ROBERT L. ALDERSON et al., Plaintiffs and Counterdefendants-Appellees, v. LEO E. FATLAN et al., Defendants and Counterplaintiffs-Appellants, 372 Ill. App. 3d 300

JUSTICE HOLDRIDGE delivered the opinion of the court: Leo Fatlan, Irene Agazzi, Joann Polcyn, Howard Reeves, Henry Tameling and the First National Bank of Joliet in its capacity as trustee under Trust No. 1855 (hereinafter collectively referred to as Fatlan), owners of a flooded quarry, appeal from a judgment of the circuit court of Will County granting

summary judgment to adjacent landowners in a declaratory judgment action seeking right to use the surface waters of the quarry. Fatlan maintains that the trial court erred as a matter of law in finding that the plaintiffs have rights to the surface of the flooded quarry. We reverse and remand. The facts herein are undisputed. Leo Fatlan mined a sand quarry beginning in 1966, purchased the quarry in 1968 and has owned the property in trust ever since. When active quarry operations ceased, the quarry gradually filled in with water. In 1998, Alderson purchased a parcel of property adjacent to the quarry.

Alderson’s property included a “sliver” of quarry which encroached onto his property. Alderson used the surface water of the entire quarry for recreational activities. At some point Fatlan erected a fence to prevent Alderson from accessing the surface of the flooded quarry. Alderson filed the instant action for declaratory judgment, seeking a declaration that he had rights to the reasonable use of the surface of the quarry, and seeking an injunction against Fatlan for removal of the fence. The trial court granted judgment in Alderson’s favor and Fatlan now appeals.

This matter turns solely on whether the body of water at issue is a lake. If this body of water is a “lake,” it is quite clear that Alderson has some rights to the entire surface. It is well settled that owners of any portion of a lake bed have a right to the reasonable use and enjoyment of the surface waters of the entire lake, provided that such use does not unduly interfere with the reasonable use of the lake by the other owners. Beacham v. Lake Zurich Property Owners Ass’n, 123 Ill. 2d 227 (1988). The question before the court is whether the body of water at issue is a “lake.” In Nottolini v.

La Salle National Bank, 335 Ill. App. 3d 1015 (2003), the court addressed the issue of whether a man-made quarry that subsequently floods can be considered a lake and whether the rule articulated in Beacham should apply to a quarry. The Nottolini court held that man-made quarries are not “lakes” and that the rule articulated in Beacham should not apply. We agree with the analysis articulated by the court in Nottolini.

In Nottolini, the question before the court was the same as we must address in the instant matter, i.e., whether adjoining landowners to a flooded quarry have rights to the surface of the entire quarry. The Nottolini court articulated the following well-reasoned analysis: “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. [Citations.] *** [W]e 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.” Nottolini, 335 Ill. App. 3d at 1018. The Nottolini court, having determined that a water-filled quarry was not a lake, noted well-settled law with regard to riparian and littoral rights to artificial bodies of water: “Moreover, riparian or littoral rights do not extend to artificial bodies of water, such as man-made lakes. [Citations.] As defendants’ quarry at issue herein is clearly man-made, plaintiffs do not have any rights in it.” Nottolini, 335 Ill. App. 3d at 1019.

In the instant matter, we see no material distinction between the facts herein and Nottolini. We find that the trial court erred as a matter of law. We reverse the trial court’s entry of

summary judgment in favor of Alderson and remand for entry of

summary judgment in favor of Fatlan. For the foregoing reasons, the judgment of the Will County circuit court is reversed and remanded for entry of

summary judgment in favor of defendants. Reversed and remanded with direction. SCHMIDT, J., concurs.