*1 remedy to determine appropriate is an warranto Clearly, quo Stat., (Ill. Rev. trustee. village office of to hold the eligibility of Thomas 625, 101 N.E.2d Juergensmeyer, Bloome 9; par. 627.) Krantz, N.E.2d Romano People ex rel. 851; Franklin circuit court Therefore, judgment affirm the we County.
Affirmed. JJ., concur. JONES, MORAN and
G. J. CONSERVATION, Plaintiff-Appellee, v. R. A. THE DEPARTMENT OF al., Defendants-Appellants. FRANZEN et (1st Division) District No. 75-500 Sécond Opinion Supplemental opinion filed October filed 1976.— upon rehearing denial of December *2 Weber, Chicago, appellants. & Burke Scott, General, Attоrney Chicago (Frank Righeimer, Jr., William S. Patrick J. General, Agnew, counsel), N. Cinquino, Attorneys and Leo Assistant J. appellee. Mr. SEIDENFELD delivered the court: opinion JUSTICE defendants, Bank, La as under Trust Salle National trustee No. Bowles, (record S. A. trustee under as Trust No. title petition), parcels holders of of real estate described the condemnation trusts, Ziegler, and R. A. Franzen and under both William beneficiaries 110A, appeal Supreme under Stat. par. Court Rule Rev. 308) interlocutоry denying from order leave to file alleged damages judge land not taken. The trial struck cross- petition finding unity on the basis of his no of title to the was parcel condemned and the remainders. The defendants contend contiguous property sought where the to be taken and that to are by separate held in trusts but with title common identical beneficiaries, and the remainder are to be considered as taken purpose determining one to the рarcel for the remainder. 9, 1974, July acquire The eminent domain was filed on *3 expansion for the of the Chain of Lakes State Park. The property here to as Parcels 11 and 12. The La Salle described referred trust as record as record owner of Parcel 11 and Bowles trust owner of Franzen, as R. A. cross-petitioner, 12 were named The Parcel defendants. suit in his as a party allegedly capacity was made a to condemnation Ziegler, The Williаm was not made a taxpayer cross-petitioner, of record. party defendant. trust, R. A. La Salle trust and Franzen appearances
The Bowles 24,1974. 25,1975, trial as to Parcels 11 and July were filed on On June 1975, 25, 16, On August July for the above named was set defendants, court, filed a that alleging without leave acres, 12, larger a of a tract consisting Parcels 11 and are by said of which there is a “owned defendants” remainder (referred 167 acres in in the briefs the “West approximately Parcel to trust an additional 189.7-acre Remainder”) the same La Salle and 7, contiguous (designated to Parcel and referred to remainder Parcel Remainder”). the “North 7,1975, a motion strike the petitioners
On filed to August that to Parcels 11 filed and the title holders alleging timely that was parcels Parcel for each of said and 12 as well as 7 “are different * * on unity of title The court struck therefore no 11, date, the same that “title to Parcels 12 and 7 are finding with the trustees, unity ownership.” different and that there therefore no 15, cross-petition August a Ziegler presented and Franzen second 1975, alleging Ziegler that both and Franzen were owners of La that were they beneficial interests Salle and Bowles trusts and F. (the Remainder), “actual 7” in C. owners of Parcel North with fee title Brehm, trustee under Trust No. 630. Defendants’ motion reconsider August was August appeal denied 1975.Defendants from both August 20 orders. argue Defendants that essentially Ziegler the fact that Franzen (Parcel 7) separate have title to North Remainder land trust from those title to holding parcels preclude the condemned claim does their damages. They reason that those with beneficial interests are in fact the proper parties though they title; legal sue even do not have that a cross-petitionmay i.e., necessary filed one other than a party, by the beneficiary trust; or beneficiaries of a land thаt unity of use between the part taken and the remainder is not an essential element of a cross- petition; but in any event unity there both of title and use Parcel 11 and the Remainder. West
The State argues that the beneficiaries of an Illinois trust owning only personal property necessary parties are not to condemnation proceedings right and therefore had no file cross-petition alleged damages to (Parcel 7). the North Remainder argues State further the order of the trial proper court was for the additional reason that there no showing unity been unity either of use or of ownership between taken and the remainders. long
It has been held that a beneficiary land trust is not a necessary party proceedings against land held in title by Chicago trustee. See North & Shore R.R. Co. v. Milwaukee Title & 610, 613 Trust 328Ill. (1928).See also Land Com. Clearance Darrow, And see Ill. Rev. Stat. ch. par. 8.31. however, agree,
We do not with the initial clаim of the only State that necessary party to the can cross-petition condemnation suit property not taken. 11 of the Eminent
Section Domain Act Stat. par. Rev. *4 11) provides as material:
“Any a person party may not made by filing become such his petition, setting cross that is forth he the owner or has an in interest and property, damaged which will be taken or by proposed * * work; *.” 1973, Under this 2 section section of the Act Stat. Rev. 378
47,
is not
par. 2)
property
the holder of an unrecorded interest
who
necessary
mаy be
party
proceedings
a
defendant
to the condemnation
Miller,
entitled, nevertheless,
(Illinois
file
v.
cross-petition.
a
Power Co.
296,
addition,
is
App.
11 Ill.
305-9
a
an
(1956).)
appropriate
compensation
defendant
to seek
method
named
by virtue
and not
property
damaged
other
taken or
&
original petition.
Freeport Mississippi
described
v.
River
Johnson
Co.,
413,
Ry.
(1884).
416-17
taken,
However,
owner, no
is
abutting
an
of whose land
(County
proceedings.
cannot file a
eminent domain
74, 76-77
A.
Wolff,
(1908).
City Chicago
v.
237Ill.
also
v.
Mercer
See
51, 70
Co.,
127Ill.
recover
Realty
right
Schorsch
J.
injury
property
public
from the construction of
works
as
in an
at law
may
adjoining
plaintiff
an
owner
action
asserted
(or
his
as a
in an
property
actually
where none of
is
taken
defendant
actually
proceedings
property
eminent domain
for the condemnation
Talbott,
taken).
Corp.
Ill.
545
Light
See Illinois Power &
321
Co.,
Geohegan
R.R.
As River noted Johnson (1884): property is рroperty damaged “Where some other time, in public many is taken for use at the same instances it would seem questions that the indispensable justice to be almost the ends of should ° ° rule, together general question And as be considered parcel principle two of land within the pieces whether constitute one remaining is injury to be awarded for one permitting damages interpretation statutory law for the court based Annot., (see (1949)). provisions constitutional A.L.R.2d Here, unity order to determine whether sufficient land, remaining and the ownership parcels or interest between the taken interest person we face the whether a who holds the beneficial question taken, trust under Illinois land in the to be well damaged, “is owner or has an interest adjoining property to be damaged” may asserted which will be taken or damages. So far as we are filing for severance aware, directly this has been decided. quеstion never simple a full fee both authority owning
There which holds in a part remaining prerequisite not a so part to be taken and case, owner be awarded even where the proper damages may severance than less full right or interest condemned Dresel, R.R. & Co. See Evanston remaining part. Conness, Indiana, & R.R. Co. v. Illinois Iowa Annot., (1964). 95 A.L.R.2d See also §4
379 clearly phrase The as used in section 11 does property” “interest being legal equitable property or interest in the real require there be land trust has a Undeniably the of an Illinois beneficiary condemned. interest, however, a The not direct property form interest. beneficial interest in the real estate res of the trust. ownership
The the land guarded Illinois courts have incidents of trust, an by construing land form of represented the the legal (See trust with title in the trustee. equitable exclusively active 535, Cacciatore, Ill. 2d Chicago Savings Federal & Loan Association v. 25 Cacciatore, (1962).) 543 In that a tаx judgment was noted Federal against trust beneficiary against of a land was not a lien real estate. principal The court that the was purpose reasoned land trust device purchasers to insure that of the real and lenders who sole rely estate security of the land trustee’s title would able to invest without fear of 535, unknown (25 547). encumbrances Ill. 2d A number of similarly guarded other cases have land the incidents of trust ownership. The beneficiary has not accept been allowed to benefits of the trust form land and still contract to sell or otherwise deal with the real if property legal as he equitable (See, had or title himself. e.g., Bank, 463, Schneider v. Pioneer Savings App. Trust & 26 Ill. 2d 465- (1960) 66 (beneficiary accept cannot an offer addressed to the land trustee); Co., v. Feinberg & Great Atlantic Tea 131Ill. App. 2d Pacific 1087, (1971) 1089-90 (beneficiary cannot enter into a agent lease an contrary the trustee the express terms agreement).) of the trust The beneficiary claim that cannot he a necessary party or foreclosure Solomon, eminent (see, 302, domain actions e.g., Marshall v. 335Ill. App. (1948); 309-10 Chicago Darrow, 365, Land Clearance Com. v. 12 Ill. 2d 371); nor that he is entitled to as a beneficiary notice proceedings to acquire by (First Bank, title a tax Marquette deed Lien v.Co. National 56 132, Ill. (1973); Lois, Halvorsen, 2d 136 Petition Inc. v. 5 Ill. 3d App. 149, 151(1971); Application Treasurer, In re County Ill. App. 113 2d (1969)) 53-57 beneficiаry and a Federal tax lien against a does attach as a against lien the real superior trust to the lien of the mortgage by executed the land Savings trustee. & Loan Chicago Federal Cacciatore, Association v. litigation trusts,
In
involving land
the courts have determined whether a
particular
proceeding
properly
by
brought
against
or
or
beneficiary
trustee or both
examining
light
the nature of action
rights and duties
agreement.
established
the trust
exаmple,
For
has
beneficiary
been held Hable for negligence
management
control
trust,
of the real
in the
right
his own
not as an
Ill.
v.
Title & Trust
agent
(Brazowski
land trustee
Cooling
Adkay Heating
Corp.,
v.
&
see also Levi
App.
beneficiary
than the
has
(1971));
rather
trustee
App. 3d
and the
Dram Shop
Act
charged
responsibility
been
with the
violation of
Walker,
(Robinson
(1965).)
beneficiary
2d
207-10
App.
upon
also has been ordered to remove a structure which encroaches
Zarattini,
(Keessen
App.
easement across the trust
property.
addition,
beneficiary
this
has
that the
(1970).)
court
held
County
(In Application
can redeem
the tax sale.
re
trust
from
Also,
Treasurer,
beneficiary
389-90
trustee,
standing to file
counterclaim to reform lease which the
beneficiary,
mistakenly
(Harden
instead
as lessor
was
named
*6
Desideri,
(1974))
Ill.
3d
App.
may
20
599
and
maintain an action for
Ickovitz,
191, 195
Ziv,
(Klein
App.
rent.
v.
121Ill.
2d
Bellows
38
v.
App.
(1962).)
beneficiary
permitted
Ill.
342
2d
And the
has been
file the
to
building permit
suit to force a
to
municipality
mandamus
issue a
Evanston,
trust property.
City
construction on the
See
v.
Solomon
of
Ill. App.
(1975).
3d
perceive
principle
may
We
that
the
which
be drawn
is that a beneficiary
reconciliation of these cited cases
who chooses the
the land trust
also act
advantage
ownership may
contrary
of
form of
legal
the
agreement
equitable
to
terms of the
as if he had
and
it
title when
convеnience;
suits
upon
his
and
one who deals
the trustee
the
that
with
is
security
impaired
the trust res
his
subject
having
security
by
of
to
possibility
intervening
anticipate.
the
of
interests he cannot
general, however,
appears
beneficiary
that
is proper
the
party
litigation
to
involving
rights
his
and
respect
liabilities with
to
control, use,
pursuant to
management
possession
property
and
or
of the
noted,
As
of the
agreement.
the trust
this court
one
tests
determining
neсessity
of
of beneficiaries
propriety
the
or
involvement
litigation
protect
land
the trustee can
relating
property
to
trust
whether
Exchange
Co. v.
(Chicago
the
interests.
Title & Trust
beneficiaries’
Bank.,
(1974).
Lipavsky
569-70
See also
App.
National
Here,
trustee'
Building Corp.,
16th
Street
because he cannot
adequately represent
Brehm
beneficiaries
cannot
and
barred
claim
in the
be taken
would be
under
any interest
if
Wolff,
In addition the case before us appear does not present problems safeguarding of rights creditors, condemnor, the rights of the or the rights of other third parties relying on the record state of the title should we beyond look the form legal title notice that while different trustee is, entitled to the fact, North Remainder there commonality of beneficial ownershiр both the taken and the North Remainder.1 hold, therefore, identity between complete that where there
We in the trust described the holders of the beneficial interest damaged, the petition property alleged and other to be permit interest is sufficientto common of the beneficial requirements other filing provided for severance necessary filing to the are met. See Central Illinois Rider, (1957);City Chicago Public Service Co. 331-34 v. Equitable Society, Assurance Life However, single injury because to land trust constitutes injury legal to the value of the interest of trustee and the equitable personal interest of beneficiary, we further hold that order protect defending condemnor from the a later action necessity the trustee and the possibility compensation, any cross-petition of double filed must joined by beneficiaries the trustee. We further note argument State the second did not fact allegе Ziegler that Franzen and were beneficiaries the Brehm Trust but inartfully they stated that Remainder.” were “actual owners of North *7 However, in if is protected the State will our view on remand there proper allegation ownership cross-petition of beneficial in an amended joins which also the trustee under Trust. the Brehm argues necessary The State also that did find it although judge not issue, go beyond unity may of title his order be sustained on the basis that the defendants pleaded unity have not or shown of use between the and taken remainders. response They argue
The defendants’ first that takes several forms. rejected trial court in this unity of use issue and fact evidenced 7, striking 1975, is August from the order the words “and that there no unity argue legally indication of that are not They of use.” also defendants 1Title to the so-called West is in holding Remainder the same trustee title to the taken unity therefore there is not real claim of ownership lаck of of as to that remainder. The argument appear State’s as to the West Remainder would to be confined to the other issues unity which it has raised such as the of use and the claimed untimeliness of the cross- petitions.
required to allege unity cross-petition unity of use and that use when relevant is a factual appeal matter which is not before us on an from cross-petition. They argue strike the also that where is motion there physical remаinder, contiguity as between the is part taken and the requirement no that unity of use be pleaded proved. or
In support
argument
of the last
defendants cite White v. West Side
Co.,
Elevated R.R.
Ill.
(1894),
City Chicago Equitable
Life
Society,
(1956),
Assurance
2d 341
past
decisions
reviewed
opinions
those
and suggest
reading
that a fair
of the cases reflects that
proof
unity
is
only
relevant
as a
physical contiguity
substitute for
use
as
between the
taken and the
agree
remaindеr. We do not
that this is
holding
in the cases cited. We read the
as standing
cases
for the rule
that the basic issue is
properties
whether the
are so “interrelated as to
warrant
their
single
(City
consideration
unit.”
341,
Equitable
348.)
Society,
Contiguity
Assurance
is an
Life
aspect
“singleness”
physical
of the entire tract as
contiguity
are,
course,
and commonality
inquiries.
of use
relevant
Physical
contiguity may
important
determining
factor
whether
Annot.,
there is
it
unity of use but
is not conclusive. See
We do argument with defendants’ that the trial judge ruled their favor this A upon reading issue. fair of the record that indicates trial judge’s decision that lack of unity ownership was sufficient reason to strike caused him go no further. argues
The State also timely was not filed. argue ruling ownership question Defendants thе common necessarily court must first passed have on the issue of timeliness favor However, appear defendants. could also that the court did not reach question ruling unity the timeliness because of his on the *8 issue.
The Eminent Domain Act Rev. Stat. par. 1 et seq.) sets no time within must file a Under the cross-petition. condemnee timely a cross-petition case law the to decide has been discretion whether filed is merely purpose delaying or rather filed fоr the condemnation proceedings is trial judge. vested the In Central Illinois Public Service Rider, (1957), Co. v. 2d the trial court was held not to have its filing abused discretion the the permitting cross-petition during of a Where, impaneling however, jury. strong there is a indication that tactic, the cross-petition simply the trial delaying discretion the court is properly petition. exercised denying favor leave file Krol, See Forest Preserve District 151. also Lake See Bank, County Forest Preserve District v. Continental Illinois National Ill. App. 3d
Here, however, cross-petition approximately forty was filed days before the trial date. The trial had the issue him judge before virtue raising question of the State’s of timeliness its motion to strike cross-petition. In on the first ruling merits of the cross-petition, we must conclude that trial thereby his judge exercised discretion permitting filing timely.
We have also considered the State’s further claims that relate to the sufficiency of the cross-petition and find them merit. without
We, therefore, judgment reverse the and remand the cause with directions to the trial judge to vacate the order of dismissal provided amended cross-petition court, is filed within a time set and to thereafter proceed, all in conformity opinion. with this
Reversed and remanded with directions.
GUILD, J., HALLETT, P. J., concur.
SUPPLEMENTAL OPINION UPON DENIAL OF REHEARING Mr. SEIDENFELD opinion delivered the court: JUSTICE In the opinion we hold that is complete identity where there between the holders of the beneficial interest land trust in a property described petition other not taken but damaged by taking, the common of the beneficial interest permit sufficient filing severance remaining property provided requirements necessary other to the filing met. are rehearing the appellee notes that the beneficial in a
interest land trust is an in personal interest submits City the case of Realty Albert Schorsch J. (1970), controlling question person whether who has *9 in an in land to a propеrty an interest which not estate is entitled file Schorsch, cross-petition damages. cross-petitioner severance In for the It parcels the taken. option purchase had an unexercised to one of also not legal adjoining property was the title holder of described the ruling striking The affirmed trial court’s petition. court the he interest in portion option a witness’s answer which described the response question, you any to the “Did own othеr estate the real this vicinity property?” (City Chicago immediate of v. Albert J. of Schorsch 2d also Realty App. 69 The court held that leave to the was cross-petition properly file denied because the taken, option purchase defendant had an to merely parcels one of did it, not “own” and a mere intention on the of to part put the owner to a properties a common use is not sufficient to allow a (Schorsch, Ill. Apр. 70.) agree condemnation action. 127 We with property the court Schorsch the mere fact that a owner purchase the time a option neighboring property unexercised at of filing petition property to condemn that does not establish a sufficient parcels interrelationship between the two to warrant their damages single principle permitting consideration as unit within However, injury agree be awarded to land not taken. we not with do question appellee’s contention that Schorsch determinative of the whether one has an interest be taken or who will damaged which is not an estate in land can maintain damages. severance question light in the basic before court was whether justice statutory relevant the ends of provisions, constitutional 7 by permitting question damages to Parcel be
would
served
question
just
same
in which the
proceeding
considered
11
Parcel 12 аnd
Parcel
compensation
taking
regard,
this
11 not taken
damages
of Parcel
are determined.
analogous
Guptill
the court in the
agree
we
with the statement of
State,
434, 261
Corp.
Div. 2d
N.Y.S.2d
Holding
App.
v.
paramount
“It
us that
constitutional
(1965):
appear
would
must
over the
just compensation
prevail
be allowed to
requirement of
(See
Erly Realty
by the State.”
also
legal
niceties of
title advanced
State,
301, 351
(1974);
Div. 2d
N.Y.S.2d 457
Development,
Inc. v.
44, 261
(Ct.
State, Misc.
N.Y.S.2d 815
Cl.
M.T.M.
Realty Corp.
cf.
Further,
interest
1965).)
holding may
public
note that
serve
we
our
to defend a
appellee
obliged
that the
will
obviating
possibility
7 to determine
brought by
action at
trustee
Parcel
separate
law
parcel.
to that
Dresel,
& Evanston R.R. Co.
is true
decision
It
that the
However, where the
cross-petition.
(1884),
Rehearing denied.
GUILD, J.,P. concurs. ILLINOIS,
THE PEOPLE OF THE STATE Plaintiff-Appellee, OF MILONE, Defendant-Appellant. RICHARD (1st Division) Second District No. 73-436 *10 Opinion filed November