SPRINGFIELD – The Illinois Supreme Courtroom has dominated that the general public has no proper to boat, fish or swim in small rivers that stream throughout non-public property, however two justices are urging the Basic Meeting to alter that regulation.
“The legislature ought to redefine navigability to be extra inclusive as a result of that may promote the State’s curiosity in leisure makes use of of waterways for all residents of the State of Illinois,” Justice P. Scott Neville, joined by Chief Justice Anne Burke, wrote in a separate opinion to a current case. “It’s incumbent upon the legislature to comprehend that there’s an growing social and financial want that riparian rights be restricted for public leisure functions.”
That was a part of a concurring opinion in a current determination involving a dispute between two landowners who personal property alongside the Mazon River in Grundy County.
A portion of that river flows via a fossil-rich space generally known as the Mazon Creek Fossil Beds, a nationwide historic landmark close to the river’s confluence with the Illinois River, and each events within the case function fossil-hunting companies.
Adam Holm and his household personal two separate parcels of property, considered one of which is landlocked and solely accessible from the river. To get to that parcel, he would launch a kayak from his different property and row down the river, taking him throughout property owned by Peter Kodat and others.
Kodat complained, accusing Holm of trespassing on his property, however Holm claimed that because the proprietor of property alongside the river, he had a proper to entry all components of the river.
The case centered round an Illinois regulation that offers property house owners the best to regulate entry to waters alongside their property, until the waters are labeled as “navigable,” which, in response to an earlier Supreme Courtroom determination, means “of ample depth to afford a channel to be used for commerce.”
In different phrases, until a physique of water is deep sufficient to hold barge or ship site visitors, property house owners alongside that water have a proper to bar public entry to it.
The Illinois Division of Pure Assets is the company that determines whether or not or not a lake, river or stream is navigable. It at the moment lists 48 our bodies of water, together with Lake Michigan and 6 branches of the Chicago River, as falling in that class.
Thus, in a unanimous determination, the court docket mentioned Kodat had the best to ban Holm from kayaking on the portion of the river that flows throughout his property.
“In our view, the legislature is the very best venue to think about plaintiffs’ request for the creation of a brand new public coverage on riparian rights for nonnavigable rivers and streams in Illinois, which represent the vast majority of waterways on this state,” Justice Robert L. Carter wrote for almost all.
However writing in what’s generally known as a “particular concurrence” – through which a justice agrees with the end result of a case however not the opinion – Neville wrote that he thinks it’s time to change the regulation.
Neville argued that the doctrine utilized in Illinois, generally known as the “Riparian Doctrine,” that offers property house owners the best to regulate entry to rivers and streams that stream throughout their property is “archaic and anachronistic” and ought to be changed with one which acknowledges the general public’s proper to make use of these assets for recreation.
He additionally argued that the riparian doctrine has hindered Illinois from growing extra leisure use of waterways, noting that there are “greater than 87,000 miles of rivers and streams inside its borders, however solely 32 rivers and streams are labeled as navigable.”
“There isn’t a query that the adoption of the leisure navigation doctrine is supported by Illinois public coverage favoring the usage of waterways for leisure functions,” Neville wrote, citing a 1976 case through which the court docket blocked the sale of a portion of Lake Michigan in Chicago to U.S. Metal Corp. for the aim of growing a metal plant there. “In line with this court docket, it’s acceptable to watch that there has developed a robust, although belated, curiosity in conserving pure assets and in defending and enhancing our bodily setting.”