Lake Front and River Water Rights
Many people in America have the desire to live near bodies of water. This can be rivers, streams, ponds, lakes, or even oceans. What does life near water mean for you and your property? How much control do you have over the water that adjoins your property?
An important first step for any prospective waterfront property owner is to determine if the water they live near is considered “navigable waters”. In the State of Illinois, a lake or river is considered to be navigable water if the body of water, in its natural state, is used or is capable of being used as a highway for commerce over which trade and travel may be conducted in the customary modes of travel across water. There are a few notable navigable rivers and streams in Illinois. These include the Fox River, the Fox Chain O Lakes, the Chicago River, the Illinois River, the Des Plaines River, and the Mississippi River.
An example of non-navigable waters could be a small stream or a pond, as it is not big or sufficient enough to permit common waterway travel such as via a boat.
Why it is important to know whether your adjoining water is navigable or not determines how much control you have over the use of such water. All navigable waters are controlled by the State and possibly the Federal Government which has the power to enact legislation and regulate commerce and travel across navigable waters.
Another important thing to note with navigable waters is that everyone has a public easement to cross over them. Many waterfront homeowners mistakenly believe that people who sail across their lake or river parcel are guilty of trespassing. This is not the case when it comes to navigable waters.
The homeowner owns the land beneath the water, meaning that the owner can, with the appropriate permits, build docks and other structures on the land. If the water were ever to dry up, the land would be further available for use by the land owner and would more under his/her control. So long as there is navigable water running across the land, anyone and everyone owns a public easement to cross and sail along it. The idea is similar to how homeowners do not own the airspace above their homes and thus cannot bar aircraft from flying above their house. If they were able to do so, commerce, travel, and trade would be almost impossible.
Most rules governing navigable waters and their regulation have been left to local counties which work alongside the United States Army Corp of Engineers. The Army Corp of Engineers is often the agency one would seek permission/permits from to build upon navigable waters. The Army Corp of engineers is concerned with the environmental preservation of US waters and thus want to reduce the amount of sediment and fill that is discharged into the water through building and removal of structures. The Army Corps of Engineers also regulates dams and currently is undergoing a project to remove unnecessary dams across all of the major Illinois Rivers.
If you live on or adjacent to a body of water you likely will come into situations where you are facing disputes from either neighbors or your local county government as to what you may do on your property or who may enter it and for what reasons. It is important you have a clear understanding of your riparian rights and what permissions you must seek, if any, before you build, make use of, or attempt to exclude people from your adjoining water parcel. If you are a waterfront owner, please consider contacting the Law Office of Andrew Szocka at 815-455-8430 or by emailing us at info@szocka.com . We have experience with assisting waterfront home owners with asserting their rights and understanding their ownership and would look forward to helping you!