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Dept. of Public Works v. Bohne

OPINION FILED JUNE 26, 1953.

THE DEPARTMENT OF PUBLIC WORKS AND BUILDINGS, APPELLEE,

v.

WILLIAM C. BOHNE ET AL., APPELLANTS.



APPEAL from the County Court of Kankakee County; the Hon. IRWIN C. TAYLOR, Judge, presiding.

MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:

In a condemnation proceeding instituted in the county court of Kankakee County by petitioner, Department of Public Works and Buildings, to acquire certain lands to relocate a State highway, the jury entered a verdict of $36,000 as compensation to the owners of the tract, defendants William C. Bohne and Margaret Bohne, and to all interested parties, and a verdict of $4000 to be paid from that sum to the defendants Leland L. Bauer, Emory G. Bauer, and Clarence J. Bauer, for their leasehold interest in the premises. The court entered judgment on the verdicts, from which both the defendant landowners and the defendant lessees have prosecuted separate appeals.

The essential issues presented by these appeals are whether the trial court erred in the admission and exclusion of certain testimony, and in the submission of certain instructions to the jury; and whether the verdicts and judgment are supported by the evidence.

From the record it appears that the tract in question consists of five acres of land owned by defendants William C. Bohne and Margaret Bohne, and located east of the city of Kankakee, with a frontage of 300 feet on the south side of State highway 17 and extending back some 650 feet. The front or north 204 feet, extending along the highway for 300 feet was leased by the Bohnes to the Bauers, doing business as Bauer Trailer Park under a lease dated February 26, 1951, whereby the use of the property was restricted to trailer sales, parking and renting, filling station, or other retail purposes, for a term of 10 years at a rental of $100 a month, with the option of renewal by the lessees upon the same terms, and with the right to make improvements thereon. Upon the leased area is a building used as a salesroom by the Bauers, and a small cottage used as a washroom in connection with the trailer camp. Upon the remaining property held and owned by the Bohnes is their large six-room home, and a three-room cottage rented to their son-in-law.

Negotiations for the condemnation of this property had proceeded intermittently for a period of some 10 years. However, on November 27, 1951, condemnation proceedings were filed by the petitioner in the county court of Kankakee County, alleging that it was necessary to acquire the lands described for the reconstruction of Federal Aid Route 26, a State highway. Separate trials were had as to each tract. The defendant lessees filed an answer alleging the facts with reference to their lease and their claim for compensation on the ground that their leasehold interest would be destroyed. They also requested that the court, before impanelling the jury, enter an order fixing the rights of the parties.

On petitioner's motion that answer was stricken. However, by amendment through interlineation the answer was called a motion, in which the Bohnes joined, and was allowed to stand. The court ordered that the jury to be impanelled should return three verdicts: to cover the entirety of the fee, the damages to the landlord, and the damages to the tenant.

Numerous witnesses testified with reference to the value of the leasehold and the entire property, and inasmuch as the propriety of the admission and rejection of such evidence by the trial court is an issue in this appeal, it is incumbent upon this court to review the testimony.

On behalf of the State, John Kreuger testified that he had been in the insurance and real-estate business in the vicinity of Kankakee for 30 years; that he was a member of the county, State and national real-estate boards; that he examined this property on March 22, 1951, and had gone by it several times a week since that time; that its highest and best use at the time of the filing of the condemnation petition on November 27, 1951, was either industrial, subdivision or its present use; that in his opinion the fair cash market value of the property was $31,534; and that he did not think there had been any real increase in the value of the property between the date of his appraisal in March, 1951, and the date the petition was filed, even though there may have been some improvements. He maintained on cross-examination that the improvements, which included the installation of water pipes, cesspools and a gravel road, would not increase the value of the property because, he reasoned, these improvements made by the tenant belonged to him, and he could move them off, except perhaps the gravel road, and consequently none of the improvements would add to the value of the property. He reiterated that his opinion as to the value of the property was based on what he saw on March 22, and that there was a possibility that the best use of the property would be for subdivision purposes. Consequently, in arriving at the $31,534 appraisal, he considered the costs of using the property for that purpose.

With reference to the value of the lease, this witness stated that it was worth only the actual monthly value of the rent, and explained that that figure referred to the value of the lease to the landlord. Moreover, even to the landlord the lease was of no value since it was with an individual. He made no attempt to appraise the leasehold in any other respects, for he did not know its terms or of the option to renew, and discounted the lease as though it were not there in his appraisal of the property.

A motion to exclude his testimony on the ground that it did not take into consideration the lease on the property, or the improvements placed on the premises prior to filing of the condemnation petition, was overruled.

Petitioner also submitted the testimony of Louis Ray to establish the value of the condemned property. He stated that he had been in the real-estate, insurance and appraisal business in Kankakee for 28 years; that he examined the Bohne property in March, 1951, for the purpose of testifying; that the highest and best use of the property was its present use; and that its fair cash market value on November 27, 1951, was $32,000, and that the fair cash market value of the lease was $100 a month. On cross-examination he explained that he meant the value of the lease to the landlord, for the leasehold had no other value, since in his 28 years of experience he never heard of a lessee selling his lease. He explained further that at the time his appraisal was made there were no trailers back of the salesroom; that he did not know whether the property was on the Kankakee or any other bus line; that he did not know what improvements were made between the date of his appraisal and that of the filing of the petition, but did not think that they increased the value of the property.

A motion to exclude his testimony on the ground that the witness did not know the value of the premises on the date the petition was filed was overruled.

The defendant lessees offered the testimony of some five witnesses in addition to that of Leland Bauer to establish the value of their leasehold interest. Bauer stated the terms of the lease and the nature of their business. He revealed that prior to the present lease they operated under another lease at a rental of $75 a month for about a year and the reason for negotiating the present lease was that the trailer park across the highway was going out of business and the tenants approached him for a place to park their trailers. The extension of time on the lease was necessary because of the extensive investment required to improve the property in order to properly park those tenants. Although the court refused to permit him to testify as to the cost or the value of the improvements, all of which were installed after the lease was signed, but prior to November 27, 1951, he did enumerate the improvements. Water lines were put in whereby each trailer had two water outlets, one on each side of the trailer; and water was put in the sales location for the filling station. Sidewalks were laid, a 28-foot gravel roadway, which extended some 700 feet, was built, a cottage was painted, remodeled and converted into washrooms, each of which contained showers and lavatories, an oil heater, and a hot-water heater. Defendants also installed a septic tank, underground wiring and landscaped the premises.

Bauer further testified that he was the vice-president of the Illinois Trailer Association, and a member of the board of governors of the national association, that he had worked in setting up other trailer parks, and that he owned land in Kankakee County. His opinion as to the fair cash market value of the leasehold interest on the ...


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