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No. 2--01--1380 

The instant controversy arose after defendants, LaSalleNational Bank, trustee under trust No. 39201, and William Dwyer, erected a fence between a water-filled quarry that they owned anda vacant lot that plaintiffs, Rick Nottolini, Cheryl Nottolini, andAlecia Nottolini, owned in South Elgin. The fence prevented plaintiffs from accessing the water-filled quarry from theirproperty. Plaintiffs thereafter filed a complaint in the circuitcourt of Kane County alleging that the defendants' quarry was alake and that they had rights to use the lake because a portion ofthe water from the lake rested on their property. Plaintiffssought a declaration of their rights and an order requiringdefendants to remove all fences and other barriers that interferedwith their use of the lake. Defendants filed a counterclaim,seeking a declaration that they had exclusive rights to the surfacewater in the quarry and an injunction prohibiting the plaintiffsfrom removing the fence defendants had installed. Following abench trial, the trial court granted plaintiffs' requested reliefand denied defendants' request. Defendants thereafter filed atimely 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. Thequarry ceased operations in 1925 and subsequently filled withwater. Title to the quarry, as well as some of the adjoining land,was acquired by defendant LaSalle National Bank. Defendant WilliamDwyer is the 100% beneficial owner of that trust. Defendantsallowed the landowners whose property adjoined the water-filledquarry to use the quarry for swimming.

In 1981, plaintiffs purchased land adjoining the water-filledquarry. Their deed of conveyance neither reserved nor granted themany right to use the water-filled quarry. However, defendantspermitted plaintiffs to swim in the quarry. Water from the quarrywould frequently cover a few feet of plaintiffs' property so as todenude 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 thequarry and another drowning. Although most of the surroundinglandowners 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 adeclaration of rights and a permanent injunction. Plaintiffs basedtheir complaint on the claim that they owned a portion of the lakebed adjoining defendants' lake and, therefore, had a right to thereasonable use and enjoyment of the surface waters of the entirelake. Plaintiffs further alleged that defendants had deprivedthem of using the lake by erecting a fence between the lake andtheir property. Plaintiffs requested a declaration of their rightsto the entire surface of the lake and an injunction thataffirmatively required defendants to remove all fences and otherbarriers that deprived plaintiffs of the use of the lake.

On August 24, 1999, defendants filed an answer to thecomplaint and a counterclaim. Defendants maintain that theirproperty was and continues to be a private quarry and not a lakeand, therefore, adjacent property owners have no right to accessthe surface waters of the quarry without defendants' permission. Defendants requested a declaration that they had exclusive rightsto use and control the surface waters of the quarry. Defendantsalso sought an injunction to prohibit plaintiffs from removing oraltering the fence that had been installed between the quarry andplaintiffs' property.

On August 9, 2001, the trial court conducted a trial onplaintiffs' complaint and defendants' counterclaim. On September13, 2001, the trial court ruled in favor of plaintiffs, holdingthat plaintiffs had the right to the reasonable use and enjoymentof the surface waters of the quarry. The trial court found thequarry to be a lake, permanently enjoined defendants frominterfering with plaintiffs' use of the surface waters, and ordereddefendants to remove all fencing that interfered with plaintiffs'access to the lake. The trial court also denied all the reliefthat defendants requested in their counterclaim.

The trial court explained that the water-filled quarry was alake and that the water in the lake exceeded the quarry boundariesand extended onto various adjoining lots including plaintiffs'. The court found that the water on plaintiffs' property denuded thatland of ordinary vegetation, which made it part of the lake bed. As owners of a portion of the lake bed, plaintiffs had a right tothe reasonable use and enjoyment of the surface waters of theentire lake provided that they did not unduly interfere with thereasonable use of the waters by the other owners of the lake. SeeBeacham v. Lake Zurich Property Owners Ass'n, 123 Ill. 2d 227(1988). The trial court found, therefore, that the fencedefendants had erected between the lake and plaintiffs' propertyunduly interfered with plaintiffs' use of the lake. Following thedenial of their posttrial motion, defendants filed a timely noticeof appeal.

On appeal, defendants' primary contention is that the trialcourt erred in finding that their water-filled quarry was a lake. Defendants argue that the trial court's determination improperlydiminishes their ownership rights in the quarry. Specifically,defendants argue that the trial court's awarding plaintiffs surfacewater rights in the quarry deprives them of their right toexclusively use and manage the quarry.

A trial court's ruling in a bench trial will not be disturbedon appeal unless it is against the manifest weight of the evidence. Commercial Mortgage & Finance Co. v. American National Bank & TrustCo. of Chicago, 253 Ill. App. 3d 697, 702 (1993). For a ruling tobe against the manifest weight of the evidence, the opposite resultmust be clearly evident. Hasselbring v. Lizzio, 332 Ill. App. 3d700, 704-05 (2002).

We note initially that no Illinois court has determinedwhether a water-filled quarry may be considered a lake. Nor are weaware of any other foreign courts that have considered this precisequestion. Similarly, no Illinois court has defined a lakegenerally. 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 watersubstantially at rest in a depression in the surface of the earth,*** [with the] depression and body of water being of natural originor 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 ofconsiderable size, occupying a natural basin or depression in theearth'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 naturebecomes a "lake" or "pond"). While these definitions are somewhathelpful, we prefer to define a lake as "a reasonably permanent bodyof water substantially at rest in a depression in the surface ofthe earth, if both depression and body of water are of naturalorigin or a part of a watercourse." 78 Am. Jur. 2d Waters