BATAVIA– The question of ownership for Batavia’s crumbling Challenge Dam is no longer in doubt, with city aldermen accepting responsibility for the structure.
Attorney Bruce Goldsmith, an expert in real estate law from the Dykema law firm in Aurora, told aldermen during a recent committee meeting that the city of Batavia clearly holds title to the dam, not the state of Illinois.
When the dam was rebuilt in 1975 with state assistance, several private landowners surrounding the dam as well as the Batavia Park District transferred their properties to the city, Goldsmith said.
“These deeds collectively passed all ownership rights to the city,” Goldsmith said. “There is no evidence of any subsequent conveyance of the adjoining land or the dam itself after 1975. Moreover, and perhaps most significantly, the city did, in fact, build the new dam,” he said.
The now aging concrete structure extends from the tip of the peninsula north of the Batavia Government Center to the east bank of the Fox River at the Challenge building.
The original dam at that location was constructed in 1835 by the Van Nortwick family, noted Batavia industrialists, to power a grist mill.
In 1904, the Challenge Company and three other companies entered into an agreement for perpetual maintenance of the dam, Goldsmith said.
When the property owners, including a Van Nortwick descendant, deeded their lands and the dam itself to the city in 1975, it became the city’s obligation to maintain the structure under the 1904 agreement, Goldsmith said.
While the Illinois Department of Natural Resources has the authority to issue permits for the construction of dams and regulate their maintenance and operation, Goldsmith said, this does not relieve the owner from its obligations.
Seventh Ward Alderman Dave Brown, who had steadfastly maintained that the dam is the responsibility of the state of Illinois, conceded the issue.
“I’m ready to call uncle and willing to accept that we own the dam and move forward,” Brown said.
Brown’s father, the late Robert Brown, was mayor of Batavia when the work was done to rebuild the dam.
“He told me we didn’t own the dam,” Brown said.
Goldsmith offered Brown some solace.
“It wasn’t a foregone conclusion,” Goldsmith said.
While the he 1975 deed transfer is the primary proof of the city’s responsibility, Goldsmith also cited “riparian rights,” a concept dating to English common law, which holds that ownership of land adjacent to a river or stream carries with it the title to the bed of the body of water.
Goldsmith further noted that the city cannot invoke the legal doctrine of “promissory estoppel” by claiming that the state promised to maintain the dam, because there is no evidence that such a promise was made.
Finally, the statute of limitations has long run out on any claim the city might have pursued against the state, Goldsmith said.
First Ward Alderman Michael O’Brien, who also had contended that the dam is the state’s responsibility, accepted Goldsmith’s legal opinion.
Resolution of the ownership question is significant because it removes a potential impediment for the council to decide the future of the dam and the related issue of nearby Depot Pond.
Continued deterioration of the dam is expected to result in a reduction of water levels in the pond, located on the other side of the peninsula.
The solution to maintaining the pond would be enclosing the body of water and installing a pump system.
A 2003 advisory referendum found that Batavia voters wanted to keep the dam in place, after the city and state had considered removing the structure.
Mayor Jeff Schielke, noting that the east end of the dam has already washed out, said voters are unlikely to support the idea of financing reconstruction of the structure.
“Fixing the dam is not a priority for the state of Illinois or anyone around this table,” Schielke said.