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Northern Illinois Gas Co. v. Wienrank

DECEMBER 22, 1965.




Appeal from the Circuit Court of Kankakee County; the Hon. VICTOR N. CARDOSI, Judge, presiding. Affirmed.


Rehearing denied February 3, 1966.

This cause, which involves the condemnation of underground strata for gas storage purposes, was originally appealed to the Supreme Court of the State of Illinois. The Supreme Court, on March 10, 1965, caused this action to be transferred to this court and, in so doing, observed that it was argued that the ruling excluding evidence of special value of the land for gas storage purposes deprived the landowners of due process of law and also violated the constitutional provision that private property shall not be taken for public use without just compensation. The court stated that substantially the same issues were involved in Midwestern Gas Transmission Co. v. Mason, 31 Ill.2d 340, 201 N.E.2d 379, and Peoples Gas Light & Coke Co. v. Buckles, 24 Ill.2d 520, 182 N.E.2d 169. In view of the decisions in such cases, the Supreme Court concluded that the constitutional issues are no longer fairly debatable, and transferred the cause to this court for determination.

The cause originated in four cases brought by Petitioner Northern Illinois Gas Company which were consolidated for trial. Actions were instituted under the Illinois Eminent Domain Act (Ill Rev Stats 1963, c 47, § 1, et seq.). As a result of such proceeding, Defendants were awarded a total of $27,503.35 as just compensation for the taking by Petitioner Northern Illinois Gas Company of certain subsurface easements in 366.7 acres for underground gas storage at a site near Crescent City in Iroquois County, Illinois. A change of venue had been granted from Iroquois County Circuit Court to Kankakee County Circuit Court on ground of alleged prejudice of the Presiding Judge. The cause was tried before a jury and extended over a period of nearly two weeks in November of 1963. Judgment orders were based on the jury's verdicts.

On appeal in this court, Defendants assert that since the petition condemned a "permanent, assignable easement" in all strata from 590 feet below the surface to the bottom of the St. Peter sandstone (an easement acquisition of approximately 800 feet in depth) that such easement is a freehold, i.e. an interest in land to which the test is the value of the freehold taken plus the amount of damage to the remaining property. It is contended that the Trial Court erred in using improper standards or tests for the measurement of such value. It is also contended that the Trial Court erred in receiving testimony of Petitioner's experts and excluding testimony of defense experts based on the following considerations:

1. That the testimony was restricted to a "single use" test, rejecting the test of concurrent consistent uses as comprising value.

2. That such testimony was restricted to a "single bidder" rule, rejecting testimony as to the existence of a competitive market and known values in that market.

3. All testimony of owners, it is contended, was rejected where based upon (a) adaptability of the land to irrigation (b) value under conditions of irrigation (c) destruction of such potential as a result of gas storage (d) diminution of market value from reasonable fears of gas escaping with subsequent damage to wells and property, and (e) capacity of the land to be used separately or in combination for storage purposes under newly discovered procedures.

It is contended basically that the exclusion of all such testimony, and adherence to the procedures followed in the case constituted reversible error.

There is also a contention that the Trial Court impeded discovery procedures by denying access to pump test data although Petitioner's witnesses testified to these at time of trial and defense witnesses were cross-examined as to their ignorance of such data. It is likewise contended that the court took part in the trial by interrogation of witnesses and making of audible comments before the jury to such an extent that motions for mistrial should have been granted.

Petitioner was originally authorized to institute the condemnation action by an order entered by the Illinois Commerce Commission on April 18, 1962, which approved the preliminary development by Petitioner of an underground gas storage project near Crescent City. Some of the Defendants had intervened and participated in the proceedings before the Illinois Commerce Commission in opposition to the proposal by Petitioner to develop the project. An appeal was taken from the order of the Commerce Commission but was affirmed by the Circuit Court of Kankakee County and by the Appellate Court in Canady v. Northern Illinois Gas Co., 43 Ill. App.2d 112, 193 N.E.2d 48. Petition for leave to appeal was denied in the Supreme Court (in 28 Ill.2d 625).

The petitioning utility is engaged in the business of distributing and selling natural gas to more than 800,000 customers in the northern part of Illinois, and is a public utility regulated by the Illinois Commerce Commission under the Illinois Public Utilities Act. The development of the Crescent City Field which was approved by the Illinois Commerce Commission is designed to allow Petitioner to store large volumes of natural gas in a geological structure approximately 1,200 feet below the surface of the land, and will aid Petitioner in meeting the rapidly expanding needs of the public for natural gas in the service territory. The land involved in the Petitioner's preliminary development of the project has a total area of about 5,300 acres. The parcels involved in the case before us total an area 366.7 acres. The largest of the parcels is 120 acres in area and the largest contiguous area of any combination of the parcels is 160 acres with the smallest consisting of an area of 2 acres.

Gas storage in the field will take place in what is known as the St. Peter sandstone formation which in its natural state is saturated with water but which in the operation of the storage facility will have gas injected from the surface into the sandstone under pressure which pushes out and takes the place of some of the water in the pores of the sandstone. This is known as the aquifer-type gas storage project. No wells or other surface facilities of Petitioner will be located on the parcels of land involved in the case but the gas will enter the St. Peter sandstone under these parcels of land laterally after being injected through wells located on other parcels. Immediately above the St. Peter sandstone in the field are about 400 feet of alternating layers of limestone and dolomite and above that is a formation known as the Maquoketa formation which begins about 800 feet below the land surface and extends upward for about 200 feet to within 590 feet of the land surface. This formation consists of a lower dense shale member, a middle limestone member, and an upper dense shale member. Above this formation is the Silurian formation which is about 400 feet thick and immediately above that is glacial drift which is ...

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