APPEAL from the Superior Court of Cook County; the Hon. DONALD
S. McKINLAY, Judge, presiding.
MR. JUSTICE HOUSE DELIVERED THE OPINION OF THE COURT:
This was an eminent domain proceeding brought in the superior court of Cook County by plaintiff to acquire from defendant Harry I. Robinson a tract designated as Parcel 26-54 as a part of its superhighway system. There being no traverse or motion to dismiss filed, the cause proceeded to trial before a jury on the question of the fair cash market value of the property as of the date of the filing of the petition. The jury fixed the just compensation at $19,000 and judgment was entered thereon for that amount. Contending that the damages awarded were inadequate and that error occurred on the trial which prejudiced his interests, defendant prosecutes this appeal.
There is, in general, no disagreement between the parties as to the physical condition of the property. It is a six-story and basement heavy mill type construction brick loft building, from 50 to 72 years old, located in close proximity to the downtown area of Chicago. The building occupies all of the lot, approximately 24 1/2 feet by 103 feet, with a total floor area in excess of 17,500 feet. It is dry and unheated except for a small electric stove in an office in the front part of the first floor. There are no windows on the sides of the building and those in front and back give insufficient light so that artificial light must always be used. A fire escape is located on the front. The exterior has not been painted for many years and is in need of extensive repairs, including tuckpointing, glazing and carpentry. There is no sprinkler system. The rear of the building is serviced by an elevator with a 2,000 pound capacity. Taylor Street in front of the building is 100 feet wide from curb to curb and there is a 15-foot-wide paved alley in the rear. The highest and best use of the property is warehousing of dry materials, for which it is used by defendant.
The defendant first contends that plaintiff's offer of $38,250 prior to the suit, constituted an admission by it of the value of the property. He urges that when an offer to purchase comes from a party to the suit, in addition to its being relevant as a type of probative evidence on the question of value, it is relevant and admissible as an admission by the party relating to value. The Eminent Domain Act provides for the taking of property where "the compensation to be paid * * * cannot be agreed upon by the parties interested." (Ill. Rev. Stat. 1955, chap. 47, par. 2.) It is a condition to the exercise of the right that the authorities seeking to appropriate the property shall first attempt to agree with the owner on the compensation and it is only upon failure to agree that a petition to condemn may be filed. (City of Chicago v. Collin, 302 Ill. 270; Trustees of Schools v. Clippinger, 404 Ill. 202.) Our condemnation statute provides that the condemnor must make an attempt to agree with the owner before instituting condemnation proceedings. An offer by the taker therefore is compulsory. A failure to agree with the landowner as to the compensation for the land was a condition precedent to the petition to condemn.
After failure to agree upon compensation the parties go into court, not as contracting parties but as antagonists. Each has a right, if he sees fit so to do, to stand on his legal rights and insist on his legal remedies and yield nothing of either. So the parties stood at the trial of this case: plaintiff demanding the real estate and defendant insisting on just compensation for his land to be appropriated. Efforts to agree having failed, all previous negotiations or offers were at an end and their character and extent were not admissible. The proffered evidence of the condemnor's offer to buy was properly excluded.
On two occasions defendant sought to obtain information by pretrial discovery relative to the circumstances surrounding the amount and basis of the offer made by plaintiff. On advice of counsel for plaintiff, the three witnesses who had been subpoenaed by defendant in the discovery proceedings refused to answer the interrogatories. Thereafter the trial court heard extensive arguments on the propriety of the questions which had been asked them. Plaintiff contended that the appraisals of two of the witnesses were privileged documents, made by plaintiff in preparation for trial, and that since the amount and basis of plaintiff's offer would not be admitted in evidence at the trial, the witnesses need not answer interrogatories about them. Defendant urges that the inquiry should have been permitted as a preliminary to proof of the offer as an admission. The trial court sustained the plaintiff's position but did give leave to defendant to question the witnesses at the trial relative to their opinion of the fair cash market value of the property. This the defendant did not elect to do.
The defendant justifies his pretrial discovery efforts on the ground that the plaintiff's offer to purchase the property in question may not have included a premium for quick acquisition and therefore that the case of City of Waukegan v. Stanczak, 6 Ill.2d 594, is not determinative. It is his position that he was entitled to know what the appraisals of plaintiff's two witnesses contained so as to demonstrate that the offer did not include such a premium.
This position is without merit. In the Stanczak case we did not base our decision on the fact that an offer made pursuant to the eminent domain statute often is made at a premium for quick acquisition and only if the offer contains a premium price for quick acquisition it is inadmissible. The rationale of that case was that offers so made are in the nature of an attempt to compromise and cannot be proved. Under the decision of the Stanczak case, the defendant had no right to the evidence sought by discovery and the trial court was correct in its ruling.
Irrespective of the holding in the Stanczak case, the defendant was not entitled to the information sought by the discovery proceedings. The undisputed evidence is that the appraisals were made by the two witnesses as experts in the real-estate field at the request of counsel for plaintiff for his use in the trial. This being true, the evidence was privileged and need not be disclosed either at time discovery is sought or at the trial.
It is next contended by defendant that the court erred in repeatedly interposing rulings adverse to the defendant when no objections were made by plaintiff. Thirteen such instances are cited as prejudicial. After a careful examination of the whole of the record upon these questions, we think it evident that the rulings complained of were caused largely by the persistency of counsel for defendant in trying to get improper evidence before the jury, which had theretofore been refused by the court, and by his comments upon the rejected evidence. It is apparent that the concern of the court was to keep the inquiry within the rules of evidence. We are satisfied that the rulings of the court were proper and did not prejudice the case of the defendant.
A total of four witnesses, two for plaintiff and two for defendant testified concerning values, damages and uses to which the property could be put. The testimony as to the highest and best use to which the property could be put was not in conflict but, as is common in condemnation cases, the witnesses' opinions as to value and damages varied over a wide range. We see no useful purpose in here setting forth in detail the testimony of each witness. Testimony of the plaintiff's witnesses as to the value of the premises ranged from $13,000 to $17,500 while that of defendant's witnesses ranged from $28,000 to $29,500.
The jury's award for the land and building taken was the sum of $19,000. This was $1500 greater than the highest valuation placed thereon by plaintiff's witness and $9000 less than the lowest estimate of the defendant's witnesses. The verdict is well within the range of the testimony. It is a well established rule 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. (Department of Public Works and Buildings v. Lambert, 411 Ill. 183; Illinois Iowa Power Co. v. Rhein, 369 Ill. 584; Forest Preserve District v. Dearlove, 337 Ill. 555; Jefferson Park District v. Sowinski, 336 Ill. 390.) We cannot say that the amount of the verdict is clearly against the weight of the evidence or that the jury was influenced by passion or prejudice.
Defendant also assigns as error the trial court's refusal to admit evidence of an offer for the purchase of the premises involved before condemnation proceedings were instituted. Plaintiff in presenting its case introduced evidence without objection to the sale of the subject property for $13,000 and the sale of a comparable parcel of property in the immediate neighborhood. Whereupon defendant offered to prove that before the condemnation petition was filed he received an offer for the property of $33,000, to be paid one half in cash and the balance within 36 months in equal monthly installments with interest at the rate of five per cent ...