APPEAL from the Superior Court of Cook County; the Hon. ALAN
E. ASHCRAFT, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
Appellee, the city of Evanston, on February 27, 1959, filed its petition in the superior court of Cook County seeking to condemn for use as a parking lot, a vacant tract of unsubdivided land. The appellant, Stanley J. Piotrowicz, Jr., party defendant to the petition, filed a traverse to challenge petitioner's right to condemn because of noncompliance with section 2 of the Eminent Domain Act, (Ill. Rev. Stat. 1957, chap. 47, par. 2,) which section requires an attempt to agree with the owner as to the compensation to be paid for the property before condemnation can be filed. After a hearing on the traverse, the same was overruled and thereafter a jury trial was had on the merits.
At the compensation trial, two expert witnesses testified for appellee and three expert witnesses testified for appellant as to the highest and best use of the land. Appellee's witnesses found that its best use was for two-flat buildings, apartments, or row houses, and both found the fair cash value to be $10,000. The three expert witnesses for defendant evaluated the property at $40,000, $20,000 and $24,000 each considering its highest and best use was for commercial use, such as retail stores or shops, with offices or apartments above.
Petitioner put in evidence five sales of vacant property in the area in each instance the sale property was zoned residential or for apartments, duplex residence or two-flats; the condemned property was zoned commercial. The jury returned a verdict fixing the compensation at $11,000; a judgment order was entered on the verdict.
The first alleged error of the trial court complained of was its overruling of appellant's traverse challenging petitioner's right to condemn because of noncompliance with section 2 of the Eminent Domain Act. (Ill. Rev. Stat. 1957, chap. 47, par. 2.) The pertinent part of that section provides that a petition to condemn may be filed only where "the compensation to be paid for * * * the property * * * cannot be agreed upon by the parties interested."
The city contends that the trial court's ruling contrary to the defendant's traverse is not preserved for review because the defendant's post-trial motion did not assert this adverse ruling of the trial court as a ground for setting aside the judgment. We do not agree. Section 68.1 of the Civil Practice Act (Ill. Rev. Stat. 1957, chap. 110, par. 68.1,) does not alter the well-settled rule, relied upon by the bench and bar since the State's earliest days, that no motion for a new trial or formal objection to rendition of a judgment is necessary in matters tried without a jury and can serve no purpose in preserving questions for review on appeal. Atlas Finishing Co. v. Anderson, 336 Ill. App. 167, 83 N.E.2d 177; Miller v. Anderson, 269 Ill. 608; Trout v. City of Herrin, 245 Ill. App. 346; Climax Tag Co. v. American Tag Co. 234 Ill. 179; Jacobson v. Liverpool and London and Globe Ins. Co. 231 Ill. 61; Niagara Fire Ins. Co. v. Forehand, 169 Ill. 626.
Although the issues raised by the traverse were questions of fact, they were properly not tried by a jury. (Harvey v. Aurora and Geneva Railway Co. 174 Ill. 295.) No motion for new trial or its equivalent was necessary to preserve for review the question whether the trial court's ruling on the issues made by the traverse was correct.
The city cites Central Illinois Public Service Co. v. Rider, 12 Ill.2d 326, in support of its contention. The case is instantly distinguishable. In the Rider case, the defendant sought affirmative relief in the form of an award of damages to lands not taken. We held that his failure to file a petition with a description of the property sufficiently definitive to identify it was a jurisdictional defect. In this case the defendant seeks no affirmative relief. He complains of an alleged error of the trial court in its ruling that, prior to the filing of the petition, petitioner evidenced a bona fide attempt to agree upon compensation and that such attempt was made with the owner or one proved to be the owner's agent for purposes of such negotiation. No jury having intervened, the authorities cited above are applicable. They declare that no post-trial motion was necessary.
The defendant's contention with respect to the trial court's ruling on the issue of fact raised by the traverse is before us for review. However, we find that contention to be without merit.
The evidence adduced at the hearing on the traverse indicated that Stanley J. Piotrowicz, the father of defendant, Stanley J. Piotrowicz, Jr., was in the real-estate and building business, and had had an interest in the condemned parcel since 1927; that he paid the taxes, expenses and purchase price on the property, though title to the property was in the name of his son. The father further testified that he had plans to build a drive-in restaurant on the property and that around about January, 1959, had sought the approval of the building department of the city of Evanston to do so, as well as requesting aid from the city traffic engineer to outline a driveway on the property. At that time he spoke with Joseph L. Rose, the director of public works for the city of Evanston, and in the course of conversation stated that the vacant parcel was worth $40,000. The testimony of Rose on this point is that Piotrowicz, Sr., had said, "$37,000 was about as low as he would go." The father further testified that in the latter part of February, 1959, prior to the filing of the petition, he had another conversation with Rose, who had called and again asked what Piotrowicz wanted or would take for the property. Piotrowicz at that time again replied that he wanted $40,000, to which Rose purportedly stated that the price was too high. The testimony of Rose as to this conversation adds that the appraisal figure of $12,000 was stated to Piotrowicz, Sr., in addition to the fact that he, Rose, was authorized to make an offer for that amount. Rose further testified, "I told him I thought that was high and if he changed his mind to call me back." Also, "I told him the price seemed awful high to me and way out of line, and Stanley agreed to that." When asked by the court whether he was acting for his son, the witness Piotrowicz, Sr., replied, "Yes, my son generally takes my advice." The witness said that the next time he heard from the city was when "my son brought me the summons."
It is the settled law of Illinois that where a defendant in a condemnation suit contests the petitioner's right to condemn by traverse, the burden is upon the petitioner to maintain its right to condemn by proper proof. (Board of Education v. City of Chicago, 402 Ill. 291; Department of Public Works and Buildings v. Lewis, 344 Ill. 253; Lieberman v. Chicago and South Side Rapid Transit Railroad Co. 141 Ill. 140.) The burden in such instance is upon the petitioner to introduce such evidence as would, prima facie at least, prove the disputed averments. City of Chicago v. Lehmann, 262 Ill. 468; City of Chicago v. Jewish Consumptives Relief Society, 323 Ill. 389.
The facts clearly indicate that petitioner and Piotrowicz, Sr., were approximately $28,000 apart when negotiations terminated. In addition to this substantial difference in relation to the value of the property as determined by the jury or even the range of the expert witness testimony, the fact that Rose, in mentioning the authorization of $12,000, elicited from Piotrowicz, Sr., the continued demand of $40,000 rather strongly suggests that the parties were unable to agree. This is made more apparent when contrasted with Rose's testimony that Piotrowicz, Sr., stated during the course of their earlier conversation that $37,000 was about as low as he would go.
Although the mere difference in amount between the parties is not determinative of whether a bona fide attempt to agree has been made, (County Board of School Trustees v. Batchelder, 7 Ill.2d 178,) the court did not commit error. The evidence, though disputed, was sufficient to sustain the trial court's ruling. Ward v. Minnesota and Northwestern Railroad Co. 119 Ill. 287; Fayette v. Whitford, 365 Ill. 229; ...