The Attorney’s Guide to Illinois Water Law By Richard F. Bales
Introduction Your client calls you up and tells you that he is buying some waterfront property along the DuPage River, and he wants you to handle his real estate closing. Several weeks later, you review the title insurance commitment you ordered. It contains several title exceptions, the likes of which you have never seen before. What do they mean? Are they all really necessary? It is hoped that this article will provided the answers to these and other questions concerning Illinois riparian land—that is, land adjacent to creeks, streams, rivers, lakes, and other bodies of water.
For more information concerning Illinois water law, the attorney can review chapter 7 in the author’s book, Residential and Commercial Surveys in Illinois, published by the Illinois Institute for Continuing Legal Education, or the author’s article, "On the Waterfront: An Illinois Water Law Trilogy," that appeared in the May 2008 of Real Property, the Illinois State Bar Association real estate newsletter.
Navigable Waters—In General (Illinois)
A lake or river is navigable if the body of water, in its natural state, is used or is capable of being used as a highway for commerce over which trade and travel may be conducted in the customary modes of travel on water.
Regardless of who owns the bed of the Illinois navigable body of water, the public has an easement for navigation over these waters.1
Navigable Waters—In General (United States)
The Federal government has jurisdiction over certain navigable waters. See 33 CFR, part 329, section 329.4: "Navigable waters of the United States are those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce."
The Federal government has the right to enact legislation and thereby regulate commerce over navigable waters.2 But what is the relationship of the State of Illinois and the federal government to bodies of water such as Lake Michigan, i.e., waters that are subject to federal jurisdiction but fall (at least in part), in the State of Illinois? The Ordinance of 1787, which established the Northwest Territory, decreed that the State of Illinois has full and complete jurisdiction over all navigable waters within its borders, but subject only to the power of the federal government to enact legislation and make regulations that relate to interstate commerce. Navigable waters within the State of Illinois are subject to the control of the state until the federal government assumes jurisdiction. Title to the bed of that portion of Lake Michigan that borders the State of Illinois is vested in the State of Illinois in trust for all the people of Illinois. Thus, the State of Illinois is entrusted to protect the rights and benefits of its citizens in and to the waters of Lake Michigan that are within the boundaries of the state. However, the federal government has the paramount right to protect the navigability of these waters.3 Therefore, regardless of who owns the bed of the navigable body of water, the public has an easement for navigation over these waters. Furthermore, the Federal government can enact legislation and thereby regulate commerce over these navigable waters.4
Navigable Rivers and Streams
Navigable rivers and streams in Illinois include the Chicago River5, the Illinois River6, the Des Plaines River7, and the Mississippi River8.
Nonnavigable Waters—In General
The public has no easement for navigation over a nonnavigable stream. Otherwise, riparian rights and servitudes along navigable and nonnavigable waters are similar. For example, the owners along both navigable and nonnavigable waters cannot obstruct or divert the water flow to the injury of other riparian owners. In addition, these owners cannot pollute the water9.
The Conveyance of Lands Abutting Creeks, Streams, or Rivers
When a tract of land is bounded by a creek, stream, or river (hereafter generically called "stream"), a conveyance of that tract will convey the land under the water to the center of the stream (assuming the grantor owns to the center), unless the deed indicates an intent to convey only to the edge of the stream. This is the case, regardless of whether or not the body of water is navigable10.
Example: A title company is conducting a closing of a commercial building in Kane County, in downtown Aurora. The building is next to the Fox River. The survey shows an encroachment of an adjoining walkway into the river. What are the issues? How can they be addressed?
The Fox River is a navigable river11. In this example, the seller owns to the center of the river, subject to an easement for navigation in favor of the public. But in this case the walkway is about twenty-five feet in the air (level with the bridge that crosses the river), and therefore it does not interfere with the public’s right to the use of the river. No riparian-related exception needs to be raised on the title policy.If a riparian owner owns the land on both sides of a stream, the landowner owns the entire bed of the stream that is appurtenant to his or her lands12.
Lakes and Ponds—In General
A lake is a large inland body of water that has little or no current, which is fed by surface waters or springs, and occupies a natural depression in the surface of the earth. A pond is similar to a lake, except that it may be natural or artificial and is much smaller in size. The primary difference between a creek, stream, or river and a lake or pond is that creeks, streams, and rivers have a natural motion or current in the water. Lakes and ponds in their natural state have no such motion or current13.
Title to the bed of navigable lakes within the boundary of Illinois is vested in the State of Illinois in trust for all the people of the state. The owners of land adjoining a navigable lake own only to the water’s edge. These navigable lakes include (at least in part) Lake Michigan14.
Example: The title company is insuring a lot adjoining Pistakee Lake, McHenry County, Illinois. The survey discloses two piers located on the land but encroaching into the lake. Is there a problem?
Yes, there is. Pistakee Lake is a navigable lake, part of the Chain of Lakes15. The State of Illinois owns the lake bed, but its use is regulated by the Department of Natural Resources. 615 ILCS 5/24 provides that "it shall be the duty of the Department of Natu