APPEAL from the County Court of Kankakee County; the Hon.
IRWIN C. TAYLOR, Judge, presiding.
MR. JUSTICE MAXWELL DELIVERED THE OPINION OF THE COURT:
The Department of Public Works and Buildings, hereinafter referred to as appellee, filed its petition in the county court of Kankakee County on October 25, 1950, seeking to condemn a portion of a tract of land owned by Leopold and Aldia Lambert, husband and wife, for the construction of a freeway, a restricted superhighway. Certain other parties who have not joined in this appeal were made parties defendant as lien claimants. A jury viewed the premises, heard the evidence and returned a verdict in the amount of $17,125 compensation for the land taken and $1500 damages to land not taken. Motion for new trial was overruled and judgment rendered on the verdict. Appeal was taken directly to this court by Leopold and Aldia Lambert, who will hereafter be referred to as appellants.
The entire tract owned by appellants consists of about thirteen acres lying east of and adjoining U.S. Highway 45 approximately one-half mile north of the corporate limits of the village of Chebanse in Kankakee County. The portion to be taken adjoins the present highway and extends across the entire front of the property and has a depth of approximately 196 feet on the north end and 318 feet on the south end and contains about 3 1/2 acres. The Illinois Central Railroad runs parallel to U.S. Route 45 and its right of way adjoins the present highway on the west across from appellants' land.
Appellants filed a cross petition alleging that they purchased the thirteen-acre tract in 1936, with knowledge of a plan by appellee to improve the existing highway by the erection of a subway under the Illinois Central Railroad tracks a few rods north of the property, or to reroute said highway so that it would enter the city of Kankakee from the south and to the east of the right of way of the railroad. Appellants further alleged that they purchased the property with the intention of establishing thereon a restaurant and motor court which would serve the public irrespective of the route finally selected by appellee; that subsequently appellee planned to widen the highway, but that no plans for the creation of a freeway were publicized; that in consequence said appellants expended large sums of money and much time and effort over a period of eleven years in an effort to build an establishment of sufficient value to enable them to borrow against the same sufficient funds to carry out their plans; and that the plans of appellee to create a freeway were not made known to appellants until less than a year prior to the filing of the petition. Appellants prayed damages to the land not taken by reason of the creation of the freeway.
The record discloses that the thirteen-acre tract was formerly the site of a tile factory and that approximately seven acres is fairly level and tillable and that the remainder contains several small ponds and is not tillable. The tract has a frontage of approximately 620 feet on U.S. Route 45. Shortly after they purchased the property appellants installed some underground drains, dug a well and a basement, constructed foundations and installed on the premises the body of a wooden trolley car and built what has been referred to in the evidence as the main part of the big building. The trolley car was installed in a position approximately parallel to and seventy or eighty feet east of the highway and forms the front of the main building. The main building extends from the trolley car in an easterly direction. It is a one-story building, 40 x 30 feet with a basement extending under the trolley car. Half the basement floor is concrete and the remainder is dirt. The outside of the main building is finished with log-cabin siding. A wide driveway approximately 300 feet long parallel to the highway extends along the front of the building and is surfaced with rock. A gas island and pumps were installed sometime after 1938 and for a time a filling station was operated on the premises, but this was discontinued during World War II. In 1941, an addition 20 x 32 feet was built onto the east end of the main building and is referred to in the evidence as the east addition. This addition rests on concrete piers and the outside is covered with common roofing paper held on with lath.
In 1948 an octagonal stucco structure was built as an addition to the north side of the main building, and between 1948 and 1950 a 25 x 30 foot concrete-block building housing a gas and charcoal grill was erected along the driveway to the south of the main building.
The main building is heated with a hot-water or steam boiler and stoker. The basement contains a food-storage locker and a small electrically operated service elevator between the basement and first floor. Inside the main building there is a bar, kitchen, dance floor and two toilets. The east addition is designed for use as two private dining rooms.
Most of the construction work was done by Lambert and his family. Witnesses for appellee testified that the construction and materials in the main building and additions thereto were not of good quality and that some of the materials were secondhand. One witness testified that the plumbing "seemed to be sort of a home made hook-up." Witnesses for appellants testified that the construction was fairly good and that most of the materials used were new or as good as new. All witnesses agreed that the small concrete block building had an unfinished floor and ceiling and that some of the concrete blocks in one wall were not cemented.
All of the improvements are located on the tract to be taken. There are no buildings on the 9 1/2 acres not taken.
A restaurant and tavern business was opened on the premises by Lamberts in 1938, but the business was discontinued on May 1, 1950. In 1943, Leopold Lambert began raising gladioli on about seven acres of the tillable land and was engaged in this business at the time of the filing of the condemnation petition. Almost half the tillable land in the entire tract is located on the part to be taken. During the summer of 1950 a hamburger and rootbeer stand was operated by appellants in the small concrete block building, but this was discontinued. At the time of the filing of the condemnation petition no business was being operated on the premises except the raising of gladioli. The small building was not in use. The Lamberts were using the main building for living quarters and the storage of gladioli bulbs.
It should be noted here that the designation of the highway proposed to be constructed as a freeway and the construction thereof according to the proposed plans would render that part of appellants' property not taken useless for a tavern, filling station or motel site because of restricted access thereto, and the only practical remaining use of the land not taken would be for residential or agricultural purposes.
The first assignment of error by appellants is that the amount of the verdict is contrary to law and against the weight of the evidence.
A total of sixteen witnesses, ten for appellant and six for appellee, testified concerning values, damages and uses to which the property could be put before and after the taking. As is common in condemnation cases, the testimony as to the highest and best use to which the property could be put was conflicting and the witnesses' opinions as to values and damages varied over a wide range.
It is a well-established rule in these cases that where the jury has viewed the premises and the amount fixed is within the range of the evidence, the verdict of the jury will not be disturbed unless the record clearly shows it has been influenced by passion or prejudice or unless there was a clear and palpable mistake. (Illinois Iowa Power Co. v. Rhein, 369 Ill. 584; Forest Preserve Dist. v. Dearlove, 337 Ill. 555; Jefferson Park Dist. v. Sowinski, 336 Ill. 390.) The land is to be valued according to its highest and best use as shown by the evidence even though the owner may not at the time of the filing of the petition be putting it to such use. Department of Public Works and Buildings v. Barton, 371 Ill. 11.
We see no useful purpose in here setting forth in detail the testimony of each witness. We have carefully examined all of the testimony and the exhibits. As to damages to land not taken, appellee's witnesses' opinions ranged from $950 to $1900 while opinions of appellants' witnesses ranged from $1065 to $3135. It would appear therefore that the jury's ...