Lawyer: Crumbling dam is Batavia's problem, not state's

Hopes that Batavia doesn't own the crumbling dam on the Fox River have been permanently squelched.

Outside lawyer Bruce Goldsmith, who specializes in real estate issues, told aldermen Tuesday he could find no evidence supporting claims that the state once said it would take the dam, if Batavia first acquired the dam from its private owners. His report is on the city website, cityofbatavia.net, in the Sept. 11 committee packet.

"So I guess I'm sitting here tonight ready to call 'uncle,'" said Alderman Dave Brown, who had pressed the issue.

His father, the late Robert Brown, was mayor in 1975 when a large chunk of the dam washed away. The state agreed to repair the breach, if the city obtained rights of way on private land on the riverbanks to provide access.

Brown says his father told him repeatedly, "Don't let anyone ever tell you that Batavia owns the dam."

But documents recorded with the Kane County Recorder of Deeds show the city accepted a parcel from the Challenge Windmill Co. site owners that extends to an iron bolt on the southwest corner of the dam.

In 1994, the city council voted to deed the dam to the state. There's no record of the state accepting the deed or recording it.

Even if the city wanted to sue the state, arguing the state promised to take the dam, it is too late. Such suits have to be filed within five years of the breach of contract, Goldsmith said.

The dam continues to crumble. The city council wanted to know for sure who owned the dam, as it decides whether to replace it or have it removed. It is also insuring the dam.

The Illinois Department of Natural Resources has declared the dam as "failed," and told the city this year it would not approve repairing it.