The Department of Public Works and Buildings of the State of Illinois brought action to condemn a strip of land across two tracts owned by defendants. The purpose оf the condemnation was to widen an existing highway. At the trial the foUowing expert testimony as to value of the real estate involved was received into evidence:
For the Petitioner For the Defendant Jury
Witness: Blacklock Oiler Thebus
Tract 407 $10,000.00 $11,700.00 $ 38,571.50 (total)
Ports taken 407A $1,250.00 $1,020.00 $ 7,570.78 $ 6,361.60
407B 150.00 175.00 5,280.80 4,198.40
Damage to land not taken 1,000.00 1,200.00 36,141.83 5,000.00
Tract 406 (total) 60,000.00 76,000.00 128,381.60
Parts taken 406A 1,000.00 994.00 2,805.92 1,902.08
406B 60.00 90.00 2,198.10 1,635.84
Damage to land not taken 0,00 0,00 79,123.67 1,500.00
$3,460.00 $3,479.00 $133,121.10 $20,597.92
Petitioner objected to the court’s giving defendants’ instruction A, “In respect of Tract 407 the State has admitted in the recоrd that the taking of Parcels 407A and B will cause damage to the remainder of the tract not taken”, on the grounds that it is repetitious and thus places undue emphasis on an admission of petitioner. “The mere fact that the court re-states the law or repeats issues or theories in several instructions does not necessarily mean that the court erroneously emphasizes any point in favor of either Htigant. However, where by reason of repetitious instructions undue prоminence or emphasis is given to particular matters, such instructions are improper.” (35 I.L.P., Sec. 199.) We do not believe that this instruction was prejudicial to pеtitioner. It clearly refers to an admission of only one pertinent element of the case, an uncontested fact, and was unlikely to mislead the jury as to аny theory or application of law.
Petitioner’s second objection was to defendant’s instruction B: “You are instructed that there is no evidence in this case which under the law would warrant you in fixing the respective values of parcels 406B and 407B at any lesser rate or standard than you employ in fixing the respective values of parcels 406A and 407A; and you must not, therefore, employ a lower rate or standard for the so-caUed ‘B’ parcels than you do for the so-called ‘A’ parcels.” The record contains ample evidence from which different valuation rates could be derived and determination thereof was the province of the jury. (Department of Public Works & Buildings v. Lewis,
Petitionеr further objected to the court's admitting evidence of sales of comparable properties made six and ten months subsequent to the filing of the petitiоn. These properties were not touched by the condemnation, and due to their commercial nature (one was a gasoline service station аnd the other a restaurant) their values were undoubtedly increased by the proposed construction and improvement of the adjacent highway. Defendаnts cited City of Chicago v. Harbecke (1951),
“Such cаses do not lay down any general rule ° ° that sales of property made after the filing of the petition are rendered dissimilar as a matter of law merely because of the date of the sale. However, such cases are authority for the proposition that such later sales to be considered similar, the party proposing them ought to be required to show that such later value was unaffected by the condemnation proceeding or the result thereof. # # e
The error in considering the sale was prejudicial.” Trustees of Schools v. Chicago City Bank,
Plaintiff also urges that the trial court erred in striking the testimony of its witness, Harter, a civil engineer with the Illinois Division of Highways, regarding benefits to the remainder of defendants’ property caused by the construction and improvement. The general rule in Illinois is: “Benefits resulting from the construction of proposed improvements are admissible to reduce or offset damages to land not taken.” (Department of Public Works & Buildings v. Barton,
Petitioner next contends that the court erred in refusing to adopt his proposed instruction No. 16,1.P.I. 300.51:
“The law does not permit an award оf damages for the loss or reduction of traffic which may result from the instaHation of a median or divided strip, and you should not consider this factor in determining damagеs to the remainder.”
I.P.I. Committee notes on use:
“This instruction should be given, if requested by the petitioner, whenever the jurors may have learned that the flow of traffic wiU be diminished by a median strip or а one-way traffic regulation. The instruction is especially appropriate where the property is devoted to a business use and the jury, in the absence of the instruction, would be likely to consider the question of lost business profits.”
I.P.I. Official comment:
“Evidence of reduced value on account of a median strip is inadmissible. Department of Public Works & Bldgs, v. Mabee,2 Ill.2d 202 (1961) but the jurors will frequently learn of the divider or traffic regulation from other testimony in the case, from the construction plans or from their view of thе premises. This instruction is a safeguard against the improper allowance of damages based on this factor of reduced traffic.
Diminution of traffic must, of course, be distinguished from deprivation or material impairment of access, which is compensable. Department of Public Works & Bldgs, v. Wolf (1953),414 Ill. 386 ; Department of Public Works & Bldgs, v. Mabee, supra.”
In the instant case, the jury heаrd evidence both of the construction of a proposed median in the highway and of an unmountable barrier to separate the new Chele Drive from dеfendants’ parking lot. From the above quoted material, it is evident that any loss of business occasioned by defendants owing to the median on the highway is not compensable. Failure to give this instruction was error.
However, the unmountable barrier separating Circle Drive from defendants’ parking lot, according to the evidence, would substantially impair the ingress and egress of tractor-trailers which were necessary to defendants in the maintenance of inventory. Damages occasioned by the defendants on account of the unmountable barrier would, therefore, be compensable and an instruction to that effect would have been proper.
Petitioner’s argument that the court erred in refusing to strike the testimony of defendants’ witness Thebus, is without merit.
For the foregoing reasons the judgment of the trial court is reversed and this case is remanded for a new trial.
Reversed and remanded.