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Department of P.w. & Bldgs. v. Oberlaender

FEBRUARY 16, 1968.




Appeal from the Circuit Court of Henry County, Fourteenth Judicial Circuit; the Hon. DAN H. McNEAL, Judge, presiding. Judgment reversed and remanded with directions.


The Department of Public Works and Buildings of the State of Illinois commenced this eminent domain proceeding on the 3rd day of January, 1964, in the Circuit Court of Henry County for the acquisition of land for the improvement of Interstate Route 80. The land sought to be acquired is a forty-four (44) acre tract being a part of a two hundred sixty-nine (269) acre tract owned by respondent, Donald Oberlaender. A cross petition claiming damages to property not taken was filed by respondent but withdrawn shortly before trial. Judgment of $600,000 was entered on the verdict and it is from this judgment that the State appeals.

The trial court denied the State's motion for a new trial. In seeking to reverse such order the State contends the judgment is based on erroneous and prejudicial rulings of the trial court made during the course of the trial.

The entire tract owned by respondent and his father before him had been used as a part of a sand quarry for more than fifty years. The sand deposits are in banks or dunes requiring the removal of little overburden to secure access thereto. The thickness of the deposits varies from place to place and there is considerable conflict in the evidence concerning the quantities of the sand deposits underlying the entire tract and the part taken, the estimates of the deposits of sand underlying the land taken ranging from 1,300,000 tons to more than 3,600,000 tons. In respondent's operation the sand may be loaded directly onto trucks and transported to the customer or it may be hauled to a railroad spur about three blocks from the property where it may be dried if required by the customer and then transported either by rail or truck.

Evidence was introduced concerning the nature and character of the sand on respondent's property, its actual and potential uses and the ways in which the sand deposits on respondent's property differed from those on similar property.

Evidence of a similar sale of 50 acres of land containing sand deposits near Savanna, Illinois, was introduced. Such land at the time of the sale was being used for sand quarrying and the quantity of the deposits was estimated at 1,000,000 to 1,500,000 tons.

The State's valuation witness valued the tract taken at $56,000. The opinions of respondent's valuation witnesses ranged from $500,000 to $625,000.

The State's assignments of error, which we shall first consider, are those relating to rulings of the trial court concerning the State's valuation witnesses. The first of these was William Franzan, a resident of Rockford, Illinois. He described his qualifications at length including education, licensing as an Illinois real-estate broker, membership in professional appraisal associations, and teaching in the field of appraisals at several universities. His principal occupation was that of professional appraiser and he described his experience in this field which included the appraisal of real estate of various kinds in several states and northern Illinois. Such experience included the appraisal of mineral lands in northern Illinois which were made for both private owners and governmental agencies. He described his knowledge of real estate values in the Henry County area indicating his knowledge had come from appraisals of property in the county and from information supplied by brokers, buyers and sellers. He described his inspection of the premises of respondent and the factors which he considered in arriving at his opinion of value. When asked whether he had an opinion concerning the market value of respondent's entire tract, an objection that such question was immaterial was sustained. The witness was then asked whether he had an opinion concerning the value of the forty-four (44) acre tract taken considered as a part of the whole. An objection was interposed to this question because of insufficient foundation. Before ruling on the objection the trial judge questioned the witness concerning appraisals the witness had made in northern Illinois. Thereafter the court sustained the objection to the question.

The State argues that Franzan was a competent witness to express an opinion of value and that it was error for the trial court to exclude such opinion. The objection of respondent's counsel was not to the form or content of the question. The nonspecific objection of insufficient foundation relates to the competence of the witness to answer the question. Neither the objection of respondent's counsel nor the questions propounded by the trial judge indicate precisely the reasons for or the basis of the court's ruling sustaining the objection. It does appear the trial judge was interested in ascertaining whether the appraisals of northern Illinois real estate made by the witness were based on his experience as broker, buyer or seller. Since the answers to the questions propounded by the trial judge indicated that the witness did not participate in any of the northern Illinois real estate appraisals as broker, buyer or seller we believe it can fairly be concluded that the absence of such participation was the basis for the trial court's ruling. Indeed the parties do not seriously question this conclusion.

The general rule is that a witness may express his opinion as to value of real estate where it appears his opinion of value is based on some peculiar competence not possessed by the general public. The ownership or the buying and selling of generally similar real estate in the area, is considered sufficient to entitle a witness to express an opinion of value. However these criteria are not the exclusive criteria for establishing the peculiar competence of a witness required by the rule. In fact respondent does not argue that ownership of or participation in sales in the area are the only criteria for determining the competence of a valuation witness, since the same objection would be applicable to at least three of respondent's own valuation witnesses. The opinion of a professional appraiser is competent when based on his own inspection of the premises and his knowledge of the general value of real estate in the area. Department of Public Works and Buildings v. Divit, 25 Ill.2d 93, 182 N.E.2d 749. It is the methods and principles of appraising which establish the peculiar competence of a professional appraiser and not the detailed knowledge of any particular use of the land. Respondent relies heavily on City of Chicago v. George F. Harding Collection, 70 Ill. App.2d 254, 217 N.E.2d 381 (Petition for Leave to Appeal denied, 35 Ill.2d 87), in support of his contention that the general competence of the witness Franzan as a professional appraiser did not extend to a valuation of the property here involved. We approve of the reasoning in the aforementioned case but do not believe it is applicable to the instant case. In the George F. Harding Collection case the property sought to be acquired was a museum. By stipulation it was agreed that the museum property constituted a special use and that the value of the property was to be determined by its replacement cost. The witnesses testifying in behalf of the condemning authority, a construction engineer, an architect and three real-estate brokers, none of whom were professional appraisers, indicated that their opinions of replacement costs were based on the belief that a smaller building of different construction would be adequate for the museum's needs. The court held that although such witnesses were competent to testify to the replacement costs of the building such competence did not extend to a determination of the needs of the museum.

In the instant case it is not contended that respondent's property is a special use property nor could such contention be supported. The degree of familiarity with the uses to which land is adaptable is a matter of credibility and not of competence. We believe the trial court erred in excluding the opinion of witness Franzan.

The other valuation witness for the State was Truman Esmond. On direct examination he expressed the opinion that the value of the land taken was $56,000. On cross-examination the witness was asked whether he had told the respondent that he had appraised the tract taken at $80,000. After receiving a negative reply respondent's counsel requested that the State be directed to produce all appraisal documents of the witness in the State's possession. Over its objection, the State was ordered to produce such documents. Respondent's counsel then proceeded to cross-examine the witness on the basis of such appraisal documents and it appears that some figure of $80,000 did appear in such documents. From the cross-examination relating to the appraisal reports, it does not appear the witness had appraised the tract taken for $80,000. Although a $75,000 figure is mentioned in such reports such appraisal did not relate to the value of the tract taken but included the value of buildings or some portion thereof not located on the tract taken, but which, under a possible theory of damage, might have been considered a part of the whole.

In arguing that the trial court erred in ordering the production of the appraisal reports, the State relies on City of Chicago v. Harrison-Halsted Bldg. Corp., 11 Ill.2d 431, 143 N.E.2d 40, and contends that the principle of the aforementioned case is retained in Supreme Court Rule 201. Respondent argues that production of the documents is warranted under the authority of Monier v. Chamberlain, 35 Ill.2d 351, 221 N.E.2d 410, decided shortly before the adoption of Rule 201. Although dealing with pretrial discovery the Monier case adopts the view that disclosure rather than nondisclosure better suits the methods and goals of a trial. In broadening the area of disclosure to include areas which theretofore might not have been deemed included, the purpose is achieved in part by reducing matters excepted from disclosure described as matters privileged against disclosure at trial. As described in the Monier case we do not believe that the reports of appraisers can be deemed the work product of an attorney. On the contrary such reports appear to us to be in the same category with the reports or statements of any other person not a party to the action possessing facts or information relevant to the issues in controversy. Accordingly we believe the trial court committed no error in ordering the production of the documents.

The assignments of error next urged by the State relate to rulings of the trial court on evidence presented by Respondent. The first of such errors relates to the materiality of the value of the entire tract owned by Respondent. This question arises in two ways. After Respondent's valuation witnesses testified concerning their qualifications and knowledge of the land taken they were each asked whether they had an opinion of the value of the tract taken considered as a part of the whole tract. Objection was made to the question by the State on the ground the witness was incompetent or unqualified to express an opinion on the value of the part taken considered as a part of the whole in the absence of any prior testimony that the witness had knowledge of the value of the whole tract. The objection was overruled and the witness was permitted to express his opinion on the value of the tract taken considered as a part of ...

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