dissenting:
In determining whether a water-filled quarry may be considered a lake, I believe that the majority, and the Second District in Nottolini v. La Salle National Bank, 335 Ill. App. 3d 1015, 782 N.E.2d 980 (2003), have made unnecessary and unwarranted distinctions between a man-made water-filled depression and a water-filled depression of natural origin. For me, the real question is: What possible relevance or significance attaches to whether the hole that forms the bed of a body of water was created by nature or by man when determining how to apportion the rights of co-owners of the bed to use the surface waters? Because Nottolini fails to address or answer this question, I respectfully dissent from the majority’s decision in the instant case, which relies exclusively and uncritically upon that holding.
The majority in the present case adopts the narrow definition announced in Nottolini, which defines 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.’ ” Nottolini, 335 Ill. App. 3d at 1018, 782 N.E.2d at 982, quoting 78 Am. Jur. 2d Waters §108 (2002). Although the second edition of American Jurisprudence shows that a distinction can be drawn between natural and man-made lakes, it does not demonstrate that drawing the distinction is either required or wise. Moreover, this definition ignores the reality of many “lakes” formed by rainwater or floodwater naturally filling a depression left after the discontinuation of mining operations or other human endeavors. In doing so, it leaves numerous landowners needlessly in limbo as to their rights to use bodies of water which form part of their property and which were specifically created or traditionally used for recreational purposes.
The definition adopted in Nottolini and by the majority simply creates too many questions to make its application practical or even feasible: Is a body of water created by human diversion of a river or other watercourse into a low-lying area a “lake”? What if the low-lying area was originally farmland? Or an abandoned strip mine? If a depression created hundreds or thousands of years ago by some human effort becomes filled with water by an act of nature, is it a “lake”? How far back do we have to look to determine whether or not the depression was “natural”? Is a depression that is dug for the specific purpose of hosting recreational activities and is filled by rain and/or natural overflow from surrounding land a “lake”? Why should any of this matter in determining whether individuals who purchase property that includes part of a “man-made” lake have a right to use surface waters in the area of the lake not owned by them without fear of arbitrary restriction by other owners? In my opinion, this decision, in concert with Nottolini, will spawn much unnecessary litigation concerning the use of lakes that form the hub of many communities, subdivisions, and recreational developments.
It seems eminently logical to me that a large body of water surrounded by land is a lake regardless of whether the depression was formed by nature or man. Therefore, instead of blindly adopting the restrictive definition announced in Nottolini, I would define the term “lake” as “a considerable inland body of standing water.” Webster’s Ninth New Collegiate Dictionary 670 (2000). This definition mirrors several other definitions found in both legal and lay dictionaries. For example, the DK Illustrated Oxford Dictionary 454 (1998) describes a “lake” as “a large body of water surrounded by land.” West’s Legal Thesaurus and Dictionary 446 (1985) says a “lake” is “a considerable body of standing water in a depression of land or in an expanded part of a river.” Finally, Black’s Law Dictionary 876-77 (6th ed. 1990) provides, depending on how you count them, either five or seven definitions,1 not one of which incorporates the restrictions adopted by Nottolini and the majority. Simply put, it defies logic to conclude that only a naturally “water-filled depression of natural origin” constitutes a “lake.” Moreover, I believe these more inclusive definitions better serve the expressed intent of the Illinois Supreme Court in Beacham v. Lake Zurich Property Owners Ass’n, 123 Ill. 2d 227, 526 N.E.2d 154 (1988), to promote the recreational use and enjoyment of lakes.
In Beacham, an individual owned part of the private, nonnavigable bed of Lake Zurich. The owner and her boat rental business brought suit against the property owners’ association seeking a declaration that she and her licensees were entitled to the reasonable use of the entire lake, including the waters overlying those parts of the lake bed owned by the association’s members. The trial court, relying on a long-standing “common law rule,” dismissed the complaint, holding that the association could exclude the owner and her licensees from that part of the lake overlying the lake bed that it owned and controlled. The appellate court reversed, applying the approach of the “civil law rule” providing that ownership of a part of the bed of a private, nonnavigable lake entitled owners and their licensees to the reasonable use and enjoyment of the surface waters of the entire lake provided they did not unduly interfere with the reasonable use of the waters by other owners and their licensees.
The supreme court analyzed the impact of the two rules and examined decisions from other states. Beacham, 123 Ill. 2d at 230-32, 526 N.E.2d at 157. In affirming the decision of the appellate court, it stated:
“We conclude that the arguments supporting the civil law rule warrant its adoption in Illinois. Restricting the use of a lake to the water overlying the owner’s lake bed property can only frustrate the cooperative and mutually beneficial use of that important resource.” Beacham, 123 Ill. 2d at 232, 526 N.E.2d at 157.
Apparently the courts in Beacham, including the supreme court, did not find a determination of whether the lake was natural or somehow “man-made” to be necessary to the resolution of the issue. While I recognize the parties did not raise the definitional issue and the court did not address it, the spirit and principles underlying the Beacham decision are still instructive when examining the impractical consequences the majority’s decision will have upon individuals whose property includes a portion of a so-called “man-made lake” — in this case, a water-filled quarry.
Here, it is uncontested that all the parties to this action have previously used the body of water for boating, skiing, or swimming. Nonetheless, the majority finds it appropriate to adopt a very restrictive definition that revokes previously accepted access and enjoyment by one owner of the lake bed. Significantly, however, this decision does not only affect the rights of the parties to this action; it also impacts numerous individuals who currently own property that includes a portion of a body of water which was specifically created for the purpose of community and recreational activities. This decision in effect deprives all of those individuals of the exact right the body of water was created to provide — the reasonable use and enjoyment of the entire lake surface. Such an effect clearly violates the spirit and purpose of the supreme court’s holding in Beacham.
Finally, it bears noting that the question of whether the flooded quarry here qualifies as a lake was addressed in our previous decision in Fatlan v. Alderson, No. 3—00—0890 (2001) (unpublished order pursuant to Supreme Court Rule 23 (166 Ill. 2d R. 23)). Specifically, we stated that “the quarry was closed and subsequently filled with water and turned into a lake.” (Emphasis added.) Fatlan v. Alderson, No. 3—00—0890 (2001) (unpublished order pursuant to Supreme Court Rule 23 (166 Ill. 2d R. 23)). Although we did not specifically decide the issue on substantive grounds, I would still find that this language requires the application of the law of the case doctrine. The law of the case doctrine prohibits the reconsideration of issues that have already been decided by a reviewing court in a prior appeal. In re Christopher K., 217 Ill. 2d 348, 365, 841 N.E.2d 945, 955 (2005).
Moreover, our previous statement that the quarry turned into a lake is justified by the fact that the parties themselves repeatedly referred to the body of water as a “lake” throughout the 2001 proceedings. Generally, “[allegations contained in a complaint are judicial admissions and are conclusive against the pleader.” Calloway v. Allstate Insurance Co., 138 Ill. App. 3d 545, 549, 485 N.E.2d 1242, 1245 (1985). Our previous decision, in reliance upon these judicial admissions, repeatedly refers to the water-filled quarry as a “lake.” Here, however, the majority completely ignores our decision and instead erroneously chooses to adopt the restrictive definition announced in Nottolini and find the body of water is not a lake.
For these reasons, I would affirm the judgment of the circuit court of Will County granting plaintiffs motion for summary judgment. I, therefore, respectfully dissent from the majority’s contrary decision.
“A considerable body of standing water in a depression of land or expanded part of a river. An inland body of water or naturally enclosed basin serving to drain surrounding country; or a body of water of considerable size surrounded by land; a widened portion of a river or a lagoon. [Citation.] Body of water, more or less, stagnant, in which the water is supplied from drainage. [Citation.] An inland body of water of considerable size occupying natural basin or depression in earth’s surface below ordinary drainage level of region. [Citation.] A large body of water, contained in a depression of the earth’s surface, and supplied from the drainage of a more or less extended area.”