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Metropolitan S.d. v. Industrial L.d. Corp.

MARCH 16, 1970.

THE METROPOLITAN SANITARY DISTRICT OF GREATER CHICAGO, A MUNICIPAL CORPORATION, PETITIONER-APPELLEE,

v.

INDUSTRIAL LAND DEVELOPMENT CORPORATION, AN ILLINOIS CORPORATION, DEFENDANT-APPELLANT (RESPONDENT).



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

MR. JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT.

The Metropolitan Sanitary District of Greater Chicago started eminent domain proceedings to acquire a parcel of property containing approximately 73 acres. This property is located in the Village of Riverdale, at 138th and Halsted Streets. The issue of compensation was tried before a jury and a verdict was rendered fixing the award at $450,000, upon which verdict the court entered judgment. The respondent appeals, seeking a new trial on the issue of just compensation.

The subject parcel of real estate is an irregularly shaped tract of approximately 73 acres, containing a deep clay pit of approximately 47 to 50 acres of the total tract, the depth of which is an average of some 30 feet below grade. The volume of the void within the pit area is between 2,272,500 and 2,400,000 cubic yards of space. The 23 to 26 acres of the tract outside the pit is land at grade improved with buildings of new value and four kiln chimneys which were formerly used by the prior owner for a brick manufacturing business.

Respondent presents six issues for review. First, the testimony of the witness Harry L. Shlaes was not stricken by the court. Shlaes testified that the property in question was zoned for light manufacturing and commercial uses and such zoning was one of the elements he took into consideration in his opinion of fair cash market value of the property. Other evidence established that the property was partially zoned for industrial and not commercial uses. Shlaes testified that in his opinion the fair cash market value for its highest and best use on July 6, 1966, was $365,000. Respondent argues that Shlaes considered an erroneous and improper element in determining value. However, Shlaes in answering counsel's question as to what factors he took into consideration said:

"The general area in which the property is located; the transportation, public transportation to the area; the road access, which is good; two major thoroughfares there; the fact that it is a corner; the zoning, the highest and best use to which it could be put under that zoning; the fact that there were 73 acres of ground; the fact it was trapezoidal in shape; the fact that 47 acres were dug out to a depth of an average of approximately 30 feet and my knowledge of the market gained over the past almost forty years."

It has been held in Illinois that anyone who is acquainted with the property being condemned and has knowledge of value is competent to testify. The question of the degree of his experience or extent of knowledge is one of weight and not of competency. The Illinois Supreme Court has specifically held that differences in zoning does not render other types of evidence of value inadmissible. City of Evanston v. Piotrowicz, 20 Ill.2d 512, 170 N.E.2d 569 (1960).

"In our opinion, as applied to the facts in the instant case, the existence of zoning dissimilarity does not constitute such a degree of dissimilarity as to render the evidence of such sales incompetent." (Pp 522-23.)

Respondent calls our attention to City of Chicago v. Lord, 276 Ill. 533, 115 N.E. 1 (1917). This was a condemnation case in which 42 feet of Lord's property was taken for widening of a street. Witnesses for the City were permitted to testify that the remainder of the lot would still be a corner lot and would possess a substantial value. The Supreme Court in reversing the trial court said:

"This was an improper element to consider in determining the value of the property taken. Appellants were entitled to the actual value of the property taken, without regard to the effect, if any, the proposed improvement would have upon the part of the lot not taken." (P 536.)

In City of Chicago v. Giedraitis, 14 Ill.2d 45, 150 N.E.2d 577 (1958), the court held that valuation based upon future rental income was improper. In City of Chicago v. Central Nat. Bank, 5 Ill.2d 164, 125 N.E.2d 94 (1955), the testimony of a witness who based his valuation upon the amount of business being done on the premises was held to be speculative and an improper basis for valuation.

We find that the remaining cases cited by respondent have no relevance to the issues involved in the case under consideration. Sole reliance on an improper element of damage in an eminent domain case is objectionable. Witness Shlaes testified as to all the elements he considered in reaching his valuation figure. As has been stated before, anyone acquainted with the property being condemned and has knowledge of value, is competent to testify. The degree of his experience and extent of knowledge is one of weight and not competency.

Respondent relies on Department of Public Works and Buildings v. Drobnick, 14 Ill.2d 28, 150 N.E.2d 593 (1958). In applying the Drobnick case, respondent indulges in suppositions which are not present in the court's decision. Drobnick does not involve a question of the effect of consideration of an improper zoning by a witness. The specific question in that case was the right of the petitioner to reopen the case. In Drobnick, the court said, at page 35:

"We have repeatedly held that where the evidence as to value is conflicting in a condemnation proceeding, and the jury, having viewed the premises, fixes the amount of the compensation for land taken and of damages to land within the range of the testimony, the award will not be disturbed unless there is something in the record which shows that the verdict was a clear and palpable mistake or the result ...


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