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06/20/96 LEE A. GIBBONS v. CLARKSON GRAIN COMPANY

June 20, 1996

LEE A. GIBBONS, PLAINTIFF-APPELLEE,
v.
CLARKSON GRAIN COMPANY, A CORPORATION, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Cass County. No. 94CH6. Honorable Robert L. Welch, Judge Presiding.

Released for Publication July 24, 1996. As Corrected August 29, 1996.

Honorable Rita B. Garman, J., Honorable Frederick S. Green, J., Honorable Robert J. Steigmann, J., Concurring. Justice Garman delivered the opinion of the court:

The opinion of the court was delivered by: Garman

The Honorable Justice GARMAN delivered the opinion of the court:

Defendant Clarkson Grain Company appeals from an entry of summary judgment in favor of plaintiff Lee Gibbons by the circuit court of Cass County. Defendant argues (1) plaintiff's riparian rights were not violated; and (2) summary judgment was improper, as a genuine issue of material fact existed. We affirm.

Plaintiff owns a life estate interest in property on the bank of the Illinois River in Beardstown, Illinois. The property adjacent to plaintiff's property is owned by Logsdon Sand & Gravel Company (Logsdon) and leased to defendant. Defendant operates a barge-loading facility on the property.

On October 5, 1994, plaintiff filed an amended complaint against defendant, seeking to enjoin the loading of barges in such a manner that causes them to extend in front of her property.

Both parties were deposed on March 16, 1995. Lynn Clarkson testified that he was the president of defendant company and that defendant leased the property from Logsdon and constructed a loading facility on the land. He was responsible for the layout of the facility, although he was shown no survey of the land. Instead, he relied upon Logsdon's indication of the location of the property lines.

Clarkson further testified that the standard length of a barge was 195 feet. He agreed the loading conveyor was less than 190 feet from the lot line shown to him and that the fronts of barges extended past the lot line during loading. He also stated that defendant did not seek permission to use the area across the lot line. In addition, he stated there were other methods of loading which would not cause the barges to extend past the lot line. However, defendant did not utilize these methods because it was easier to let the barges extend past the lot line.

Plaintiff testified that she has a life estate interest in riverfront property adjacent to defendant's loading facility. Although the property is now vacant, it was previously leased to a business operation. She stated she had attempted to lease the land several times, but failed, and she would have used the land to moor her own boats "had they gone off lease."

Plaintiff further testified there had been a boat ramp near the lot line and she would like to replace it and utilize the property as a marina. However, the extending barges would interfere with this use. She estimated the proposed boat ramp would be within a few feet of the property line, while the barges have extended as far as 40 to 50 feet past the property line. She admitted, however, that the barges had never touched the river bank on her property. She also admitted no one had indicated to her they wanted to do business on the property but could not because the barges extended beyond the lot line.

On April 13, 1995, plaintiff filed a motion for summary judgment. In a written order dated September 14, 1995, the trial court awarded summary judgment to plaintiff and enjoined defendant from loading or unloading barges in such a manner that the barges "cross the imaginary line of plaintiff's riparian rights of access" to the river. Defendant's timely appeal followed.

Defendant first argues the trial court erred in holding, as a matter of law, that plaintiff's riparian rights were violated by barges extending in front of her property. Defendant contends it was merely exercising its right to navigate on the river.

A riparian owner is one who owns land bordering upon a running river or stream and enjoys certain rights. Leitch v. Sanitary District, 369 Ill. 469, 473, 17 N.E.2d 34, 36 (1938). These "riparian rights" include the right of access to the water from the land. Bowes v. City of Chicago, 3 Ill. 2d 175, 197, 120 N.E.2d 15, 28 (1954). However, a shore owner's riparian rights are subservient to ...


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