Appeal from the Circuit Court of Cook County; the Hon. DONALD
S. McKINLAY, Judge, presiding. Judgment adverse to plaintiff
affirmed in part and reversed in part and cause remanded with
MR. JUSTICE BURKE DELIVERED THE OPINION OF THE COURT.
Rehearing denied January 10, 1967.
Plaintiff filed a petition to condemn, which included a small triangular piece of vacant land from a corner of defendants' improved residential tract. The property was taken to assist plaintiff to provide drainage on a frontage road superimposed on a pre-existing road, fronting defendants' tract. Across the road from defendants' realty, on land acquired by plaintiff from other property owners, plaintiff constructed a portion of the new Southwest Expressway, placing it along the top of an embankment. Defendants claim damages to the remainder, based in material part, on the alleged interference with or obstruction to view, light and air, caused by the embankment. The jury returned a verdict making an award for the taking and for the damages to the remainder upon which the court entered judgment. Plaintiff appeals.
Title to the land taken from defendants was acquired by plaintiff in a statutory proceeding for the immediate vesting of title. The part taken was a triangular sliver of vacant land from the southwest corner of defendants' improved residential tract. The original tract was 20,000 square feet; the part taken was 425 square feet, or slightly over two percent of the total tract; the remainder, improved with a house, garage, shed and driveway, is 19,575 square feet. The purpose of the taking was to assist plaintiff in constructing a new frontage road which, in turn, was to provide defendants and neighboring property owners with access to and from their property. The frontage road would not have been built were it not for the construction of the Southwest Expressway. The expressway was built over and across an area formerly traversed by 71st Street and defendants and others formerly had access to 71st Street. The new frontage road, at defendants' location, occupies the same area as the pre-existing 70th Place and from their lot defendants have the same access to the frontage road which they previously had to 70th Place. No part of the expressway was constructed on land taken from defendants.
As part of the expressway general improvement, plaintiff acquired certain other properties across from defendants' lot and across from the road fronting defendants' lot. On these properties plaintiff constructed an embankment and on top of the embankment it placed the Southwest Expressway. The expressway is 18 to 20 feet above the level of the frontage road and defendants' lot. There are about 16 feet between the north end of the "taking line" of defendants' lot to the frontage road. Defendants' house is set back about 50 feet from its frontage. It is about 50 feet from the edge of defendants' property line to a point on the embankment where it begins to rise. The rate of incline is about 1 foot of vertical distance for each 3 feet of horizontal distance. It is about 121 feet from defendants' property line across the frontage road to the edge of the nearest part of the Southwest Expressway pavement. The embankment and plaintiff's vacant property between the frontage road and the embankment are landscaped.
Defendants filed a petition and an amended petition in the nature of a cross-petition alleging damages to the remainder. Pursuant to an order of the court, plaintiff moved to strike the defendants' petition. The court allowed the motion in part, denied it in part and permitted a revision and amendment on the face of the bill. The bill, as amended, particularized damages to the remainder as follows: (3) the establishment of the Southwest Expressway over this property has diminished access and convenience of travel, thus impairing its value therewith, (4) obstruction to view arising out of the abutment built in front of property and along expressway, (5) reducing the square footage remainder for septic tank in the municipality in which the property is located, and (6) obstruction of light and air along the front of property. Plaintiff sought to prevent the admission of value evidence of damage to the remainder allegedly caused by the highway embankment by renewing its motion at the time of the trial and before the calling of witnesses. The motion was not allowed. The range of the evidence as to value and damage to the remainder was as follows:
Value witnesses for Plaintiff:
Mr. Walther: $180 taking; damage to remainder $70;
Mr. Shlaes: $200 taking; damage to remainder $200;
Value witness for Defendants:
Mr. Rathbun: $300 taking; damage to remainder $5,500.
Defendants' appraisal witness, Mr. Horace Rathbun, stated on direct examination, that he took into account in arriving at his opinion as to damage to the remainder, the road, the embankment, the interference with view and with air and light, and the zoning variation which he stated would be needed. Mr. Rathbun testified that he took two factors into consideration in making his judgment as to damages, one the embankment and the other the "zoning code." In answer to the question as to which of these weigh more heavily "in your mind?" he answered, "Well that is a matter of opinion." In responding, on cross-examination, to a question as to whether or not the present view might be an asset, he answered, "It would be very hard to sell that piece of property with an embankment in (and) the variation that we have today. It would have to be a low price seller. I mean it would have to be a low price, a very low price to sell it." At the conclusion of the testimony of defendants' sole value witness, plaintiff moved to strike his testimony, which motion was denied. After all the testimony had been concluded, plaintiff moved to withdraw a juror and declare a mistrial and this motion was denied. Plaintiff tendered corrective instructions on points of law at issue and unsuccessfully objected to certain instructions involving the same points. The jury returned a verdict in the amount of $200 for the taking of the subject property and $2,000 for damage to the remainder and judgment was entered thereon.
[1-5] We agree with plaintiff's contention that damage to the remainder, to be compensable, must be the proximate and direct consequence of the taking and use of claimants' property, that it is improper to admit into evidence as to damage to the remainder, elements of damage not caused by the specific taking, and that it is improper to instruct the jury to consider such elements. The trial court permitted value evidence to be introduced in support of the damages to the remainder not caused by the taking or use of defendants' property. The taking was of a small piece of vacant land off one corner of defendants' residential lot. Defendants claim that the taking requires a variation in the zoning to comply with the septic system requirements. This caused a slight irregularity of the lot. We agree that only damage due to the actual taking was admissible in evidence and that damage which may have flowed from the taking or use of the property acquired from neighboring property owners forms no basis for damage to remainder to these defendants. The "damage to the remainder" must be the direct and proximate consequence of the "taking." In Department of Public Works and Buildings v. Bloomer, 28 Ill.2d 267, 191 N.E.2d 245, the court, after stating that the burden of proving damage to the remainder is on the owner, said, 270:
"The settled measure of such recovery is the depreciation in value of the land not taken which results from the taking, that is, the difference between the fair cash market value of the part not taken unaffected by the improvement ...