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Dept. of Public Works v. Kirkendall





APPEAL from the Circuit Court of Grundy County; the Hon. WILLIAM I. HIBBS, Judge, presiding.


The Department of Public Works and Buildings appeals directly to this court from a judgment of the circuit court of Grundy County awarding compensation to the defendants for land and access rights taken in the improvement of U.S. Route 66 as a freeway under the Illinois Freeways Act.

The appeal is made directly to this court because a freehold interest and public revenue are involved.

The pleadings consist of the petition in condemnation; defendants' answer with a copy of a certain lease attached; petitioner's motion to strike the answer, the lease, and that part of the answer referring to the lease; petitioner's motion that compensation for the land taken be ascertained by a jury; defendants' cross petition, and petitioner's motion for a new trial. Petitioner's motions to strike the answer and the lease, and for ascertainment of compensation by a jury and for a new trial were all denied.

The State produced four witnesses, and the State's testimony as to value of the tract in question was as to fair cash market value not taking into consideration the lease in issue. Defendants' witnesses as to the fair market value of the premises considered a lease from the Shell Oil Company which had been negotiated by the defendants in good faith for a considerable period of time and entered into a short time prior to the filing of the petition in condemnation. The evidence clearly shows that the property in question had been considered for, purchased for, leased for, plans prepared for, and the property cleared for a gas station, truck stop and restaurant, all in good faith prior to the commencement of the proceeding. Petitioner's proof placed the value of the land before taking at between $5000 and $6000, without taking into consideration the Shell Oil Company lease. Defendants' proof showed the value of all the premises, with the lease taken into consideration, between $14,000 and $18,000. The trial court, after hearing the evidence without a jury and after a personal view of the premises awarded damages for land taken in the amount of $1400, for access rights taken $2400, and for damages to land not taken $7000.

The appeal presents two issues to this court for determination, viz.:

1. Does the State of Illinois in proceedings to condemn property for public use by the State have a right to a trial by jury under the Illinois constitution of 1870 and the Illinois Eminent Domain Act? Ill. Rev. Stat. 1951, chap. 47, par. 1 et seq.

2. Was the Shell Oil Co. lease properly admissible in evidence as material to the valuation of the property interest involved?

The question whether there is a right to trial by jury in condemnation proceedings where the compensation is to be paid by the State of Illinois presents a question of first impression never directly decided by this court. Section 13 of article II of the constitution of 1870 provides in part as follows: "Private property shall not be taken or damaged for public use without just compensation. Such compensation, when not made by the state, shall be ascertained by a jury, as shall be prescribed by law." Section 1 of the Eminent Domain Act (Ill. Rev. Stat. 1951, chap. 47, par. 1,) provides substantially the same as the foregoing constitutional provision with slightly varying language, as follows: "Private property shall not be taken or damaged for public use without just compensation; and that in all cases in which compensation is not made by the state in its corporate capacity, such compensation shall be ascertained by a jury, as hereinafter prescribed." Such statutory provision in the Eminent Domain Act has been the law of the State of Illinois since the approval on April 10, 1872, of "An act to provide for the exercise of the right of eminent domain."

"Eminent domain" is a phrase which has been used for hundreds of years to designate the power and right of the sovereign State, or those to whom its power has been delegated, to take private property within its jurisdiction for public use without the owner's consent, upon paying due compensation. Western Union Telegraph Co. v. Louisville and Nashville Railroad Co. 270 Ill. 399; Litchfield and Madison Railway Co. v. Alton and Southern Railroad, 305 Ill. 388; Limits Industrial Railroad Co. v. American Spiral Pipe Works, 321 Ill. 101.

The power and right of eminent domain is inherent in the sovereign State, existing independently of written constitutions or statutory laws thereof, regulated by appropriate legislation, limited only by the constitutional provision for compensation, and extending to every kind of property. South Park Comrs. v. Montgomery Ward & Co. 248 Ill. 299; Litchfield and Madison Railway Co. v. Alton and Southern Railroad Co. 305 Ill. 388.

Both the constitutions of 1818 and of 1848 provided: "Nor shall any man's property be taken or applied to public use without the consent of his representatives in the general assembly, nor without just compensation being made to him." Const. of 1818, article VIII, sec. II; Const. of 1848, article XIII, sec. II.

In People v. Stuart, 97 Ill. 123, which involved the effect of an act of 1877, providing for the mode of making payment of condemnation, on the liability of certain individuals on a bond given to provide or pay for additional State House grounds, in a concurring opinion by the then Chief Justice, it was noted that the constitution requires the assessment of compensation by a jury in all condemnation proceedings except where compensation was to be paid by the State and that the act in question providing for payment of compensation for land taken was void as being in excess of legislative powers and that therefore, under the terms of the bond in question, the compensation was to be paid by the individual obligors thereon. The Chief Justice then concluded: "They are not the State. The State had no interest in the question of the amount of compensation. The owners of the land and these obligors alone were interested in that question. They had in such case a right to have the amount determined by jury. That right is given to the party making compensation as well as to the land owner. Until the amount was determined in a manner effective under our constitution these obligors were not bound by this bond to pay." Thus, by this case and other later cases, it has been clearly established that, where the State is not one of the parties in interest, both parties to a condemnation suit have a right to have the amount of compensation determined by a jury.

However, in Johnson v. Joliet and Chicago Railroad Co. 23 Ill. 124, which arose under our earlier constitution, the question was raised whether the right to a trial by jury was guaranteed in eminent domain proceedings by the constitutional provision declaring that "the right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy." In denying this contention the court stated, at page 130, "This has reference only, and is so understood by all jurists, to suits or actions for the recovery of money in actions ex contractu or ex delicto. It never has been considered by any court, as extending to the process in the exercise of the right of eminent domain, nor in cases of that description, nor in cases in chancery, and other cases which might be mentioned. * * * Nor do we see any conflict between that section and the eighth section, article thirteen of our constitution, which declares `that no freeman shall be imprisoned or disseized of his freehold, liberties or privileges, or outlawed or exiled, or in any manner deprived of his life, liberty or property, but by the judgment of his peers or the law of the land.' This clause does not apply, and has never been made to apply, to cases of this description. This is a case clearly within the eleventh section of article thirteen which we have cited and commented on. It is a proceeding in the exercise of the right ...

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