Appeal from the Circuit Court of Bureau County; the Hon.
LEONARD HOFFMAN, Judge, presiding. Affirmed in part, reversed in
part and remanded.
This is an appeal from a judgment of the Circuit Court of Bureau County entered pursuant to a jury verdict in an eminent domain proceeding.
Appellant commenced this action on February 4, 1963, to condemn 23.81 acres of the land of Appellee asking that just compensation be determined for the acreage to be acquired and that damage to property not taken be determined. Pursuant to appropriate procedure, title to the property to be acquired was vested in Appellant. The jury found in the amount of $10,900 as just compensation for the land taken and the amount of $10,500 as damage to the remainder. No question is raised on this appeal concerning compensation for land taken nor is any question raised concerning the pleadings.
Prior to February 4, 1963, Appellee owned 396 acres of farmland in Bureau County. A township road known as Illinois State Aid Route 15, running generally north and south, divided the farm into two parcels, 40 acres being on the west side of Route 15 and the remainder being on the east side of Route 15.
The improvement necessitating this action is the construction of Federal Aid Interstate Route 80 together with the widening of Route 15, an overpass for Route 15 over Interstate Route 80, a frontage road and also the extinguishment of certain access rights.
Interstate Route 80 runs generally east and west, crossing Appellee's land on the southerly portion leaving two small parcels of the remainder of Appellee's land totaling approximately four and one-half acres without access to a road, or landlocked. Each of the parcels is located south of Interstate 80, one east and the other west of Route 15. The base of the embankment carrying Route 15 over Interstate 80 is approximately 18 to 20 feet from the tenant house located on the east side of Route 15 on the remainder owned by Appellee.
At the hearing an engineer and two appraisers testified in behalf of Appellant. Appellee, Fred Bills, testified in his own behalf, Watson Lawton, testifying as the sole valuation witness, for Appellee. Each of the appraisers testified as to the value of the remainder before and after the improvement. The appraisers for Appellant testified respectively that the remainder was damaged in the amount of $5,600 and $6,400 as a result of the taking and improvement. It was the opinion of the appraiser for Appellee that the damage to the remainder was $13,026.
After Appellee's appraisal witness had completed his testimony Appellant moved to strike the appraiser's testimony on grounds that his opinion of value was based on improper elements and hence his testimony was incompetent and inadmissible. This motion was denied.
Appellant filed its post-trial motion for a new trial asserting that the Court had committed prejudicial error in the admission of the testimony of Watson Lawton, Appellee's appraiser, said testimony being incompetent and inadmissible because his opinion of value was based on improper elements of damage. Upon a denial of the post-trial motion this appeal follows.
The errors upon which Appellant relies, concern only the testimony of Appellee's appraiser as to his opinion of the value of the land after, and as a result of the taking and the improvement, and, consequently, the damage to the remainder.
Both parties concede that if the appraiser's testimony was competent and admissible then the judgment of the Court below is proper and if said testimony was incompetent and inadmissible then the judgment of the Court below is erroneous. The sole question before us is whether or not Appellee's appraiser considered only proper elements or factors of damage in arriving at his opinion of the value of the remainder after the taking and improvement.
Appellant contends that the improper elements of damage considered by Appellee's appraiser were the surface drainage; the increased traffic on Route 15 and the greater risk of transporting grain and machinery across Route 15.
Damage to land not taken depends on the existence of a direct, physical disturbance of a right, either public or private, which the owner enjoys in connection with his property. This right must give the property an additional value and its disturbance create special damage in excess of that sustained by the public generally. (Illinois Power & Light Corp. v. Peterson, 322 Ill. 342, 153 N.E. 577.) Such damage must be direct and proximate and not such as is merely possible or may be conceived by the imagination. (Trunkline Gas Co. v. O'Bryan, 21 Ill.2d 95, 171 N.E.2d 45.)
We have examined the record before us for any evidence from which it can reasonably be inferred that the remainder sustained depreciation in value resulting from interference with surface drainage. The only evidence in the record concerning drainage is the testimony of the engineer for Appellant. He testified that a 24-inch culvert would be installed under Interstate Route 80 and a 12-inch culvert under the frontage road. He further testified that the culverts were adequate to take care of a 3-inch rainfall occurring within a period of 60 minutes. There is nothing in the testimony of the engineer from which it can be inferred that the improvement including the culverts, or the taking, had any effect on the remainder either adversely or beneficially. In considering the testimony of Mr. Bills, the owner of the land, we find that drainage is not even mentioned. Lawton, the valuation witness for Appellee, mentioned surface drainage in response to a question put to him on ...