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Department of Public Wks. & Bldgs. v. Tinsley

FEBRUARY 11, 1970.

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

v.

HERBERT TINSLEY, HELEN TINSLEY, DONNA LEE TURNER, LOREN F. TURNER, RAMONA JUNE KELLEY, JAMES ROY KELLEY, HARVEY W. RANDALL, GRACE RANDALL, CURTIS W. GILLESPIE, D/B/A BELLE RIVE MINING CO., AND BELLE RIVE MINING CO., A CORPORATION, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Jefferson County; the Hon. CHARLES E. JONES, Judge, presiding. Judgment affirmed.

GOLDENHERSH, J.

Defendants appeal from the judgment of the Circuit Court of Jefferson County entered upon a jury verdict in an action to condemn land for use in the construction of Interstate Route 57 north of Mt. Vernon.

In this action petitioner acquired fee simple title, except for certain coal, oil, gas and mineral rights, to two parcels of land comprising, respectively, 9.2 and 6.4 acres, and an easement for construction purposes upon a parcel comprising 2.54 acres. The easement terminates upon completion of the construction project, or three years from June 30, 1967, whichever is earlier. The land condemned is part of a 189 1/2-acre tract owned by defendants Herbert and Helen Tinsley. Defendants Ramona June Kelley, James Roy Kelley, Donna Lee Turner and Loren F. Turner own undivided interests in the minerals. Defendants Curtis W. Gillespie, d/b/a Belle Rive Mining Company, Belle Rive Mining Co., a corporation, Harvey W. Randall, and Grace Randall are lessees under mineral leases entitling them to mine and remove the limestone underlying the premises.

Subsequent to the filing of the petition, by a "quick take" proceeding (c 47, § 2.1 et seq., Ill Rev Stats), petitioner took title to and possession of the two parcels, and the easement on, and possession of the third. Defendants filed cross-petitions alleging damages to the remainder of the parcel.

Prior to commencement of the trial, defendants, relying upon Department of Public Works and Buildings v. Dixon, 37 Ill.2d 518, 229 N.E.2d 679, moved for the right to open and close argument. The trial court ruled "That the defendants having the right to open and close must under the ruling of the Dixon case go forward with the proof of the valuation of the land to be taken as well as the amount of damages to the land not taken and the defendants will also have the right to first question the jurors after tendered by the court to the parties." Defendants contend that they were entitled to open and close argument, and in requiring them to go forward with their case from voir dire to close or forego the right to open and close final argument, the circuit court committed prejudicial error.

In its opinion in Dixon the Supreme Court discussed South Park Com'rs v. Trustees of Schools, 107 Ill. 489, in which case the Supreme Court reversed the judgment of the circuit court on the ground that it had erred in permitting the owner of the land to open and close the case both in the introduction of evidence and on argument to the jury. In Dixon the question presented was much narrower, in that the motion to open and close argument came at the close of the evidence, and no issue arose as to the order of interrogation of jurors or introduction of evidence. The Supreme Court did not, therefore, decide the question which now confronts us.

In Liptak v. Security Benefit Ass'n, 350 Ill. 614, 183 N.E. 564, the Supreme Court, at page 618, said: "The right to open and close is a substantial right coexistent with the burden of proof and is corollary thereto. Whenever the plaintiff has anything to prove in order to secure a verdict the right to open and close belongs to him. It is generally held that the right to open and close is not a matter resting merely in the discretion of the trial judge, but is a substantial right in the person who must introduce proof to prevent judgment against him. The party who asserts the affirmative of an issue is entitled to begin and reply. (Citing cases.)"

In its opinion (37 Ill.2d 518, 229 N.E.2d 679) at page 520 the Supreme Court said "While petitioner has the burden of proving fair cash value of the property to be taken (County of Cook v. Holland, 3 Ill.2d 36), the landowner bears the burden for damage to the remainder not taken. Department of Public Works and Buildings v. Bloomer, 28 Ill.2d 267; Central Illinois Electric and Gas Co. v. Scully, 17 Ill.2d 348."

We are uncertain whether this indicates agreement with the Committee's Comments found at page 175 of the 1965 Additions and Revisions to Illinois Pattern Jury Instructions where it said: "An analysis of the decisions stating that the condemnor has the burden of proving the value of the land actually taken, e.g., Department of Public Works & Bldgs. v. Bloomer, 28 Ill.2d 267, 270, 191 N.E.2d 245, 248 (1963), indicates that in using the term, `burden of proof,' the courts mean only the duty to introduce competent evidence of value. No Illinois case places a burden upon the condemnor to persuade the jury that its evidence of market value is more probably true than not true or that a particular value must be proved by a preponderance or greater weight of the evidence. An Ohio court has specifically considered the problem and stated: `It has been established in Ohio that with reference to compensation for land taken there is no burden of proof.' In re Appropriation by the Director of Highways, 120 Ohio App. 273, 201 N.E.2d 889 (1963).

"A condemnation proceeding differs from the ordinary civil action. The nature of the evidence introduced and the verdict that can result demonstrate the inappropriateness of an instruction on burden of proof such as IPI 21.01."

We note further that in IPI instructions 300.31 and 300.32 the burden of proof with respect to damage to land not taken is placed upon the landowner in language almost identical to the burden of proof instruction to be used in other civil cases. (IPI 21.01.)

Supreme Court Rule 233 provides:

"The parties shall proceed at all stages of the trial, including the interrogation of prospective jurors, opening and closing statements, the offering of evidence, and the examination of witnesses, in the order in which they appear in the pleadings unless otherwise agreed by all parties or ordered by the court. In consolidated cases, third party proceedings, and all other cases not otherwise provided for, the court shall designate the order."

In our opinion the proper interpretation of the holding in Dixon is that if the landowner avails himself of the right to open and close he must do so at all stages of the trial. Defendants argue that requiring them to go forward with their evidence was prejudicial in that it deprived them of the advantage of cross-examination of plaintiff's witnesses prior to putting on their own, but any additional burden which ...


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