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Smith v. City of Greenville

OPINION FILED MAY 10, 1983.

DONALD L. SMITH, PLAINTIFF-APPELLANT,

v.

THE CITY OF GREENVILLE ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Bond County; the Hon. Clayton R. Williams, Judge, presiding.

JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

The central question before us is whether the plaintiff, Donald Smith, has riparian rights in Governor Bond Lake.

Construction of the lake, which is owned by one of the defendants, the city of Greenville, was completed in 1969. The plaintiff owns a 40-acre tract lying to the west of the lake. A ditch on the eastern edge of his property carried water from his property into the newly created lake, and at times water backed up onto plaintiff's property from the lake. As a result of the construction of the lake and the subsequent movement of water between plaintiff's property and the lake, a 25-acre tract to the south became inaccessible from the north. The defendants Elvin and Kathryn Miller owned the 25-acre tract at the time and sold it in 1977 under a contract for deed to the defendants Phillip and Frances Schildknecht. To provide access to the 25-acre tract, in 1972 Elvin Miller built a roadway about seven feet high that ran north and south between plaintiff's property on the west and the lake on the east. A 48-inch culvert, running east and west, was installed under the roadway to accommodate the water passing between plaintiff's property and the lake. The west end of the culvert lies six to eight feet east of plaintiff's east property line. The roadway is located in LaGrange Township.

Plaintiff sought injunctive relief to compel removal of the roadway because of its alleged interference with the exercise of his riparian right of access to the water of the lake. Following a hearing the trial court found that "plaintiff's land had no water on it from the lake at times of normal pool" and expressly ruled that plaintiff "was not and is not a riparian owner." Plaintiff appeals raising three issues: (1) whether the finding of the trial court that plaintiff was not a riparian owner was "contrary to the weight of the evidence and contrary to law"; (2) whether "the order of the court was contrary to the manifest weight of the evidence in the trial court's finding that the Governor Bond Lake at Greenville, Illinois, did not lie in part upon the land of the Plaintiff"; and (3) whether "the Constitution of the State of Illinois and of the United States was violated by the taking of the Plaintiff's property without compensation."

Inasmuch as two of the three issues plaintiff raises call for a review of the evidence, we turn our attention first to a serious omission in the record. Missing from the transcript of proceedings is the testimony of all but one of the witnesses called by the defendants, a hiatus, according to the briefs, of 94 pages, constituting about one-seventh of the entire transcript of proceedings. In his reply brief plaintiff indicates that the omission occurred because of fault on the part of the court reporter and argues that the plaintiff should not be made to "bear the consequences" of the court reporter's failure to prepare, file, and mail the transcript. However, plaintiff has failed to prepare a certified report of proceedings from the best available sources or to stipulate as to the facts material to the controversy, as provided by Supreme Court Rule 323 (87 Ill.2d R. 323), in place of a verbatim transcript.

The burden is on the appellant, here the plaintiff, to present a record sufficiently complete that a reviewing court can question the quantum of evidence pertaining to an issue of fact. (Investors Shelter Corp. v. Chernick (1978), 58 Ill. App.3d 446, 374 N.E.2d 786.) When portions of the record are lacking it will be presumed that the trial court acted properly in the entry of the challenged order and that the order is supported by the part of the record not before the reviewing court. (Glover v. Glover (1974), 24 Ill. App.3d 73, 320 N.E.2d 513.) Otherwise stated, the rule is that in the absence of a proper record, it is presumed that sufficient evidence was presented to support the trial court's judgment and, thus, to require affirmance of that judgment. Investors Shelter Corp.

• 1 Without indulging in this presumption, however, we conclude from our examination of that part of the record plaintiff has furnished us, in conjunction with relevant case law, that the judgment of the trial court was not against the manifest weight of the evidence and was properly entered in favor of the defendants. Before we set forth those facts adduced at the hearing pertinent to the question of plaintiff's riparian ownership, we turn to the case law to which these facts must be applied.

In Bouris v. Largent (1968), 94 Ill. App.2d 251, 256, 236 N.E.2d 15, 18, the court described the riparian right of access to a body of water as dependent upon whether the property touches the water:

"The riparian right of access to a body of water depends on whether the property touches the water thereby enabling access to the water to be gained without going over property of others. Such right of access does not depend upon ownership of or title to the submerged land. Consequently such right is not affected by description of the property unrelated to the body of water. It is only necessary that the description of the property include or encompass the shore line."

In 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. In Trustees of Schools v. Schroll (1887), 120 Ill. 509, 518-19, 12 N.E. 243, 244-45, the court contrasted the two rules:

"[G]rants of land bounded on streams or rivers above tide water, carry the exclusive right and title of the grantee to the centre of the stream, usque ad filem aquae, subject to the easement of navigation in streams navigable in fact, unless the terms of the grant clearly denote the intention to stop at the edge or margin or the stream. [Citations.] But an entirely different rule applies when land is conveyed bounded along or upon a natural lake or pond. In such case the grant extends only to the water's edge. [Citations.]"

One reason for the rule that a riparian proprietor whose property is bounded by a lake takes only to the water's edge is set forth in Fuller v. Shedd (1896), 161 Ill. 462, 483, 44 N.E. 286, 293:

"The grant of land on a lake would, on the instant of the grant, be a conveyance to the center of the lake, if the same rule existed as with reference to rivers. The 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."

In a conveyance calling for a lake as a boundary line, the boundary line is that line at which the water usually stands when free from disturbing causes. (Brundage v. Knox (1917), 279 Ill. 450, 117 N.E. 123; City of Chicago v. Ward (1897), 169 Ill. 392, 48 N.E. 927; Seaman v. Smith (1860), 24 Ill. 521.) The court in Brundage v. Knox said of this rule, "This rule as laid down in [Seaman v. Smith] has always been referred to with approval and repeatedly quoted by this court as the rule applying to the boundary line of Lake Michigan or other fresh water lakes in this State." 279 Ill. 450, 470, 117 N.E. 123, 130.) Still examining Seaman v. Smith, the Brundage court said further that "[i]t is clear from the reasoning and conclusion in that case, in the light of the judgment entered, that it was not the ...


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