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Forest Preserve Dist. v. Harris T. & S. Bank

MARCH 24, 1969.

FOREST PRESERVE DISTRICT OF DU PAGE COUNTY, ILLINOIS, A BODY CORPORATE AND POLITIC, PLAINTIFF-APPELLANT,

v.

HARRIS TRUST AND SAVINGS BANK, A CORPORATION OF ILLINOIS, AS TRUSTEE UNDER TRUST AGREEMENT DATED MAY 15, 1963, AND KNOWN AS TRUST NO. 31117, BENEFICIARIES OF SAID TRUST AGREEMENT NO. 31117, RUTH ANDERSON AND STUART J. ANDERSON, HER HUSBAND, THE FEDERAL LAND BANK OF ST. LOUIS, JOHN VEDOCK AND SPOUSE, CHARLES MILLER, AND UNKNOWN OWNERS, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Du Page County, Eighteenth Judicial Circuit; the Hon. PHILIP F. LOCKE, Judge, presiding. Reversed and remanded.

MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.

Rehearing denied May 19, 1969.

This is an eminent domain proceeding brought by the Forest Preserve District of Du Page County, to acquire a 218 1/2-acre farm located in Lisle Township, for forest preserve purposes. The jury returned a verdict of $760,000 as compensation for the land taken. The trial court entered judgment on the verdict, and the plaintiff appealed.

The plaintiff contends that the trial court committed prejudicial evidentiary errors in not permitting certain of its expert witnesses to testify as to their opinions on valuation in that they were based, in part, on hearsay knowledge of other sales; in excluding evidence of sales of certain other lands deemed by the plaintiff to have been comparable sales; in excluding certain exhibits offered by the plaintiff; and in denying the plaintiff's motion to dismiss the proceeding during the presentation of its case in chief.

We shall first consider the refusal of the trial court to permit two of the plaintiff's expert witnesses to render their opinions as to the fair cash market value of the property in question. In its memorandum opinion, the trial court recited that its ruling was predicated upon the fact that the two expert witnesses "based" their opinions of value on sales of which they had no personal knowledge. The court stated that opinion testimony may be admissible if hearsay knowledge of other sales merely constitutes a portion of the background knowledge of the witness, (citing Department of Public Works and Buildings v. Divit, 25 Ill.2d 93, 182 N.E.2d 749 (1962)), but that such testimony must be refused if it is based upon or dependent upon hearsay knowledge of sales (citing Trustees of Schools of Tp. No. 44 v. Kirane, 5 Ill.2d 64, 124 N.E.2d 886 (1955); City of Elmhurst v. Rohmeyer, 297 Ill. 430, 130 N.E. 761 (1921); Chicago & W.I.R. Co. v. Heidenreich, 254 Ill. 231, 98 N.E. 567 (1912)).

The plaintiff's first valuation witness, Jay T. Fitts, testified that he had been a licensed real estate broker in the State and an appraiser for ten years. He recited the various appraisal and real estate institute boards to which he belonged; stated the requirements for membership thereon and the offices which he had held; and listed the special courses he had taken with reference to appraisal techniques. He testified that in addition to acting as a broker, he had been engaged in buying and selling real estate in Du Page County for the past four years and had appraised property in Du Page County and in Lisle Township; named the numerous clients for whom he had done appraisal work, and stated that he previously had testified as an expert witness in eminent domain proceedings in Du Page County.

Fitts then testified as to his work in connection with his appraisal of the subject property. He stated that he first viewed and examined the premises and then inspected the entire neighborhood, with which he was familiar; and that he considered many factors: including the improvements on the property, its appearance, the topography, trees, road frontage, zoning, size, distance, availability or lack of improvements, contiguous land and its use, real estate activity generated in the entire surrounding areas, and the nearby corporate limits. He also described the character and use of the surrounding area in detail and testified that, in his opinion, the highest and best use of the property on September 8, 1967, was its present use, with potential for residential use.

He further testified that he had an opinion as to the fair cash market value of the property on the date in question, and that in arriving at that opinion, the factors he considered "in addition to the items which I have mentioned previously" were "the highest and best use of the property, the physical attributes of the premises, its location, the neighborhood . . . the fact that there were sales of other property in the area and I also used my general knowledge and experience to estimate the value."

Counsel for the plaintiff then asked the witness to describe in detail approximately eight other properties. These were properties which the witness, in the course of this examination, indicated he had considered in arriving at his opinion of value, and were all involved in recent sales. The witness testified at length as to the characteristics of each of these properties, but did not state, at the insistence of defense counsel, the dates or amounts involved in their sales.

Counsel for the plaintiff then asked the witness if he had an opinion of the fair cash market value of the subject property for the highest and best use on September 8, 1967, the day the petition was filed. Counsel for the defendants then objected to the statement of any opinion of value by the witness, on the ground that the witness had not demonstrated any qualification to render an opinion of value; that he had not participated personally in any of the sales which he considered in arriving at his opinion; and that to permit Fitts to give his opinion of value would be tantamount to the admission of these other sales into evidence, "because the obvious inference is that all of these sales are at the same price that he is testifying for the subject property, that all of these sales are comparable." The court sustained the objection and refused to permit Fitts to give his opinion as to value.

The sequence of the testimony of Fitts was properly subject to criticism. He first testified with reference to his qualifications, then described the other surrounding properties which he had considered in arriving at his value opinion of the subject property. His opinion of the value of the subject property should logically have followed his testimony concerning his qualifications. Such sequence would have obviated part of the objections raised by the defendants. Under the court's ruling, Fitts was never permitted, through cross-examination, or otherwise, to pinpoint the basis for his evaluation testimony.

Also, counsel for the defendants, in effect, encouraged the plaintiff to have the witness Fitts testify concerning the description of the other properties by stating, "As long as the witness is going to just confine his statements to the description of the property and so forth . . . I would have no objection." However, after the eight properties had been completely described by the witness, then the fact that such testimony had been received in evidence was used as a further basis for the defendants' objection to the witness giving an opinion as to the value of the subject property. Under these circumstances, the defendants cannot properly complain of an error which they induced. Compare: City of Waukegan v. Stanczak, 6 Ill.2d 594, 608, 129 N.E.2d 751 (1955); Weaver v. Bolton, 61 Ill. App.2d 98, 110, 209 N.E.2d 5 (1965).

The plaintiff's next valuation witness, Thomas M. Collins, likewise testified as to his background as a broker and appraiser; his membership in various real estate societies and his special training; his background in buying and selling real estate — including real estate in Du Page County; and his background in making appraisals — including those in Du Page County, Lisle Township.

He testified as to his examination of the subject property and his familiarity with the neighborhood. He described the subject property and the surrounding area; stated that he examined and considered its topography, utilities and zoning; and that he examined its assessed valuation. He gave his opinion of the highest and best use of the property as of the date in ...


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