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Illinois Appeals Court Rules Common Law Applies to Waterway Rights of Riparian Owners

July 7, 2021 – Press Release

July 7, 2021 (Chicago, IL) – Hawkins Parnell & Young litigator John Kohnke, with the assistance of appellate counsel, persuaded the Third District Appellate Court to follow the Illinois common law rule rather than the civil law rule in determining the rights of riparian owners over a non-navigable river. This ruling is the only published Illinois opinion this century to address riparian rights on a non-navigable river.

This case arose from a dispute over waterway rights between property owners adjacent to the Mazon River in Illinois, a river bed known for its abundance of fossils. Each of the property owners had competitive fossil-hunting businesses. Defendants attempted to stop plaintiffs from kayaking over the surface water and removing fossils near their property. Plaintiffs sought a court order prohibiting the Grundy County Sheriff's Department from arresting them for trespass when kayaking past the defendant's property. John originally represented the Grundy County Sheriff’s Department and obtained a dismissal based on summary judgment.

Several months later, the trial judge granted summary judgment in favor of the plaintiffs. This ruling provided the plaintiffs with full access to the surface waters along the Mazon River and to collect fossils from the river bed as long as they did not leave their kayaks. It also prevented the defendants and Grundy County from charging plaintiffs as trespassers. The trial court followed a recent Illinois Supreme Court decision applying the civil law rule to a similar dispute involving a non-navigable lake. Under this rule, the Supreme Court held adjacent property owners on a lake had an unrestricted right to use the surface water. The court reasoned it is difficult to establish definite property lines with fences or barriers on a lake. It also found that application of the civil law promoted recreational use of lakes.

After the plaintiffs received summary judgment, the defendants retained Hawkins Parnell. A motion to reconsider was filed. Arguments were presented distinguishing the physical characteristics of the Mazon River compared to a lake. These arguments also highlighted past Illinois decisions as far back as 1882 that found the lands of riparian owners extend to the center of rivers based on common law.

The trial court agreed with these arguments and reversed the decision. As a result, the plaintiffs were no longer allowed to kayak along the Mazon River or remove fossils outside of waters directly adjacent to their property. The decision was affirmed by the Third District Appellate Court of Illinois.