APPEAL from the Circuit Court of Du Page County; the Hon.
GEORGE W. UNVERZAGT, Judge, presiding.
MR. JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 18, 1973.
The respondents-appellants, Edwin M. Kames and Ellen A. Kames (hereinafter, the defendants), appeal from a judgment entered upon a jury verdict in a condemnation proceeding brought by the Department of Business and Economic Development of the State of Illinois (hereinafter, the Department).
On December 24, 1968, the Department filed a petition to condemn several parcels of land, one of which defendants owned. On February 29, 1969, title to the whole of the defendants' land was vested in the Department, pursuant to the quick-take provisions of the Eminent Domain Act. (Ill. Rev. Stat. 1967, ch. 47, sec. 2.1 et seq.) The matter proceeded to trial on January 18, 1971 and the jury returned a verdict of $359,464.00 as compensation for the defendants' property.
There are eight contentions raised on appeal:
Defendants were deprived of the right to proceed first at all stages of the trial.
• 1 Prior to trial, defendants made a motion to proceed first at all stages of the trial. This motion was denied. They argue that the general rule, that the condemnor has the right to proceed first (South Park Commrs. v. Trustees of Schools, 107 Ill. 489, 491-493 (1883); McReynolds et al. v. B. & O. Ry. Co., 106 Ill. 152, 157 (1883)), does not apply where title has vested in the condemnor pursuant to the quick-take provisions of the Eminent Domain Act. (See, Dept. of Public Works & Bldgs. v. Dixon, 37 Ill.2d 518 (1967).) It is argued that where title has vested in the condemnor through quick-take, the property owner has the right to proceed first at all stages of the trial.
The Supreme Court, in the very recent decision of the Dept. of Bus. & Economic Dev. v. Brummel, 52 Ill.2d 538 (1972), has clearly disposed of the defendants' argument by stating:
"* * * [W]hen the title has vested in the condemnor under the quick-take statute and there has been no cross-petition for damages to the remainder, there is no valid reason why the burden of going forward should shift to the condemnee." 52 Ill.2d, at p. 542.
In the instant case, there was a taking of the whole and there was no cross-petition for damages to the remainder filed by the defendants. Thus, the trial judge correctly denied the motion.
The court erred in admitting the Department's evidence of alleged comparable sales.
The tract of land acquired by the Department was a 10.5 square mile (6800 acre) site in northwestern Du Page and eastern Kane Counties which was to be used for the federal government's Weston Atomic Accelerator project. Defendants' portion of the property, 137.2 acres of farmland, was located at the northeast corner of McChesney Road and Warrenville-Batavia Road, and had approximately 3100 feet of frontage on Batavia Road and 1300 feet of frontage on McChesney Road. The land was slightly undulating with natural drainage, had tillable soil and had been used for farming for at least the last thirty years. It was zoned R-2 (residential), was improved with a well-maintained two-story frame residence, a two-story frame barn, a machine shed, corn crib, hog house and poultry house.
Evidence of the sales of six allegedly comparable parcels was presented by the Department and admitted. Five of those properties were located around the perimeter of the Weston site and were approximately one to three miles from the defendants' property; one was located within the site area. The properties sold were:
Ward Farm 60 acres containing no improvements; used for farming; 643 feet of frontage along Route 59; sold in March, 1968.
Brummel Tract 26 acres containing no improvements; located at a cross-road; used for farming; sold November 30, 1966.
Allen-Stetzer Farm 46.16 acres with no improvements; used for farming; located at a cross-road; sold December 17, 1965.
Rahr Tract 60.89 acres; used for farming; fronted on one road; sold August 31, 1966.
Sippy Farm 67.84 acres with farm buildings, some of which were burned down; used for farming; fronted on one road; sold May 3, 1968.
Campfire Girls Site 17.37 acres with no improvements; heavily wooded; fronted 1300 feet on one road; sold in July 1966; located within Weston site.
Defendants object to the admission of evidence of these sales, alleging that the properties sold were not comparable to theirs in that they were smaller in size and, except for the Sippy farm which contained only burned and deteriorated buildings, they were without improvements.
• 2 In determining whether the sale of other properties should be admissible evidence in a condemnation proceeding, there is no fixed rule of law which precisely states those factors requisite to establish the comparableness of properties. Rather, it is stated:
"* * * [T]he admissibility of such evidence must in each instance be determined by the trial judge within the proper limits of his discretion. [Citations omitted.] This court, moreover, has recognized that `similar' does not mean `identical', but means having a resemblance * * *. [Citations omitted.] Wherever there is a reasonable basis for comparison between the property sold and that being condemned, evidence of the sale is not incompetent, and the dissimilarities between the properties, which are declared to the jury, affect the weight and value of the testimony rather than its competency. [Citations omitted.]" City of Evanston v. Piotrowicz, 20 Ill.2d 512, 522 (1960).
• 3 Mere discrepancy in size does not render evidence of the sale of property inadmissible because of dissimilarity. Size is only one factor to be considered by the trial judge when deciding whether evidence of a sale should be admitted. Forest Preserve Dist. v. Galt, 412 Ill. 500, 504 (1952); City of Chicago v. Harbecke, 409 Ill. 425, 432-433 (1951).
Defendants allege that, "* * * [T]he rule in this State is well established that improved property and unimproved property are not similar or comparable and that comparisons thereof are inadmissible * * *." We have read the cases cited for this proposition (Forest Preserve Dist. v. Alton R.R. Co., 391 Ill. 230 (1945); C.N.S. & M.R.R. Co. v. Title & Tr. Co., 328 Ill. 610 (1928); Forest Preserve Dist. v. Caraher, 299 Ill. 11 (1921); Sanitary District v. Boening, 267 Ill. 118 (1915); C. & S.L. Ry. Co. v. Kline, 220 Ill. 334 (1906)), and find they do not establish such a rigid rule. (Contra, Dept. of Public Works v. Diggins, 374 Ill. 11, 15 (1940).) In the cases relied on by defendant, property improvement was only one factor which the courts considered when deciding whether evidence of certain sales should have been admitted.
• 4 Lacking a simple rule with respect to admissibility of evidence of sales of improved and unimproved property for comparison purposes, the admissibility rests within the discretion of the trial judge. (Forest Preserve Dist. of Cook County v. Yelk, 115 Ill. App.2d 78, 85 (1969); Department of Public Works & Bldgs. v. Lankford, 65 Ill. App.2d 133, 138 (1965).) In the exercise of that discretion, it must be noted that the trial judge here had before him factors other than the size and state of improvements which might influence comparability of the properties.
• 5 We note that five of the Department's sales properties had the same farm usage as the defendants' property. Identical usage of properties or adaptability to the same usage are important factors to be considered when determining comparability. See, Dept. of Public Works v. Diggins, supra, at p. 15; Forest Preserve Dist. of Cook County v. Yelk, supra, at p. 85.
• 6 The Campfire Girls site was the only property not used for farming. However, defendants did not object to the admission of this sale on the basis of comparability. We, therefore, will not consider arguments relating to comparability of this property. City of Chicago v. Baird, 52 Ill.2d 512, 514 (1972).
• 7 Still other similarities are found. All of the properties were located one to three miles from the defendants' property. All fronted on roads and two were located at crossroads, as was the defendants' property. All were sold within three years of the date on which the petition to condemn was filed. In fact, the only differences appear to be the size and lack of improvements. We hold that the trial judge did not abuse his discretion in finding that there was a reasonable basis for comparison between the parcels offered by the Department and defendants' property. The dissimilarities were made known to the jury and affected the weight, rather than the admissibility of such evidence.
• 8 Defendants also argue that all of the Department's sales evidence should have been excluded because the Department did not provide a proper foundation showing that market conditions were the same on the day those properties were sold as when the petition was filed. We have been cited no case which sets forth such a rule, except where the sales occurred after the petition to condemn had been filed. Trustees of Schools v. Chicago City Bank, 126 Ill. App.2d 302, 305-306 (1970) and cases cited therein.
• 9 Defendants allege that affirmative evidence in the record indicated market values had increased dramatically from 1965 through 1968, and that on this basis the Department's comparable sales evidence should have been excluded. They rely upon Forest Preserve District v. Collins, 348 Ill. 477, 481 (1932), which held that where there has been a great change in land price between the time the comparable properties had been sold and the time that the petition to condemn had been filed, evidence of the comparable sales is inadmissible. We have reviewed the record and find that there was contradictory evidence as to whether a great change had occurred in the price of realty in the area of the Weston site. It was the function of the trial judge to resolve these inconsistencies. On this basis, no error was committed by allowing the Department's comparable sales evidence.
Defendants allege additional errors regarding evidence admitted on the Ward sale, first claiming that the transaction was not a sale but an exchange of farms and, consequently, not admissible as sales evidence. (Jefferson Park District v. Sowinski, 336 Ill. 390, 393 (1929).) The Department does not challenge the general proposition that a transaction involving an exchange of properties is ...