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Forest Preserve Dist. of Cook County v. Yelk

SEPTEMBER 22, 1969.

FOREST PRESERVE DISTRICT OF COOK COUNTY, A MUNICIPAL CORPORATION OF THE STATE OF ILLINOIS, PETITIONER-APPELLANT,

v.

CLARENCE F. YELK, ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. EDWARD J. EGAN, Judge, presiding. Judgment affirmed.

ALLOY, J.

This case involves a condemnation proceeding filed by Forest Preserve District of Cook County, Illinois, on June 22, 1966. The tract involved was owned by defendant, Clarence Yelk, and consisted of approximately 19 1/2 acres located in the southwest part of Cook County. This tract was basically a farm tract with a set of buildings consisting of a partial one- and two-story single-family residence, a 250-foot well with pump, a pump house, a garage, a pony barn, an outhouse, and two chicken sheds. The record indicates that the residence was in good condition for its age, but that the other buildings showed visible evidence of their age. The property was zoned R-3, a classification which allowed one-family residences with a minimum lot size of 40,000 square feet and with a minimum width of 100 feet. The jury returned a verdict of just compensation at $62,000. Forest Preserve District appeals from a judgment in such amount.

Two appraisal witnesses testified for the District. One of them, a Mr. Purcell, who was a qualified and licensed appraiser, testified that he made a visual inspection of the house and an analysis of its condition; that he checked the general makeup of the surrounding area as to uses to which it was being put. He also made some investigation as to sales transactions and gave consideration to the proximity of schools, proximity of the highway, and the extent of industrial development in the area. He concluded that the highest and best use of the property on June 22, 1966, was for residential use in conformity with its present zoning. His opinion of the fair cash market value of the property as of such date was $44,125. The testimony of this appraiser was that he was employed by the District to make this appraisal and, also, that he had made appraisals for individuals as well as public bodies.

Another appraiser, a Mr. Waldman, also a licensed qualified appraiser, testified for the District and, likewise, agreed that the highest and best use of the property was in keeping with the residential zoning. His opinion of the fair cash market value of the property as of June 22, 1966, was $40,500. He also testified that directly across the road from the subject property was a 10-acre tract of unimproved land which had similar topography and contour as the subject property.

During a pretrial conference, the attorney for defendant Yelk, the property owner, indicated that he felt other appraisers who had appraised the tract for the District were not going to testify including a Mr. McNamara. The trial judge advised Yelk's attorney that if he wished to present evidence about a possible "other appraisal" he should bring in Mr. McNamara as his witness. The attorney for Yelk did not do this, but, on cross-examination of the District's appraiser, asked, "Mr. Waldman, how many other appraisers were there in appraising this property aside from yourself?" He also asked if Mr. Waldman was the first to appraise the property. Both questions were objected to by the District and the objections were sustained. The attorney for Yelk also asked his client, Yelk, how many appraisers had come to his house. Again, an objection was sustained and the attorney for Yelk was instructed by the trial judge in his chambers to refrain from such questioning.

Only one appraiser testified for the property owner, a Mr. Schlieske, who was also licensed and qualified as an appraiser. He testified as to the possible use of the land and explained that if a central water system were installed, the lot size could be reduced to 20,000 square feet per lot. He agreed that the highest and best use of the property was as single-family residential subdivision property in accordance with its existing zoning. On cross-examination of Mr. Schlieske, the District's attorney asked when Schlieske first examined the property, to which he replied, "In the summertime or sometime in July or August of 1967." When the property owner, Mr. Yelk, testified, he was asked if his attorney had employed the appraiser and he stated that he did. Yelk also testified thereafter that he had employed the attorney about the first part of November 1967. He also stated that it was after the attorney was hired that he first had any contact with Mr. Schlieske, the appraiser. The attorney for the Forest Preserve District then used this line of questioning for the purpose of impeaching the testimony of the property owner's appraiser, Mr. Schlieske, since Schlieske had testified that he saw the property in July or August and, if he was not hired until November, he could not have seen the property at such time. During closing argument, the attorney for the District was pointing out this inconsistency in the testimony of Schlieske when the following was shown of record:

". . . And Mr. Schlieske could not have made any appraisal in August of 1966 which he testified to because he wasn't contacted until after Mr. Friedman was employed."

Mr. Friedman: "Objection, your Honor."

The Court: "What is the objection?"

Mr. Friedman: "My objection is he is misstating the evidence of my appearance filed in the case. I was on the case long before that."

The Court: "This is argumentative. Overruled."

In the course of the trial, the attorney for the property owner also attempted to introduce evidence to show that the property owner could only afford to hire one appraiser and, in his closing argument, he likewise attempted to insert a reference to the fact that this property constituted the life savings of the property owner and that civilization was moving him out.

The District attempted to introduce evidence of the sale of a 10-acre tract across the road which was sold in May of 1966, just a month prior to the petition for condemnation. That 10-acre tract was not an improved tract, and the trial judge sustained an objection to any further evidence in regard to such 10-acre tract. It is contended by the District that evidence of such sale of the 10-acre tract should have been admitted.

The District also asserts that the trial court committed reversible error in refusing a new trial because of the remark made by the attorney for the property owner during the closing argument that he had been in the case a long time before November 1967, and, thus, reduced the effect of the District's argument relating to impeachment of the testimony of the property owner's appraiser. The District also contends that reversible error was committed by reason of the property owner's attorney attempting to create an inference that other appraisers had appraised the property who were not brought in as witnesses and, likewise, that it was ...


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