Sharing a Pond Questions

[Frodo]

http://www.law.com/jsp/article.jsp?id=1083328824046
Pennsylvania, New Jersey, Illinois, Ohio, Florida and Alabama have held that for non-navigable lakes and ponds, like Hall's Pond, no riparian rights attach to properties that merely border the water. In 1938, Pennsylvania's top court proclaimed that a lakefront property owner's attempt to exercise surface-water rights "by invading the water is as much a trespass as if an unauthorized entry were made upon the dry land of another."

IL SB2351 - Still in Rules, probably won't be passed, but acknowledges that small (< 5 ac) ponds don't have riparian rights.
"Inland lake or stream" means a natural or artificial lake, pond, or impoundment; a river, stream, or creek that may or may not be serving as a drain; or any other body of water that has definite banks, a bed, and visible evidence of a continued flow or continued occurrence of water. "Inland lake or stream" does not include:
... (5) a lake or pond that has a surface area of less than 5 acres.

IDNR Legal office has also told me it is trespassing, they just have not let the CPO know this yet.

I want to let the guy fish, just from his side of the pond.

 

[markct]

</font><font color="blue" class="small">( I want to let the guy fish, just from his side of the pond.

)</font>

so he is gona sit on the edge in his little area and fish there, yea right, i imagine if thats the case he wont bother fishing at all, as far as your statement of i want to let the guy fish, i dont think ya do, around here on dry land or not if my neighbor wanted to come cut wildflowers or pussywillows or whatever then they would be more than welcome, no need to even ask, but they usualy do anyhow, its part of being friendly neighbors. and about how you said the guy claimed to have better ways to clean up the pond, well it sounds to me like he may know what he is doing, especialy if he was in charge of pond care at another place in the past, and whats your pond care experience????? sounds to me kinda like he realy was trying to help, the hay bales around the edge are a known method of controling runnoff, unfourtanatly they came out and plugged the drain, that happens, not neccesarily his fault it happens all the time in construction areas silt fence or hay gets washed out in large rainfalls. he talked about wanting to add a second drain, sounds like a good plan to me, all ponds should have a second drain, be it a spillway or whatever, im sure had the pond been engineered in the first place this woulda been in the specs, i think ya need to maybe try and work with this guy some more rather than just have the attitude that he is an idiot and you know the best way to take care of your pond

 

[MossRoad]

In that case,
<font color="blue"> Buccino owns the dam that creates Hall's Pond, but not the land under the pond. </font>

Your neighbor owns some of the dam and some of the land under the pond. That's the difference.

 

[Frodo]

I know enough to stake down hay bales on a slope. I know the pond was not dirty for the last 4 years until the construction. I know surface runoff and groundwater flow from my geology degree. My dad has a pond on his property and I've helped with that maintenance for years. I'm not a total idiot (close though), I just want my privacy on the property I pay taxes on. Just because you fish, doesn't mean you can go on every piece of water.

Also, the 5 acre rule comes from Michigan law.

 

[Frodo]

"No más, no más," I conceed, I'm a non-fishing jerk.

MossRoad - checked out your website on your PT425. Did you consider any other PT model or is the 425 functional enough to handle all of your needs? No thoughts like, "I wish I had bought bigger" (that's where I'm at, I should have bought much bigger - I only considered yard work). How's it been maintenance wise or are you still on about 50 hours?

--> Just found the 100hr review. Sounds like you have zero regrets. I'll be taking a hard look at PT for my next small "tractor". thanks for the reviews.

 

[MossRoad]

No, you're not a non-fishing jerk. You just want to enjoy your privacy, as do the rest of us. No one's faulting you for that. I'm not, at least. Just may be hard in this situation. Anyhow, I really hope you and your neighbor find an amicable solution. /forums/images/graemlins/smile.gif

As for our tractor... we bought a huge used International tractor loader to get the big jobs out of the way, first. Then we bought the PT425 for day to day usage and will be getting rid of the International as soon as it is cleaned up and ready to sell. The Power Trac does everything we ask it to do and then some. Maintenance is easy. I'm very pleased with the machine and would buy a new one again without hesitation. No regrets after 175 hours(it will be three years in December). They make several models in several sizes and are worth checking out. /forums/images/graemlins/wink.gif http://www.power-trac.com

 

[Henro]

OK, things started off on a sour note. These things happen.

So the question is, if you are going to be there for the long term, do you want a bad feeling in your gut each time you look the nieghbor's way, or would neutral (or better) be a little sweeter?

You have some legal references and you could do a little more homework, based on the comments in this thread, to see where you probably stand.

What I would probably do, after doing as much of the leg work as I could, is consult an attorney and get a profession opinion of where I really stood in the matter. Sometimes what we see is shaded by what we want to see. So it is better to have an independent opinion from someone who is likely to be right.

Once you know where you probably stand (attorneys give opinions, not guarantees), if it is where you think you want to be, then you could approach the neighbor, and maybe work something out. Explain that you know he loves to fish, and you are willing to let him fish, and him alone (maybe a grandkid in the boat with him, if the kid is wearing a life jacket at all time, or maybe not, depends on you).

If he reacts kindly like a good neighbor, then fine. If not, and you have to fall back on your original position, then you can. And you can assure him that you will take him to court if you see him or anyone else he might invite to the pond, on your side.

You don't end up making a friend, but at least you know in your heart that you tried to do what is best for the situation...

Then when you look across the water you might just not care enough to feel anything.

Is there an age difference? You may have stated that above. I think you said he may be retired. Some people think because they are older they don't have to respect the younger guys as much.

Anyway, if you find you are in the position of strength, then it is relatively easy to lay down the olive branch. If the guy rejects your offer, from that point forward it becomes "You're the one who decided not to fish on the lake, not me!"

Now if the guy has turned you off so bad you don't even want to talk with him, maybe you just want to let things lie where they are, at least until you see him on your part of the lake, then you will have to act one way or another. And at that point it may be tougher...since he will have become a thorn in your side, as he will be doing what he knows you don't want him doing, and doing it against your wishes...

If you do nothing else though, you probably should get an expert legal opinion from someone who is familiar with the law in you area. And always be nice to the guy...as said in other threads here...nasty can turn around and bite you, even if you are right.

 

[Bob_Skurka]

IL_HAZ . . . I guess I am a total jerk when it comes to this. But my land is my land. I have it because I want my privacy, in fact I bought the lot next door to prevent anyone from getting any closer. And then after buying the lot next door I noticed the neighbor next to that mowing about 40 or 50 feet of my property. So I talked to him. He didn't belive that the 40/50 feet he was mowing was mine. Now mind you he and I were very polite and cordial, but he had his idea and I had mine. I did prove my point by walking the land, and by getting a laser shot of the property line, and settiing stakes that proved that a small corner of his driveway is actually on my land and where he wanted to put his swimming pool is on my land. So I put up a decorative fence that only runs 75' of our common property line, a property line that is probably close to 800' long. But I made my point in a very nice way. He even complimented me on how nice the fence looks. We are very friendly even after this little dispute, but what is mine is mine.

Now if I was you, I wouldn't want someone fishing 30' off my dock in a row boat either. I certainly wouldn't want to drain the pond and rebuild the dam and the bank so it was completely contained on my land but as this is not a natural body of water the case law you cite certainly seems to favor your side.

But let me throw out a parallel conundrum. Lets say you didn't have a pond at all. Let's say your neighbor was a retired golfer. Let's say he decided the best golfing spot was in your back yard. Would you want him walking into your back yard and swinging the old 9 iron to pitch some balls at an imaginary cup? Afterall, golf is pretty quiet, it makes about as much noise as fishing, and the guy is not really being a pest is he? Well in my mind he is being a pest. So if you feel that he would be a nusience while golfing 30' outside your house, then it seems logical the fishing would also be a nusience.

To take the discussion a slightly different direction, I have a valley area that is a couple acres. It is borded on 2 sides by steep ridges, at the base of my neighbors ridge is a creek. It is accessable from the road or down the paths I carved down my ridge. The 4th side is a farm field. We landscaped that valley and made it very child friendly, as my daughter's playhouse is down there is a large jungle gym and a 2 story fort. Numerous people who moved into the neighborhood and several real estate agents have inquired about who gets to use the CHILDREN'S PARK in the middle of the neighborhood!?!

I'll tell you who, my family and my daughter's invited friends are the only ones who are allowed to use the park! Its mine.

I really am a friendly guy, but I didn't move out the country to make new friends. I moved out here to do what I want on my land and to build my own view of an oasis in this world. Now if you want my help just come over and ask, it is very likely that I will drive my tractor over and help you plant a tree or move your mulch. Or you need a tool, sure, I lend those too (still waiting to get some of them back). Kid's selling something for charity, count on me to buy whatever junk they have. But if you want to use my land as your own, well sorry, you didn't pay for it so you can't use it. That is my simple rule.

I suspect that you feel the same way about your pond. Be an anti-fishing jerk if you want, it is YOUR pond and YOUR privacy that is being intruded upon!!!

 

[MossRoad]

Plain and simple here... if you live on a lake and your land doesn't completely surround it, expect to see people using it. Boating, fishing, hunting waterfowl, ice skating. Expect it because they have the right to do it. You may not like it, but to be blunt, that's too bad. Find a suitable piece of property if you want exclusive use of a lake. Please believe me when I tell you I'm a proponent of private property rights. What's mine is mine. However, the water in a lake with several property lines crisscrossing the bottom is not private property. That's been upheld in courts for centuries. /forums/images/graemlins/wink.gif

 

[Frodo]

Thanks all for the input. I am playing it by ear and just waiting to see what happens. I have contacted a lawyer, the water rights lawyer for DNR. He said it was trespassing. It took me about six months of reading and exchanging emails with the DNR DIV OF WATER RESOURCES MANAGEMENT, I think I've got a fair understanding. I now feel that the surface area of a MAN-MADE (that's very important - Nottolini) pond belongs to the owner. I wouldn't be such a jerk if I didn't think I was right. The fall back is there is a provision of riparian (actually this is all littoral) rights that deals with reasonable use. That would have to be mediated if I lost in court. I also asked about interpreting the fishing code for me.
IDNR said:
The Department's publication Illinois Fishing Information has a summary
of the fishing regulations. Under PROPERTY, the first sentence is,
"Consideration for others is a philosophy of the sportsman." The next
two summarize the statute language, "Consent of the landowner or
occupant of the premises shall be obtained before fishing or attempting
to take aquatic life on another's property or within waters other than
public waters of the state. Care should be taken not to cause damage
to the property."

This requirement has limited basis in the laws of real property and no
authoritative basis in the Illinois case law on riparian rights. It
really doesn't relate to surface rights, because it uses the term
premises. The legislature simple wrote a code of conduct into the
fishing code.

The code reads:
(515 ILCS 5/5 20) (from Ch. 56, par. 5 20)
Sec. 5 20. Taking aquatic life on private property. Any person taking or attempting to take aquatic life by means of any device within waters other than public waters of the State shall first obtain the consent of the owner or tenant of the premises where the taking is done or attempted to be done.

Still waiting to be asked.