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Dept. of Pub. Works & Bldgs. v. Morse

JANUARY 6, 1971.

THE DEPARTMENT OF PUBLIC WORKS AND BUILDINGS OF THE STATE OF ILLINOIS, PETITIONER-APPELLANT,

v.

JAMES C. MORSE ET AL., DEFENDANT-APPELLEES.



APPEAL from the Circuit Court of Madison County; the Hon. I.H. STREEPER, III, Judge, presiding.

PER CURIAM:

The Department of Public Works and Buildings of the State of Illinois brought action to condemn a strip of land across two tracts owned by defendants. The purpose of the condemnation was to widen an existing highway. At the trial the following expert testimony as to value of the real estate involved was received into evidence:

For the Petitioner For the Defendant Jury

Witness: Blacklock Oller Thebus

Tract 407 $10,000.00 $11,700.00 $ 38,571.50 (total)

Parts taken 407A $1,250.00 $1,020.00 $ 7,570.78 $ 6,361.60 407B 150.00 175.00 5,280.80 4,198.40

Damage to land not taken 1,000.00 1,200.00 36,141.83 5,000.00

Tract 406 (total) 60,000.00 76,000.00 128,381.60

Parts taken 406A 1,000.00 994.00 2,805.92 1,902.08 406B 60.00 90.00 2,198.10 1,635.84

Damage to land not taken 0.00 0.00 79,123.67 1,500.00 _________ _________ ___________ __________ $3,460.00 $3,479.00 $133,121.10 $20,597.92

• 1 Petitioner objected to the court's giving defendants' instruction A, "In respect of Tract 407 the State has admitted in the record that the taking of Parcels 407A and B will cause damage to the remainder of the tract not taken", on the grounds that it is repetitious and thus places undue emphasis on an admission of petitioner. "The mere fact that the court re-states the law or repeats issues or theories in several instructions does not necessarily mean that the court erroneously emphasizes any point in favor of either litigant. However, where by reason of repetitious instructions undue prominence or emphasis is given to particular matters, such instructions are improper." (35 I.L.P., Sec. 199.) We do not believe that this instruction was prejudicial to petitioner. It clearly refers to an admission of only one pertinent element of the case, an uncontested fact, and was unlikely to mislead the jury as to any theory or application of law.

• 2 Petitioner's second objection was to defendant's instruction B: "You are instructed that there is no evidence in this case which under the law would warrant you in fixing the respective values of parcels 406B and 407B at any lesser rate or standard than you employ in fixing the respective values of parcels 406A and 407A; and you must not, therefore, employ a lower rate or standard for the so-called `B' parcels than you do for the so-called `A' parcels." The record contains ample evidence from which different valuation rates could be derived and determination thereof was the province of the jury. (Department of Public Works & Buildings v. Lewis, 344 Ill. 253.) The instruction was thus in error. From the verdict (which figures to an award of $2.56 per square foot for each of the four parcels) it can reasonably be assumed that defendant's instruction B improperly influenced the jury, and it should not have been given. Shea v. La Cost, 16 Ill. App.2d 454, 148 N.E.2d 484.

• 3 Petitioner further objected to the court's admitting evidence of sales of comparable properties made six and ten months subsequent to the filing of the petition. These properties were not touched by the condemnation, and due to their commercial nature (one was a gasoline service station and the other a restaurant) their values were undoubtedly increased by the proposed construction and improvement of the adjacent highway. Defendants cited City of Chicago v. Harbecke (1951), 409 Ill. 425 and Forest Preserve District of Cook County v. Wing (1922), 305 Ill. 194 as authority for admitting the evidence of comparable sales. However, these cases involve only the issue of dissimilarity of property; there is no indication of whether the sales were made before or after condemnation proceedings. The petitioner relies on City of Chicago v. Blanton, 15 Ill.2d 198 and Department of Public Works & Buildings v. Finks, 10 Ill.2d 15, in which the Supreme Court held, "an offer of purchase received subsequent to the filing of the condemnation petition was inadmissible as proof of value." Considering a similar factual situation, the Appellate Court for the First District interpreted these cases as follows:

"Such cases do not lay down any general rule * * * that sales of property made after the filing of the petition are rendered dissimilar as a matter of law merely because of the date of the sale. However, such cases are authority for the proposition that such later sales to be considered similar, the party proposing them ought to be required to show ...


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