The Illinois Supreme Court has ruled personal watercraft can’t carry their owners past state trespassing laws.
In a unanimous opinion issued June 16, the justices upheld two lower court rulings in a dispute among Grundy County landowners at odds over access to the Mazon River.
The Holm family sued in December 2018, claiming its ownership of some land along the Mazon grants them the right to kayak along any portion of that river, even if it passes through private property. Their neighbors, however, argued the law gives them the right to enforce trespassing rules, and block access to the portion of the river that flows through their land.
Illinois Supreme Court Justice Robert Carter
| Illinoiscourts.gov
Justice Robert Carter wrote the opinion, with concurrence from Justices Rita Garman, Mary Jane Theis, Michael Burke and David Overstreet. Justice P. Scott Neville wrote a special concurrence, joined by Justice Anne Burke.
The Mazon, a 28-mile long tributary of the Illinois River, is not deep enough for commercial boat traffic, according to state law. In their complaint, the Holms said the Mazon’s confluence with the Illinois, south of Morris, features exposures of Francis Creel Shale containing large fossil deposits. They bought two nearby parcels in 2015 and 2017 and operate a seasonal fossil hunting business.
According to their complaint, the Holms kayak from their nine-acre river access parcel on Oxbow Road to a landlocked, 33-acre parcel that they own, which contains many fossils. They note that land can't be accessed by a road.
Defendant Peter Kodat operates a competing fossil business and, according to the Holms, “organized” the other defendants to sign written trespassing notices to stop the Holms from using their river route to their fossil digging site. Although a Grundy County Sheriff’s Office sergeant once arrested Adam and Daniel Holm for trespassing, the state’s attorney’s office never filed criminal charges.
While arguing for summary judgement, the Holms cited a 1988 Illinois Second District Appellate Court opinion in Beacham v. Lake Zurich Property Owners Association, claiming it established the right of anyone who owned land on a body of water to use the entire surface. In their cross motion for summary judgment, the defendants contended that finding applied only to lakes, not rivers, and that as a legally non-navigable stream, state law doesn’t grant the right to travel over the Mazon without adjoining landowers’ permission.
Although a Grundy County judge originally sided with the Holms, the defendants filed a motion to reconsider and vacate based on their reading of Beacham. The judge agreed, and later the Third District Appellate Court upheld that ruling. After the Holms appealed, the Will County Forest Preserve District filed a brief supporting their position, while the Illinois Agricultural Association did so for the defendants.
Carter noted Supreme Court precedent distinguishes non-navigable streams, because navigable streams are subject to public easement in order to facilitate commercial traffic. For shallow streams, a landowner controls the water bed.
“A lake is essentially a flat expanse of relatively still water,” Carter wrote. “In contrast, streams and rivers can have widely varying topographical features and characteristics, including differing currents, depth and width that may change with the seasons. Naturally, then, a riparian owner’s use of a lake will likely differ from a riparian owner’s use of a river or stream.”
On a lake, the panel continued, a boater can enter and exit the water from their own property. On the Mazon, the Holms can only paddle downstream and although they can exit from a public access point, they can’t get there without leaving their property. The panel also said it’s much easier to define boundaries on the Mazon compared to a 240-acre lake.
The panel also rejected the Holms’ argument that Illinois common law establishes kayaking as a reasonable use of a non-navigable stream.
“Defendants have regularly denied permission for plaintiffs to use the Mazon River on defendants’ property, and plaintiffs do not have an easement for a right of way, or any other valid legal claim, to access property on the Mazon River that plaintiffs do not own,” Carter wrote.
Carter further acknowledged the Holms’ request for a legal rule establishing their position on river access as a matter of public policy promoting use of more than 87,000 miles of river and streams. However, he wrote, “the legislature is the best venue to consider” that request.
In his special concurrence, Neville wrote “it is time for Illinois to move away from its common law that limits the use of non-navigable lakes, rivers and streams to riparian landowners and move to the recreational navigation doctrine, so that all waterways are available to the public for recreational use.”
Neville alluded to the Napoleonic Code of 1804, a 1907 U.S. Supreme Court opinion in Kansas v. Colorado and the British crown, among others, to illustrate his thoughts on “the doctrine of public ownership of flowing water.” He further said Illinois lags behind other states in recreational boating “due to the archaic and anachronistic common-law rules that restrict public access to state waterways.”
Codifying this doctrine in a public domain declaration, Neville continued, would guard against landowners from seeking recovery if the state declares a river navigable because it would mean they “never held the rights to the waterway usage they claim to have lost by such a declaration.”
The Holms were represented in the case by attorney Zachary Pollack, of Joliet.
Kodat and the other defendants were represented by attorneys Chad Layton, Patrick F. Sullivan and Erica J. Bury, of the firm of Segal McCambridge Singer & Mahoney, of Chicago; attorney Mark Rigazio, of Morris; and John Kohnke, of Hawkins, Parnell & Young, of Chicago.