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Department of Pub. Works & Bldgs. v. Dalessio

NOVEMBER 25, 1968.

DEPARTMENT OF PUBLIC WORKS AND BUILDINGS OF THE STATE OF ILLINOIS FOR AND IN BEHALF OF PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

JAMES DALESSIO, ET AL., DEFENDANTS, JOLERICH CONSTRUCTION CO., INC., AN ILLINOIS CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Will County, Twelfth Judicial Circuit; the Hon. MICHAEL A. ORENIC, Judge, presiding. Affirmed.

ALLOY, P.J.

This is an appeal from a judgment of the Circuit Court of Will County in an eminent domain action in which the jury returned a verdict fixing just compensation of $12,462 for the land taken and $4,154 for damages to the remainder.

The record discloses that appellant, Jolerich Construction Co., Inc., an Illinois corporation, purchased 6.65 acres of vacant land from a school district at a public auction on November 20, 1960. It made no improvements on the land. On April 8, 1963, about 28 months after the purchase, the State of Illinois filed a petition for condemnation of 3.106 acres of this land. The 3.106 acres taken were out of the middle of the 6.65-acre tract, leaving an east and west tract which were both damaged by the taking. The amount of damage for the taking of the land and for the remainder not taken was contested as between the parties. The condemnation action was the result of the planning for construction of Interstate 80 although none of the particular tract was to be used for such route. The land taken was to be used for the east ingress and the west ingress of a diamond interchange for westbound traffic on Route I 80 and also for the relocation of a street known as Richards Street. After completion of construction, two streets running past the property (Richards and Poplar) would be dead-end streets. The jury not only heard the evidence but also viewed the premises. They thereafter awarded $12,462 for the property actually taken and $4,154 for damages to the balance of the property not taken.

There was a wide variation in testimony of appraisers and witnesses as to value on behalf of the Department of Public Works and of the defendant-owner of the land. The appraisers for the State fixed damages for the taking and damages to the other two remaining tracts at totals of $14,000, $15,800, and $14,500 respectively, while witnesses for the property owner testified that damage ranged from totals of $85,000 to $125,503.35.

Early in the course of the trial, the property owner objected to any evidence being offered as to the fact that the 6.65-acre tract had been purchased at a public auction approximately 28 months before the filing of the petition for condemnation. The trial judge examined several witnesses outside the presence of the jury including the president of the defendant-company who attended the auction sale. Following such examination, the trial judge concluded that the evidence of the auction sale and the price paid for the 6.65 acres was admissible. With respect to the auction, the evidence disclosed that it was a sale of surplus property by a local school board. The sale was properly advertised and before the sale, the Joliet-Will County Board of Appraisers appraised the property for $4,500. The sale was held on November 20, 1960. Although it was shown there was a big snow that evening, testimony indicated that 20 bidders were present at the auction. The testimony disclosed that everyone was bidding until the bids reached $12,000, but after $12,000 was reached, there was only the representative of defendant and one other person who continued bidding. When the representative of defendant bid $18,000, the partner of the remaining bidder told him to stop bidding, and Mr. Krypel, President of the defendant-company, purchased the 6.65 acres for $18,000. There was also testimony in the record that "public sales almost always bring the market value or better in Will County" and nothing in the record indicates that the auction sale was not fairly conducted and open to all prospective bidders. Evidence in the cause further disclosed that there were no changes in the property or the area between the time of the auction and the time of the filing of the petition for condemnation which would operate to change the value of the land. The 6.65 acres were rezoned from residential to business, but a showing was made that such rezoning could have been obtained at any time without difficulty and that this factor in itself did not affect the value during the intervening 28 months.

In the trial of this cause the property owner attempted to introduce evidence of the sales of land in the general area which occurred after the time of the filing of the petition for condemnation. One sale which the property owner attempted to show in evidence occurred 14 weeks after the filing of the petition and another 5 months after the filing of the petition. The trial court refused to allow evidence of any sale occurring after the filing of the petition. The property owner objected to the exclusion of such evidence.

The record also shows that there was very little development in the general area over the past 25 years. A Kroger store which was later vacated was located in the area and a pick-up laundry cleaning establishment and a Salvation Army building were the only new businesses which apparently had started in the area over the past 20 to 25 years. A witness for the property owner testified that he knew of only two homes built in the area in the last 25 years and also that the only other new businesses he recalled in addition to the ones already referred to were a funeral home and two gas stations. As far as the record is concerned the net effect of testimony as to the growth of the area showed that the area was in fact static.

There was also conflict in the testimony of the appraisers for the respective parties as to the necessity of a fill in preparing the site for construction. Witnesses for the Department of Public Works testified that in arriving at their appraisals, they considered that due to the topography of the land, it would probably be necessary to bring in substantial yardage of fill in order to make the lot usable. Evidence on behalf of the property owner was to the effect that development of the land could be made without any dirt fill if proper business buildings were constructed with a basement.

An additional area of conflict in the evidence was as to the possible flooding of the land under consideration. All the witnesses agreed that the last time the entire area had been under water was in 1957. There was some evidence on behalf of the property owner, by an engineer on a sewer project through the area, that the outlet had been changed and that the entire condition of the area was changed and improved since 1957. There was, however, a photograph introduced into evidence showing the effects of a hard rain on May 12, 1966, which disclosed water in the creek within two or three inches of spilling over the top of the concrete wall and thus flooding the entire area. The possible flooding problem was considered by the Department's appraisers in arriving at their figures while the appraisers for the property owner testified that they felt that the flooding problem had been cleared up.

In the closing argument, the attorney for the property owner stated "again I remind you there is no business use to which this land can be put," which he emphasized for the benefit of the attorney for the State calling his attention to this argument by naming him. In argument in reply, the attorney for the State stated "I'll tell you what business use this tract of land can be put to. It can be used for a parking lot for John Krypel, who owns the dance hall across the street." Objection was immediately made by defendant and the court sustained the objection, and ordered the statement stricken from the record and, likewise, directed the jury to disregard it, as requested by defendant.

The first issue for consideration is whether the trial court correctly admitted evidence of the purchase of the tract under consideration at a public auction 28 months prior to the filing of the petition for condemnation. As we have indicated in the statement of facts the evidence disclosed that the auction was well advertised, open to all bidders and attended by 20 people even though the weather was not favorable on the evening of the auction. There was also specific testimony that in the Joliet area, auction sales are a good indication of market value of the land. In an early Illinois case, Sanitary Dist. of Chicago v. Corneau, 257 Ill. 93, 100 N.E. 517, the Supreme Court held that it was error to admit evidence of the price which owners paid at an auction sale where the owners involved were the owners of 80/81 of the land being sold and thus their bid had little significance. The court in that case found that the first and only bid for the property was $500 an acre so that there was no competition, and there seems to have been some understanding that the parties would bid that amount. Under such circumstances, the court declared that it was error to admit evidence of the purchase of the land. The court, however, stated (at page 99):

"If an owner has purchased property from another within a time so recent that its cost will afford any indication of its present value it is competent for either party to show the price paid, and perhaps that might be so of a public judicial sale which is not forced or compulsory";

In the later Illinois case of Forest Preserve Dist. of Cook County v. Dearlove, 337 Ill. 555, 169 N.E. 753, evidence of a sale of a tract (by trustees in a will under court authority), which tract was across the road from the property being condemned was held admissible. In that case it was shown that the title to the adjacent tract had been held by a trustee under a will and that the attorney negotiating the sale had contacted over 50 brokers for nearly four months before finally making the sale. The court indicated there that evidence of voluntary sales of land in the vicinity and similarly situated would be admissible to aid in estimating the value of land to be taken by eminent domain. The court indicated that whether or not any given sale should be admitted under this rule lies within the discretion of the trial judge. The court noted that the mere fact that the sale of the farm was under a decree of court did not make it a forced or compulsory sale. While there is no Illinois case which has been called to our attention or which we have been able to discover, where evidence of the purchase of exactly the same property at auction sale was under consideration, we see no reason why the principle should not be applied in such case.

In other jurisdictions such evidence has been admissible. In State v. Calkins, 50 Wn.2d 716, 314 P.2d 449, an auction sale was involved and the court found that the public auction was free and voluntary and if the property was located close to the condemned property, evidence of such comparable value could be introduced. In Application of Housing Authority of the City of Bayonne, 21 NJ Super 254, 91 A.2d 106, the question which was involved was the admissibility of evidence of a purchase at public auction of the same land being condemned. Such evidence was found to be admissible. We believe that this is a sound rule, if the sale is a free and open sale, and if conditions as to the property are ...


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