Law Office of Douglas J. McCarty, LLC

A common sight throughout southern Illinois are old quarries and surface mines that have long ceased production and flooded to become lakes or ponds.  Those pits are sometimes located upon land owned by the mining or quarrying company, but increasingly they are located on or abutted by privately held land of other landowners.  In fact, subdivisions are being built around these old sites with the “lake” serving as the centerpiece of the subdivision.  In those situations, the question becomes who has riparian rights (water usage rights) to the surface of the water.  That question is not an easy one to answer in Illinois, but the courts have recently shed a little more light on that question.

For natural ponds and lakes the rule in Illinois is that owners of land abutting the lake have the right to the “reasonable use and enjoyment” of the entire surface of the body of water and not just to that part they actually own (i.e., the part over the portion of the lake bed the person owns).  That point was driven home by the Illinois Supreme Court in the Beacham v. Lake Zurich Property Owners’ Association.  However, man-made or “unnatural” lakes and ponds, don’t (always) live by those same rules.  The main case on that point is Nottolini v. LaSalle National Bank in which the Illinois appellate court held that a party owning land abutting a flooded limestone quarry had no rights whatsoever to use any part of the water’s surface.  Instead, the exclusive rights to use of the water’s surface remained with the owner of the quarry.  In sum, “artificial” bodies of water are not lakes or ponds and belong entirely to the party owning the pit, mine, or quarry.   That hard and fast rule survived until the Illinois Supreme Court recently stepped into the fray.

In Alderson v. Fatlan, the Illinois Supreme Court considered a flooded limestone quarry.  Although the court agreed that as a general rule artificial bodies of water are not lakes, the court held that under some circumstances they could become lakes.  Essentially, the court stated that an “artificial” body of water could become a lake if, taking into account its origins, degree of permanence and intended use, it has the characteristics of a natural lake and has been used as such for some time.  In other words, if it looks like a lake, functions like a lake and has been used like one for a long time, then it may just be a lake.   The practical result of an artificial body of water becoming a “natural” lake is that the adjacent property owners would have the right to use its surface.  If it’s not a lake, then they have no rights to use the surface. 

In the case is Bohne v. La Salle National Bank the appellate court recently got to take a second look at the quarry at issue in Nottolini.  Based on Alderson the appellate court upheld the trial court’s decision that the quarry was  a “lake” under the artificial-becomes-natural rule.   The trial court held the quarry legally “natural” because it is permanent, was created to serve as a source of water recreation, and had been consistently used for water recreation since the 1920s.  This ruling gives landowners a more definitive idea of what it takes for a flooded quarry or strip pit to be considered a lake.

The adoption of the artificial-becomes-natural rule represents a substantial  change for Illinois property/water rights.  If you are a property owner with questions or concerns about your property rights in an adjacent flooded stip pit or quarry, or if you are considering filing suit over such issues contact the Law Office of Douglas J McCarty today.  We can open doors for you.

Illinois has long followed the “natural accumulation rule” when it comes to determining a property owner’s liability for slips and falls on his premises caused by ice and snow accumulation.  Simply put, in Illinois a landowner has no duty to remove natural accumulations of ice, snow and water on his property.  If snow falls on the sidewalk, the landowner is perfectly within his or her duty of care to allow it to remain there until mother nature removes it.  Thus, the crux of litigation in this field often centers on what is or is not a “natural” accumulation. 

Another stalwart of Illinois law concerns “common carrier” passenger services such as trains, planes and buses.  Most landowners have only a duty to use “reasonable care” in keeping their property safe.  (What constitutes that duty is a matter for another series of posts).  However, common carriers have a heightened duty of care that requires them to “excercise the highest degree of care” for the safety of their passengers while carrying them to their destination and while exiting or entering the conveyance.   The practical result of that duty of care has been close to strict liability for common carriers in the event of an injury to a passenger. 

Recently, the Illinois Supreme Court decided a case in which the “natural accumulation rule” went head to head with a common carrier’s “highest degree of care” standard.  In Krywin v. Chicago Transit Authority, the court decided that the CTA’s duty of care to its passengers must yield to the natural accumulation rule.  The case involved a CTA passenger who claimed she was injured when she slipped and fell on snow and ice that accumulated on a CTA train platform.  The court held that despite its heightened duty of care to its passengers, the CTA had no duty whatsoever to remove the snow and ice that had naturally accumulated on the train platform.  Further, the court also held that the CTA had no duty to identify a safer area from which passengers could exit the train. 

This case could have significant ramifications for common carrier passengers, especially those that ride commuter mass transit on a daily basis.  For one, the ruling may result in transit authorities not clearing snow and ice from platforms and the like in order to avoid liability.  AFter all, if transit authorities clear the snow and ice and someone slips and falls on their handiwork, the authorities’ heightened duty of care would likely kick in resulting in almost certain liability.  The solution, from a liability standpoint, is to not make any effort to clear snow and ice.  Obviously, this could result in more slips and falls and injuries.  

If you have any questions or concerns about your liability related to property or any other property issue, including litigation, contact the Law Office of Douglas J. McCarty today.  Let’s be careful out there.