois cases use the term “riparian rights” to

refer both to rights which exist in land abutting rivers and land abutting

lakes. See, e.g., Knaus v. Dennler, 170 Ill. App. 3d 746, 750 (1988); R.

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natural origin or a part of a watercourse.” ’ ” 372 Ill. App. 3d at 302,

quoting Nottolini, 335 Ill. App. 3d at 1018, quoting 78 Am. Jur. 2d

Waters §108 (2002). Relying on this definition, the appellate court

held that the water-filled quarry at issue here is not of natural origin

and, hence, is not a “lake.” Consequently, the appellate court

concluded that Beacham did not apply.

Justice McDade dissented. In her dissent, Justice McDade stated

that the majority opinion drew “unnecessary and unwarranted

distinctions” between man-made and natural lakes and, in addition,

that it “violate[d] the spirit and purpose of the supreme court’s

holding in Beacham.” 372 Ill. App. 3d at 302-06 (McDade, J.,

dissenting).

We granted the Aldersons’ petition for leave to appeal. 210 Ill. 2d

R. 315.

Analysis

This appeal is before us on the appellate court’s reversal of the

circuit court’s entry of summary judgment in favor of the Aldersons.

Summary judgment is appropriate where “the pleadings, depositions,

and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.” 735 ILCS

5/2–1005(c) (West 2000). Our review of a grant of summary

judgment is de novo. Arangold Corp. v. Zehnder, 204 Ill. 2d 142, 146

(2003).

The Aldersons’ primary contention on appeal is that the appellate

court decision erroneously deprives them of their riparian rights, as

defined in Beacham, to the use of the surface waters of the entire

lake. The term “riparian rights” refers, in general, to the rights of an

owner of land that borders on a body of water or watercourse to the

use of the water. Black’s Law Dictionary 1352 (8th ed. 2004).3
Beck, Illinois Natural Resources Law: Coal, Oil and Gas, and Water 329

n.48 (1985). 

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Riparian rights originate, not by grant, but by operation of law, solely

because the land abuts the body of water. Bouris v. Largent, 94 Ill.

App. 2d 251, 256 (1968) (to be riparian property “it is only necessary

that the description of the property include or encompass the shore

line”). 

At common law, “riparian rights of property owners abutting the

same body of water are equal, and no such property owner may

exercise its riparian rights in such a manner so as to prevent the

exercise of the same rights by other similarly situated property

owners.” Knaus v. Dennler, 170 Ill. App. 3d 746, 750 (1988). In

Beacham this court addressed the application of this principle where

the riparian owners’ property not only abuts the shore of the lake, but

also includes separate portions of the lake bed. We noted that other

jurisdictions had developed two different approaches to resolving the

rights of the riparians owners in this situation: a so-called common

law rule, and a so-called civil rule. Under the common law rule, the

owner of a part of a lake bed has the right to the exclusive use and

control of the waters above that property. Under the civil rule, in

contrast, the ownership of a portion of a lake bed entitles the owner

to the reasonable use of the entire lake surface. After discussing the

casesfromotherjurisdictions, we concluded that “[r]estricting the use

of a lake to the water overlying the owner’s lake bed property can

only frustrate the cooperative and mutually beneficial use of that

important resource” and, therefore, that the civil law rule was the

better approach. Beacham, 123 Ill. 2d at 232. Accordingly, we held

that “where there are multiple owners of the bed of a private,

nonnavigable lake, such owners and their licensees have the right to

the reasonable use and enjoyment of the surface waters of the entire

lake provided they do not unduly interfere with the reasonable use of

the waters by other owners and their licensees.” Beacham, 123 Ill. 2d

at 232

As noted, the appellate court below declined to apply Beacham to

this case based on its determination that, as a matter of law, a waterfilled quarry is not a lake. In our view, this analysis is inadequate. As

both the circuit court and the dissenting appellate justice below
 

4This rule explains the Restatement’s definition of the word “lake.” The

Restatement limits the definition of a lake to natural bodies of water, not

because a man-made body of water can never be considered a lake, but

because, as a general rule, riparian rights exist only in property abutting

naturally occurring bodies of water.

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recognized, an artificial body of water may have all the physical and

functional characteristics of a lake and hence, for all practical

purposes, be a lake. Indeed, the Restatement (Second) of Torts, from

which the Nottolini court’s definition of a lake is ultimately derived

(see Nottolini, 335 Ill. App. 3d at 1018, citing 78 Am. Jur. 2d Waters

§108 (2002), citing Restatement (Second) of Torts §842 (1979))

expressly recognizes that its definition “does not include artificially

created lakes.” Restatement (Second) of Torts §842, Comment a, at

192 (1979). In this case, the water-filled quarry has been used

exclusively as a recreational lake since 1974 and, under the planned

unit agreement, will continue to be used as a lake for the foreseeable

future. Clearly, it is a man-made lake.

However, determining that the water-filled quarry is a man-made

lake does not end this case. The lake at issue in Beacham was a

natural, not artificial, one. Accordingly, we believe the issues to be

resolved in this case are best stated as whether riparian rights in

general, and whether the rule in Beacham in particular, may be

extended to a man-made lake.

Both Nottolini and the appellate court below briefly noted the

general principle that riparian rights do not extend to artificial bodies

of water.4 372 Ill. App. 3d at 302, quoting Nottolini, 335 Ill. App. 3d

at 1019; see generally Anderson v. Bell, 433 So. 2d 1202, 1204-05

(Fla. 1983) (collecting cases); 1 Waters & Water Rights §6.02(e), at

6–173, 6–174 (2007) (“It is axiomatic that riparian rights do not

attach to artificial waterbodies”); 78 Am. Jur. 2d Waters §37 (2002).

The commonsense rationale underlying this principle is that, unlike

a natural body of water, which exists because of natural processes, an

artificial body of water is the result of someone’s labor. An artificial

body of water is not a natural resource to be shared by all.

Consequently, as a general rule, it would be inequitable to grant a

property owner rights to an artificial body of water that has been

created by someone else solely because the property abuts the water.
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This is not to say, however, that riparian rights may never arise in

land abutting an artificial body of water. For example, in Saelens v.

Pollentier, 7 Ill. 2d 556 (1956), we considered whether the plaintiff

landowner had a right to have an artificial ditch that ran through his

land and had been in existence for more than 50 years remain open to

allow the escape of water. We stated:

“It is immaterial that this ditch in question is an artificial

ditch rather than a natural stream. We believe that the correct

applicable law is stated in 56 Am. Jur. p. 621, sec. 151,

to-wit: ‘An artificial waterway or stream may, under some

circumstances, have the characteristics and incidents of a

natural watercourse. In determining the question, three things

seem generally to be taken into consideration by the courts:

(1) whether the way or stream is temporary or permanent; (2)

the circumstances under which it was created; and, (3) the

mode in which it has been used and enjoyed. Where the way

is of a permanent character, and is created under

circumstances indicating an intention that it shall become

permanent, and it has been used consistently with such

intention for a considerable period, it is generally regarded as

stamped with the character of a natural watercourse, and

treated, so far as the rules of law and the rights of the public

or of individuals are concerned, as if it were of natural origin.’

* * *

*** While technically the ditch would not be a natural

watercourse, yet as above stated, it was an artificial waterway

which by long use became stamped with the character of a

natural watercourse, and treated, so far as rules of law and the

rights of the public or any individual are considered, as if it

were of natural origin.” Saelens, 7 Ill. 2d at 561-63.

See also, e.g., Gough v. Goble, 2 Ill. 2d 577 (1954) (right to have an

artificial culvert that had been in use for 40 years remain open);

Baumgartner v. Bradt, 207 Ill. 345 (1904); Beidler v. Sanitary

District, 211 Ill. 628 (1904); DuPont v. Miller, 310 Ill. 140 (1923);

Dessen v. Jones, 194 Ill. App. 3d 869, 878-80 (1990); United States

v. 1,629.6 Acres of Land, 503 F.2d 764, 768 n.9 (3d Cir. 1974)

(collecting cases); R. Beck, Illinois Natural Resources Law: Coal, Oil

and Gas, and Water, 330 (1985), (“[I]t is apparent that man-made
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bodies of water can come to be treated as natural bodies of water and

that private riparian rights can be acquired on man-made bodies of

water as well”); 1 Waters & Water Rights §6.02(e) (2007); 78 Am.

Jur. 2d Waters §252 (2002).

The “artificial-becomes-natural” rule recognized in the foregoing

authorities stems, in part, from the difficulties that can arise in trying

to distinguish the man-made from the natural, particularly with the

passage of significant amounts of time. See A. Evans, Riparian

Rights in Artificial Lakes and Streams, 16 Mo. L. Rev. 93, 107

(1951); see also Druce v. Blanchard, 338 Ill. 211, 213 (1930) (“the

hand of man had been operating in years previous to the bringing of

suit to affect the workings of the above [lake] system as it functioned

in a state of nature, such operations going so far back and being of

such sort as to make it difficult to conclude just how it did work in a

natural state”). More fundamentally, however,the artificial-becomesnatural rule is justified by principles of fairness and equity. Simply

put, in some cases, where the usage of the artificial body of water has

long been settled, it may be appropriate to treat the artificial body as

the legal equivalent of a natural one. See generally 16 Mo. L. Rev. 93.

The artificial-becomes-natural rule has been called “somewhat

vague” (1,629.6 Acres of Land, 503 F.2d at 768), and “difficult to

apply” (J. Corbridge, Surface Rights in Artificial Watercourses, 24

Nat. Resources J. 887, 912 (1984)). We do not attempt to define the

rule with any completeness here. We note, however, that as a

minimum requirement, cases applying the rule have done so only in

situations where the party invoking the rule has relied upon use of the

artificial body of water without dispute for a lengthy period of time.

See, e.g., Saelens, 7 Ill. 2d 556 (more than 50 years of uncontested

use); Gough, 2 Ill. 2d 577 (40 years of uncontested use). The

Aldersons cannot meet this requirement. The Aldersons use of the

lake has been a matter of dispute since shortly after they purchased

the McElvain property in 1998. Nor can the Aldersons add the period

of time the McElvains used the lake to their own as there is nothing

in the record to indicate that anyone from the McElvain family ever

made use of the lake. We think it clear then, that on this record, the

Aldersons’ usage of the lake has not reached the type of settled

condition such that the artificial-becomes-natural rule may be applied.
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The Aldersons contend, however, that ownership of the lake bed

is all they need establish to be entitled to the use of the surface waters

of the entire lake. We disagree. The adoption of such a rule with

respect to man-made lakes would be unwise. Consider, for example,

the case of a property developer who sells residential lots to a small

number of people with the understanding that he will build a manmade lake to which they will have exclusive access. The developer’s

engineers then miscalculate when constructing the lake and a portion

of property that was not intended to be flooded is overflowed. It

might be the case that the developer should be required to compensate

the owner of the flooded property. See, e.g., Bradbury v. Vandalia

Levee & Drainage District, 236 Ill. 36, 41 (1908) (“ ‘There can be no

doubt that every flowing back or throwing water upon the land of

another is such an act as entitles the individual injured to his

action’ ”), quoting Stout v. McAdams, 3 Ill. 67, 69 (1839). But it

would be unreasonable to acknowledge riparian rights based solely on

the developer’s error. Such an outcome would be inequitable to the

developer and, as importantly, would upset the settled expectations

of all the other people involved in the development. See generally

Anderson, 433 So. 2d at 1205-06 (noting that the immediate

recognition of riparian rights in land that has been overflowed would

create a general disincentive to improve property with artificial bodies

of water). 

Finally, we note that rights to artificial bodies of water may arise

by means other than the riparian rights doctrine, such as grants,

easements by prescription, or easements by implication (see, e.g.,

Roketa v. Hoyer, 327 Ill. App. 3d 374 (2002)). The Aldersons do not

contend, however, that any of these other means are applicable in this

case.

Conclusion

For the foregoing reasons, the judgment of the appellate court is

affirmed.

Affirmed.