APPEAL from the Circuit Court of Lee County; the Hon. F.
LAWRENCE LENZ, Judge, presiding.
MR. JUSTICE HALLETT DELIVERED THE OPINION OF THE COURT:
The issue in the case is whether a lot described in a surveyor's certificate as "lying north of the Rock River" includes the land to the center of the Rock River including an island lying just offshore from the lot although in previous conveyances the water and the island had always been specifically conveyed separately from the land and although the plat showed the lot corners marked by monuments and did not indicate that the island was part of the subdivision platted.
The land in question is part of Hensons Riverview Subdivision located in Lee County, Illinois, and land lying south of it. On December 9, 1958, Mr. and Mrs. Cochran conveyed by warranty deed the following described property to Mr. and Mrs. Henson:
"All that part of the said East Half of Section 1 lying south of the center of the Public Highway which runs diagonally across said Section 1, and north of Rock River, except the following described tract of land: Commencing at a point on the east line of said Section 1, 1639.0 feet south of the northeast corner thereof measured on said east line and extending thence southwest on the center line of a public road at an angle of 60 degrees 28 minutes measured clockwise from said east line of Section 1 a distance of 1214.25 feet; thence southeasterly at an angle of 107 degrees 17 minutes measured clockwise from the last described course a distance of 549.6 feet; thence southeasterly at an angle of 183 degrees 22 minutes measured counterclockwise from the last described course a distance of 199.5 feet to the bank of Rock River; thence northeasterly along the bank of Rock River to the east line of said Section 1; thence north on said east line to the point of beginning."
On the same day the Cochrans quitclaimed to the Hensons part of the southwest quarter of section 6 and also "that part of the Southeast Quarter of Section 1, Township 21 North, Range 8, East of the Fourth Principal Meridian lying North of the center of Rock River and South of the Northerly bank of the River; also, the island in Rock River lying within and South of the premises herein described." The Cochrans had received this and neighboring land from Reynolds Wire Co., who had received it from the Ralstons in 1938. In both of the deeds the rights to the territory in the River and to the island (described as south of the easterly end of the premises herein described which included all of the east half of Section One lying south of the center of the highway as well as land east of that) were separately conveyed. When the land was subdivided in 1959 the surveyor's certificate simply adopted the description appearing in the warranty deed to the Hensons. The plat on the following page shows the subdivision. The corners were marked by iron pins.
According to the 1968 survey, the island in question starts, on the west, south of the eastern third of lot 7 of the subdivision and runs east past lots 8, 2 and 1, the large area east of the subdivision belonging to the Methodist Church, and ends in section 6. In all places it lies north of the center of the Rock River.
The defendants Mr. and Mrs. Pettenger and Mr. and Mrs. Kratzer purchased lots 8 and 7 respectively from Mr. and Mrs. Chadwick and Mr. and Mrs. Busser in 1964 and 1965 respectively. The deeds simply conveyed the lots according to the plat so that the description in the plat is controlling. The plaintiff Mr. and Mrs. Heckman purchased lot 2 from Mr. and Mrs. Ernst, Sr., in 1969. In 1973, they also received from Mr. and Mrs. Henson a warranty deed to lot 1 and a quitclaim deed to all of the territory which had been conveyed to the Hensons by quitclaim deed. Presumably the Bussers and the Chadwicks received their lots from the Hensons but their deeds are not in the record.
The plaintiffs filed this action to quiet title to the property conveyed by the quitclaim deed. The defendants Kratzer and Pettenger counterclaimed claiming ownership to the middle of the River and claimed ownership of that portion of the island (if it was an island) facing their lots. They also denied that in fact it was an island and claimed ownership by accretion and alluvion.
Regarding the last contention there was testimony by the Kratzers that most of the year one could walk from their lot to the so-called island. However, at times when the water level went very low they would receive notice that people had been working on Sterling Dam. Mr. Kratzer also testified that no part of the so-called island connected with the Methodist Campground lying east of lot 1; the connection was limited to lots 7, 8, 1 and 2. According to Mr. Kratzer the reason there is now water around the island 12 months of the year is because the plaintiff blasted a trench through the floodplain.
Mr. Heckman, on the other hand, testified that he had taken possession of the island in October 1964, and that there was always water between the island and the subdivision. He did not, by making a ditch, put water between the island and the subdivision. Indeed, according to his testimony there has been no change in the amount of water at the end of lots 7 and 8 because of the blasting.
Mr. Henson, the subdivider, testified that he had been familiar with the property and the island since 1923 and that he had bought it as an island and sold it as an island. Since the time he purchased the land until about 1966 he was on it nearly every day and there was always water between the mainland and the island.
The other defendant, the Methodist Church, concedes that it received by its deed no right to the riverbed and the island and merely sought protection of its common law riparian rights which was granted. (It was stipulated that the Rock River was a navigable river.) The plaintiffs have not appealed from that part of the decision.
The court held that the title of the two defendants was not limited to the northerly bank of the Rock River but extended to the center of the Rock River.
• 1 The counter-plaintiffs contend, and the court so found, that because of their ownership of the land, they also own to the center of the river. The generally accepted rule in Illinois and elsewhere is that unless an intention to the contrary is manifest, a grant of land bounded on a stream will convey the land under water to the middle thread of the stream if the grantor's title extends so far (Braxon v. Bressler (1872), 64 Ill. 488; Allot v. Wilmington Light & Power Co. (1919), 288 Ill. 541, 123 N.E. 731; 36 Ill. L. & Pr. Waters, §§ 32, 46 (1958); see also 93 C.J.S. Waters § 84 (1956), and similarly the grantee's title generally extends to any islands lying between his estate and the middle of the channel of the stream (36 Ill. L. & Pr. Waters § 30 (1958)). However, the rule is merely a presumption, and the rule is not enforced where it appears that by the terms of the grant and all of the attendant circumstances the intention of the grantor was to confine the grantee to the bank of the river (Huff v. Hastings Express Co. ...