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Dept. of Bus. & Econ. Develop. v. Schoppe

AUGUST 2, 1971.

THE DEPARTMENT OF BUSINESS AND ECONOMIC DEVELOPMENT, ETC., PLAINTIFF-APPELLEE,

v.

ROGER E. SCHOPPE ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Du Page County; the Hon. PHILIP F. LOCKE, Judge, presiding.

MR. JUSTICE DIXON DELIVERED THE OPINION OF THE COURT:

The Department of Business and Economic Development filed a petition on December 24, 1968, in the circuit court of DuPage County to condemn designated portions of farm land owned by appellants for the operation of a BEV Particle Accelerator by the United States Atomic Energy Commission. Under the quick-take provisions of the Eminent Domain Act, plaintiff's became vested with fee simple title after the court made a preliminary finding of just compensation in the following amounts: Gebhardt, $51,750.00; Schoppe, $114,500.00; Geise, $260,000.00.

On March 4, 1970, the cause went to trial before a jury, which returned verdicts awarding appellants the following: Gebhardt, $50,298.57; Schoppe, $102,414.78; Giese, $245,566.08. Judgment was entered on the verdicts and post trial motions to set aside the verdicts and grant a new trial were denied. This appeal results.

The land taken from the Gebhardt farm consisted of 20.699 acres out of a total holding of 116 acres. The northern boundary of the farm was on Roosevelt Road, and the part being taken was south of the C.B. & Q. track which runs through the south half of the tract. The jury awarded $50,298.57 for the part taken. The testimony of the valuation witnesses for this parcel ranged from a low of $41,000.00 to a high of $103,000.00.

That part of the Schoppe farm taken consisted of 42.146 acres out of a total holding of 116.76 acres. All witnesses agreed an additional 7.488 acres south of the C.B. & Q. track not taken was damaged. The valuations placed on the part taken by the witnesses varied from $84,300.00 to $275,730.00 and the damage to the remainder from a low of $4,300.00 to a high of $17,500.00. For that part taken, the jury awarded $102,414.78. Their verdict for damages to the 7.488 acres was $7,480.00.

The total 100 acres of Giese's parcel was taken. Valuations by witnesses ranged from a low of $230,000.00 to a high of $400,000.00. The jury awarded $245,566.08.

On appeal, the owners first urge that plaintiff's counsel misused the voir dire examination making it impossible for defendants to have a fair and impartial jury and defendants also contend plaintiff's counsel injected prejudicial error into the opening statement making it impossible for defendants to receive a fair trial.

Regarding the voir dire examination: the following four questions were asked the veniremen which are claimed by defendants to be prejudicial, but at the time of questioning there was no objection. (1) "The Court: If I were to ask you all of the questions that were asked of the other prospective jurors, would your answers be substantially the same as those who have been accepted for service?" (2) "The Court: Do you understand that in a criminal case it is necessary that the defendant be proven guilty beyond a reasonable doubt, whereas in matters of this kind, in a civil matter, it is the preponderance or the greater weight of the evidence which applies. Do you understand that?" (3) Question 3 was asked by defendants' attorney, Mr. Valentine: "And you would have no hesitancy in following the law as given to you by his Honor, Judge Locke, if you are selected as a juror here, would you, sir?" (4) Question 4 was asked by petitioner's attorney, Mr. Righeimer: "And you understand that the State is going to testify to a substantial amount of his property and we expect to pay a substantial amount, but we don't have to pay one cent more than is actually fair, and all four of you, I hope, feel that you can give a fair verdict in this case; is that right?"

Regarding the opening statement: During the opening statement by petitioner's counsel, Mr. Righeimer, counsel for defendants made a motion for a mis-trial because of Mr. Righeimer's following statement:

"And I expect that that evidence will show that whereas farm land would be valued considerably less, that the market value of this property as established by sales of similar property in the area is from $2,200 to $3,000 an acre.

Now, that will be established by the testimony of appraisers who know the area, and we expect the evidence to show that those values close to them were also established by the first appraiser that these defendants hired to appraise this property and whose appraisals they have rejected. And they have gone out to get other appraisers who appraised the property higher, but the first man they hired, his appraisals, and this is

Mr. VALENTINE: I will object at this point

Mr. RIGHEIMER: * * * in the area the evidence will show are substantially ...


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