Holm v. Kodat

2022 IL 127511

IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS

(Docket No. 127511)

ADAM HOLM et al., Appellants, v. PETER KODAT et al., Appellees.

Opinion filed June 16, 2022.

JUSTICE CARTER delivered the judgment of the court, with opinion.

Justices Garman, Theis, Michael J. Burke, and Overstreet concurred in the
judgment and opinion.

Justice Neville specially concurred, with opinion, joined by Chief Justice Anne
M. Burke.

OPINION

¶1 In this appeal, we address whether this court’s decision in Beacham v. Lake
Zurich Property Owners Ass’n, 123 Ill. 2d 227 (1988), or Illinois common law
grants a riparian owner on a nonnavigable river or stream the right to use that
waterway to cross the property of another riparian owner without that owner’s
 permission. The circuit court and the appellate court both answered that question in
the negative. For the reasons that follow, we affirm the judgments of the lower
courts.

¶2 I. BACKGROUND

¶3 This case arose from a dispute among riparian property owners concerning the
use of the nonnavigable Mazon River in Grundy County, Illinois. Specifically, the
parties disagreed on whether plaintiffs, Adam Holm, Daniel Holm, Loretta Holm,
and Nick Holm, have the right to kayak on the Mazon River through neighboring
properties owned by defendants, Peter Kodat, James Benson, Benson Marian
Family Trust, Mark A. Norton, Wilfred K. Robinson, and John Heath, without those
defendants’ permission.

¶4 A. Plaintiffs’ First Amended Verified Complaint

¶5 In December 2018, plaintiffs filed a two-count, first amended, verified
complaint seeking declaratory and injunctive relief in the circuit court of Grundy
County. Count I sought declaratory relief against the defendant property owners.
Plaintiffs requested an order declaring that they had the right as riparian owners to
kayak along the entire length of the Mazon River, including through property
owned by the defendants, “f[r]ee and clear from any claim of trespass” by the
defendants. In count II, plaintiffs named Grundy County as a defendant and sought
injunctive relief barring the County from arresting, or threatening to arrest,
plaintiffs while kayaking on the Mazon River. 1

¶6 In their complaint, plaintiffs explained that the Mazon River is 28 miles in
length and is a tributary of the Illinois River. It generally flows in a north or
northwest direction through Grundy County, Illinois, until its confluence with the
Illinois River south of Morris, Illinois. Near the confluence, there are exposures of
Francis Creek Shale that contain large deposits of fossils. This area of the Mazon
River is a world-famous Lagerstatten site, or a sedimentary deposit that exhibits

1
On April 8, 2019, the circuit court granted Grundy County’s motion to dismiss with prejudice
all claims against the county but allowed the litigation to proceed against the remaining defendants
in count I. Accordingly, Grundy County is not a party to this appeal.

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 extraordinary fossils with exceptional preservation. It is important to
paleontologists and fossil collectors and was declared a National Historic
Landmark in 1997.

¶7 Between 2015 and 2017, plaintiffs bought two properties along the Mazon
River. Plaintiffs’ first property consists of approximately 33 acres of landlocked,
unimproved real estate with no road access (landlocked property). Plaintiffs’
second property consists of approximately nine acres of unimproved real estate,
with road access from Oxbow Road (access property). Plaintiffs operate a seasonal
fossil hunting business on both properties, and they collect fossils to sell to
paleontologists and collectors.

¶8 According to plaintiffs’ complaint, their landlocked property contains a large
number of fossils because of its relative lack of accessibility. Plaintiffs use kayaks
on the Mazon River to travel from their access property to their landlocked
property. After collecting fossils at their landlocked property, plaintiffs load the
fossils into their kayaks for transport on the Mazon River further downstream to
the Pine Bluff Road Bridge. During the course of their travel, plaintiffs ride their
kayaks on the Mazon River through properties owned by defendants. After arriving
at the Pine Bluff Road Bridge, plaintiffs unload their fossils and remove their
kayaks from the river within the public right of way owned by Grundy County.

¶9 Plaintiffs’ complaint further alleged that defendant Peter Kodat operates a
competing fossil business on the Mazon River. According to plaintiffs, Kodat
“organized” the other defendant property owners to sign written trespass notices
forbidding plaintiffs from kayaking on the river through the defendants’ respective
properties. Plaintiffs claimed that this action was meant to prevent plaintiffs from
accessing the fossils on their landlocked property. Plaintiffs attached the trespass
notices from the respective defendant property owners to their complaint. Each
identical trespass notice provided:

“It has come to my attention that you have been trespassing on properties in
the area and have been taking rocks and fossils. You are hereby notified that
you are NOT authorized to be on any portion of this property at any time and
you are not authorized to take any rocks or other items of any kind whatsoever
from this property.”

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¶ 10 On one occasion, defendant Kodat called the Grundy County Sheriff’s Office
to report that plaintiffs Adam and Daniel Holm were collecting fossils near Kodat’s
property. Ultimately, a Grundy County sheriff’s sergeant arrested Adam and Daniel
Holm for trespassing and served them with criminal complaints for trespassing.
Formal criminal charges, however, were not filed.

¶ 11 B. Cross-Motions for Summary Judgment

¶ 12 In June 2019, plaintiffs filed a motion for summary judgment on count I of their
complaint seeking declaratory relief. Plaintiffs noted that under Illinois law a
riparian owner is one who owns land bordering a running stream and that the natural
flow of the water cannot be diverted, increased, diminished, or polluted without the
owner’s consent. Leitch v. Sanitary District of Chicago, 369 Ill. 469 (1938).
Plaintiffs further argued that under this court’s decision in Beacham, 123 Ill. 2d
227, they had the right as riparian owners to access the entire surface water of the
Mazon River. According to plaintiffs, Beacham established a public policy in
Illinois to allow riparian owners the recreational use and enjoyment of the entire
surface of a body of water. Thus, plaintiffs asserted that defendants were prohibited
as a matter of law from restricting plaintiffs’ access to the surface water of the
Mazon River.

¶ 13 In August 2019, defendants filed a cross-motion for summary judgment.
Defendants alleged in their motion that plaintiffs routinely trespassed on their
respective properties to remove fossils without their permission, effectively
“stealing certain valuable items from the bed of the creek owned by [d]efendants.”
Defendants claimed that plaintiffs continued to trespass and remove fossils without
defendants’ permission, despite repeated requests from defendants to stop that
conduct and the involvement of the Grundy County Sheriff’s Office.

¶ 14 Defendants argued that plaintiffs did not have a right to kayak on the Mazon
River through defendants’ properties without defendants’ permission. Defendants
maintained that Beacham was inapplicable because that decision was limited to
lakes.

¶ 15 Defendants acknowledged that plaintiffs, as riparian owners, had the right to
the full use of the Mazon River on their property. However, plaintiffs’ riparian

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 rights did not extend to defendants’ property on the Mazon River. Defendants
argued that, because the Mazon River is a nonnavigable stream, Illinois law does
not recognize a right to travel over that waterway without permission of the riparian
owner. Thus, as a matter of law, defendants can restrict plaintiffs’ access to those
portions of the Mazon River on defendants’ property.

¶ 16 C. Circuit Court’s Decisions

¶ 17 In October 2019, the circuit court held a hearing on the parties’ cross-motions
for summary judgment. Following the hearing, the court granted plaintiffs’ motion
for summary judgment and denied defendants’ cross-motion for summary
judgment. Relying on this court’s decision in Beacham, the court found that
plaintiffs had a right to use of the surface water of the Mazon River to travel from
their access property to their landlocked property and then from their landlocked
property to the Pine Bluff Road bridge.

¶ 18 In January 2020, defendants filed an amended motion to reconsider and vacate
the circuit court’s October 2019 order. Defendants argued that, because it was
undisputed that the Mazon River was a nonnavigable waterway, the circuit court
was required to follow long-standing Illinois common law that a riparian owner of
a nonnavigable waterway has a private property interest to the middle of the
waterway that includes a right to exclude others from the property. Defendants
further asserted that Beacham applied only to lakes.

¶ 19 After a hearing on defendants’ motion to reconsider, the circuit court agreed
with defendants that Beacham was distinguishable and reversed its original
decision. The court explained as follows:

“[B]ased on the law that’s been provided to me, I’m going to grant the
defendants’ motion and deny the plaintiffs’ motion upon reconsideration on the
grounds that the fact that the Mazon River is factually non-navigable and the
fact that there is private ownership of the bed of the river, *** [which] carries
with it the exclusivity of ownership in the water above the property owned by
the abutting owners.”

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 The court also concluded that plaintiffs’ riparian rights of access were not superior
to defendants’ rights of private ownership.

¶ 20 Accordingly, in March 2020, the circuit court entered a written order that
vacated its prior October 2019 order. The order also granted defendants’ motion for
summary judgment and denied plaintiffs’ motion for summary judgment.

¶ 21 D. Appellate Court Decision

¶ 22 On appeal, plaintiffs argued that the trial court erred in granting summary
judgment to defendants. Citing Beacham, plaintiffs contended that as riparian
owners they had a right to access the entire Mazon River. The appellate court
disagreed, relying on “well-established case law governing riparian rights and the
navigability of Illinois rivers and streams.” 2021 IL App (3d) 200164, ¶ 15.

¶ 23 After reviewing this court’s decision in Beacham, the appellate court declined
to extend Beacham’s holding to the nonnavigable Mazon River. Id. ¶ 27. Under
controlling Illinois law on riparian rights, the court concluded that “the riparian
owner of each individual parcel of private property, situated along the Mazon River,
may lawfully bar access, within their easily ascertainable property lines, to any
person, including their riparian neighbor.” Id. ¶ 31. Thus, the court affirmed the
circuit court’s order granting summary judgment in favor of defendants. Id. ¶ 35.

¶ 24 We allowed plaintiffs’ petition for leave to appeal pursuant to Illinois Supreme
Court Rule 315 (eff. Oct. 1, 2020). The Forest Preserve District of Will County was
granted leave to file an amicus curiae brief in support of plaintiffs’ position. Ill. S.
Ct. R. 345 (eff. Sept. 20, 2010). The Illinois Agricultural Association was granted
leave to file an amicus curiae brief in support of defendants’ position. Id.

¶ 25 II. ANALYSIS

¶ 26 On appeal, plaintiffs argue that the circuit court erred in granting summary
judgment to defendants. Summary judgment is appropriate “if the pleadings,
depositions, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 2018). When, as

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 here, cross-motions for summary judgment are filed, the parties “agree that only
questions of law are involved and invite the court to decide the issues based on the
record.” State Farm Mutual Automobile Insurance Co. v. Elmore, 2020 IL 125441,
¶ 19. We review de novo the circuit court’s decision on a motion for summary
judgment. Id.

¶ 27 In Illinois, an owner of land that borders a body of water or watercourse is
entitled to the use of that water, a legal concept referred to as “riparian rights.”
Alderson v. Fatlan, 231 Ill. 2d 311, 318 (2008) (citing Black’s Law Dictionary 1352
(8th ed. 2004)). When the landowner’s property is adjacent to a river or waterway,
he or she owns to the center of the waterway. Schulte v. Warren, 218 Ill. 108, 117
(1905). Thus, if a riparian owner owns both sides of the river, they own “the whole
of the bed of the stream to the extent of the length of his lands upon it.” People
ex rel. Deneen v. Economy Light & Power Co., 241 Ill. 290, 318 (1909).

¶ 28 Riparian rights exist by operation of law and solely because the property abuts
a body of water. Alderson, 231 Ill. 2d at 318. As we have explained, “ ‘riparian
rights of property owners abutting the same body of water are equal, and no such
property owner may exercise its riparian rights in such a manner so as to prevent
the exercise of the same rights by other similarly situated property owners.’ ” Id. at
318-19 (quoting Knaus v. Dennler, 170 Ill. App. 3d 746, 750 (1988)).

¶ 29 This court has long recognized that “riparian rights apply to all flowing streams
whether navigable or non-navigable, but with respect to navigable streams, the right
of the riparian owner is subject to a public easement to use the river for navigation
purposes.” Leitch, 369 Ill. at 475. A waterway is navigable and subject to a public
easement if it naturally, by customary modes of transportation, is “of sufficient
depth to afford a channel for use for commerce.” DuPont v. Miller, 310 Ill. 140,
145 (1923). If, however, the waterway is nonnavigable, the riparian owner owns
“the bed of the stream *** absolutely, free from any burdens in favor of the public.”
Economy Light & Power, 241 Ill. at 318 (citing Washington Ice Co. v. Shortall, 101
Ill. 46 (1881)).

¶ 30 Here, it is undisputed that the Mazon River is a nonnavigable river and,
therefore, has no public easement for access. Plaintiffs assert that because they are
riparian owners on the Mazon River they have the right to kayak on the entire river
and cross the properties of other riparian owners, even without those owners’

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 permission. Plaintiffs advance two arguments to support their position—the first
predicated on a so-called “civil law rule” from Beacham and the second based on
the common-law riparian right of “reasonable use” of water. We address each of
plaintiffs’ arguments in turn, beginning with our decision in Beacham.

¶ 31 A. Beacham and the Civil-law Rule for Nonnavigable Lakes

¶ 32 In Beacham, we addressed a dispute among riparian owners on the use of the
surface water of a 240-acre private nonnavigable lake for boating purposes.
Beacham, 123 Ill. 2d at 228. The plaintiff, Beacham, owned between 15% to 20%
of the lakebed and operated a business that rented boats to the public for use on the
lake. A group of other riparian owners, represented by the defendant, the Zurich
Property Owners Association, instituted a quota and permit system for boats on the
lake and tried to limit Beacham’s use of the lake by issuing her warnings. The
association also unsuccessfully prosecuted Beacham for trespass. Id. As a result,
Beacham filed an action for declaratory and injunctive relief seeking a declaration
that she could use the entire lake surface. Id. at 229.

¶ 33 To resolve the dispute in Beacham, we noted that two different legal approaches
governed the use of lakes by riparian owners: (1) a common-law view that allows
an owner of part of the lake to exclude from the surface of the overlying water all
other persons, including those who owned other parts of the lake bed, and (2) a
civil-law rule that provides the owner of a part of the lake bed the right to the
reasonable use and enjoyment of the entire lake surface. Id. at 230-31.

¶ 34 This court observed in Beacham that the common-law approach had been
rejected by some courts based on the difficulties involved in establishing and
obeying definite property lines on the lake surface, and other impractical
consequences, such as the erection of booms, fences, or barriers on lakes. Id. 231-
32. In contrast, the civil-law approach promoted the recreational use and enjoyment
of lakes. Id. at 231. Reviewing the two approaches, this court determined that the
civil-law approach should be adopted for nonnavigable lakes in Illinois. Id. at 232.

¶ 35 Accordingly, we held in Beacham that

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 “where there are multiple owners of the bed of a private, nonnavigable lake,
such owners and their licensees have the right to the reasonable use and
enjoyment of the surface waters of the entire lake provided they do not unduly
interfere with the reasonable use of the waters by other owners and their
licensees.” Id.

We remanded the matter to the circuit court to determine whether Beacham’s use
of the lake was reasonable. Id.

¶ 36 Here, plaintiffs argue that extending Beacham’s holding to a nonnavigable river
such as the Mazon River “results in a fair balance where riparian owners can fully
enjoy a nonnavigable river while limiting the burden that use creates on other
landowners” because the rule “restricts the use of any nonnavigable body of water
to riparian owners and their licensees.” Defendants respond that our decision in
Beacham should be limited to natural nonnavigable lakes.

¶ 37 Notably, in Beacham we were presented with two legal approaches from several
jurisdictions regarding the use of the surface water of a nonnavigable lake by
riparian owners. See id. at 231 (citing and reviewing cases from Arkansas, Georgia,
Indiana, New Jersey, New York, Pennsylvania, Texas, Virginia, Florida, Michigan,
Minnesota, and Washington). There is, however, no comparable body of law
applying the so-called civil-law rule to nonnavigable rivers and streams.

¶ 38 Nonetheless, plaintiffs ask us to extend Beacham to nonnavigable rivers and
streams. According to plaintiffs, there is no meaningful distinction between a lake
and a river or stream for purposes of the civil-law rule from Beacham. We disagree.

¶ 39 A lake is essentially a flat expanse of relatively still water. See Nottolini v.
La Salle National Bank, 335 Ill. App. 3d 1015, 1018 (2003) (defining 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’ ” (quoting 78 Am. Jur. Waters § 108 (2002))). 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.

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¶ 40 For example, as plaintiffs explain in their brief, they can only kayak
downstream on the Mazon River from their access property to their landlocked
property because of the river’s current. This requires plaintiffs to kayak through
properties of other riparian landowners to reach a public access point of departure,
which is the precise situation that resulted in the dispute in this case. A lake, in
contrast, is an open body of water with no current where the riparian owners may
enter and exit the water from their own property.

¶ 41 In addition, the property boundaries along the comparatively narrow and linear
Mazon River are much easier to identify and verify when compared to the property
boundaries extending under the surface water of the 240-acre lake in Beacham. As
the appellate court observed, “the physical characteristics of the Mazon River,
unlike those of the private, nonnavigable lake in Beacham, do not involve the
difficulties or impracticalities related to establishing and obeying ‘definite property
lines.’ ” 2021 IL App (3d) 200164, ¶ 27 (quoting Beacham, 123 Ill. 2d at 232).

¶ 42 This distinction between property boundaries on a lake versus a river or stream
has been recognized in Illinois law for well over a century. See Fuller v. Shedd, 161
Ill. 462, 483 (1896) (observing that “[t]he determination of boundary lines to the
center of the river is not attendant with any serious difficulty, but the irregular
borders of a lake would render the determination of lines in the bed of the lake
between riparian proprietors of almost impossible solution”); see also Smith v. City
of Greenville, 115 Ill. App. 3d 39, 42 (1983) (noting that “[i]n Illinois the rule for
determining a riparian proprietor’s title to land bounded by a stream or river differs
markedly from the rule for determining a riparian proprietor’s title to land bounded
by a lake or pond”).

¶ 43 We were also concerned in Beacham with the “impractical consequences” of
establishing property lines on lakes related to the installation of fences or barriers
on the surface water of the lake. Beacham, 123 Ill. 2d at 231-32. This concern is
arguably less compelling along nonnavigable streams and rivers, which typically
are much narrower than a lake. In fact, fencing may be warranted or even necessary
to identify property lines on nonnavigable rivers and streams that can extend for
many miles in any given direction. This is particularly true in agricultural areas or
when livestock are kept near nonnavigable streams. See 510 ILCS 55/1 (West 2018)

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 (imposing civil liability on livestock owners if they fail to prevent their livestock
from running at large and their livestock cause damages).

¶ 44 Ultimately, we conclude that our decision in Beacham should be limited to the
body of water at issue in that case—a nonnavigable natural lake. In our opinion, a
nonnavigable lake is sufficiently distinct from a nonnavigable river or stream to
render Beacham inapplicable. See also Alderson, 231 Ill. 2d at 312-13 (declining to
extend Beacham to an artificial man-made lake comprised of a water-filled quarry
used for recreational purposes). Therefore, we will not extend Beacham’s holding
to nonnavigable streams and rivers in Illinois.

¶ 45 B. Common-Law Rule on the “Reasonable Use” of Water

¶ 46 We next consider plaintiffs’ argument that Illinois common law allows riparian
owners the reasonable use of the surface water of a nonnavigable river or stream on
their property. Plaintiff emphasizes that, while the common law does not grant the
public a right to use nonnavigable rivers or streams, the law treats riparian owners
differently. Citing Evans v. Merriweather, 4 Ill. 492, 496 (1842), plaintiffs observe
that a riparian owner is allowed the “reasonable use” of the water in the waterway.
Plaintiffs argue that this riparian right to reasonable use of the water should be
interpreted to include a right to use the surface water of the entire river or stream
for reasonable navigational purposes.

¶ 47 Defendants respond that plaintiffs have forfeited their common-law “reasonable
use” argument by not first raising that issue in the trial court. On the merits,
defendants argue that the common law’s recognition of a right of a riparian owner
to the reasonable use of water involves direct consumptive uses of the water itself
rather than using the surface to navigate the entire river or stream.

¶ 48 As a preliminary matter, we will address the merits of plaintiffs’ arguments on
reasonable use of water under Evans. The record demonstrates that the parties
extensively argued, and the lower courts considered, various common-law
precedents on riparian rights. Even if the reasonable use principle from Evans was
not explicitly considered by the circuit or appellate courts, we believe the concept
is sufficiently intertwined with the common-law issues argued by the parties to
warrant its consideration here. See People v. McKown, 236 Ill. 2d 278, 310 (2010)

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 (when a forfeited issue is “inextricably intertwined” with other issues properly
before the court, the court may exercise its discretion to review that issue).

¶ 49 Turning to Evans, which was decided 180 years ago, this court considered the
limits of a riparian owner’s use of the water in a nonnavigable stream. Evans, 4 Ill.
at 494. We concluded that a riparian owner on a nonnavigable stream was entitled
to the “reasonable use” of the water in the waterway, which was determined
differently depending on whether the riparian owner’s use of the waterway is
“natural” or “artificial.” Id. at 494-95.

¶ 50 Natural uses are those “absolutely necessary to be supplied, in order to [sustain
the owner’s] existence,” and include drinking water, household purposes, and
watering livestock. Id. at 495. A riparian owner can use all of the water flowing on
his land for natural uses, even if none is left for downstream riparian owners. Id. at
494-95.

¶ 51 Artificial uses are those “not essential to [the riparian owner’s] existence” and
include crop irrigation or manufacturing purposes. Id. at 495. A riparian owner is
not allowed to use all of the water on his land for artificial purposes but, instead,
must only use his or her “just proportion” of the water that is determined on a case-
by-case basis. Id. at 496.

¶ 52 Having reviewed Evans, we agree with defendants that the Illinois common-
law “reasonable use” doctrine of water by riparian owners applies to direct
consumptive or diversionary uses of the water. Because the doctrine is limited to
the use of water on the riparian owner’s property, Evans is not instructive on the
issue presented here—the use of the surface water to enter the property of another
riparian owner without their consent. See also Margit Livingston, Public
Recreational Rights in Illinois Rivers and Streams, 29 DePaul L. Rev. 353, 358
(1980) (explaining that “[u]nder Illinois common law, the ‘reasonable-use’ doctrine
governs consumptive and diversionary uses of water”). Thus, we find that Evans
does not support plaintiffs’ position here.

¶ 53 Plaintiffs also direct our attention to the Supreme Court of Michigan’s decision
in Thompson v. Enz, 154 N.W.29 473, 484 (Mich. 1967), which concluded that a
group of riparian property owners’ use of a canal constructed by a developer that
connected a housing development to a natural lake was an “artificial” use subject

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 to the reasonable use doctrine. After identifying several factors to determine the
“reasonableness” of that use, the Supreme Court of Michigan remanded the matter
to the trial court to determine whether that proposed use of the canal to access the
lake was reasonable under the circumstances of the case. Id. at 485. Plaintiffs
contend that Thompson provides a roadmap on how to evaluate whether a riparian
owner’s artificial use of the entire nonnavigable waterway for navigation purposes
is reasonable.

¶ 54 Plaintiffs’ reliance on Thompson is misplaced. Notably, in Thompson the court
determined that the arrangement between the developer and property owners
regarding the canal operated as “easements for rights of way for access” and that
the trial court had to consider whether the challenged used was reasonable. Id. at
483. No comparable situation exists in this case. Instead, 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.

¶ 55 In closing, we acknowledge plaintiffs’ advancement of public policy arguments
in favor of promoting the recreational use of nonnavigable streams and rivers in
Illinois. According to plaintiffs, Illinois has more than 87,000 miles of rivers and
streams within its borders, but only 32 rivers and streams are classified as navigable
and provide a public easement for navigation. Because the majority of waterways
in Illinois are nonnavigable, plaintiffs urge this court to adopt a legal rule granting
a riparian owner on a nonnavigable stream or river a right to use the entire length
of that waterway to promote its reasonable recreational use.

¶ 56 In our view, the legislature is the best venue to consider plaintiffs’ request for
the creation of a new public policy on riparian rights for nonnavigable rivers and
streams in Illinois, which constitute the majority of waterways in this state. As the
parties’ arguments and the amicus curiae briefs demonstrate, plaintiffs’ request for
a new public policy involves significant competing interests that we believe the
General Assembly is better equipped to address. See, e.g., Manago v. County of
Cook, 2017 IL 121078, ¶ 13 (explaining that this court is not responsible for setting
public policy and that the legislature is best suited for evaluating divergent public
policy interests); see also 615 ILCS 5/5 (West 2018) (declaring that the Illinois
Department of Natural Resources “shall upon behalf of the State of Illinois, have

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 jurisdiction and supervision over all of the rivers and lakes” in Illinois).

¶ 57 III. CONCLUSION

¶ 58 For the foregoing reasons, we decline plaintiffs’ request to hold that they have
a right, as riparian owners on the nonnavigable Mazon River, to use the entire
length of that waterway to cross the property of other riparian owners without their
permission. We affirm the judgments of the circuit court and appellate court that
reached the same conclusion.

¶ 59 Judgments affirmed.

¶ 60 JUSTICE NEVILLE, specially concurring:

¶ 61 I agree with my colleagues that Illinois common law bars the plaintiffs, who are
riparian owners on the nonnavigable Mazon River, from traveling or using the
waterway of other riparian owners without their permission. However, I write
separately because I believe it is time for Illinois to move away from its common
law that limits the use of nonnavigable 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.

¶ 62 I. The History of the Riparian Doctrine in the United States

¶ 63 The influence of the Napoleonic Code, which became the law of France in 1804,
and its forerunners helped to spread the riparian doctrine to other European
countries and provided the foundation for the riparian doctrine in England. Ludwik
A. Teclaff, What You Have Always Wanted to Know About Riparian Rights but
Were Afraid to Ask, 12 Nat. Resources J. 30 (1972). The riparian doctrine came to
the United States as part of the common law of England shortly after the year 1825
and gave each owner of land upon the banks of a waterway the right to make a
reasonable use of the water. Tyler v. Wilkinson, 24 F. Cas. 472 (C.C.D. R.I. 1827)
(No. 14,312) (holding each riparian owner had a right to a reasonable use of the
water); Webb v. Portland Manufacturing Co., 29 F. Cas. 506, 510 (C.C.D. Me.

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 1838) (No. 17,322) (same); Lyon v. Fishmonger’s Co. [1875] 1 A.C. 662, 671-73
(Eng.); T.E. Lauer, The Common Law Background of the Riparian Doctrine, 28
Mo. L. Rev. 1 (1963).

¶ 64 The United States Supreme Court in Kansas v. Colorado, 206 U.S. 46, 93
(1907), recognized that each state has full jurisdiction over the lands within its
borders, including the beds of streams and other waters, and that it properly belongs
to them by their inherent sovereignty. This right is subject only to the federal power
in navigation to regulate commerce. Id. at 86. The Court observed that the right of
the states to regulate and control the shores of tide waters and the land under them
is the same as that which is exercised by the Crown of England. Id. at 94. Finally,
the court found that a state may determine for itself whether the common-law rule
of riparian rights or whether the rule in the West—the doctrine of public ownership
of flowing water, that waters of natural streams may be appropriated by the state to
irrigate and cultivate arid lands for beneficial purposes—shall control. Id.

¶ 65 II. Riparian Rights in Illinois Waterways

¶ 66 In Illinois, riparian rights grant the owner of land adjacent to a waterway the
right to use that water, whether navigable or nonnavigable. In Schulte v. Warren,
218 Ill. 108, 118-19 (1905), this court determined that the public has an easement
for the purpose of navigation in waters that are navigable, regardless of the
ownership of the soil. The question of whether waters are navigable depends upon
whether they are of sufficient depth to afford a channel for commerce. Id. at 119;
Hubbard v. Bell, 54 Ill. 110, 118 (1870). This court approved the definition of a
navigable stream by Lord Hale in his treatise De Jure Maris: “a stream, to be
navigable must furnish ‘a common passage for the king’s people,’ must be ‘of
common or public use for the carriage of boats and lighters,’ must be capable of
bearing up and floating vessels for the transportation of property conducted by the
agency of man.” Schulte, 218 Ill. at 119 (quoting Matthew Hale, A Treatise de Jure
Maris et Brachiorum Ejusdem (1888)). Thus, Illinois holds that a stream is
navigable only where it affords a channel for useful commerce and is of practical
utility to the public for commercial use. People ex rel. Deneen v. Economy Light &
Power Co., 241 Ill. 290, 332 (1909). If the waterway is navigable, the riparian
owner takes title to the thread of the stream, subject to an easement in the public.

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 Id. at 318. If the waterway is nonnavigable, the riparian owner owns the title, “free
from any burdens in favor of the public.” Id. This court recognized this as the rule
of the common law, which had been adopted in this state. Id.

¶ 67 III. The Recreational Navigation Doctrine

¶ 68 The increase in public recreational use of rivers and streams has not occurred
in Illinois due to the archaic and anachronistic common-law rules that restrict public
access to state waterways. See Anthony Dan Tarlock & Jason Anthony Robison,
Law of Water Rights and Resources § 8:28 (July 2021 Update); Margit Livingston,
Public Recreational Rights in Illinois Rivers and Streams, 29 DePaul L. Rev. 353
(1980). But several states (Arkansas, California, Idaho, Minnesota, Mississippi,
Ohio, Oregon, and Wisconsin) have determined navigability based on a waterway’s
capacity for recreational use. See Guilliams v. Beaver Lake Creek, 175 P. 437, 442
(Or. 1918); Luscher v. Reynolds, 56 P.2d 1158, 1162 (Or. 1936); Southern Idaho
Fish & Game Ass’n v. Picabo Livestock, Inc., 528 P.2d 1295, 1297-98 (Idaho
1974); People ex rel. Baker v. Mack, 97 Cal. Rptr. 448, 454 (Ct. App. 1971); State
v. McIlroy, 595 S.W.2d 659, 665 (Ark. 1980); State ex rel. Brown v. Newport
Concrete Co., 336 N.E.2d 453, 457 (Ohio Ct. App. 1975); Ryals v. Pigott, 580 So.
2d 1140, 1150 (Miss. 1990).

¶ 69 In my view, we should adopt the recreational navigation doctrine in Illinois.
Clinton Lancaster, Property Law—The Recreational Navigation Doctrine—The
Use of the Recreational Navigation Doctrine to Increase Public Access to
Waterways and Its Effect on Riparian Owners, 33 U. Ark. Little Rock L. Rev. 161
(2011). The doctrine opens a greater number of streams and waterways, once
considered private, for use by the public and limits remedies for riparian
landowners. Id. at 161. The presence of recreational activities, such as fishing and
recreational pleasure boating, has been found to be sufficient to sustain a finding
that a waterway has a navigable character. As the court observed in Baker,

“[t]he modern tendency *** to hold for use of the public any stream capable of
being used for recreational purposes is well expressed in Lamprey v. State
(Metcalf) (1893) 52 Minn. 181, 53 N.W. 1139, where the court said: ‘[b]ut if,
under present conditions of society, bodies of water are used for public uses
other than mere commercial navigation, in its ordinary sense, we fail to see why

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 they ought not to be held to be public waters, or navigable waters, if the old
nomenclature is preferred. Certainly, we do not see why boating or sailing for
pleasure should not be considered navigation, as well as boating for mere
pecuniary profit.’ Lamprey points out that there are innumerable waterways—
lakes and streams—which will never be used for commercial purposes but
which have been, or are capable of being used, ‘for sailing, rowing, fishing,
fowling, bathing, skating’ and other public purposes, and that it would be a great
wrong upon the public for all time to deprive the public of those uses merely
because the waters are either not used or not adaptable for commercial
purposes.” Baker, 97 Cal Rptr. at 451 (citing Coleman v. Schaeffer, 126 N.E.2d
444, 446 (Ohio 1955), Hillebrand v. Knapp, 274 N.W. 821, 822 (S.D. 1937),
Roberts v. Taylor, 181 N.W. 622, 625-26 (N.D. 1921), and Muench v. Public
Service Comm’n, 53 N.W.2d 514, 519 (Wis. 1952) (finding that a Wisconsin
statute now makes a stream navigable which is capable of floating any boat,
skiff or canoe, of the shallowest draft used for recreational purposes)).

¶ 70 IV. Redefine Navigability to Include Recreational Use

¶ 71 The recreational navigation doctrine encourages states to redefine the word
navigability to reflect current uses of waterways. In these states, recreational uses
of waterways are deemed as important as any commercial use. Indeed, the trend is
to define navigability broadly and to protect the public’s right to enjoy a state’s
waterways. Southern Idaho Fish & Game Ass’n, 528 P.2d at 1297-98 (finding that
the question of navigation is simply the suitability of a particular water for public
use); see Jennifer Jolly-Ryan, Don’t Go Chasing Waterfalls: The Intrepid,
Pioneering, Whitewater Paddler’s Right to Stop on Private Land, 17 U. N.H. L.
Rev. 129, 149-51 (2018). Because most waterways in Illinois are not navigable
under the common-law definition, very few opportunities exist for extensive public
recreational use of waterways. Livingston, supra, at 366. Thus, expanding the
definition of navigability to include the recreational use of waterways would lead
to the public use of lakes, rivers, and streams once considered nonnavigable. Id. In
my view, it is extremely important that the definition of navigability be expanded
and that the public be given an easement for recreation.

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¶ 72 V. Illinois Public Policy Supports the
Recreational Navigation Doctrine

¶ 73 There is no question that the adoption of the recreational navigation doctrine is
supported by Illinois public policy favoring the use of waterways for recreational
purposes. It should be noted that this court, in People ex rel. Scott v. Chicago Park
District, 66 Ill. 2d 65, 78 (1976), expanded the public uses protected to adapt to
changing circumstances by recognizing that the public’s right is not limited to the
ancient prerogatives of navigation but extend to recreational uses. According to this
court, it is appropriate to observe that there has developed a strong, though belated,
interest in conserving natural resources and in protecting and improving our
physical environment. Id. at 78-79. This court observed that the public has become
increasingly concerned with dangers to health and life from environmental sources
and more sensitive to the value and, frequently, the irreplaceability of natural
resources. Id. at 79. This is reflected in the enactment of Illinois’s Environmental
Protection Act (Ill. Rev. Stat. 1975, ch. 111½, ¶ 1001 et seq.) in 1971 and in the
ratification of sections 1 and 2 of article XI of the Illinois Constitution (Ill. Const.
1970, art. XI, §§ 1, 2) by the people. Scott, 66 Ill. 2d at 79.

¶ 74 Furthermore, the expansion of the definition of navigability is supported by the
Recreational Use of Land and Water Areas Act, whose purpose is to encourage
owners of land to make land and water areas available to any individual or members
of the public for recreational or conservation purposes by limiting their liability
toward persons entering thereon for such purposes. 745 ILCS 65/1 (West 2020). In
addition, in the Recreational Trails of Illinois Act, the General Assembly found that
recreation is an important industry in Illinois and its growth should be encouraged.
20 ILCS 862/5 (West 2020). The Department of Natural Resources, in developing
recreational areas, has the power to lease from private or public ownership

“any lands or waters for the purpose of developing outdoor recreational areas
for public use and to acquire all necessary property or rights-of-way for the
purposes of ingress or egress to those lands and waters *** necessary or
desirable for maximum utilization of recreational facilities for public use of the
areas.” 20 ILCS 805/805-230 (West 2020).

The Department of Natural Resources notes the importance of water as the
cornerstone of much of our recreation, from boating, canoeing, and fishing to

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 skiing, scuba diving, and swimming. Illinois Rivers and Streams, Ill. Dep’t of Nat.
Res., https://www2.illinois.gov/dnr/education/pages/ilriversstreams.aspx (last
visited June 9, 2022) [https://perma.cc/3MV9-R7AV]. Many rivers and streams
attract tourists and provide recreational opportunities, and as it is the policy of this
State to encourage the use of waterways for any useful or beneficial purpose, I
believe that a waterway should be defined as navigable for purposes other than
those that benefit commerce.

¶ 75 The shortcomings of the ancient common-law rule, allowing riparian
landowners the exclusive rights over the surface waters, have led to the exclusion
of the public from lakes, rivers, and streams that do not support commerce. In
addition, a riparian owner who has erected fences and barriers has further excluded
the public from the recreational use of most Illinois lakes, rivers, and streams.
Finally, the common law’s definition of “navigability” is inconsistent with this
State’s public policy.

¶ 76 VI. A Public Domain Declaration Protects Against
Claims of Deprivation of Riparian Rights

¶ 77 I believe Illinois would benefit if the recreational navigation doctrine was
codified in a public domain declaration. 2 Lancaster, supra, at 174. This would
avoid, or at least minimize, litigation by avoiding takings claims related to federal
and state constitutional limitations on government condemnation. United States v.
Cherokee Nation of Oklahoma, 480 U.S. 700, 704 (1987); Boone v. United States,
944 F.2d 1489, 1492-93 (9th Cir. 1991). When declarations fall under the public
domain assertions, any deprivation of property rights claimed by riparian
landowners will be a deprivation of a right they never truly possessed, as the right
remained with the state. Lancaster, supra, at 174. This will make it difficult for
riparian landowners to recover from a state declaration of navigability for

2
The Nevada statute titled “Water belongs to the public” provides that “[t]he water of all sources
of water supply within the boundaries of the Sate whether above or beneath the surface of the
ground, belongs to the public.” Nev. Rev. Stat. § 533.025 (2021). The California statute titled
“Public water of state; appropriation” provides that “[a]ll water flowing in any natural channel ***
is hereby declared to be public water of the State and subject to appropriation.” Cal. Water Code
§ 1201 (West 2020).

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 recreational purposes, as the riparian landowners never held the rights to the
waterway usage they claim to have lost by such a declaration. Id. Thus, there will
be nothing for which the government will be obligated to compensate because of
the navigation declaration. Id. at 175.

¶ 78 VII. Legislative Action

¶ 79 The legislature must recognize that the current law is based on anachronistic
rules that had their origins in British common law and were promulgated to expand
the water rights of riparian landowners and to bar the public from Illinois waterways
that did not support commerce. The legislature should redefine navigability to be
more inclusive because that would promote the State’s interest in recreational uses
of waterways for all citizens of the State of Illinois. It is incumbent upon the
legislature to realize that there is an increasing social and economic need that
riparian rights be restricted for public recreational purposes. See Port of Seattle v.
Oregon & Washington R.R. Co., 255 U.S. 56, 63 (1921) (recognizing that each state
has full power to declare and shape the riparian rights that will abide within its
borders); Parks v. Cooper, 676 N.W.2d 823, 838-39 (S.D. 2004) (finding that, “in
accord with the State’s sovereign powers and the legislative mandate, that all waters
within [the State], not just those waters considered navigable ***, are held in trust
by the State for the public”). A legislative redefining of navigability in terms of
recreational use will represent a beginning toward moving Illinois water law into
the twenty-first century. More importantly, it is the legislative process that is the
proper method to codify the recreational navigation doctrine so it can be applied to
Illinois waterways. See Mills v. Peoples Gas Light & Coke Co., 327 Ill. 508, 536
(1927) (finding that legislation looks to the future and changes existing conditions
by making new law to be applied thereafter).

¶ 80 VIII. Conclusion

¶ 81 Accordingly, I concur in the result reached in today’s opinion, but I encourage
the legislature to promulgate legislation so that the state’s nonnavigable lakes,
rivers, and streams are not limited to use by riparian landowners but are available
to the public for recreational use.

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¶ 82 CHIEF JUSTICE ANNE M. BURKE joins in this special concurrence.

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