Sharing a Pond Questions

[Frodo]

I have been following the saga posted by mdbarb for a couple of months now and have seen a lot of good advice posted so I decided to register and ask my questions.

I share a 1 acre pond in Illinois and want to know if anyone has any idea of the legal "stuff" that entails. My neighbor has about 1% of the pond on his property.

1. My neighbor said that this is the muddiest pond he's ever seen and put hay bales along his shore (I guess he did not take notice when I pointed out that there was new construction occurring in the drainage basin). Well, here come the rains (in June) and the hay bales float into the drainpipe, clogged it up, and caused an overflow. He now says that he wants to dig up his part of the dam and put in another pipe because he saw right a way that the one in there could not handle the water flow (we had six inches of rain in about three hours - Hoover dam couldn't handle that with it's drain pipe plugged). Can I tell him not to do that again????? Can I tell him not to dig up his side of the dam since another pipe is not really necessary?????

2. He bought a boat and rows right up to our back door to fish. Is the entire pond considered mutual property or can I mine my side?

Any help/advise would be appreciated. Thanks!

 

[cowboydoc]

I think you need a lawyer on this one to view the abstract. It's all going to depend on how the sharing of the pond was written up.

 

[Docsknotinn]

Richard is correct. You can get a little bit of and idea by looking at your survey. Is the property line under water or the thread of the lake ? If its under water he can not fish over that line. If its the thread of the water he can fish any place although its not very neighborly now is it ? I think you said you share and he has 1 %. Are there any other land owners on the water ? If so talk to them and get a feel for the situation. In regards to digging look at your deed restrictions and bi laws if you are in a sub. Either way the best thing is always to be up front with your neighbor. I would think you certainly would have a cause of action for a cease and desist order if he starts to dig but prior to that not much can be done legally. If you do not have bi laws and deed restrictions make Darn sure for your own sake you have adequite liability coverage on your home owners. 500 k minimum on water. Plus a umbrella policy is a good idea for the small price. You do not want to be financially liable if his company drowns. One thing is for certain, Once you get a counsler involved there is little chance you will ever be good neighbors again. sometimes its not worth the fight, and then some times you just have no choice. Best Wishes, Dave

 

[Frodo]

Thanks Richard and Dave for the info. It took me a while to get back and check the post. I was afraid someone would mention the "L" word (lawyer). The property line goes across the lake and he’s the only one I share it with. He also mentioned about adding an elbow to the drain pipe which would cause the pond to cross two other property lines. I'm out in the sticks and there doesn't seem to be any type of deed restriction. I did call the sheriff when another neighbor came on my property, shot a goose, and left it to die in the pond. I got no response and was told to call the conservation district. I guess I'll call the county courthouse and see if they can enlighten me on the law.

 

[Docsknotinn]

When some one shoots a goose illigaly call your version of the Department of Natural resources or a Conservation officer. The sherrif is the wrong person and sadly they just dont respond in most cases. That seems like Criminal Tresspass and POACHING. /forums/images/graemlins/mad.gif /forums/images/graemlins/mad.gif /forums/images/graemlins/mad.gif I got a special place in the deep deep dark deep dark cedar swamp for their kind ! You should have a report Poaching hot line, most states do. I bet you will get a call back that way. It will however do little good unless you actually see them shoot it. Dont confront some loser like that. Get a camera. Then call. I would not hesitate for a second to call your local conservation officer and disscuss this with him/her to find out exactly what they want you to do if this happens again. You might also bi pass the sherrif and call your prosecute attorneys office and discuss this with them. My stance would be based on Trespass Vi Et Armis- tresspass with force and arms, or by an unlawful means; Of course I am assumeing you have real and legitimate concerns for your safety when some one comes toteing a loaded gun on your proprty. Man I would not want your neighbors. Try this link and follow it to Hunting, Goose, illinois law etc. Dave

www.dnr.state.il.us/

 

[Currmudgeon]

You may get some support from Illinois Department of Natural Resources - Office of Water Resources. (IDNR-ORW) They regulate construction in the flood plain and floodway of streams in Illinois. Your pond may come under that. Other than that, you may have to resort to lawyers or rifle fire. :-(

Be aware that mucking with an earthfill dam could cause you to lose the pond or spend a lot of money reconstructing the dam.

 

[Frodo]

Thanks for the additional info Dennis. All's been pretty quite with the neighbor and no backhoes have shown up.

 

[Frodo]

Been researching this for a year, talking to lawyers (I think that’s Greek for idiot), and working with the IDNR (Many, many thanks for that Docsknotinn!) so I thought that I’d supply a little info for anyone interested.

The Facts:
A little less that one acre (.92) man-made pond crossing a property line in Illinois (more than 96% of which is on my property). The pond is not in the legal property description, title, nor survey. It is not a navigable body of water.

The Question:
What are the surface rights to the pond? Can my neighbor row up to my back door and fish?

I did a lot of internet research prior to contacting the IDNR. I found a few relevant cases:

Beacham v. Lake Zurich
I could not find a free copy of this case online, but it was what everyone (lawyers, IDNR, CPOs, etc.) referenced. The case specifically deals with surface rights to a natural lake. If there are riparian rights for co-owners, they have surface rights.

Nottolini v. LaSalle Bank – This dealt with surface rights to a quarry. The gist of the decision was that a man-made body of water is not a lake and has no riparian nor surface rights.
“… Based on this latter definition, defendants' water-filled quarry is not a lake. It is not a natural body of water existing in a natural depression in the earth. Rather, it is entirely man-made and, thus, does not meet the definition of a lake as set forth herein.
Moreover, riparian or littoral rights do not extend to artificial bodies of water, such as man-made lakes. See Ours v. Grace Property, Inc., 186 W. Va. 296, 301, 412 S.E.2d 490, 495 (1991); Publix Super Markets, Inc. v. Pearson, 315 So. 2d 98, 100-01 (Fla. App. Ct. 1975). As defendants' quarry at issue herein is clearly man-made, plaintiffs do not have any rights in it. See Ours, 186 W. Va. At 301, 412 S.E.2d at 495; Publix Super Markets, Inc., 315 So. 2d at 98.
Because we hold that defendants' water-filled quarry is not a lake, plaintiffs can have no lake bed or surface water rights in the quarry. Instead, defendants retain complete ownership rights in the quarry.
http://www.state.il.us/court/Opinions/AppellateCourt/2003/2ndDistrict/January/Html/2011380.htm

“On appeal, the court noted that no court in Illinois or any other state had ever determined whether a water-filled quarry might be considered a lake. The court said that it preferred to define a lake as "a reasonably permanent body of water substantially at rest in a depression in the surface of the earth, if both depression and body of water are of natural origin or a part of a watercourse." The court said that based on that definition, the water-filled quarry in this case was not a lake. "It is not a natural body of water existing in a natural depression in the earth," the court said. The court observed that the water-filled quarry was entirely human-made and thus did not meet the definition of a lake. The trial court decision was reversed.”
http://www.awwa.org/communications/journal/2003/August/News/lawandwater0803.cfm

I have been working with the IDNR which has been very helpful. Once I pointed out the Nottolini decision, I was told that they could not fish on my side of the pond without my permission and that it would be trespassing if they rowed onto my part of the pond. Just waiting for that tidbit of info to get through their legal office to their law enforcement office and out to the CPOs in the field.

Talking with my neighbor, who really seems to be a nice guy and bought the property to retire on and fish, we may need to go to mediation. I have told him he may fish from his side of the property line but I don’t want the boat appearing in my back yard. He says that that is not his understanding of the law. I‘ve given him the info I had and he still thinks he’s right. We’re both just operating on what we think’s right. So far, no problems but the boat is still on his shore.

 

[BillG_in_TX]

Can you put a fence down the property line - through the lake?

 

[Frodo]

The original owners got into that p***ing contest and there is a whole other set of laws on fences. The original owners went to mediation after the previous owner of my house put up a fence. He had to take it down and allow surface access. That was prior to the Nottolini decision, which does not deal with fences. I told my neighbor he could cast over the property line but not boat and I think that's a reasonable solution (unless he takes me to court).