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City of Chicago v. Budd

FEBRUARY 4, 1970.

CITY OF CHICAGO, A MUNICIPAL CORPORATION, PLAINTIFF-APPELLEE,

v.

HARLEY BUDD, HELEN PIERCE KELLEY, AND TAP ROOT, INC., ET AL., DEFENDANTS-APPELLANTS.



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

MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.

Defendants appeal from a judgment in an eminent domain proceeding commenced by the plaintiff, City of Chicago, under the Urban Renewal Consolidation Act (Ill Rev Stats 1961, c 67 1/2, §§ 91.101 to 91.136) for the acquisition of property located at 1762 and 1764 North Larrabee Street in Chicago, Illinois. The case was tried before a jury which viewed the premises and returned a verdict in favor of defendants for $33,500 and a judgment was entered on the verdict.

On appeal defendants contend (1) that the trial court erred in sustaining plaintiff's objection to defense counsel's question asking plaintiff's expert witness to state whether or not his opinion of value constituted just compensation, and (2) that the trial court erred in sustaining plaintiff's objection to defense counsel's statement made during closing argument relating to the value of defendants' business.

The subject property is a parcel of land 58 feet in width by 144 feet in depth and consists of two city lots. The lot located at 1762 North Larrabee is improved with two frame buildings approximately 85 to 100 years old. The first floor of the property is used for a tavern-beer garden business while the second floor is used for apartments. The lot at 1764 North Larrabee is a fenced-in vacant lot which is used as a beer garden.

Plaintiff's evidence consisted of the opinion of two expert witnesses highly qualified in the field of real estate brokerage and appraisal. The first expert witness described in detail the subject property and testified that in his opinion the highest and best use of the property was for commercial use and that in his opinion the fair cash market value of the property was $25,000.

Plaintiff's other expert witness had lived in the specific area surrounding the subject property for seven years and had been active in the operation, management and sales of property in this particular area since 1955. He described the history and geography of the area and testified that in his opinion the highest and best use of the subject property was for its present business or commercial and residential use and that the fair cash market value of the property was $26,000.

Harley Budd, a defendant, testified for the defense. He testified that he purchased the building and lot at 1762 North Larrabee under Articles for Agreement for Warranty Deed in August 1964 for $18,500 and that he purchased the property at 1764 North Larrabee in 1966 for $8,500. He made repairs to the buildings at considerable expense and had the vacant lot graded and smoothed. In his opinion the fair cash market value of the property was $140,000.

The defendants contend that the trial court erred in sustaining plaintiff's objection to counsel asking plaintiff's expert witness to state whether his opinion of value constituted just compensation. The question to which the objection was sustained was:

Q. "Would you say that this is just compensation for the owner of a piece of property located at 1762-64 North Larrabee, the sum of twenty-six thousand dollars?"

Defendants argue that this ruling was grossly prejudicial "as the jury could only believe from such a ruling by the court that the defendant was not entitled to `just compensation.'" Plaintiff, however, asserts that while an expert witness in an eminent domain proceeding is permitted to give his opinion as to the fair cash market value of the property, the witness cannot express his opinion as to the ultimate issue of just compensation as this is the very issue the jury is to decide. In Gillette v. City of Chicago, 396 Ill. 619, 72 N.E.2d 326, the principal contention made by the appellant was whether or not the court erred in sustaining an objection to evidence of an expert witness upon the ground that the question called for an answer which was the very issue to be determined by the jury. The court at page 623 found that:

As early as Chicago and Alton Railroad Co. v. Springfield and Northwestern Railroad Co., 67 Ill. 142, the same question had been before this court for consideration. . . . We reversed the case upon the ground that it was an opinion covering the very question which was to be settled by the jury, and so conclusive of it as to leave to the jury no other duty but that of recording the finding of appellee's witnesses. We used this language: "It amounts to nothing more nor less than permitting the witnesses to usurp the province of the jury. By this we do not mean to be understood as holding that it is incompetent for experts, such as engineers, to give their opinions in this case in respect to matters which may form the proper ingredients of a verdict. But what we mean is, that, where the witness is an expert, and it is competent for him to give an opinion as to such ingredients of a verdict, still it is not competent to ask the opinion of witnesses in such way as to have it cover the very question to be found by the jury."

In In re Appropriation by the Director of Highways, 120 Ohio App. 273, 201 N.E.2d 889, the State brought an action to appropriate certain lands for a grade separation. Over the objection of the appellant one of the State's expert witnesses was asked and permitted to testify that $9,703 "would be total just and fair award." The court at page 895 concluded that:

". . . If an expert witness were permitted to characterize his testimony in this manner it would be just as logical to permit him to characterize and criticize the amounts testified to by other ...


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