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City of Chicago v. George F. Harding Collection

AUGUST 4, 1965.




Appeal from the Circuit Court of Cook County; the Hon. CHARLES S. DOUGHERTY, Judge, presiding. Reversed and remanded.


Defendant appeals from a judgment entered on a jury verdict for $140,000 as compensation to defendant for property taken by the City through condemnation for conservation purposes as part of the Hyde Park-Kenwood Renewal Project. The property which is the subject of these proceedings is located at 4853 South Lake Park Avenue, Chicago, and consists of land having a frontage of approximately 160 feet, improved with four buildings known collectively as the George F. Harding Museum. The premises had housed numerous exhibits of paintings, ship models, musical instruments and many other kinds of art objects, particularly a noted collection of medieval armor.

We are aware of no decided case concerning condemnation of a building used for museum purposes. Because of the extraordinary character of the premises it was determined by the trial court that the usual measure of compensation — fair market value — would be applied only to the land, and that the improvements would be considered as "special use" buildings *fn1 compensable on the basis of replacement or reproduction value less depreciation. Both parties concede the appropriateness of these ground rules, and no point has been raised concerning them on this appeal. United States v. Two Acres of Land, 144 F.2d 207, 209 (7th Cir 1944); In re Simmons, 127 NYS 940, 941. As the trial developed, the record relates primarily to replacement rather than reproduction value.

One contention which has been presented as a ground for reversal relegates to the background all other points raised. It involves the application of simple arithmetic to the pertinent provision of the Illinois Bill of Rights and, in our opinion, disposes of the appeal without need for consideration of other arguments.

Article II, § 13 of the Illinois Constitution states: "Private property shall not be taken or damaged for public use without just compensation." It has been repeatedly held that this provision is "self-executing," which is to say that it is not susceptible of impairment by the act of any branch of government, nor is any legislation required for its enforcement. People ex rel. Markgraff v. Rosenfield, 383 Ill. 468, 50 N.E.2d 479; Cohen v. City of Chicago, 377 Ill. 221, 36 N.E.2d 220; People ex rel. Alexander v. City of Mt. Vernon, 404 Ill. 58, 88 N.E.2d 45.

It is also well settled that the owner of property taken for public use is entitled to that amount of compensation which will put him in as good financial condition as he was when the condemnation petition was filed. County Board of School Trustees v. Elliott, 14 Ill.2d 440, 152 N.E.2d 873. And nothing short of an award of this character will conform to the constitutional requirement. Illinois Cities Water Co. v. City of Mt. Vernon, 11 Ill.2d 547, 144 N.E.2d 729.

These are broad-gauge principles, and, while of course they are binding upon the courts, they should also be understood as requiring strict adherence by a condemnor in the presentation of its case. In fact, this type of case is not the ordinary adversary proceeding in that the condemning authority has the burden of proving the defendant's "just compensation." The County of Cook v. Holland, 3 Ill.2d 36, 40, 119 N.E.2d 760; Department of Public Works & Bldgs. v. Bloomer, 28 Ill.2d 267, 270, 191 N.E.2d 245; Department of Public Works & Bldgs. v. Bohne, 415 Ill. 253, 262, 113 N.E.2d 319. While it is likely, of course, that there will be differences of opinion as to value among the various witnesses, the condemnor's burden must be construed to require, as a minimum, that there be competent evidence of value as to all the property to be taken. As stated in IPI (committee comments on Section 300.30), "The true burden is one of introducing evidence and the decision on whether it has been met is for the court, not the jury."

The City's case, as presented by five witnesses, was made on the perfectly acceptable theory of replacement cost less depreciation. But the City's witnesses testified consistently about a "replacement" building *fn2 which would be substantially smaller in square footage and with less than half the cubic footage of the present buildings. To ignore the essential elements of floor space and ceiling height in the "replacement" of a museum building is to ignore also the constitution's command for just compensation.

Edward Olson, a witness for the defendant, testified to having made a computation of the size of the present buildings. He said that they contain 27,444 square feet and 465,546 cubic feet. Harry Schlaes, for the City, testified that the buildings total 26,700 square feet "in round figures." William Epstein, also for the City, testified to a figure of 26,811 square feet.[fn2a] The City's witnesses did not testify to the cubic footage of the building complex; two stating expressly that they did not know and did not consider the cubic footage of the Harding buildings, and the others taking the same position by inference.

The witnesses called by the City were a construction engineer, an architect, a photographer, and two real estate broker-appraisers. The photographer, who submitted pictures of the Art Institute, did not testify as to the size of a "replacement" building, but all the other witnesses uniformly talked about a building of approximately 20,000 square feet. The architect submitted preliminary drawings of such a building made in cooperation with the engineer, and these exhibits were admitted into evidence. With minor variations it may be said that all the City's "replacement" evidence related to a building such as the one represented in the architect's drawings. As shown by these drawings, it would have a total square footage of approximately 18,850, including walls, stairways, etc., and a 4,000 square foot basement area. Reduced to interior plane space (by excluding only the walls) the building's area for all floors would be about 18,000 square feet. The cubic footage on the same basis would be about 230,000 as compared to 465,546 in the present buildings. Thus the square and cubic measurements of the building proposed by the City would have to be increased approximately 50% and 100%, respectively, to equal the dimensions of the buildings being "replaced." The critical importance of the size of such a building is, of course, due to the fact that the City's witnesses used it as the basis for their opinions concerning construction costs with the expectation that these, in turn, would affect defendant's ultimate compensation.

The only justification suggested by the City for basing its case on such a disproportionately small "replacement" building is found in the testimony of its four witnesses to the effect that only 20,000 square feet of the present buildings were being used for exhibition purposes. Codd (an architect) said: "I arrived at 20,000 square feet for the replacement building by the area needed to equal the exhibited space of the Harding Museum." Schlaes (a real estate appraiser) simply stated: "I would replace the structures with a two-story building with about 20,000 square feet. . . . It (a replacement building of 20,000 square feet) is not equal in total area to the present buildings because there are portions of the existing buildings that are not being used as a museum." Kuehl (an engineer) testified: "I estimated the cost of the replacement of the whole structure. . . . We can construct a building of equal area to house all of the exhibits that are contained in these four units, which are approximately 20,000 square feet." Epstein (a real estate appraiser) said flatly: "They don't need all of that space for a museum."

The present buildings include an apartment as a residence for the curator. The City's architectural plans for its proposed "replacement" building omit such space entirely. The architect, Codd, testified: "I do not have any place for the curator to live in the building I designed. That could be accommodated by a penthouse which is not shown in my drawings. I do not look at the curator as a guard." Engineer Kuehl cooperated with Codd in preparing and testifying about these plans, though he, too, was aware of the existence of a curator's apartment in the condemned buildings. Witness Schlaes made no mention of a curator's apartment in his proposed "replacement" buildings. Witness Epstein, in describing his proposed 20,000 square foot building (including a partial basement and similar in general outline to that of the City's architect) stated that living quarters for the curator would be included. He did not, however, explain how this could be done, the only inference being that the exhibition space in the architect's plan would have to be cut down.

The City's witnesses' treatment of cubic space for exhibition purposes is exemplified by their testimony concerning the medieval armor exhibit. Codd said that the building he designed would have 12-foot ceilings on both floors; that he did not measure the height of any exhibits in the Harding Museum, the highest of which (horse and rider) he estimated at 9 feet; that his design included a "Great Hall" of about 700 square feet with a two-story ceiling of 24 feet to accommodate the exhibit of armored knights mounted on horses. *fn3 Kuehl testified that "the horse exhibits would look perfectly well under a 12-foot ceiling provided that you didn't put them on a platform. They are on platforms now but they don't have to be. You could put them on the floor or on a 6-inch platform." He also said that high ceilings are uneconomical as to both heating and decorating costs. Epstein estimated that the horse and rider exhibits were 9 or 10 feet high and would fit under a 12-foot ceiling "if they weren't on some dais type of platform, possibly." He, too, however, testified that he had not measured any of the objects in the museum. Schlaes also had not measured any exhibits. He thought the mounted riders were 7 1/2 to 9 feet high. Only defendant's witness Otlewis testified to having measured these exhibits. He said the highest was 15 feet 10 inches from the floor to the tip of the lance which was positioned not straight up but on an angle; two others were 13 feet high. They stood on pedestals 18 to 24 inches high.

The City's advocacy of 12-foot museum ceilings seems strange, indeed, under these circumstances. That it was not inadvertent, however, is demonstrated by the City's witness McCann. Obviously for the purpose of showing that the proposed ceilings were adequate McCann, an amateur photographer, was sent to the Art Institute to take Polaroid pictures. He testified: "The ceiling height varied, I would say, from 8 feet to possibly 12, a few higher. There was a good variance. In the main stairwell area it was substantially higher." Yet defendant's witness McNab, Director of the Art Institute, testified that in its 96 galleries most of the ceilings were between 15 1/2 feet and 20 feet high, with some 25 to 25 1/2 feet and some as low as 14 feet, with only a few special galleries in the decorative arts department having ceilings under 14 feet.

McNab also described the display of armor at the Metropolitan Museum in New York. *fn4 He related that it is in a room 200 feet long with a ceiling 40 or 50 feet high; that the walls are simulated stone not unlike the Harding castle construction; and that some of them are covered with fabric similar to that in the Harding Museum. In this regard it should be noted that the Harding building containing the armor is a simulated ancient castle, a desirable background, according to McNab, for display of the medieval material — a view shared by New York's Metropolitan Museum. On the other hand the City's real estate broker-appraiser Epstein testified: "The castle is consistent with the display according to the way Mr. Harding wanted to display it. My primary disagreement is the way Mr. Harding chose to display it." Further on the other hand, Codd, the City's architect, testified that it is inappropriate to design a structure in the period of the setting because it is not an ...

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