Category: Resources

The Illinois Fox River and the Chain O’Lakes (The Chain) Public River Access and Private Land Owner Rights

The Illinois Fox River and the Chain O’Lakes (The Chain) Public River Access and Private Land Owner Rights

The Fox River begins in the State of Wisconsin and flows through the State of Illinois to the City of Ottawa where it then flows into the Illinois River.  In McHenry County and Lake County, Illinois, the Fox River connects to the Chain O’Lakes.  The Chain O’Lakes consists of ten main lakes known as Grass Lake, Lake Marie, Channel Lake, Lake Catherine, Bluff Lake, Petite Lake, Fox Lake, Nippersink Lake, Pistakee Lake, and Redhead Lake.  There are another five lakes connected by canals and channels.  These five lakes are Duck Lake, Long Lake, Spring Lake, Dunns Lake, and Brandenburg Lake.

The State of Illinois pursuant to the Illinois Administrative Code through the Department of Natural Resources publishes a list of waterways.  If a waterway is listed that means that it is open to the public and a private land owner who owns land adjoining the waterway does not have any authority to block or restrict any member of the public from using the water once the person is on the water.  A private land owner does not have the right to restrict anyone while that person is on the waters of the Fox River and the Chain O’Lakes.

The Illinois Administrative Code makes the entire Fox River and the Chain O’Lakes open to public use, including all of the below listed waters.  The Code provides as follows:  The following public bodies of water are opened to public use, the entire length and surface area including all lakes, rivers, backwaters, submerged lands, bayous, and sloughs open to the main channel or body of water at normal flows or stages, are open to the public including but not limited to the Fox River (entire Illinois River Basin), Fox Chain O’Lakes (McHenry and Lake Counties), Bluff Lake, Lake Catherine, Channel Lake, Fox Lake, Grass Lake, Lake Marie, Nippersink Lake, Dunns Lake, Pistakee Lake, Lake Jerilyn, Lac Louette, Redhead Lake, Petite Lake, Spring Lake, and all connecting channels.  17 ILL. ADM. CODE Section 3704 APPENDIX A Public Bodies of Water.

Part of the reason for making the Fox River and the Chain O’Lakes open to the public is to promote commerce.  Commerce is plentiful on the Fox River and the Chain O’Lakes.  The Chain O’Lakes is the home to hundreds of various “On the Water” types of businesses including marinas, boat sales, charter boat captains, fishing tournaments, boat races, resorts, campgrounds, fine dining restaurants, and bars.  One of the historical and most famous places is the bar known as Blarney Island.  Blarney Island is located in the middle of Grass Lake and is only accessible by boat.

Does the Federal Government have jurisdiction over the Fox River?  The answer would be yes because of the inter-state nature of the river.  The Fox River flows through two different states.  It would be up to the Federal Government whether they would exercise such jurisdiction and the extent of the involvement.

If you have questions regarding lake or river rights, local attorney Andrew Szocka provides thorough and speedy assistance in the Chicagoland area.  To schedule a free initial consultation, visit Andrew Szocka, P.C. or call the office at (815) 455-8430.

 

What are the Steps to Opening a Probate Case?

What are the Steps to Opening a Probate Case?

Just suppose your loved one dies without ever having the chance to make a will or trust.  Now imagine that this person owns a home, has bank accounts and investments.  If you are the surviving spouse and you own everything joint, then, in most cases, everything passes to you.  But what happens if you each owned your own accounts and investments, no beneficiary is named and you need to access the account?  A probate case may be required with or without a Will.

  1. Meet with an attorney that handles probate estates.
  1. Bring a copy of the death certificate, the original will, if one exists, a list with names, addresses, ages and how related of all beneficiaries/heirs of the deceased, and a copy of the latest bank/investment account statements that you have in your possession. The attorney will also need a copy of the deed to the real estate.
  1. Someone will have to agree to be appointed the Independent Administrator of the estate. In the event that there is a will, the will usually names an executor and requests that a surety bond be waived.  If no will exists, the Court will appoint an administrator and will require a surety bond in the amount of 1.5 times the total amount of the estate.  The cost of a bond can be quite high.
  1. Once the paperwork has been completed and filed with the Court, the Court enters an order stating the amount of the bond required. The bond is obtained and submitted to the court.  Letters of Office will be issued naming an Independent Administrator.
  1. A Claim Notice published in the newspaper once a week for 3 weeks is required as a notification that a probate estate has been opened. This allows a claim for repayment of a debt to be filed against the estate within a six-month period of the publication.
  1. Once Letters of Office are issued, the Independent Administrator may then sell the real estate and handle any bank account or investment accounts that are open in the deceased’s name.
  1. The Independent Administrator is required to keep an accounting of all the transactions of the estate, all receipts and all distributions. At the end of one year, an accounting of these transactions must be filed with the Court.

 

If no claims are filed and administration goes smoothly, the probate matter can be closed at the end of one year and the Independent Administrator may be discharged.

If you are thinking about a Probate Matter, local attorney Andrew Szocka provides thorough and speedy Probate assistance in the Chicagoland area.  To schedule a free initial consultation, visit Andrew Szocka, P.C. online or call the office at (815) 455-8430.

 

 

Illinois Special Needs Trusts

Illinois Special Needs Trusts

An Illinois Special Needs Trust is a legal tool that allows families or caregivers to set aside funds for a person with special needs, without affecting their eligibility for government benefits such as Medicaid, SSI, or other means-tested programs.

In Illinois, a special needs trust is also known as a “supplemental needs trust.” There are two main types of supplemental needs trusts: a first-party supplemental needs trust and a third-party supplemental needs trust.

A first-party supplemental needs trust is funded with the assets of the person with special needs, such as an inheritance, settlement, or a personal injury award. This type of trust must be established before the beneficiary turns 65 years old and is subject to certain restrictions. Also known as a “self-settled” or “payback” trust, a first-party supplemental needs trust, is a type of trust that allows an individual with a disability to retain their eligibility for government benefits, while also setting aside their own assets to supplement their needs.

This type of trust is typically established by the individual with a disability, using their own funds, in order to provide for their own needs while still maintaining eligibility for government benefits such as Medicaid and Supplemental Security Income (SSI). The term “supplemental needs” refers to the fact that the trust is designed to supplement, not replace, government benefits.

One of the key features of a first-party supplemental needs trust is that it must contain a “payback” provision, meaning that upon the death of the beneficiary, any remaining funds in the trust must be used to reimburse the government for the cost of benefits received by the beneficiary during their lifetime. This requirement is intended to ensure that the government is not left with the cost of providing benefits that could have been paid for by the trust.

A third-party supplemental needs trust, on the other hand, is funded with assets that belong to someone other than the person with special needs, such as a parent, grandparent, or other family member. There are fewer restrictions on this type of trust, and it can be established at any time.

A third-party supplemental trust allows someone to provide additional financial support to a loved one who has a disability, without interfering with their eligibility for government benefits. This type of trust is often used by families or loved ones of individuals with disabilities to supplement government benefits, such as Medicaid or Supplemental Security Income (SSI).

The term “third-party” refers to the fact that the trust is funded by someone other than the beneficiary. The trust is typically established by a family member or friend of the beneficiary, and the funds in the trust are used to supplement the beneficiary’s income or provide for their care and support.

One of the key benefits of a third-party supplemental trust is that it can provide a safety net for the beneficiary in the event that government benefits are reduced or discontinued. The trust can also help to ensure that the beneficiary has access to funds for expenses that are not covered by government benefits, such as dental or vision care.

Overall, a third-party supplemental trust can be a valuable tool for families or loved ones who want to provide financial support to an individual with a disability without jeopardizing their eligibility for government benefits.

The purpose of a special needs trust is to provide financial support for the person with special needs while also preserving their eligibility for government benefits. The trust is managed by a trustee, who is responsible for distributing funds to the beneficiary in a way that does not interfere with their eligibility for benefits. It is important to consult with a qualified attorney who specializes in special needs trusts in Illinois to determine which type of trust is appropriate for your situation and to ensure that the trust is properly established and managed.

If you are thinking about a Special Needs Trust, local attorney Andrew Szocka provides thorough and speedy real-estate assistance in the Chicagoland area.  To schedule a free initial consultation, visit Andrew Szocka, P.C. online or call the office at (815) 455-8430.

 

Illinois River Access and River Rights, Holm v. Kodat – The Mazon River Fossil Case

Illinois River Access and River Rights, Holm v. Kodat – The Mazon River Fossil Case

When the Illinois Supreme Court’s decision in Holm v. Kodat was filed on June 16, 2022, both Supreme Court Justice Neville and advocates of recreational access lamented the decision as archaic and anachronistic. While a case about riparian rights and fossils may seem relatively unimportant to the daily lives of Illinoisians, the story of this case is more interesting than the legal topic might suggest.

The Mazon River is a tributary of the Illinois River. It is approximately 86 miles and drains an area of approximately 802 square miles. The river starts in Grundy County and flows through Will County and into the Illinois River near Morris. The Mazon River is a popular destination for recreational activities such as fishing, canoeing, and kayaking. The river is home to a variety of fish species including bass, catfish, and panfish. The Mazon River is also known for its high-quality water and diverse fish and wildlife populations, which are protected by the Illinois River Valley Conservation Reserve Enhancement Program.[1]

What most people may not know, is that the Mazon River is known for its rich fossil deposits, which have been studied by paleontologists for over a century. The Mazon Creek fossils are preserved in ironstone concretions, which are formed when iron minerals precipitate out of the water and bind sediment together. The fossils found in these concretions are some of the best-preserved in the world and have provided scientists with a wealth of information about the plants and animals that lived in the area over 300 million years ago during the Pennsylvanian Period.[2]

The fight over public access to the Mazon River had been working its way through the Circuit and Appellate Courts in Illinois for years. The rich fossil beds, limited accessibility to fossils on public land, and the red-hot market for the quality fossils like those found in the Mazon River are at the heart of an otherwise mundane riparian property rights case. The Plaintiffs purchased two properties along the Mazon River. The first property consists of 33 acres of landlocked, unimproved real estate with no road access. The second Property consisted of 9 acres with road access. The Plaintiffs operated a seasonal fossil hunting business on both properties where they collect fossils to sell to paleontologists and collectors.

The Plaintiff’s used kayaks on the Mazon River to travel from the road access property to the landlocked property, loaded their kayaks with fossils for transport on the Mazon River further downstream to Pine Bluff Road Bridge. During the course of their travel, the Plaintiff’s ride their kayaks on the Mazon River through properties owned by Defendants.

The outcome of this case is surprising. The Courts decision was based on hundreds of years of common law. In Illinois, 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.”  However, be very cautious in restricting anyone because this rule only applies in some situations.  See the last paragraph of this article for more information.   People ex rel. Deneen v. Economy Light & Power Co., 241 Ill. 290, 318 (1909). The Court was unwilling to consider this basic premise of common law riparian rights.

Instead, what the Court did was present their preferred legal path to changing how navigable waterways are categorized. The path the Court laid out maintains centuries of common law doctrine but changes on the definition of navigable waterways. The court has a long-standing recognition 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 non-navigable, 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)).

The issue the Court decided to address, was whether there is a public right to use a non-navigable river. When the issue is framed in this light, the hundred of years of common law clearly preclude public access. Not all hope is lost. The key to challenging the outcome of this case is centered solely on what constitutes a navigable waterway. If the Mazon river can be considered a navigable waterway, then the Plaintiff’s would have a public easement and the right to use the river when it flowed across the Defendants property. The Court simply refused to address this glaring issue and instead turned to the legislature claiming that the Courts hands were tied by common law.

Justice Neville, in his concurring opinion, lays out the suggested doctrine and legal basis for the legislature to enact a change in the in what constitutes navigable waterways.  Relying on the recreational navigation doctrine, Justice Neville explains that each state has full jurisdiction over how they categorize waterways. Justice Neville laments that 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.

Justice Neville advocates for what is known as the “recreational navigation doctrine”. This doctrine is a legal principle that allows the public to navigate on certain bodies of water, such as rivers, lakes, and coastal waters, for recreational purposes without obtaining permission or paying fees. This doctrine is based on the idea that these bodies of water are resources that should be accessible to all members of the public for recreational use. However, the doctrine does not give the public the right to interfere with the rights of private property owners or to engage in activities that are harmful to the environment or to other users of the waterway.

Justice Neville invites the legislature to enact the doctrine, going out of his way to provide the legislature with what is essentially a judicial blessing of the statutory change stating “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.”

An issue likely to cause concern to the general public, unconstitutional taking claims, is addressed by Judge Neville’s anticipated Court response;

“Illinois would benefit if the recreational navigation doctrine was codified in a public domain declaration. This would avoid, or at least minimize, litigation by avoiding takings claims related to federal and state constitutional limitations on government condemnation. 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.”

But all the legal handwringing belies a glaring error in the opinion. The question the Court should have addressed is whether the Mazon River is a waterway which “affords a channel for useful commerce and practical utility to the public.”[3]  The Court, in one swift hammer of the gavel states, “it is undisputed that the Mazon River is a non-navigable river and, therefore, has no public easement for access.”  How could the court so quickly erase the most pressing legal concern without so much as an explanation? This case was never about recreational access to a river. This case was always about how we define commercial use of a river and practical utility to the public. The focus of the case and the opinion should have been on the ability of the waterway to be used for commercial use. The court punted on the real legal issue.

In the State of Illinois, the State publishes a list of navigable waterways.  If a waterway is listed, public access is allowed including all areas of the waterway such as channels, backwaters, cannels, streams, tributaries, and creeks.  See Section 3704, Appendix A of the ILL. ADM. CODE CH. I. An example is the Fox Chain-O-Lakes and the Fox River.  If a waterway is listed on the state list, a property owner cannot restrict anyone from using the waterway.  This means that any person in a boat, kayak, or even floating on an inner tube can go anywhere they want on the listed waterway even right up to the shore.

[1] https://www2.illinois.gov/dnr/conservation/CREP/Pages/default.aspx

[2] https://naturalhistory.si.edu/research/paleobiology/collections-overview/mazon-creek-fossil-flora#:~:text=The%20Mazon%20Creek%20fossil%20deposit,plant%20or%20animal%20fossil%20within.

[3] Schulte v. Warren, 75 N.E. 783, 785 (Ill. 1905).

Intellectual Property Basics

Intellectual Property Basics

Intellectual property (IP) refers to creations of the mind, such as inventions, literary and artistic works, and symbols, names, and images used in commerce. IP is protected by law, which allows creators and owners to benefit from their work and creations. There are several types of intellectual property, including:

  • Copyright: This covers literary, artistic, and musical works, as well as films, broadcasts, and other performances. It gives the creator of a work the exclusive right to reproduce, distribute, and make derivatives of the work.
  • Trademarks: This covers symbols, names, and images used in commerce to distinguish a company’s goods or services from those of others.

 

  • Patents: This covers inventions, such as new products, processes, or machines. A patent gives the owner the exclusive right to make, use, and sell the invention for a certain period of time.

 

  • Trade secrets: This covers confidential business information, such as a company’s recipes, formulas, or customer lists.

 

IP law aims to strike a balance between protecting the rights of creators and owners, and promoting the public interest by allowing others to use and build upon IP. For example, copyright law allows for the fair use of copyrighted material for certain purposes, such as criticism, comment, news reporting, teaching, scholarship, or research.

Copyright Fundamentals

Copyright is a type of intellectual property that covers literary, artistic, and musical works, as well as films, broadcasts, and other performances. It gives the creator of a work the exclusive right to reproduce, distribute, and make derivatives of the work. This allows the creator to control how their work is used and to profit from their creativity.

Copyright law applies automatically to any original work as soon as it is fixed in a tangible form, such as being written down or recorded. This means that the creator does not need to register the work or include a copyright notice in order for it to be protected. However, registering the work with the appropriate national or regional copyright office can provide additional legal benefits, such as the ability to sue for infringement and to obtain statutory damages.

Copyright law typically lasts for the life of the creator plus a certain number of years after their death. The length of time varies depending on the country and the type of work. For example, in the United States, copyright protection for literary, musical, and artistic works lasts for the life of the author plus 70 years.

 

One of the key features of copyright law is the doctrine of fair use, which allows for the limited use of copyrighted material without the permission of the copyright owner. This is intended to promote the public interest by allowing others to use copyrighted works for certain purposes, such as criticism, comment, news reporting, teaching, scholarship, or research. However, fair use is a complex area of law and can vary depending on the specific circumstances.

Trademark Overview

A trademark is a type of intellectual property that covers symbols, names, and images used in commerce to distinguish a company’s goods or services from those of others. Trademarks are often referred to as brands, and they can include words, phrases, logos, colors, or even sounds and smells.

 

The main purpose of trademarks is to prevent confusion among consumers and to protect the reputation and goodwill of the trademark owner. For example, if a company uses the trademark “Coca-Cola” on its soda bottles, consumers can be confident that they are getting the genuine, high-quality product they expect.

 

Obtaining a trademark can be a valuable asset for a company. It allows the owner to prevent others from using the same or a similar trademark, and it can also be licensed or sold to others. In addition, a registered trademark is considered intellectual property and can be used as collateral for loans or investment.

 

To obtain a trademark, a company must file a trademark application with the appropriate national or state trademark office. The application must include the trademark, the goods or services it will be used for, and any supporting documentation. The trademark office will then review the application to ensure that it meets the legal requirements for a trademark. If the application is approved, the trademark will be registered and the owner will have exclusive rights to use it for the specified goods or services.

 

However, it’s important to note that trademarks are not granted automatically. The trademark owner must also use the trademark in commerce and enforce their rights against infringers. If a trademark is not used or is not adequately protected, it can become vulnerable to cancellation.

 

Patents Explained

A patent is a type of intellectual property that gives the owner the exclusive right to make, use, and sell an invention for a certain period of time. This gives the inventor the ability to profit from their invention, and it also provides an incentive for innovation by protecting the inventor’s hard work and investment.

 

To be eligible for a patent, an invention must be new, useful, and non-obvious. This means that the invention must not have been previously known or used, it must have a specific function or purpose, and it must not be something that would be obvious to someone skilled in the field.

 

There are several types of patents, including utility patents, design patents, and plant patents. Utility patents are the most common, and they cover inventions that have a specific function, such as a new product or process. Design patents cover the appearance of a product, such as its shape or ornamentation. Plant patents cover new varieties of plants that are asexually reproduced.

 

Obtaining a patent can be a complex and time-consuming process. In the United States, inventors must file a patent application with the US Patent and Trademark Office (USPTO), which includes a detailed description of the invention, drawings, and any relevant background information. The application is then reviewed by a patent examiner, who will decide whether the invention meets the criteria for a patent. If the application is approved, the inventor will be granted a patent for a certain number of years, typically 20 years from the date of filing.

 

Once a patent is granted, the owner has the right to exclude others from making, using, or selling the invention without permission. However, the owner must also disclose the details of the invention to the public, which allows others to build upon and improve upon the invention.

 

Overall, patents play a crucial role in promoting innovation and protecting inventors’ rights. If you have an invention that you believe is eligible for a patent, it’s important to seek the advice of a lawyer who specializes in this area.

 

Trade Secrets Demystified

A trade secret is a type of intellectual property that refers to confidential business information, such as a company’s recipes, formulas, or customer lists. Unlike other types of intellectual property, such as patents or trademarks, trade secrets are not registered or publicly disclosed. Instead, they are protected by the owner’s efforts to keep the information secret.

 

The advantages of trade secrets are that they can provide a competitive advantage to the owner and they can last indefinitely, as long as the information remains secret. For example, the recipe for Coca-Cola is a well-known trade secret that has been protected for over 100 years.

 

However, there are also risks associated with trade secrets. If the information is disclosed or stolen, the owner may lose their competitive advantage and may have difficulty protecting the information in the future. Therefore, it’s important for companies to take steps to protect their trade secrets, such as implementing confidentiality agreements with employees and third parties, and securing physical and electronic copies of the information.

 

Trade secret law varies from country to country. In the United States, trade secret protection is governed by state law and the federal Defend Trade Secrets Act of 2016. This law provides a legal cause of action for trade secret misappropriation, which is the unauthorized use or disclosure of trade secrets.

 

All business’s have trade secrets. Every business owner should consult with an attorney to ensure that adequate steps are taken to protect one of the most valuable yet often overlooked business asset.

 

Challenges in litigating IP disputes

Litigating intellectual property (IP) disputes can be a complex and challenging process, particularly for small businesses and individual creators who may not have the resources or expertise to navigate the legal system. Some of the key challenges in litigating IP disputes include:

  1. Determining the scope of the IP rights involved: IP law is complex and can vary depending on the type of IP and the jurisdiction. In some cases, it may be unclear whether the disputed use of the IP constitutes infringement or is protected by an exception, such as fair use.
  2. Proving ownership and infringement: In order to succeed in an IP infringement lawsuit, the plaintiff must be able to prove that they are the rightful owner of the IP and that the defendant has infringed on their rights. This can involve providing evidence of the creation and ownership of the IP, as well as demonstrating how the defendant has used the IP without permission.
  3. Defending against counterclaims: In many IP disputes, the defendant may assert their own IP rights or raise other legal defenses, such as fair use or invalidity of the plaintiff’s IP. This can complicate the case and may require the plaintiff to defend their own IP rights or prove the validity of their IP.
  4. Dealing with potential damages: If the plaintiff is successful in an IP infringement lawsuit, they may be entitled to damages, such as lost profits or royalties. However, determining the appropriate amount of damages can be difficult, particularly in cases where the value of the IP is not easily quantifiable.
  5. Managing the costs and time involved: Litigating IP disputes can be costly and time-consuming, especially if the case goes to trial. This can be a significant burden for small businesses or individual creators who may not have the financial resources or legal expertise to handle a complex lawsuit.

If you are involved in an IP dispute, it is important to consult a lawyer who specializes in this area. They can provide legal advice and representation to help you protect your IP rights and achieve a favorable outcome.