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I. Natural Watercourses .. . .* ..
A. The doctrine of riparian rights. .. .
1. Riparian use . . .
2. Nonriparian use. . . .
3. Ownership of bed . . ..
4. Natural vs. artificial uses. . .
5. Nonconsumptive uses* ..... . .
6. Obstruction, detention, and diversion. .
7. The "beneficial use statute" ......
8. Acceleration of flow ..........
9. Pollution. . . . .
10. Improvements . . . .
11. Sale or lease of riparian rights ....
12. Rights by prescription . .
B. Navigable waters . . . .
1. Nonnavigable waters made navigable .
2. Governmental jurisdiction over navigable
a, State jurisdiction . ..
b. Federal 'jurisdiction . ..
3. Title to bed of navigable waters .
C. Riparian rights in lakes and ponds ..
p. Underground watercourses . . ..
II. Percolating groundwater. . . .
A. The common law rule. . . .
B. .Malicious use. .. . . .
* 9 9 9 9 9 9 9 .9
. 9 9 9 9
9 9 9 9 .9
9 9 9
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. 9 9 9 9 a 9 9 .
O O O O O O O O
aO O O
* 9 9 9 9 9 9 9 9 9
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___ __1_ __I_~_ ___~ ___ ___ ~~_I~_ ~~~_ ~~_
C. The "beneficial use statute" ........
D. Pollution. . . *
E. Filing and permit requirements . .
F. Grant or sale of right to percolating ground
G. Rights by prescription .. ....
III. Diffused surface water . .
A. Surface water drainage law .........
B. What constitutes surface water . ...
C. Right to use surface water . ...
D. Pollution. . . .......
E. Conveyance or grant of surface water rights.
F. Rights by prescription . .
. . 4 4 .
* 4 0 4 .4
water . .
. 4 4 4 4 4 *
.* 0 4* *4 4
* * * *4
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4 4 4 * .
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_ __. _11~
ILLINOIS WATER USE LAWl/
Fred L. Mann2/
Many areas of Illinois are now becoming concerned about the supply of
water. Many farmers in the central and southern parts of the state have recently
found it necessary to haul water to supplement their wells and other on-farm
sources of supply. In addition to periodic droughts, certain areas are experienc-
ing a greatly increased demand for water by new industry and new irrigators.
What happens when the water supply is not large enough to supply all de-
mands? How should the available water be apportioned? What are our rights in
using different sources of water as against our neighbors' rights? For what pur-
poses, if any are we allowed to use all the water we want? Suppose we decide to
begin using a large quantity of water for a special purpose like irrigation. Can
we use as much as we want without regard to how it affects other peoples supply,
or do we have the right to use only as much as will not affect others in their
The statutes and reported appellate court decisions in Illinois give
us answers to some of these questions, although many answers are yet to be de-
The following material is intended to illustrate, for the benefit of
water users and those interested in water use, the Illinois law covering use of
water from natural sources. It should not be regarded as a substitute for com-
petent legal advice on specific problems. The laws may change and their applica-
tion may depend upon the particular circumstances involved.
The Illinois courts, particularly in the early cases, generally have
given little recognition to the hydrologic cycle and the fact that all natural
water supplies are replenished by precipitation.3/ They have divided natural
water sources into three general categories: (1) natural watercourses, includ-
ing underground watercourses and certain lakes and ponds; (2) percolating ground
water; and (3) diffused surface water. Different rules of law may apply to each.
I Written under the supervision ofN. G. P. Krausz, associate professor of agri-
cultural law, University of Illinois College of Agriculture, and member of the
Illinois Bar; Harold Ellis, agricultural economist, Agricultural Research Serv-
ice and member of the Illinois Bar; and Buis T. Inman, assistant head, Northern
Field Research Section, Farm Economics Research Division, Agricultural Research
Service, U. S. Department of Agriculture.
/ Agricultural economist, Farm Economics Research Division, Agricultural Research
Service, U. S. Department of Agriculture; and collaborator with the University
of Illinois College of Agriculture.
3/ Water falls on the earth's surface as precipitation--approximately 50 percent
runs into watercourses, 30 percent evaporates, and 20 percent is absorbed by
the ground. Nearly all ground water is moving to maintain the flow of surface
streams. Ultimately it all evaporates into the atmosphere to fall again as
precipitation. For a discussion of the hydrologic cycle, see "Unit Hydrographs
in Illinois," Department of Public Works and Buildings, Division of Waterways
I. Natural Watercourses
Natural watercourses include flowing streams of water.l/ Just how big
the flow must be, or how often it must flow before it becomes a natural water-
course, has not been well defined by our laws. The State Supreme Court has in-
dicated by way of dicta2/ that a flow of water which originates from a spring on
one person's land and which is sufficient to supply the natural wants/ of that
person and still leave a flow of water that will pass onto the next lower land,
may be considered a natural watercourse. / On the other hand, the court has said
that a depression which carries water only during "rainy seasons" is not considered
a natural watercourse to which "riparian rights" (discussed below) attach.5/
If an artificial ditch has been used for many years to carry water, or
if it was made to replace or improve a natural watercourse, it too may be treated
as a natural watercourse in certain instances.6
Rights involving nonnavigable waters differ somewhat from rights involv-
ing navigable waters. Moreover, the State Department of Public Works and Buildings
has certain jurisdiction over so-called public waters, which include navigable and
perhaps certain related waters. These differences are discussed later under Navi-
A. The Doctrine of Riparian Rights
The right to use water in natural watercourses was first regulated in
Illinois by the early common-law "riparian rights doctrine."7/ This same doctrine,
as developed by court decisions and except as it may be modified by legislation, is
still the law in Illinois. In general, the doctrine states that those persons who
own the land at the water's edge or those who have possession and control of such
land have certain rights to use the water. But they must use it with due regard
for the rights of other persons whose land borders on the same body of water.
These persons are called riparian propriertors and their rights in connection
with such water are called riparian rights. These rights may differ for differ-
ent types of uses, as is discussed below. Riparian proprietors also have certain
correlative duties. These duties arise largely as a result of the rights of other
riparian proprietors also to use the water for various purposes. The duties of a
particular proprietor are merely the converse of the rights of some other pro-
prietor or proprietors.
1. Riparian Use. A riparian proprietor may be limited as to the land
on which he may use the water (called riparian land). It is not clear just what
this limitation is. However, the court has said that riparian proprietors have
only a right to use the water on their own soil.8/ The court has also stated that
in laying out a plat with a street along a stream, the original owner gives up his
riparian rights (which apparently then rest in the owner of the street) unless they
are specifically reserved.9/ Aside from such reservations in subdividing riparian
1/ Natural lakes and ponds are considered later.
By incidental statements rather than a direct holding.
SDiscussed and defined on page 4.
SEvans v. Merriweather, 4 Ill. 492, 495 (1842).
P/ inkstaff v. Steffy, 216 Ill. 406, 414 (1905).
_/ People v. Cache River Drainage District, 251 Ill. App. 397 (1929).
7/ Evans v. Merriweather, 4 Ill. 492, 494 (1842).
/Batavia Manufacturing Co. v. Newton Wagon Co., 91 Ill. 230 (1878).
9/ Canal Trustees v. Haven, 11 Ill. 554 (1850).
land, a number of courts in other states have indicated that riparian land ordi-
narily would include only that land owned by the same person which is contiguous
to the watercourse.l/ The courts of some states have indicated further that ri-
parian land is limited to the largest contiguous tract of land bordering on the
stream that has been held by one owner, or collectively by co-owners, at any time
in its title.2/ Moreover, some courts have indic ted that riparian rights do not
extend to land that is not within the watershed.3/ Illinois courts might follow
any one or more of such views.
2. Nonriparian Use. The question of the right to use the water of a
natural watercourse on nonriparian land has never been decided by the Illinois
courts. Some cases that have been before the courts apparently involved parties
who were nonriparian proprietors. However, the courts did not duscuss their
right to use the water but rather seemed to assume that their nonriparian status
did not, of itself, make their use unlawful.
It seems that if the right to use the water is claimed as a result of a
purchase of riparian rights or by prescription, the use may be lawful to that ex-
tent.4/ It also seems that if a nonriparian landowner obtains lawful access to
the stream, and desires to use water that is left after all the riparian users'
wants are satisfied, he should be allowed to do so as long as it does not inter-
fere with the rights of riparian proprietors.5/
The State Department of Public Works and Buildings is authorized, in
its discretion, to grant permits to nonriparian owners to use water from "public"
bodies of water "for industrial, manufacturing and public utility purposes."'1 The
constitutionality of this specific authorization and its significance have not yet
been determined by the courts. However, it seems doubtful that the Department
would have any power to make a nonriparian use lawful if the use unlawfully inter-
fered with the rights of riparian proprietors at any time.
3. Ownership of bed. The owner along a watercourse ordinarily also
owns the stream bed. If he owns land only on one side of a stream, his title
presumptively includes the bed to the "center thread" of the stream.7/ The sig-
nificance of ownership of the bed with regard to rights to use water is considered
1/ Stratton v. Mount Herman Boys' School, 215 Mass. 83, 103 N.E. 87 (1913); Jones
v. Conn, 39 Oreg. 30, 64 Pac. 855, 65 Pac. 1068 (1901); and Alta Land and Water
Co. v. Hancock, 85 Cal. 219, 24 Pac. 645 (1890).
2/ See Boehmer v. Irrigation Dist., 117 Cal. 19, 48 P. 908 (1897).
/ See Stratton v. Mount Herman Boys' School, 216 Mass. 83, 103 N.E. 87 (1913).
7/ Subject to the limitations as discussed in the sections on sale or lease of
riparian rights and rights by prescription. See pages 11 and 12.
5/ Such a rule would seem to be in accord with the legislative declarations in
the "beneficial use statute," discussed on page 7.
6/ See page 13 for a more extensive discussion of the powers of the Department of
Public Works and Buildings with respect to "public waters." Ill. Rev. Stat.,
c. 19, 5 65 (1955).
7/ Leitch v. Sanitary Dist. of Chicago, 369 Ill. 469, 474, 17 N.E. 2d 34 (1938);
Wilton v. Van Hessen, 249 Ill. 182, 189, 94 N.E. 134 (1911).
8/ See pages 4 and 17 and 18.
4. Natural vs. Artificial Uses. Under the riparian doctrine, the courts
have made a distinction between so-called natural and artificial uses of a water-
In an early case, the Supreme Court said that natural wants are those
needs that are considered to be absolutely necessary for existence in civiliza-
tion. They include water for drinking, for household purposes, and for watering
livestock.1/ The court indicated that each riparian proprietor may, if necessary,
useall of the water inthe stream for these purposes without liability to a lower
A different rule applies where so-called artificial uses or wants are
concerned. Artificial uses include all those uses that are not natural, and ap-
parently include use for farm irrigation/ and manufacturing.4/ These are the
uses that merely increase the comfort and prosperity of the user. Where these
uses are concerned, all riparian proprietors have an equal right to use the water
that is not needed to supply natural wants or uses. They may use it only for such
purposes and in such amounts as are considered reasonable.5/ Also, at least in
the case of diversion of the stream flow from its channel around a lower proprietor,
the diversion may not materially diminish the stream flow, irrespective of any con-
sideration of injury to the lower proprietor.6/ In all other cases, it seems that
the riparian right to use the water for artificial purposes does not allow an un-
reasonable diminution or alteration of the flow that injures lower proprietors.7/
The courts have called the right to use water in a natural watercourse
a right to the "usufruct" of the water, i.e., a right to the use of the water and
not an ownership of the water itself. This right to the usufruct of water, how-
ever, is a valuable property right of which a proprietor cannot be deprived with-
out his consent, or without due process of law and just compensation.O
5. Nonconsumptive Uses. A riparian proprietor has the exclusive right,
as an incident to his ownership of the bed, to use the water of a watercourse,
while it is on his land, for swimming, boating, fishing, and other similar uses
that do not consume the water. This is so at least in the absence of any local
custom to the contrary.9/ However, it does not give him the right to use it for
I/ It is not clear whether this means only livestock for family use or whether it
would include commercial livestock herds. In view of the other domestic use
limitations, however, it is possible that only livestock for family use would
be included if the question were raised.
2Evans v. Merriweather, 4 Ill. 492, 495 (1842).
3 Some irrigation, such as that of a garden for home use, possibly may be treated
as a natural rather than an artificial use. But the Illinois courts have not
yet dealt with this question.
4/ The law with respect to municipal water use apparently is not very well settled,
although some statements on this were made by the Illinois appellate court in
City of Elgin v. Elgin Hydraulic Co., 85 Ill. App. 182, 191 (1899), aff'd on
other grounds in Elgin Hydraulic Co. v. City of Elgin, 194, Ill. 476, 62 N.E.
5/ Evans v. Merriweather, 4 Ill. 492, 495 (1842). See also Druley v. Adam, 102
Ill. 177, 193 (1882).
6/ Plumleigh v. Dawson, 6 Ill. 544 (1844). See pages 6-7 for a more complete
7/ Druley v. Adam, 102 Ill. 177, 191 (1882).
9/ Wilton v. Van Hessen, 249 Ill. 182, 190, 94 N.E. 134 (1911); Schulte v. Warren,
218 Ill. 108, 121-123, 75 N.E. 783 (1905).
any purpose he desires so long as he does not consume it. For example, if he uses
it to carry sewage away from his home, and the water is thereby polluted and made
unfit for use by other riparian proprietors, this is an invasion of the riparian
rights of lower proprietors and is therefore unlawfully/
Similarly, if a riparian proprietor uses the water to turn a water wheel
or turbine and, to get a steady flow, he builds a dam and reservoir which he al-
lows to fill at night and flow by day, he may be materially diminishing and alter-
ing the flow of water and unreasonably causing injury to lower (downstream)
proprietors.2/ Also, in so doing, he may be causing water to back up onto upstream
land and thereby unlawfully invading the rights of the upper proprietor.3/
6. Obstruction, Detention, and Diversion. The Illinois law concerning
obstruction, detention, and diversion is somewhat vague and uncertain. However,
certain principles may be derived from the cases that touch on the subject.
The early case of Evans v. Merriweather/ involved an action for ob-
structing and diverting a watercourse. The defendant, or upper owner, had erected
a dam across a stream upon which both the plaintiff and defendant were riparian
proprietors and upon which they depended to supply their respective steam mills
with water. During a drought, the defendant, by means of the dam, diverted all
the water into a well for his own use, thereby depriving plaintiff of his use of
the water. The jury awarded damages to the plaintiff, and the case was upheld on
In referring to the right of riparian proprietors to use water from a
stream, the Supreme Court said that "where all have a right to participate in a
common benefit, and none can have an exclusive enjoyment, no rule, from the very
nature of the case, can be laid down, as to how much each may use without infring-
ing upon the rights of others."5/ The court expressly rejected the rule of some
earlier English or American decisions that riparian proprietors are restricted in
their right to use "water flowing over their land so that there shall be no diminu-
tion in the quantity of the water, and no obstruction to its course."6i
In defining a riparian proprietor's right to make such use of water of
a stream, the court quoted approvingly from an early Federal Court opinion by Mr.
Justice Storey,Z/ as follows:
"The true test of the principle and extent of the use is
whether it is to the injury of the other proprietors or not.
There may be diminution in quantity, or a retardation or ac-
celeration of the natural current, indispensable for the gen-
eral and valuable use of the water, perfectly consistent with
the use of the common right. The diminution, retardation, or ac-
celeration, not positively and sensibly injurious, by diminish-
ing the value of the common right, is an implied element in
the right of using the stream at all."8
l/ See Cook v. City of DuQuoin 256 Ill. App. 452 (1930).
/ Deterding v. Central Ill. Service Co., 313 Ill. 562, 567, 145 N.E. 185 (1924).
3/ Ibid. See also McCarty v. State, 2 Ill. Ct. Cl. 100 (1909).
V/ Evans v. Merriweather, 4 Ill. 492 (1842).
SIbid at 496.
Ibid at 494.
7/ Tyler v. Wilkinson, 4 Mason 397, 400, 24 Fed. Cas. 472 (Cir. Ct. R.I. 1827).
/ Evans v. Merriweather, 4 Ill. 492, 495 (1842).
The court also quoted from the early New York case of Arnold v. Footl/
to the effect that a riparian proprietor cannot use water for artificial purposes
"if thereby he deprive the plaintiff of the reasonable use of the water in its
natural channel. "
In summing up the criteria of a lawful use, the court stated: "Each
riparian proprietor is bound to make such a use of running water as to do as lit-
tle injury to those below him as is consistent with a valuable benefit to him-
self. The use must be a reasonable one."3/ The court also said, however, that
since the defendant had diverted all of the water of the stream into his well,
this action was "clearly illegal."
Two years after the Evans decision, the court decided Plumleigh v.
Dawson,4/ which involved diversion by the defendant, a riparian owner, of a major
portion of a stream from its natural channel, by means of a dam and race and re-
turning the flow to its natural channel at a point below the plaintiff, a down-
stream riparian owner. The diversion did not injure the plaintiff, since enough
water remained in the natural channel to supply his uses, and the defendant used
the water to run his mill, a use which was conceded to be beneficial to him.
The court stated the following rule as governing the use of riparian
water: "...all, through whose land it (the stream) naturally flows, may enjoy
the privilege of using it, for culinary, agricultural and hydraulic purposes,
without adulteration, diminution or alteration, except so far as it may suffer
that diminution by detention for lawful uses above. Every riparian proprietor
has an undoubted right to use it for power purposes; yet he must so use it as to
do no injury to any other riparian proprietor."5/
The court went on to say that a riparian owner may use the stream to
propel his mill, but he must do "no unnecessary damage" to the lower proprietor
and he must permit the water to flow to him in its accustomed channel, yet "he is
allowed a reasonable use."
Although this statement appears to be consistent with the decision in
the Evans case, the court nowhere referred to that case, and counsel for the plain-
tiff cited it for a proposition for which it did not stand.6/
The court, after laying down the rule as quoted above, went on to say,
"It is...illegal to divert a watercourse, without returning
the water to its natural channel before it reaches a riparian
proprietor below.... The defendant, therefore, had no right
to take three fourths or any other specific proportion of the
water as his share, and divert it from the plaintiff's land."7/
1 12 Wend. 330 (1834).
SEvans v. Merriweather, 4 Ill. 492, 495 (1842).
Ibid at 495-496.
/ 6 Ill. 544 (1844).
5 Ibid at 550
6/ Ibid at 545.
/ Ibid at 552.
The court decided that, when the plaintiff is deprived of such a right
as that here involved, he should recover at least nominal damages, even though
no actual damages are shown, to prevent the loss of "a right by prescription, or
upon the presumption of a grant."l/
The Plumleigh case has been referred to with approval in subsequent
cases/ and has never been expressly overruled. It seems, therefore, that we may
have the following rules laid down by the cases pertaining to detention and diver-
Aside from domestic use, which was considered earlier, an upper riparian
proprietor may make reasonable use of the water in a stream so long as such use
is consistent with the uses of the common right.
If he uses his just proportion of the water for consumptive purposes,
or if he diverts the water and returns it to the natural channel before it leaves
his land or uses it in its natural channel or for power purposes, doing at least
no unnecessary injury to other riparian proprietors, his use is reasonable. There
appear to be no set rules for determining his just proportion, or the extent of
permissible injury.3/ These questions often may be left up to a court or jury to
However, if he materially diminishes the flow of the stream in its na-
tural channel by diverting the water from the stream and returns the unused portion
below a lower proprietor, or does not return it at all, his use of the water is un-
reasonable as a matter of law, even though he does not thereby injure any of the
The wrong in such a case apparently is not the material diminution of
the flow alone; rather it is the disposition made of the water that makes the
diminution unreasonable. /
7. The "Beneficial Use Statute." A recent statuteS/ (enacted in 1945)
reads in part as follows:
"It is hereby declared that the general welfare of the people
of this State requires that the water resources of the State
be put to beneficial use to the fullest extent of which they
are capable, and that the waste or unreasonable use or unreas-
sonable method of use of water be prevented and that the con-
servation of such water is to be exercised with a view to the
reasonable and beneficial use thereof in the interest of the
SSee Rights by Prescription, page 12.
2/ Druley v. Adam, 102 Ill. 177, 193, 206 (1882). Canal Trustees v. Haven, 11
Ill. 554, 557 (1850).
3/In this connection, see also Bliss v. Kennedy, 43 Ill. 67 (1867).
SIt should here be noted that an Illinois Statute [Ill. Rev. Stat., c. 38 433
(1955)] makes it unlawful to willfully and wantonly obstruct the passage of a
watercourse by depositing trees or other matter into the water which impedes or
prevents its flow. A penalty of up to $500 and six months' imprisonment is im-
posed for violation of the statute.
5/ Ill. Rev. Stat., c. 127, 200.1 (1955).
- -m~-- )1~- r
people and for the public welfare. The right to water or to
the use or flow of water in this State is and shall be limited
to such water as shall be reasonably required for the benefi-
cial use to be served, and such right does not and shall not
extend to the waste or unreasonable use or unreasonable method
of use or unreasonable method of diversion of water."
This statement is found in the first section of an act that deals pri-
marily with the establishment, powers, and duties of the State Water Resources and
Flood Control Board. However, this board apparently is given no definite powers
to enforce the above-quoted section,l/ and the courts have not yet been called upon
to determine its effect.
Although the exact effect of the Statute cannot be determined, it is,
at the least, a legislative statement of public policy. It appears to be a rea-
sonable statement of public policy and does not seem to upset any well-established
law as determined by court decisions regarding the use of watercourses. It may have
some influence on the rules of law laid down by the courts in the future.
8. Acceleration of Flow. A riparian proprietor may straighten and deepen
a watercourse on his own land only if such act does not accelerate the flow of water
so as to materially injure lower proprietors in some manner. Injury from such an
act might result from causing upstream pollution to flow onto lower land when it
would not otherwise do so, or from causing erosion of the stream bed or banks that
would not otherwise have occurred.2/ Such an act is equally unlawful if it causes
injury to an upper proprietor because of an unreasonable lowering of the water
level, an unreasonable increase in erosive action, or other material injury.3
9. Pollution. Pollution of a body of water by a riparian proprietor,
or anyone else, is also an invasion of the rights of the riparian proprietors who
suffer injury as a result. It makes no difference that the one causing the pollu-
tion is a large city or industrial concern, for they have no more right than an
individual to cause pollution. /An injured proprietor may stop such pollution
by court action even though a large population or an important industry may be
adversely affected because of interruption in the use of a sewage disposal system.
It seems, however, that he may stop the pollution only when the injury to him as
a result of the pollution is substantial. If it is nominal or immaterial injury,
such as an occasional or intermittent pollution that causes little reduction in
1/ In this connection, see letter opinion of Attorney General Geo. F. Barrett,
Mar. 2, 1948, Waters: Powers of State Water Resources and Flood Control Board.
/ City of Springfield v. North Fork Outlet Drainage Dist., 249 Ill. App. 133,
/ Ibid. See also Atherton v. East Side Levee & Sanitary Dist., 211 Ill. App.
55 (1918). It has also been held that a riparian proprietor may not build
levees to keep water from overflowing onto his land if this will cause it to
overflow onto another where it otherwise would not do so. Payson v. Village
of Milan, 160 Ill. App. 518 (1911).
4/ Barrington Hills Country Club v. City of Barrington, 357 Ill. 11, 18, 20, 191
N. E. 239 (1934); Hayes v. Village of Dwight, 49 Ill. App. 530, 535 (1893).
the value of the affected property, the injured proprietor may not be able to stop,
the pollution, but he can recover money damages to the extent that he is injured.-/
In 1929 the general assembly enacted a statute creating a Sanitary Water
Board to control, prevent, and abate pollution of t2e streams, lakes, ponds, and
other surface and underground waters in the State.2/ In 1951 this act was repealed
and superseded by a similar act.3/ The 1929 act was replaced principally for the
purpose of bringing the Sanitary Water Board within the requirements of the Federal
Water Pollution Control Act for a state water pollution agency, and thus allowing
the state to secure the benefits of the federal act._/
As it presently exists, the board has the power to determine whether pol-
lution exists in any of the waters of the state._5/
The statute declares that:
"...no person shall throw, run, drain, or otherwise dispose
into any of the waters of this state, or cause, permit, suf-
fer to be thrown, run, drained, allow to seep or otherwise
dispose into such waters, any organic 9 inorganic matter that
shall cause pollution of such waters."-/
"Pollution" is defined as:
"...such alteration of the physical, chemical or biological
properties of any waters of the state, or such discharge of
any liquid, gaseous or solid substance into any waters of the
state as will or is likely to create a nuisance, or render
such waters harmful or detrimental or injurious to public
health, safety or welfare, or to domestic, commerical, indus-
trial, agricultural, recreational, or other legitimate uses,
or to livestock, wild animals, birds, fish or other aquatic
"Waters of the state" is defined as:
"...all accumulations of water, surface and underground, nat-
ural or artificial, public or private or parts thereof, which
are wholly or partially within, flow through, or border upon
this state or within its jurisdiction."1/
/ Clark v. Lindsay Light Co., 341 Ill. App. 316, 93 N.E. 2d 441 (1950); Haack
v. Lindsay Chemical Co., 393 Ill. 367, 66 N.E. 2d 391 (1946).
2/ Ill. Rev. Stat., c. 19 B 129-145 (1949). Repealed 1951, July 12, Laws 1951,
p. 1462, 18.
3/ Ibid at 145.1-145.18.
7 Ibid at pS 145.1, 145.4, 145.6, 145.19-145.22.
5/ Ibid at 145.6 (a) (1955).
/ Ibid at 145.10.
SIbid at 145.2 (a).
Ibid at 145.2 (i).
The board is authorized to hold public hearings and make findings of
fact and determinations with respect to violations of the statute or the orders
issued by it. It may order discontinuance of polltuion, specifying the conditions
and time within which the discontinuance is to be accomplished, and it may insti-
tute legal proceedings to compel compliance with the statute. It may make such
investigation as it deems advisable and shall cause an investigation to be made
upon receipt of information indicating a possible violation._
It is the duty of the board to advise, consult, and participate with
state and federal agencies, political subdivisions, industries, and affected
groups, to encourage the formation and organization of groups or associations
of water users for the prevention and abatement of pollution, and to collect and
disseminate information relating to water pollution and its prevention, control,
The statute prohibits the following activities, without first securing
a permit from the board:/
1. Construction, installation, modification, or operation of
any sewage works.
2. Increase in volume or strength of any wastes.
3. Construction, installation, or operation of any industrial
or commercial establishment which would cause an increase
in the discharge of wastes directly into the waters of the
state or would otherwise alter the physical, chemical, or
biological properties of any waters in any manner not al-
ready lawfully authorized.
4. Construction or use of any new outlet for the discharge
of any wastes directly, into the waters of the state.
The board is empowered to issue, continue in effect, deny, revoke, or
modify any permit when, after hearing, the board determines that such action is
necessary to carry out the provisions of the act._/ Its determinations may be
reviewed under the Administrative Review Act.5/
It is the duty of the Attorney General to bring an action at the request
of the board to enjoin any violation of the act or of the orders of the board.6/
Violators of the statute or of the orders of the board are liable to a penalty of
up to $500 and an additional fine of $100 a day so long as the violation continues.
They may also be imprisoned for 30 days in the county jail.7/
The Sanitary Water Board Act appears to give the board broad powers to
control pollution. Any person who believes his rights are violated by pollution
1/ Ibid at 145.6 (a), (b), (c).
2/ Ibid at 145.6 (d).
3/ Ibid at Q 145.11.
SIbid at S 145.6 (1955).
5/ Ibid at 145.9 (1955).
Ibid at 145.14 (1955).
Sbid at p 145.13 (1955).
may apply to this board for relief. Such action is more expedient than court liti-
gation, and the problem is handled by experts rather than by a jury or judge who may
not be familiar with the problems of pollution and its control. However, the stat-
ute does not make such a course of action mandatory, as the usual legal remedies are
Another statute has made it unlawful willfully and maliciously to defile,
corrupt, or make impure any spring or other source of water. Violators may be
fined not exceeding $1,000 or imprisoned not exceeding one year or both.2/
10. Improvements. The Supreme Court has said that a lower proprietor
is entitled, by virtue of his position:
"...to the benefit of all improvements whereby the flow of
the water in the river is increased:....".3/
"...the lower riparian proprietor has a legal right to profit
from the necessities of the upper proprietors, and of this he
cannot be deprived without his consent, and so his relative
condition with and without regard to the upper improvements
does not, necessarily, control or affect the question of dam-
ages,..." (for the destruction of certain other riparian
rights as a result of the improvements). 4/
The court in this case was referring specifically to a permanent improve-
ment by the upper proprietors (the deepening of the canal) that could not be changed
back to its original state without a considerable amount of expense. It seems that
the statement regarding the right to the benefit of all upper improvements might be
restricted to the case in which the improvement involved a permanent change. Also,
if the improvement has existed adversely for 20 years or more, its benefit may vest
as a property right through prescription.5/
Apparently, if an upper proprietor puts water in a stream with the in-
tention of taking it out farther downstream, intending to use the stream only as
a conduit to carry the water, he may lawfully remove it farther downstream and is
not obligated to leave it as a permanent improvement for the benefit of lower
11. Sale or Lease of Riparian Rights. A riparian owner may sell or
lease his riparian rights or any part of them without selling or leasing his land.
It is not clear whether such a transfer is effective as to anyone other than the
lessor or seller. However, some decisions appear to indicate that the transfer
1/ The drainage system of the Sanitary District of Chicago is exempted from the
provisions of the act. Ibid at 145.17 (1955).
2/ Ibid at c. 38, 436 (1955).
SDruley v. Adam, 102 Ill. 177 (1882).
SSee page 12 for a discussion of prescriptive rights.
SAdams v. Slater, 8 Ill. App. 72, 86-88 (1880), rev'd on other grounds in
Druley v. Adam, 102 Ill. 177 (1882).
may be binding, to a certain extent, on other proprietors.l/ In any event, it
would seem that a riparian owner might transfer his riparian rights to another
so long as the transfer does not interfere with the rights of other riparian
12. Rights by Prescription.3/ An individual may gain certain rights
by prescriptive use.4/ For example, if an unreasonable upstream detention has
been carried on openly, adversely and continuously for the prescriptive period,
and appropriate action has not been taken by the lower proprietors affected
thereby, 5/ it appears that the right legally to continue the detention has been
acquired against them. The effect upon a riparian proprietor of such loss of
rights would probably be substantially the same as that of a sale of the same
B. Navigable Waters
The doctrine of riparian rights applies to navigable waters the same as
to nonnavigable waters, except that the public has the privilege of passing over
or being transported upon a navigable body of water. This privilege is called
easement of navigation.J/
In effect, navigable waters are public highways that any citizen may use
as a means of transportation, subject to state and federal regulation. However,
riparian proprietors of navigable waters still have riparian rights, subject only
to this easement of navigation.
Navigable bodies of water include all waters that are navigable in fact.
A body of water is navigable in fact if it was capable of being navigated in its
SFor example, in Indian Refining Co. v. Ambraw River Drainage Dist., 1 Fed.
Supp. 937 (1933) the court said, at page 938: "Lessees and owners of rights
of way or easements and grantees of riparian rights are also riparian owners,
and, to the extent of their title, endowed with all the rights thereof." This
case arose in Illinois and involved rights of way used to carry waste water
for many years. The court held the owners of the rights of way to be riparian
2/ Batavia Mfg. Co. v. Newton Wagon Co., 91 Ill. 230 (1878); See also Howell Co.
v. Pope Glucose Co., 171 Ill. 350, 49 N.E. 497 (1898); Moline Water Power Co.
v. Waters, 10 Ill. App. 159 (1881); Adams v. Slater, 8 Ill. App. 72 (1880).
/ Establishment of a claim of title to certain rights by use and enjoyment of
them during a time fixed by law--in Illinois, 20 years.
4/ See Indian Refining Co. v. Ambraw River Drainage Dist., 1 Fed. Supp. 937, 938
(1933); Wills v. Babb, 222 Ill. 95, 78 N.E. 424 (1906); Plumleigh v. Dawson,
6 Ill. 544 (1844).
/ This may be the filing of a lawsuit to adjudicate the rights involved or the
physical intervention with the use of such rights.
6 In addition, the easement of navigation may include the right to improve the
body of water for navigation purposes. The federal government also has certain
additional rights based upon its constitutional power to regulate interstate
commerce. A discussion of these rights is beyond the scope of this paper.
7/ Kessinger v. Standard Oil Co., 245 Ill. App. 376, 381 (1925); People v. Economy
Power Co., 241 Ill. 290, 318, 89 N.E. 760 (1909).
natural state. It is presumed to be navigable in fact if it was meandered.i/ If
it could not be navigated in its natural state and was not meandered, no amount
of deepening, widening, or other improvement will make it navigable in the eyes
of the Illinois courts.2
It is rather difficult to determine under just what circumstances a
stream is capable of being navigated in its natural state. However, if a body
of water has carried a significant number of boats or barges larger than a canoe
or rowboat or if, in its natural state, it would have been capable of doing so,
apparently it will be considered navigable in fact. It need not be capable of
navigation at all seasons, but only for a period that would allow some practical
use of it. If a body of water in its natural state has ever been used commer-
cially to transport people or goods, it is considered navigable;./ but if it is
capable of floating logs only during freshets, it is not subject to the public
easement of navigation.4/
1. Nonnavigable Waters Made Navigable. If a nonnavigable body of water
is improved by the state so that navigation may be conducted upon it, the riparian
proprietor must be paid for allowing its use as a public highway. The state or
federal government may use its powers of eminent domainS/ to gain the right of
navigation upon a stream that has been so improved.
2. Governmental Jurisdiction Over Navigable Waters. The state and
federal governments both have jurisdiction over navigable waters. The federal
government has paramount jurisdiction over navigable waters, and the state's juris-
diction is subject to those areas in which the federal government has exercised
its jurisdiction. Their respective powers are discussed separately.
a. State jurisdiction. The Department of Public Works and Build-
ings, Division of Waterways, has jurisdiction and supervision over all public waters,
public bodies of water and streams and lakes of Illinois. The authorizing act,g/
in part, states:
"It shall be the duty of the Department of Public Works and
Buildings to have a general supervision of every body of water
within the State of Illinois, wherein the State or the people
of the State have any rights or interests, whether the same
be lakes or rivers, and at all times to exercise a vigilant
care to see that none of said bodies of water are encroached
upon, or wrongfully seized or used by any private interest in
any way, except as may be provided by law and then only after
permission shall be given by said department, and from time
to time for that purpose, to make accurate surveys of the
shores of said lakes and rivers, and to jealously guard the
same in order that the true and natural conditions thereof
l/ Outlined on the federal surveyor's map as a navigable body of water. See
Wilton v. Van Hessen, 249 Ill. 182, 94 N.E. 760 (1911).
/ People v. Economy Power Co., 241 Ill. 290, 326, 89 N.E. 760 (1909).
3/ People v. Economy Power Co., 241 Ill. 290, 324, 325, 332, 89 N.E. 76 (1909);
Schulte v. Warren, 218 Ill. 108, 119, 94 N.E. 134 (1905).
/ Hubbard v. Bell, 54 Ill. 110 (1870).
5/ Power to take private property for public use upon payment of just compensation.
SIll. Rev. Stat., c. 19, 9 52-78 (1955).
may not be wrongfully and improperly changed to the detriment
and injury of the State of Illinois."!
The statute defines the waters under the department's jurisdiction as:
"...all open public streams (except present sanitary district
channels) and lakes capable of being navigated by water craft
in whole or in part for commercial uses, and all lakes, rivers,
and streams which in their natural condition were capable of
being improved and made navigable, or that are connected with
ordischarge into navigable lakes or rivers, together with all
bayous, sloughs, backwaters, and submerged lands that are open
to the main channel of water and directly accessible thereto."_
This definition is very broad and appears to include most of the nat-
ural watercourses in the state. (It certainly seems to include all navigable
waters as defined by the courts.) However, the Supreme Court has held that it
does not include a portion of a lake on the river side of a levee that was con-
structed across the lake so that the part of the lake extending from the levee to
the river became a dead body of water._/ The court said at page 434:
"It is not a stream, nor is it navigable, nor in its natural
condition capable of being made navigable and is, therefore,
not public waters as described in the act. After it emerges
from the high banks immediately beyond the head levee it
spreads over a lot of low swamplands and loses its identity
as a body of water."
The court has also held, in a case declaring the Illinois River to be
public waters within the definition of the act, that the act is constitutional.4/
The department is given rather broad powers over public waters as de-
fined. It has the power to inquire into encroachments and to make and enforce
orders to secure public waters from encroachment, wrongful seizure, or improper
private use.5/ It is the duty of the department to investigate attempts to in-
terfere with navigation/ or attempts to assert rights with reference to docks
and wharves, and access to and egress from navigable waters,71 and to check all
waters for encroachments,8/ to receive complaints of encroachments on rights of
the state or of its citizens with reference to public waters, and, on request, to
hold public hearings, take evidence, and enter orders defining the rights and in-
terests involved, and prescribing duties.9/
The department may make orders only after notice and hearinglO/ and may
bring an action in court to recover a fine of up to $1,000 for failure to obey its
/ Ibid 54 (1955).
3/ Gottscholl v. Zipple, 308 Ill. 428, 140 N.E. 13 (1923).
/ Duck Island Gun Club v. Gillen Co., 330 Ill. 121, 161 N.E. 300 (1928).
/ Ill. Rev. Stat., c. 19, 54 (1955).
7/ Ibid 57.
8/ Ibid 60.
/ Ibid 55.
1/ Ibid 74.
orders.l/ It has the power to issue subpoenas and administer oaths and a refusal
to comply with its demands is contempt./ Final decisions of the department are
subject to judicial review under the Administrative Review Act.3
Other sections of the act:
1. Require that plats for land bordering or including public waters of
the state, in which the state has property rights or interests, be reviewed and
approved by the department before being recorded._/
2. Require that department to plan, devise, and recommend to the Gov-
ernor and General Assembly methods of preserving and beautifying public wa rs2/
and to acquire land in connection with public waters for public preserves./
3. Require that drainage districts obtain approval of the department
before performing any work that would increase the flow of water into any stream
or that would change the natural course of any stream._/
4. Give the department the authority to fix shore lines and harbor lines
through cities or other places when the public interest requires.y/
5. Give the department authority to obtain data on water power/ and
cultivation and propagation of fish,10/ to maintain stream gauge stations,ll/ and
to furnish, at cost, data and advise as to reclamation and drainage of lands.12/
The department may require changes or prevent changes that may impair
the carrying capacity of streams or rivers, and may require proper maintenance
and modifications of existing dams.l3/ The act makes it unlawful to erect or
make any structure, fill, or deposit in any public waters without first submit-
ting plans andspecifications to the department and receiving a permit to do the
work.l/ If access of riparian owners will be affected by the proposed work, the
written consent of the department must be obtained before the permit will be
The department is specifically authorized to grant permits to nonriparian
owners to use water from public bodies of water for industrial, manufacturing, and
public utility purposes. Such permits cannot be for longer than 40 years and must
be approved by any municipality that borders on the body of water which is the
/ Ibid. 75.
3/ Ibid. 75a.
4 Ibid. 54.
5/ Ibid. 63.
6/ Ibid. 66.
1/ Ibid. g 78.
/ Ibid. 71.
Ibid. s 67.
10 Ibid. 69.
3/ Ibid. g 70.
T2/ Ibid. g 64.
SIbid. t 65.
source.l/ The department is also specifically authorized to issue permits (for
not to exceed 5 years) to take minerals and other materials from the beds of
In summary, the department regulates water use in two ways: Before ob-
structing or interfering with the present condition of public waters, a person must
obtain a permit from the department. Also, if a person's rights in public waters
are encroached upon, he may make a complaint to the department.
b. Federal jurisdiction.'/ The federal government has a paramount
right to control and regulate the navigable waters of the United States. This
right is predicated upon its power to regulate and control interstate commerce.
The nature and extent of federal jurisdiction over navigable waters has
been stated as follows:
"By virtue of the commerce clause of the federal Constitution...
and the clause empowering Congress. to make all laws necessary
to carry into execution the federal judicial power in admiralty
and maritime matters, 'navigable waters of the United States,'
which include waters over which, by themselves or in connection
with other waters, commerce may be carried on between states
or with foreign countries, and navigable waters which are ac-
cessible from a state other than the one in which they lie are
under the control of Congress which has power to legislate
with respect thereto as far as commerce is concerned. While
federal power over navigable waters is limited to control of
the waters for purposes of navigation, or, more precisely,
control for the purposes of commerce, it is a sovereign, com-
plete, paramount, plenary, and supreme power within its appro-
priate; sphere of action, and it is not lost or weakened by
reason of previous inaction or acquiescence by Congress in
the exercise of authority by a state, but the federal power,
when and to the extent exercised, is exclusive of state author-
ity. It is for Congress to determine when and to what extent
its power shall be brought into activity, and it may be exer-
cised through general or special laws. Federal power is not
limited to that portion of a stream which is in fact navigable,
if the stream is in general a navigable stream; the power of
Congress extends to the whole expanse of a navigable stream
and is not dependent on the depth of the water; it may exer-
cise its control over the non-navigable portions of a river
in order to preserve or promote commerce on the navigable
SFor an excellent discussion of federal jurisdiction over waters, and citations
of supporting court decisions for this section, see Attorney General's Opinion
No. 292 (1951), 273.
4/ 65 C.J.s., 61-62.
Congress has provided for the control of erection of structures upon
navigable waters.!/ It is unlawful to build any structure in any canal or navi-
gable river unless the plans are recommended by the Chief of Engineers and author-
ized by the Secretary of the Army. It is also unlawful to alter the condition of
any channel of any navigable water without such recommendation and approval.
If the federal government does not assume jurisdiction over a particular
navigable body of water in Illinois, the state, through the Department of Public
Works and Buildings, has full power of regulation and control. However, to the
extent to which the federal government assumes jurisdiction, the state's control
must give way.
3. Title to bed of navigable waters. Navigable waters fall into two
classes: those in which the title to the bed is in the riparian owners and those
in which title to the bed is in the state or .another third party. The extent
of the rights of the public depends upon this difference.
If, when the federal government owned the land in the Illinois Territory
before it became a state, the federal surveyors meandered a body of water, other
than a river or stream, the land beneath the water was reserved to the federal
government when private individuals were granted patents of ownership to border-
ing land. When Illinois was admitted to the Union, this meandered land beneath
these waters became the property of the state, in trust for all the people.2/
A different rule applies to rivers and streams. The court has held that
a riparian proprietor bordering on a navigable river or stream owns to the center
thread thereof, even though it has been meandered, unless the terms of the grant
by which he obtained his title clearly show an intent to exclude the bed of the
stream.3/ The meander lines of a river or stream, although an indication of its
navigability, are not boundary lines but merely indicate the sinuosities (location)
of the stream.4/ For example, the court has said that a riparian proprietor on
one bank of the Mississippi River has title to the bed to the "center thread" of
Thus the riparian proprietors of nonmeandered lakes, rivers, and streams
and meandered rivers and streams own the beds thereof, unless they have sold them
or they were expressly excluded by one of the previous owners, and the state owns
the beds of all meandered lakes.
The beds of some navigable bodies of water, then, are owned by the state,
and the beds of others are owned by riparian owners. Both types are subject to
the easement of navigation as mentioned earlier. However, ownership of the bed
I/ 33 U.S.C. A. 403.
-/ See People v. Hatch, 350 Ill. 586, 183 N.E. 610 (1932).
S ee Washington Ice Co. v. Shortall, 101 Ill. 46 (1881); If the original grant
of the Government excluded the bed from the grant, it belongs to the State.
If some subsequent owner sold the land, excluding the bed, he retains title to
the bed; Sikes v. Moline Consumers Co., 293 Ill. 112, 127 N.E. 342 (1920); Piper
v. Connelly, 108 Ill. 646 (1884); Braton v. Bressler, 64 Ill. 488 (1872).
SSikes v. Moline Consumers Co., Supra.
carries certain rights to use of the water that are not inherent in the rights of
a riparian proprietor who does not own the bed or in the rights of the public to
an easement of navigation. Such rights include the privileges of hunting, fish-
ing, swimming and performing similar acts upon the water. If the title to the
bed is in the state, the public has these rights; if the title to the bed is in
the riparian owners, only they have the right to do these things, and the public
or state is limited to exercising the easement of navigation. In other words,
easement of navigation does not include the right to hunt and fish upon the water,
but rather such rights are inherent in the ownership of the soil beneath the
water. These rights do not depend upon navigability./
A riparian owner who does not own the bed, although he has fewer rights
than an owner who does hold title to the bed, nevertheless has certain valuable
rights that are a part of his total riparian ownership. Although he owns the land
only to the shoreline,2/ he has the right of ingress and egress to the water (to go
upon and come from) regardless of how low or high the water level may be at any
particular time./ In addition, such a proprietor has the right to any accretions/
to his riparian land.:/ One exception is that, if monuments have been erected on
the meander line by government surveyors, the riparian proprietor still has the
right of ingress and egress upon the water, but his title extends only to the monu-
ments and is not affected by permanent changes in the location of the water's edge.6
In any situation in which a meandered lake is involved, the riparian proprietors
have the right, as members of the public, to hunt and fish upon the water, subject
of course to state and federal regulation.
'As in the case of a nonnavigable stream, if a riparian owner owns only
one side of a navigable stream that is not meandered, he takes title only to the
center thread of the stream, and his right to use the water by virtue of ownership
of the bed extends only to that point. /
C. Riparian Rights in Lakes and Ponds
The riparian rights doctrine applies to nature lakes and ponds the same
as to the natural watercourses with which they connect.2/ Of course, the terms
I/ Wilton v. Van Hessen, 249 Ill. 182, 189, 94 N.E. 134 (1911); People v. Economy
Power Co., 241 Ill. 290, 319, 89 N.E. 760 (1909); Schulte v. Warren, 218 Ill.
108, 117, 95 N.E. 783 (1905).
2/ In such cases the state owns the shore between the high and low watermark, except
that, in the case of a lake or pond, the state owns the bed to the "usual" water-
3 Miller v. Comm'rs of Lincoln Park, 278 Ill. 400, 116 N.E. 178 (1917).
/ Land that is added to riparian land by natural causes, as by washing up of soil
to form firm ground or by permanent lowering of the water level below its usual
watermark. If a stream channel changes suddenly and cuts through a substantial
amount of land on one side, forming a new channel, title to the portion of land
between the old and new channel remains in the same person. Such process is
called "dereliction" and does not cause any change in boundary lines.
5/ Schulte v. Warren, 218 Ill. 108, 118, 75 N.E. 783 (1W05).
/ Miller v. Comm'rs of Lincoln Park, 278 Ill. 400, 116 N.E. 178 (1917); People
v. Economy Power Co., 241 Ill. 290, 319, 89 N.E. 760 (1909).
7 Leitch v. Sanitary Dist., 369 Ill. 469, 474, 17 N.E. 2d 34 (1938).
SThe courts of other jurisdictions have called riparian rights in lakes and ponds
"littoral" rights. See People v. Hatch, 350 Ill. 586, 183 N.E. 610 (1932).
upper and lower riparian proprietors would then refer to proprietors along the
lake or pond or connecting watercourse. In some other instances, the terminology
may be somewhat awkward when applied to lakes and ponds but, so long as the par-
ticular facts are applicable, the same rules of law apply to both.
If a natural lake or pond that is nonnavigable and is not meandered is
entirely upon the land of one owner and does not connect with a natural watercourse,
he may use any or all of the water as he sees fit. But if such lake or pond is
naturally connected with a natural watercourse, certain rights of use, particularly
consumptive use, may be affected by the rights of riparian owners along the water-
As stated earlier, riparian owners on a nonmeandered lake take title to
the bed in proportion to the extent of frontage of their riparian land, each owner's
portion converging at the proper point. However, if a lake is meandered, title to
its bed is vested in the state in trust for the public, which has the right to hunt,
fish, etc., upon it. If the lake is navigable,17 the rights of riparian proprietors
are subject to the public easement of navigation.
D. Underground Watercourses-
Underground or subterranean watercourses apparently are treated like
surface watercourses. Although the Illinois courts have not specifically passed
upon this point, they have referred with approval to the laws of states that hold
that underground watercourses which flow in well-defined channels are governed
by the same rules (with regard to respective rights of landowners through whose
lands they run) as surface watercourses..3/ However, the channels of such streams
must be known and defined, i.e., capable of being proved in court. Otherwise,
they will be considered as percolating ground water and will be governed by the
rules applicable to them.
II. Percolating Groundwater
Water found below the surface of the earth, except well-defined under-
ground watercourses, is classed as percolating groundwater. Because of the early
courts' method of basing water rights upon the source of supply, the use of per-
colating ground water is governed by rules of law that differ substantially from
those that regulate the use of water in watercourses.
The law of percolating groundwater use is not very clearly defined. This
is due partly to the fact that, until recent years, pumping systems could not draw
large volumes of water from great depths. Most wells were shallow and were used
only to supply domestic requirements. As a result, not enough ground water was
used to deplete the supply and cause conflict between competing users. Therefore,
the courts were seldom called upon to decide water rights involving groundwaters.
See pages 12 and 13 regarding definition of navigability.
2/ Watercourses that flow in well-defined channels below the surface of the ground.
/ See Tenn. Electric Power Co. v. Van Dodson, 14 Tenn. App. 54 (1931). Language
in Edwards v. Haeger, 180 Ill. 99, 54 N.E. 176, 178 (1899) indicates that the
Illinois court assumes that underground watercourses.are treated.as surface
In addition, the movement of groundwater could not be seen or followed,
and the early courts hesitated to lay down rules regulating the use of something
whose "existence and progress cannot be known or regulated" and that "rises to
great heights, and moves collaterally, by influences beyond our apprehension," as
was noted by a Connecticut court.l/ The courts felt that while a riparian pro-
prietor could not interfere materially with the flow of stream water without know-
ing that it would affect a lower riparian proprietor, a user of groundwater often
did not know who, if anyone, would be affected by his use.
However, as the use of groundwater for consumptive purposes by munici-
palities, industry, and agriculture increased with the development of more effi-
cient pumping methods, the courts and legislatures were called upon to lay down
rules defining the rights of different users and uses. In Illinois, however, the
problem has been the subject of little litigation. Many areas of the law pertain-
ing to groundwater uses are left unsettled or entirely untouched.
A. The Common Law Rule
The Illinois Supreme Court has adopted the English common law rule with
regard to percolating groundwater. In essence, this rule states that the owner
of land owns all the percolating water underlying his land. He may use it as he
sees fit for his own purposes, regardless of the effect it may have on the percolat-
ing groundwater supply of surrounding users. The Illinois Supreme Court has stated
"Water which is the result of natural and ordinary percola-
tion through the soil is part of the land itself, and belongs
absolutely to the owner of the land, and, in the absence of
any grant, he may intercept or impede such underground perco-
lations, though the result be to interfere with the source of
supply of springs or wells on adjoining premises."2/
As will be seen, however, this rule has certain exceptions.
B. Malicious Use
The rule regarding percolating groundwater use does not necessarily mean
that the owner may use the water if his sole purpose in doing so is maliciously
to interfere with the use of groundwater by surrounding landowners. / If percolat-
ing groundwater is being used for a beneficial use, but the user is prompted to
use it as a source of supply for malicious reasons, it is difficult to say whether
he is liable to adjoining owners for injury suffered as the result of depletion of
their groundwater supply. Apparently, however, it is consistent with the general
policy of the law to allow any person who is injured by another as a result of
malicious interference to sustain action against the wrongdoer to the extent of
the injury caused by malice. /
/ Roath v. Driscoll, 20 Conn. 532 (1850).
/ Edwards v. Haeger, 180 Ill. 99, 54 N.E. 176 (1899).
3/ See Edwards v. Haeger, Supra.
SMoreover, it would seem that malicious use might be considered an "unreason-
able method of use" of water within the meaning of the "beneficial use statute,"
although its effect has not yet been determined. Ill. Rev. Stat., c. 127,
200.1 (1955). See also Edwards v. Haeger, Supra.
To illustrate, a landowner has a lake on his property that would supply
his needs adequately without materially diminishing the water level but, in order
to work hardship upon his neighbor, he sinks a well and maliciously supplies his
needs from groundwater. If as a result of this malicious use the neighboring
owner's well goes dry, forcing him to haul water to supply his needs, there may
be grounds for recovery of the additional expense incurred in hauling the water.
C. The "Beneficial Use Statute"
The statute that declares the policy that water shall be used beneficially
and in a reasonable manner apparently applies to percolating groundwater as well
as to other sources of supply. However, just what e ect the statute may have on
the existing common law has not yet been determined.-
A landowner may not use his groundwater, either directly or incidentally,
to corrupt, or make unfit for use, the well or spring of another. The Illinois
courts have so held for nearly a century.2/ It makes no difference that such an
act may be unintentional. The wrongdoer is considered to be maintaining a nuisance
for which he may be enjoined3/; if it continues, or if injury has already been suf-
fered, damages may be recovered to the extent of the injury. If some act that a
neighboring landowner contemplates doing will result in irreparable injury to an-
other, such as loss of health, loss of trade, destruction of his means of subsis-
tence, or permanent ruin to property, because of pollution of the groundwater
supply, he may be enjoined before the act has been committed.4/
The statute making willful and malicious "defilement or corruption" of
a spring or other source of water apparently illegal also applies to groundwater
sources./ The Sanitary Water Board has jurisdiction over sources of groundwater
as well as other water sources./
E. Filing and Permit Requirements
A log of all wells that are drilled must be filed with the State Geologi-
cal Survey Division to provide information on capacity of well and thickness of
water-bearing strata and other information. Furthermore, permits must be obtained
from the Department of Mines and Minerals before drilling a well that penetrates
the subsurface below the glacial drift.T/ The permit is issued when the department
is satisfied that the applicant has complied with all of the applicable provisions
of the Oil and Gas Conservation Act./
/ See pages 7 and 8 for a description and discussion of this statute.
SWahle v. Reinbach, 76 Ill. 322 (1875).
SThat is, he may be ordered by the court to stop doing certain acts or to carry
out certain directives.
/ Edwards v. Haeger, 180 Ill. 99, 54 N.E. 176 (1899).
5/ Ill. Rev.Stat., c. 38, 436 (1955). See page llfor a summary of this statute.
See pages 9 to 11 for a discussion of the powers and duties of the Sanitary
7/ Ill. Rev. Stat., c. 104, 34, 63 (1955).
/ Ibid. 62-88.
Except for these restrictions involving pollution of the supply, filing
and permit requirements, and restrictions regarding malice and beneficial or rea-
sonable use that appears to apply, / the Illinois laws seem to place no limitations
upon a landowner's use of percolating groundwater so long as his place of removal
is upon his own property. He may drill a well as deep as he likes and install as
powerful a pump as he can afford, or he may enlarge and improve a well and use it
night and day, so long as such use does not violate the above rules. Apparently
it does not matter whether the use is domestic, municipal, industrial, or for ir-
rigation, or whether it is upon his own land or that of another. If a neighbor-
ing well goes dry as a result, it seems that ordinarily the neighbor's only remedy
is to dig his well deeper.
F. Grant or Sale of Right to Percolating Groundwater
If a landowner desires, he may grant to another person the right to come
upon his land and make exclusive use of his percolating groundwater. However, the
Illinois Supreme Court has said:
"The nature and tendency of such a burden upon land is so far
opposed to the public good as that a grant should not be con-
strued to create it unless language is employed which will
not admit, reasonably, of any other construction."D
This language indicates that percolating groundwater may be the subject
of conveyance or grant if the deed expressly so states. Deeds making grants or
reservations of the privilege of taking water from springs or wells confer no right
to the percolating groundwater, even though the springs or wells are supplied only
by such groundwater. In such cases the owner of the land may still sink wells and
make use of the water collected by them.3/
Although the question has not been decided, it appears that a grant by
a landowner of his percolating groundwater to another, without a concurrent grant
of an easement to come upon the land to remove the water, would include an implied
easement to come upon the grantor's land for the purpose of utilizing the grant. /
G. Rights by Prescription
Apparently the right to use the percolating groundwater supply of another
could be gained by prescription in some situations.5_ A subsequent purchaser of
the land might be bound by such a right, particularly if the "apparent sign of
servitude exi s on the premises," or the markes of the burden are open and visi-
ble thereon."'/ So, if a well with a pumping system that obviously pipes water
to another's land is located upon the land.purchased, the purchaser may be bound
by any rights that had arisen by prescriptive use.
I/ By virtue of any effect that the "beneficial use statute" (discussed above)
SEdwards v. Haeger, 180 Ill. 99, 54 N.E. 176 (1899).
SIn analogous situations involving oil and gas, it has been held that the-grantee
has such an implied easement.
5/ Defined on page 12.
/ Ingals v. Plamondon, 75 Ill. 118 (1873) as referred to in Edwards v. Haeger,
180 Ill. 99, 54 N.E. 176 (1899), with respect to implied easements. Prescriptive
rights were not expressly considered.
III. Diffused Surface Water
From the time water falls upon the surface of the earth until it is ab-
sorbed into the ground or flows into a body of water to which riparian rights at-
tach, it is classed as diffused surface water (usually called surface water, or
sometimes runoff, by the courts)./ Such water is governed by special rules.
Most Illinois landowners have not been concerned with their right to
use surface water. Their interest has been concerned with getting rid of it.
In fact, so few questions have been raised with respect to a landowner's right
to use such water that no Illinois courts have passed directly upon the subject
and there is little applicable legislation. However, some rules concerning sur-
face water-use rights perhaps may be derived by way of analogy with the laws of
surface drainage and the law of surface water-use rights of other states whose
general water law is similar to that of Illinois.
Because surface drainage law may be drawn upon to help determine what
Illinois surface water-use rights may be, a preliminary analysis of it will be
A. Surface Water Drainage Law
Briefly, the Illinois doctrine of surface drainage is that the owner of
land from which surface water naturally runs has a right to have such waters drain
over lower lands as such waters would naturally run. Such waters cannot be ob-
structed by the lower landowner./
B. What Constitutes Surface Water
The courts have said that surface water includes that water falling upon
the land as precipitation and also overflow waters of running streams. It appears
that overflow waters from any natural source, when thrown vagrantly upon the land,
might be classified as surface water so long as they do not become part of the per-
colating ground water or of a body of water to which riparian rights attach.3/
It is often difficult to determine whether certain water that runs in
a particular depression from one property to another is a watercourse to which
riparian rights attach or water to which the laws of surface water apply./ It
seems that if the flow of water exists only when there are rains, and if the de-
pression is such that it appears to carry water only when there have been recent
rains, riparian rights will not attach and the water will be treated as surface
water. If the swale or depression that carries the water from one surface point
to another may be cultivated with the surrounding area, or if pasture crops grow
upon it, this is further indication that the water in it will be treated as sur-
face water. This should not, however, be taken to mean that all depressions with
banks that do not grow vegetation carry only stream water.
I See Section B below for further definition of diffused surface water. Such
waters will be called "surface water" in this discussion.
2/ Peck v. Herrington, 109 Ill. 611 (1884); Gormley v. Sanford, 52 Ill. 158 (1869).
/ See Dickerson v. Goodrich, 190 Ill. App. 505 (1914); Pinkstaff v. Steffy, 216
Ill. 406, 413, 75 N.E. 163 (1905). But in the latter case, the court expressly
refrained from saying anything about "large rivers."
4/ Some discussion as to where the line is drawn between what is surface water
and what is stream water may be found on page 2.
In close cases, the decision as to whether waters are in natural water-
courses or are diffused surface waters can only be determined by a court.1/ More-
over, the significance of the above distinctions, which were mentioned in drainage
cases, is lessened because surface water and watercourses / are treated the same
in respect to drainage../ Surface water, like watercourses, must not be obstructed
by a lower owner so as to damage an upper owner.
C. Right to Use Surface Water
Here the similarity in the law of surface water and riparian water ends.
The lower proprietor along a watercourse has the reciprocal right to have the water
flow naturally, and the upper riparian proprietor cannot restrict such flow. Where
surface water is concerned, however, there appears to be no reciprocal right of the
lower landowner to have the surface water flow upon him if he so desires. In other
words, the upper or dominant owner has no duty to allow surface water to flow unob-
structed and unimpeded. He has only the duty to discharge upon.the lower owner
the surface water on his land as it would be discharged in a state of nature, if
he desires to allow it to pass to the land of the lower owner at all. It follows
then that, if he chooses to retain the water upon his own land, apparently he may
do so without incurring any liabilities with respect to surrounding landowners.
This has not been definitely decided by the Illinois courts. But several Ameri-
can courts have adopted this view.4/
Under this rule, a landowner does not have absolute ownership of the
surface water on his property until he retains it in his possession. He can do
so by storing or impounding it upon his property by any legal means. He can use
a pond, lake, or reservoir, either artificial or natural, to store such water.
He might even use a cistern as an impounding device for surface waters. However,
if he stores the water in a lake in which others have riparian rights, it would
appear that he has not retained it in his possession, but has merely transformed
it into water to which riparian rights apply.5/
So long as he has retained the surface water in his possession, he is
its absolute owner. As such, he may use it for consumptive purposes or he may
use it for a nonconsumptive purpose and reimpound it or allow'it to drain naturally
from his property, subject to any possible effect that the "beneficial use statute"
may have./ Apparently, however, he may not discharge it from the impounding
1/ The courts sometimes speak of natural watercourses with respect to drainage.
However, they may be referring to something different from natural watercourses
to which riparian rights apply. The term as used in this publication refers
only to natural watercourses to which riparian rights apply.
/ See pages 2 to 19 for a discussion of the law of watercourses.
SDickerson v. Goodrich, 190 Ill. App. 505, 508 (1914); Pinkstaff v. Steffy, 216
Ill. 406, 75 N.E. 163 (1905); O&Miss. Ry. Coav.Neutzel, 43 Ill. App. 108, 118
4/ See Farnham, The Law of Water and Water Rights, 883(1904); 56 Am. Jur., Waters,
/ See the discussion on page 11 with respect to the right to remove water from
a stream which was added to it with an intention to remove it later.
6/ The use of surface water, like the other classes of water, would seem to come
within the purview of the "beneficial use statute." But its effect has not yet
been determined. See pages 7-8 for a description and discussion of this statute.
device in unnatural quantities or change the drainage of land so as to seriously
impair the' lower owner's use of his land.
The Supreme Court has held that the upper owner may, when good husbandry
requires it, drain artificially, into its accustomed outlet or natural drain, a
pond fed only by surface water even though the flow over the lower owner is thereby
increased.l1/ It has also been held that a landowner may cut through the low por-
tion of the rim of a water basin and cause the water to pass by way of natural
drainage patterns onto lower owners.S/ But in these cases the lower owner was
not seriously injured by the increased flow. If such an act should seriously dam-
age or totally destroy the property of the lower owner, apparently he could re-
While it has not been definitely settled, it appears that the rules
guarding against pollution of water in watercourses or percolating groundwater
would apply to surface water as well. If so, a landowner may not pollute sur-
face water as it passes over his property to such an extent that it creates a
nuisance with respect to the lower owners. If such a nuisance is created, the
wrongdcer may be required to pay damages or, under certain circumstances, he may
be enjoined from continuing the acts. Such a condition could be caused by lo-
cating livestock feedlots on higher land that naturally drains upon lower property
occupied by a farmstead and thus causing polluted surface water from the feedlots
to drain upon the lower farmstead and make it unfit for habitation.
The statute making it unlawful to willfullyand maliciously-" defile or cor-
rupt" a source of water would seem to apply to surface water as well as to water
in other sources.3/ *In addition, pollution of surface water would come within the
jurisdiction of the Sanitary Water Board._!/ It should also be noted that, since
some of the surface water soon enters watercourses and becomes groundwater, it
could be a source of pollution of such water.
E. Conveyance or Grant of Surface Water Rights
A landowner may give permission to another to come upon his land and
impound surface water. This may be by the grant of an easement or by contractual
The appellate courts have indicated no reason why a landowner may not
convey to another the right to impound or take possession and make use of his sur-
face water in any way that he himself may do. Such a contract or grant might
give exclusive rights to one or more persons or could give such rights to others
concurrently with the landowner himself.
Peck v. Herrington, 109 Ill. 611 (1884).
SF. & T. B. Co. v. Adams, 221 Ill. 201, 77 N.E. 531 (1906).
3/ Ill. Rev. Stat., c. 38 436 (1955). See page 11.
SSee pages 11 and 12 for a discussion of the powers and duties of the Sanitary
__ __ __ __ ____
F. Rights by Prescription
An individual may also acquire, by prescription, the right to come upon
the land of another and use part of it to impound surface water for his own use.
However, it seems that an individual generally may not acquire a prescriptive right
to have the surface water upon one owner's land flow into an impounding device be-
longing to him, regardless of its location, because such a right must stem from
the invasion of another's right or a failure to perform a duty. In the case of
surface water, a lower owner has no right to have the water flow onto his property,
and the upper owner has no duty to allow the water to flow from his property.
Therefore, there generally would be nothing upon which a prescriptive right such
as this could be based.