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December 29, 1997


Appeal from the Circuit Court of Madison County. No. 93-CH-301. Honorable David Herndon, Judge, presiding.

The Honorable Justice Kuehn delivered the opinion of the court. Hopkins, J., and Goldenhersh, J., concur.

The opinion of the court was delivered by: Kuehn

The Honorable Justice KUEHN delivered the opinion of the court:

Plaintiffs, Luther and Charleen Statler, and defendant, Dorothy Catalano, own adjacent tracts of land in Madison County. There is a private nonnavigable lake situated transversely on the property line between these parcels. This case marks an ongoing effort to define the parties' rights regarding the lake's surface waters, an issue which appears before us for the second time.

Plaintiffs purchased their eight-acre tract from Carl and Dorothy Miller in 1972. This tract included a portion of the lake bed. Plaintiffs used the entire lake for swimming, boating, and fishing. Soon thereafter, the Millers constructed a fence that extended approximately six feet into the lake in order to keep their cattle from entering plaintiffs' property.

In 1975, the Millers sold 72 acres, including the remainder of the lake bed, to defendant. The land was vacant until 1977, when defendant's son, William Catalano, Jr., moved onto the property. He then purchased some cattle from the Millers. In 1979, when William encountered problems keeping the cattle on defendant's property, he installed a fence extending across the lake. This fence created a dispute as to the plaintiffs' rights regarding the lake's surface waters, which reached the Madison County circuit court.

In 1986, the circuit court determined that, under the prevailing case law, plaintiffs only had a property right to that portion of the lake that was above their land and that they did not have a right to use the entire lake. On March 22, 1988, we affirmed the circuit court's judgment. Statler v. Catalano, 167 Ill. App. 3d 397, 411, 521 N.E.2d 565, 575, 118 Ill. Dec. 283 (1988).

On September 15, 1993, plaintiffs filed a complaint in the Madison County circuit court, seeking a declaration of their right to use the entire lake. Plaintiffs subsequently amended the action to include a request for injunctive relief prohibiting defendant from interfering with their use of the entire lake. Defendant moved to dismiss this complaint under the doctrine of res judicata. On July 26, 1994, the trial court denied defendant's dismissal motion, finding that a change in law, specifically the supreme court's decision in Beacham v. Lake Zurich Property Owners Ass'n, 123 Ill. 2d 227, 526 N.E.2d 154, 122 Ill. Dec. 14 (1988), rendered res judicata inapplicable to this case. On July 18, 1996, the trial court entered a permanent injunction prohibiting defendant from interfering with plaintiffs' reasonable use of the entire lake and ordering defendant to remove the fence extending across the lake. Defendant now appeals from the trial court ruling on her motion to dismiss and from the entry of the permanent injunction.

Defendant initially contends that the trial court erred in failing to dismiss plaintiffs' complaint. She points to our 1988 opinion and again argues that res judicata barred plaintiff's action. This contention presents a question of law rather than an issue of fact. DeLuna v. Treister, 286 Ill. App. 3d 25, 29, 676 N.E.2d 973, 976, 222 Ill. Dec. 9 (1996), appeal allowed, 174 Ill. 2d 558, N.E.2d (October 1, 1997). "Disputed questions of law are reviewed de novo." Davis v. Temple, 284 Ill. App. 3d 983, 989, 673 N.E.2d 737, 741, 220 Ill. Dec. 593 (1996). Therefore, "we may substitute our determination for that of the trial court if we find such determination to be erroneous." People ex rel. Garnati v. $14,000.00 United States Currency, 227 Ill. App. 3d 64, 66, 590 N.E.2d 1022, 1023, 169 Ill. Dec. 103 (1992). We agree with the trial court's judgment that res judicata does not apply to this case.

Plaintiffs argue that the trial court correctly found that an intervening change in law renders res judicata inapplicable to this case. Defendant urges that plaintiffs' argument is unsupported by Illinois law. Because this court has not yet addressed such circumstances, we are now faced with an issue of first impression: Does a change in the law resulting from judicial decision or statute subsequent to a case's adjudication eradicate the controlling effect of that case's judgment on subsequent related litigation? We hold that it does.

Our decision is guided by a case involving a strikingly similar argument, City of Des Plaines v. Metropolitan Sanitary District of Greater Chicago, 16 Ill. App. 3d 23, 305 N.E.2d 639 (1973), rev'd on other grounds, 59 Ill. 2d 29, 319 N.E.2d 9 (1974). In City of Des Plaines, a municipality sought to enforce certain zoning restrictions in 1966 against a sanitary district. The case eventually reached our supreme court, which held that the sanitary district was not subject to the municipality's zoning ordinance.

In 1972, the municipality filed a similar complaint in the circuit court, seeking a declaratory judgment that the municipality may regulate the sanitary district's land use activities pursuant to the 1970 Illinois Constitution. The district moved to dismiss the action based upon res judicata. The municipality argued that res judicata was inapplicable because the prior action involved the municipality's statutory powers, while the later action was founded on the home rule provisions of Article VII of the 1970 Illinois Constitution, thereby establishing a new legal relationship between the parties. The circuit court dismissed the action.

On appeal, the first district reversed the circuit court and held that res judicata was inapplicable, stating, "The legal relationship of the parties, the issues advanced, and the questions of law which must be decided have been significantly altered by the present Illinois constitution." City of Des Plaines, 16 Ill. App. 3d at 28, 305 N.E.2d at 643. The first district appellate court reasoned:

"The doctrine of Res judicata is of judicial origin and has been characterized as a rule of convenience designed to prevent repetitious law suits over matters which have once been decided and which have remained substantially static, factually and legally, but which must give way where there has been a change in the fundamental controlling legal principles. [Citation.] Similarly, the rule prevails in Illinois that Res judicata extends only to the facts and conditions as they were at the time a judgment was rendered, and to the legal rights and relations of the parties as fixed by the facts so determined; and when new facts or conditions intervene before the second action, establishing a new basis for the claims and defenses of the parties respectfully, the issues are no longer the same, and hence the former judgment cannot be pleaded as a bar in the subsequent action. [Citations.] Even though the basic facts have not changed, it is generally accepted that Res judicata does ...

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