*1 (Nos. 74738, 74798 cons .
(No. 76434. THE ILLINOIS STATE TOLL HIGHWAY AUTHOR
ITY, Appellant, v. AMERICAN NATIONAL BANK & TRUST CHICAGO, COMPANY OF Trustee under Agreement Trust dated March 1985, and known as al., Trust No. et Appel lees. — THE ILLINOIS STATE TOLL HIGHWAY AUTHORITY, Appellee, v. BANK OF RAVENS WOOD, as Trustee under Trust Agreement dated December 1984 and known as Trust No. 25— al., et Appellants. ILLINOIS DE — THE PARTMENT OF TRANSPORTATION, Appellee, v. CARRIAGE HILLS KENNELS, INC., Appel lant.
Opinion October 1994. filed *3 BILANDIC, C.J., McMORROW, NICKELS, J., joined and J., dissenting. Attorney Springfield, General, Burris, of
Roland W. Attorney Special Geselbracht, Assistant and Thomas F. (Frank Chicago General, Olszew- of M. Howard and Paul Attorneys General, Grove, ski, Downers of Assistant of counsel), appellant appellee Toll and Illinois State for Authority. Peregrine,
Roger Newman, Stime, Ritzman, A. of appellees Wheaton, Bruckner, Ltd., & Ritzman appellants Bank & Trust Co. et American National al. (John Chicago
Barclay Da- Damisch, Ltd., W. & Svanascini, counsel, Daniel J. Michael misch and student), appellant. Arnett, law Attorney Springfield, General, Burris, Roland W. Montgomery, Templeton; Shel Jean M. D. and James Special Geselbracht, Assis and Thomas F. don R. Sobol (Frank Chicago Attorneys General, M. Howard tant *4 Attorneys General, of Olszewski, Paul Assistant counsel), appellee. Grove, of Downers opinion JUSTICE HARRISON delivered the court: involving
Before are appeals us three consolidated quick-take brought by agencies condemnation actions the State of Illinois under the Eminent Domain Act 7—101 et The common seq.). issue these cases present is whether the interest due on final jury’s difference between the and the compensation preliminarily award amount of jury found the court should be determined or (1) judge. the trial presented Also for our review are whether the circuit court erred one of the actions when it excluded evidence of special benefits that landowners would receive as a result of the public improvement proceedings for which the condemnation (2) instituted, were whether the circuit court erred in another of the actions when it awarded the landown attorney ers their fees.
firstWe consider cause Nos. 74738 and where (the the Illinois Highway Authority State Toll Highway Authority) sought to acquire parcels various of land owned by land trusts for which the American National Bank and Trust Company Chicago and the Bank of Ravenswood served as trustees. The record shows that these landowners held 21 out of 22 parcels of land in a certain subdivided block in unincorporated Page Du County. The 21 parcels an just covered area of over 100,000 square feet. They were vacant and had no water or sewer service. Authority initiated separate two
condemnation proceedings acquire 13 of the 21 parcels by right of eminent domain. The first action sought 9, 13, lots and 12. The second sought lots 15,16, 17, 18, 19, 20, 21, and 22. The Highway Authority wanted acquire highway these parcels purposes, specifically, the Tollway project. North-South All 13 lots were located on the west side of the North-South *5 186 Page
Tollway, Roosevelt between Du Boulevard and Highway by the of the land was needed Road. Most Authority place "compensatory” or as a to construct new Army Corps required by United States wetlands the destroyed Engineers replace preexisting wetlands to remaining during way. The lots of the toll construction Authority provide by Highway to access were needed utility existing easement. to an Highway Authority take title to lots moved to The quick-take immediately pursuant 11, to the 10, (Ill. provision Rev. Stat. Eminent Domain Act of the 103). Following hearing, par. 110, a 1991, ch. 7— September 23, 1987, an order on circuit court entered finding making preliminary granting a the motion (Ill. just compensation $51,300. Rev. amount of Highway par. 1991, 110, After the Stat. ch. county Authority deposited treasurer that sum with 105), par. 1991, 110, the court ch. vesting 8, 1987, title to an order on October entered Highway Authority. ordered the It also lots in the three attorneys, pay county owners, or their to treasurer Authority. Highway deposited Ill. $51,300 7—106. Stat. Rev. Authority subsequently Highway followed the
The remaining respect procedure quick-take with same prelimi- proceeding, a court made 10 lots. In that February compensation finding just nary Authority duly Highway $125,000.The in the amount county treasurer, deposited and on with the that sum vesting title an order the court entered March Authority. Highway in the to the 10 lots subsequently two consolidated circuit jury proceedings. held to was then A trial condemnation just amount of of the a final determination obtain compensation and to that were taken the 13 lots Authority owed dam- whether the determine in the eight lots that remained ages injury to the land trusts. a mo- trial, filed the landowners
At the outset pre- Highway Authority from tion in limine to bar the making any argument concern- senting any evidence or a might inure to the owners as ing special benefits that granted, and the tollway. That motion was result of jury on the merits. The matter trial proceeded owners that awarded the ultimately returned verdict $603,571 taking of the 13 just as for the $176,673 damages for harm to the lots lots and *6 remained. on the verdict judgment
The circuit court entered judgment, In that the court September on 1988. and just compensation interest on the allowed both set damage damage awards. Interest on the award was beginning the on period at an annual rate of 6% for 1, 1987, Highway the continuing December and until County Page with the Du Authority deposited the funds 1 date treasurer. The court selected the December the of the two midway because it fell between dates orders on the 13 lots lost in the condemna- quick-take The court reasoned that this was an appropriate tion. beginning damage remaining date the to the because frontage lots resulted from the loss of and the diminu- holdings by of the caused those tion size owners’ takings. taken, respect to the that were the interest
With lots 10, 11, calculation was more To lots and complex. subject quick-take, which were the of the first the court $111,208.59 $603,571 allocated final verdict. It preliminary subtracted from that sum the $51,300, $59,908.59. The court leaving a difference of then interest on that amount at the rate of assessed 8.7%, 23, 1987, beginning the date of September preliminary finding just compensation, first continuing Authority deposited until the county funds with the treasurer. respect
The court followedthe same formula with $492,362.41 other lots. From the balance of the preliminary compensation final it verdict subtracted leaving $125,000, $367,362.41. award of a difference of On this amount the court assessed interest at the rate commencing February 9%, 10, 1988, the date of the finding preliminary just compensation, second continuing deposited until the funds were with the county treasurer.
Following post-trial High motion, denial of its way Authority appealed. appeal, appellate On that rejected Authority’s argument court that the circuit excluding court erred evidence that benefits had tollway’s inured to the landowners as result of the only by construction. The fault found was with the circuit court’s interest calculations. It held required court should not circuit have Authority pay interest at a rate in excess of the 6% statutory rate fixed the Eminent Domain Act 108) on the difference paid quick-take proceedings between the amounts in the jury. awarded It therefore affirmed and the sum judgment aspects except all for the amount of On that issue it reversed and remanded with interest. instructions to recalculate the award based on the 6% *7 statutory App. rate. 236 Ill. 3d 696. ruling appellate did, as it the court did not proposition
question in a that the interest allowable statutory could exceed the rate. condemnation action held The basis for its decision was waiver. court that the landowners’ entitlement to additional interest jury’s question case, determination. In this was a for the timely request however, make a the owners had failed to They jury higher rate of interest. did for the to award until after the verdict not ask for additional interest
189 concluded that had been returned. The court therefore receiving anything from precluded the landowners were rate. 236 Ill. 3d at 704. statutory App. above Authority and the landowners Both (134 315), R. and we appeal for leave to III. 2d petitioned appeal In their granted respective petitions. their court, challenge appellate first landowners interest holding question of additional court’s They jury’s is a matter for the determination. assert decide after the judge that the matter is for the trial has been Because the circuit did verdict returned. here, urge us to reinstate make the decision the owners in full aside that judgment that court’s and to set dealing judgment court’s with portion question. the interest
Where, here, government possession takes of quick-take in a an interest award property proceeding, amount made on must be the difference between adjudicated and the amount just compensation finally compensation. court to preliminarily just found (Ill. 1991, statutory requirement This is a 110, 108(1)), it is than that. The but more payment government interest where takes full mandated possession making payment before is takings fifth amendment to the United clause of the (U.S. Const., V; Seaboard States Constitution amend. (1923), U.S. Ry. Line Co. United States 261 Air v. 305-06, 664, 669, 354, 356; 67 L. 43 S. Ct. United Ed. (9th 1991), 931 States v. 50.50 Acres Land Cir. F.2d 1349, 1355), through is to the States applicable which (Dolan City Tigard the fourteenth amendment v. 4578). (June 24, 1994), is No. USLW It compelled by just compensation provision also I, article section of the 1970 Illinois Constitution 15). I, Department Const. art. Conservation § 564. Jones Ill. 2d for interest requirement The constitutional *8 in codified (Ill. section 7—108 of the Eminent Domain Act 108). Although that purports year per statute to set an interest rate at 6% preliminary compensation on the difference between the by quick-take proceedings amount found finally jury, and the sum awarded the 6% rate is binding. Supreme not The United States Court has held just compensation that the ascertainment of under the fifth amendment is a matter for the courts rather than legislature. (Monongahela Navigation Co. v. United 312, 327, 463, 468, States 148 U.S. 37 L. Ed. 13 S. 626.) just compensation Ct. Because embraces the preliminary interest due where the court’s award falls jury’s award, short of the final that interest likewise judicial, legislative matter for rather than determina Accordingly, statutory purport tion. directives that fix the rate of interest in such cases are outside the legislative authority. bounds of See United States v. (9th 1991), 50.50Acres Land Cir. 931 F.2d 1354- 55.
It is true that the interest rate set
can
statute
applied
just compensation
ato claim for
if the rate is
judicially acceptable.
reasonable and
The Federal courts
operate
held, however,
have
that such rates do not
as a
ceiling
may
Rather,
on the amount that
be awarded.
doing nothing
rate statutes must be construed more
establishing
than
a floor on the rate allowable for
(United
compensation under the fifth amendment.
States
(9th
1991),
v. 50.50 Acres Land
Cir.
931 F.2d
(1st
1354-55; United States v. 125.2 Acres Land
Cir.
1984),
Washington Metropolitan
239, 244-45;
732 F.2d
(4th
Authority
Area Transit
v. One Parcel
Cir.
Land
(Ct.
1983),
1312, 1322;
706 F.2d
Miller v. United States
1980),
812, 837;
Cl.
620 F.2d
United
States Blankin-
(9th
1976),
ship
Cir.
543 F.2d
This construc-
necessary
having
tion is
in order to avoid
to declare the
rate is
specified
where
those cases
statute invalid
factual circum-
constitutionally
given the
inadequate
we have
principle
of the case. It honors
stances
*9
legislature so as to affirm
duty
a
to construe acts of
reasonably do
whenever we can
constitutionality
their
Miller,
192 I, article I, § 15), section 15 (Ill. Const. art. means requirements jury that the trials in eminent domain Assembly’s authority actions are within the General (ILCSAnn., Const., § determine. I, art. Constitu (Smith-Hurd Commentary, tional at The law 1993).) Assembly pursuant enacted the General to this authority is set forth in section 7—101 of the Eminent Domain Act Rev. Stat. 101). Under that statute both the State and the landowner right jury they proper have the ato trial if amake demand. Highway Authority us,
In the matter before did appropriate jury jury demand, make an and a trial was held to obtain a final determination of the amount of just compensation owed to the landowners. Based on the just discussed, authorities we have it is clear that the amount of interest due on the difference between the just compensation finally adjudicated *10 amount of and the preliminarily by just amount found the court to be compensation could therefore have been submitted to jury part the at that trial as of its final determination just compensation. as to Highway Authority argues
The the interest award statutory could not exceed the rate because the land request by owners did not that the matter be decided jury. problem argument the A threshold with this is right jury that the to demand a trial on the interest claim was not limited to the landowners alone. As we just discussed, have section 7—101 of the Act Rev. (Ill. par. right Stat. ch. confers that on 101) Highway Authority jury’s the as well. Prior to the verdict, however, it made more an no effort to have by jury the interest rate set the than did the landown parties, jury effect, ers. All of the in waived consideration circumstances, of the issue. Under these Authority complain will not be heard to that the interest by judge jury. rate was set rather than the argument Highway Authority’s also flawed is The the landowners because seems to assume that that it jury question, right jury the interest to trial on a a had compulsory. Such interest rate was of the consideration Act 7—101 of the is not the case. Section 101) only right to confers the not jury right jury a trial, that the to a it also makes clear expressly provides may The trial be waived. statute jury party demand, is tried before if a the case no makes parties jury. a have Because the court without right entirely, jury it would be anomalous to waive a right jury they not likewise hold that could waive dispute. aspect one of their of this consideration Highway Authority’s argument in the A final defect statutory assumption rate somehow is that the 6% its though judge’s it would determination even limits a trial binding jury. statutory rate never not is on binding upper previous showed, As discussion limit. operate ceiling the amount rate cannot as a 6% violating takings without interest recoverable principled of the fifth There is no clause amendment. modifying depending on who serves basis rule applicable the trier of fact. It is no when the matter less it is when the issue is decided .than jury. decided reasons, all of we
For these must conclude that setting court erred aside the circuit court’s remanding interest calculations and the cause of interest That reconsideration of amount due. awarding portion judgment interest circuit court’s should have been affirmed. *11 pertained dispute
The over the interest calculations solely just to the landowners’ claim actually by Highway Authority. 13 lots the the taken remaining question us in cause Nos. 74738 The before they pertains to landowners’ claim that and 74798 the 194 damages
were entitled to because the condemnation eight caused the not taken lots to suffer loss in value. granting At issue is the circuit court’s order the landowners’ in motion limine to exclude evidence of special By prevailing motion, benefits. on the the land barring Highway Authority owners succeeded in the adducing from evidence that the diminution value of remaining eight parcels by the was offset benefits the proximity landowners received as the result of of parcels Tollway. appellate those to the North-South reasoning this, court found no error that it would be improper special remaining to consider benefits to parcels by tollway part where, here, caused as no tollway property by the Highway Authority. was on the erected taken appellate words,
In the court’s "the relationship tollway between the North-South and the defendants’ remainder is too special tenuous consider the tollway App.
benefits of the to it.” 236 Ill. at3d 702. reviewing begin decision, we court’s long-established principle
with the damages that the measure of property to the not taken is the difference be property prior tween the fair value of the market to the improvement property fair market value improvement. (Department affected Public (1962), Buildings & 100-01; Works v. Divit Ill. 2d (1945), City Chicago Kane v. 392 Ill. This injuries standard takes into account both caused improvement special benefits result that from the improvement. Department Buildings & Public Works v. Barton 371 Ill. 17. special
The reason benefits allowed to must be offset injuries is nor the evident. Neither constitution law damage, recovery goes authorizes if there is no and "it damages saying if without cannot exist the value of property contrary lessened, is not but on Kane, enhanced.” Ill. at 177.
195 to any benefits law, are special the benefits Under are not and its market value the that enhance property Boening (Sanitary District or conjectural speculative. Authority’s 118, Ill. The special such depositions testified at their appraisers Indeed, they stated that present here. benefits were would not taken property of the diminution value fully in the value attrib have offset an increase been tollway. proximity to its to the utable limine, motion granting In the landowners’ testimony benefit prevented special circuit court this so on jury. to It did based being presented from (Ill. Act Rev. the Eminent Domain section 7—120 of 1991, 110, 120), provides, ch. which par. Stat. 7— taking damages any assessing
"In or ***, be due consideration shall property acquisition or prop- given any that will result to the special benefit improvement to be erty any public erected owner from property.” such did this statute court reasoned that no testimony because
not admission of the authorize taken in the was on the lots part tollway of the erected however, view, conclusion condemnation. In our such excessively an construction of reflects restrictive it is that no of the actual Although part statute. true any part of the landown pavement passed concrete over for the property, property ers’ taken was to be used to a compensatory wetlands access construction tollway required project. easement for the utility access were neces Because the wetlands easement they must be sary we believe that parts project, tollway as traffic part as considered much sense, was interchanges. tollway lanes and condemnation, and in the parcels erected on taken (Ill. Rev. Stat. ch. the terms of section 7—120 120) satisfied. par. were therefore 7— note, moreover, Act that section 7—120 We (Ill. 120) Rev. Stat. ch. is par. only- not the applicable statute here. Section 7—119 119) expressly provides that evi "any dence admissible benefit to the landowner that will result from public improvement for which the eminent proceedings domain were instituted.” unambiguous language Under clear and of this stat ute, evidence of improvement may benefits from the *13 regardless adduced of where the was improvement 120, erected. Unlike section this statute does not 7— require public improvement the to have been on erected 120, the property Wholly taken. aside from section 7— the appraisers’ decision to exclude testimony the was therefore erroneous.
The any excluding landowners contend that error in appraisers’ testimony the not does warrant reversal. We disagree. A condemnation award will set be aside and a trial if review new directed the trial made ruling might an erroneous which have misled the jury prejudicial and which to (Department amounts error. of Public Works & Ill. Buildings Oberlaender 418.) 410, respect question 2d With the of damages, to this is such a case. We and therefore reverse remand a new trial to damages limited the of the question to not property taken.
turnWe then to cause No. which a involves condemnation to we wholly action unrelated the one case, just have the Department discussed. Illinois (the Transportation Department) of initiated condemna- tion to proceedings County in circuit court of Cook a acquire temporary simple and to easement fee title of parcels property Carriage owned Hills Kennels Hills). (Carriage property The Department needed in a Waukegan order to widen section of Road in the of Village Glenview. to Department acquire temporary moved immediately property title to the and take
easement quick-take provision pursuant Eminent to the 103). (Ill. par. Stat. ch. Domain Act Rev. hearing, Following an order court enteréd a circuit finding making preliminary granting and the motion just compensation $22,000. Rev. amount of After the Stat. county deposited Authority treasurer, that sum with the vesting Department with an order the court entered subject property. 1991, ch. Ill. Rev. Stat. to the title par. 7—105. jury subsequently a final held to obtain
A trial was just compensation of the amount determination hearing pay. Department required After should jury evidence, in the amount verdict returned property $52,125 $62,369, for the which included Carriage temporary $10,147 easement. taken of interest at the rate for an award Hills then moved jury’s award and the between the 10% on the difference preliminary the court amount found sought quick-take proceeding. an award of its It also attorney fees costs. *14 judgment jury’s on the
The circuit court entered sought by at the 10% rate verdict and allowed interest Carriage Carriage awarded Hills Hills. The court also attorney $15,266. in the On the its Department’s appeal, fees amount of subsequently appellate court judgment portion court’s reversed that the circuit awarding attorney the award fees. It also set aside doing, appellate rejected In so court interest. Carriage argument pre Department’s was that Hills beyond statutory obtaining the 6% cluded from interest 108) (Ill. par. 1991, 110, because rate Rev. Stat. ch. 7— jury. question company had to the not submitted the had held, however, evidence been It that insufficient judge regarding presented the rate that here to trial 198
should have been applied. It therefore remanded for a hearing new to determine statutory- whether 6% (Ill. 108) rate interest par. ch. and, so, was insufficient if what rate or rates of interest would appropriate. all respects, other the court affirmed the judgment. circuit court’s App. 111. 3d 43. Carriage
We granted Hills’ petition for leave to (134 315) appeal Ill. 2d R. and consolidated the case with cause Nos. 74738 appeal, Carriage and 74798. On this argues Hills that appellate court erred in reversing remanding and for reconsideration of the interest addressing argument, note, award. In this we a pre matter, liminary appellate that while the was court in concluding correct that the trial court could resolve here, question the interest gave the reasons it were incorrect.
The appellate opined court that whether interest should be awarded in excess the 6% rate set forth in section 7—108 of the Eminent Domain Act Rev. 108) Stat. question is a that court must after determine trial. As we discussed in connection with Nos. cause 74738 and is not so. The are parties jury entitled have a determine the on interest due the difference between the amount adjudicated finally the amount preliminarily found the court in the quick-take entitled, however, proceeding. They equally are waive jury consideration of the issue. As with cause Nos. is, effect, parties that what the did in this case. It is for this reason that the interest question proper subject became a for the trial court’s determina tion in the matter us. before set the trial aside court’s grounds
interest award there was insuffi- cient from evidence which court could have made *15 for rate of interest proper on the
reasoned decision Carriage assailing ruling, In this period of time involved. testimony appraisers of the three to the points Hills the rate as to appraisers at testified called trial. Those at the time. The real of return on estate investments 10%, while the rate at State’s set appraisers a of 15%. by Carriage Hills used rate hired appraiser apparently court problem, appellate The as the were figures is that these used recognized, valuing Carriage Hills’ only in appraisers the context temporary in with the easement. loss connection meaningful is a rate of return on real estate investments easement, setting helps for it in the value of measure could have earned Carriage much Hills establish how term. The during the easement’s property on the however, Carriage here, was not how much concern estate. of real parcel have on Hills could earned Hills could have Rather, Carriage much it was how have received had money on extra it would earned quick-take, at time of the Department paid, ultimately was Carriage Hills full amount which found to be entitled. money such
Compensation for the loss use by the rate of properly determined circumstances rate of interest determining appropriate In interest. yields heavily have most apply, the courts relied yields from bonds and high-grade corporate from (See securities, Treasury Bonds. government such as (1982), 108 v. Rasmussen Transportation Department of case, however, evidence no App. 3d Ill. Accordingly, regarding any such rates. presented was right to remand the case for court was appellate applied. rate that should be hearing on the interest new argues Hills next Carriage Carriage reversing attorney fees. its award of erred compensa- fees attorney is that should position Hills’ *16 ble under the just compensation provisions of the Federal and State Constitutions. The Federal Constitu tion, however, provides no for recovery basis such of fees. The United States Supreme Court has held long attorney and expenses part just fees are not which a landowner is entitled under (See takings clause of the fifth amendment. United 202, (1979), 203, v. Co. States Bodcaw 440 U.S. L. Ed. 1066-67.) 259, 257, 1066, 2d Carriage 99 Ct. urges S. Hills us to reevaluate but holding, authority this we have no Where, here, to do so. as interpretation involved, Federal Constitution is the United States arbiter, Supreme Court the final is its are holdings binding on every this and other in the court land. See (1948), 432, People 400 Ill. 436. Loftus There is no support attorney also an award of I, fees under the Illinois constitution. Article section 15 I, 15), guarantees just Const. art. compensa § provided by tion phrase provided by "as law.” The "As provided by law” means as prescribed or the General (See Assembly. v. Skelgas, App. Peile Inc. 242 Ill. 3d appellate correctly As the here court recognized, this attorney expen indicates that fees and ses not specifically should be allowed unless authorized by statute. statutory Because Illinois law does au not in attorney except thorize fees rele circumstances not (see vant here Ill. Rev. pars. Stat. 7— 123), attorney reimbursement of fees is not required just part compensation under our constitution. Carriage subsidiary challenges Hills raises various appellate judgment. court’s We have considered carefully them and concluded that merit further none court. discussion reasons, foregoing judgment
For in circuit court cause Nos. 74738 and 74798 is affirmed in part and in part, judgment reversed part, reversed in part in court affirmed con- proceedings is remanded further
and the cause No. cause opinion. with this sistent is affirmed. judgment in Appellate 74738 and
Nos. affirmed part part; and reversed part circuit court affirmed in part; and reversed cause remanded. No. 76434—Affirmed. NICKELS, dissenting: JUSTICE granting erred in agree I do not that the trial court exclude evidence *17 motion in limine to the landowners’ Therefore, I to not taken. special property benefits the respectfully dissent. a case, condemning authority
In
took
the instant
the
in order to construct
portion
property
of landowners’
destroyed
compensate
wetlands to
for other wetlands
The mea
highway project
utility
the
and for
easement.
damages
to
not taken is the difference
property
sure
market
a whole
property
in the fair
value of the
as
and, in
making
before and after
improvement
the
accruing
remaining
the
computation, special benefits
to
off
parcel by
improvement
reason of the
must be set
against
damages.
&
Department
Public Works
(1962),
93,
(citing
v. Divit
2d
Buildings
Ill.
100-01
(1945),
172,
Kane
City Chicago
Capitol
v.
392 Ill.
(1948),
City Chicago
Co. v.
(162 195.) apparently Second, Ill. 2d at in resting finding judgement secure on the that the wet part highway project, majority lands were a finding necessary then determines that such a is not (162 language because of found section 7—119. Ill. 2d 119.) citing par. at disagree Ill. Rev. Stat. ch. I majority points. with the on both legislation designed Act, The Eminent Domain protect rights governmen individual constitutional from overreaching, strictly (Ayer tal must construed. 271.) City Chicago 149 Ill. There can be no dispute unambiguously that section 7—120 states that only special "public those benefits that from result improvement property” be erected such need be considered. It *18 only undisputed compensatory also is that wetlands utility property. and are on easement landowners’ highway The property itself is some 500 feet from landowners’ separated by
and the wetlands. Given the language excluding of I see section no error concerning evidence benefits to the landowner from a highway so removed. See Illinois Toll State Authority v. Itasca Bank & Trust 216 Ill. Co. (finding App. special 3d 926 evidence that of benefits of highway project no where been excluded should have highway, property part taken for the of landowner’s was alignment property taken for "off instead the was but necessary project). improvements” for the deemed finding support in the error As additional concerning special from benefits exclusion evidence highway, majority relies on section 7—119. also provides is admissible 7—119 that evidence Section "any from that will result to benefit to landowner public improvement for which the eminent domain the proceedings Rev.
were instituted.”
Stat.
119.)
majority
that,
this
claims
under
unambiguous” language,
special
evidence of
"clear
regardless
improve
is admissible
of where the
benefits
ment is located.
I not 7—119 do that section unambiguous. clear and That section fails to differenti special ate between that are admissible benefits general (Capitol which are not admissible. benefits Building Co., contrast, Ill. at section 7—120 "special expressly has the refers to benefits” and that benefits from additional element public improvement such result property taken. to be erected on unambiguous, Section is clear and section 7—119 7—120 I also fail see section is not. to how existence of ignore majority simply 7—119 allows the to the more Accordingly, specific requirements I of section 7—120. agree not with the statute do proffered construction
by majority. ultimately conducting In addition a strained and analysis, major- unsatisfying statutory construction acknowledge ity basis also fails the broader factual ruling. Special those the trial benefits are court’s appreciably aspects proposed improvement market the remainder. enhance value of Buildings (Department Public Works & Griffin *19 special 305 Ill. Such benefits must be speculative, substantial, "real and not chimerical and capable computation.” and must be of measurement and 100-01.) (Divit, judge such, 25 Ill. a 2d at As trial must be vested with discretion to determine whether the condemning authority provided has a sufficient founda for tion consideration of such benefits. agree
I do not that the trial abused court its discre- excluding concerning special tion evidence benefits to appraisers the remainder. Condemnor’s testified that damage fully proxim- to the remainder was offset ity subject property interchange of the road the toll away. excluding testimony, located some 500 feet In judge project trial reasoned that the wetland did not provide highway a sufficient "nexus” to the rest project. property Given that landowners’ was situated highway separated by such a from at distance and properly wetlands, I the trial believe determined any speculative that such benefits were too remote majority Thus, to edge considered. fails to acknowl- ruling. the broader factual basis for the court’s trial closing, express my In I towish view that condemna- proceedings present unique tion circumstance under deserving legal law careful consideration. The property confiscation and forced sale of a landowner’s places up against vast landowner resources of government. the neys Landowners are to hire forced attor- experts protect interests, in order their recovery. situation, which actual reduces their In such a potential overreaching government apparent. my require view, such circumstances authority right condemning to show that the to reduce damages special to the remainder with evidence benefits be free from doubt. language
Under 7—120 and the clear of section condemning case, of this I facts believe author- necessary prerequisites to show the ity has failed reducing damages to the remainder with evidence Therefore, rulings I affirm the benefits. would special excluding evidence the trial and courts present case. benefits special *20 McMOR- and JUSTICE BILANDIC CHIEF JUSTICE join dissent. ROW in this 74831, 74897
No. cons . ALMGREN, RUSH- Appellee, CHERYL MEDICAL CEN PRESBYTERIAN-ST. LUKE’S TER, al., TESTIN Appel et Appellant. —JUDITH lees, (Dreyer CLINIC et al. v. DREYER MEDICAL Clinic, Medical Appellant). rehearing May denial
Opinion filed 1994.—Modified 15, 1994. November