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Dept. of Public Works & Bldgs. v. Mitchell

JANUARY 23, 1973.

THE DEPARTMENT OF PUBLIC WORKS AND BUILDINGS, PETITIONER-APPELLEE, J. MAX MITCHELL ET AL., DEFENDANTS-APPELLANTS.


APPEAL from the Circuit Court of Franklin County; the Hon. CHARLES E. JONES, Judge, presiding.

MR. PRESIDING JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:

This is a condemnation case in which defendants appeal from a jury verdict in the Circuit Court of Franklin County in the amounts of $1356 as damages for the land taken for highway use and $1000 as damages to the land not taken. Earlier, under the Illinois "quick-take" procedure, preliminary just compensation for this same property was determined and paid in the amount of $1350 for the land taken and $6000 as damages to the remaining land.

Appellants argue that they were deprived of a fair trial in that the jury's verdict was the result of passion and prejudice improperly instilled in them by the petitioner-appellee's conduct of the trial.

The principal question in this case is whether defendants were denied a fair and impartial trial because the attorney for petitioner was permitted to inject into the case by cross-examination highly speculative evidence that the value of the remainder of defendant's land would be enhanced by the construction of the new road, because it would then be valuable for purposes in addition to farming.

• 1 Special benefits accruing to the remainder of the property by reason of the improvement may be set off against resulting damage to land not taken, "yet such benefits must be real and substantial, not chimeral or speculative, and must be capable of measurement and computation." Dept. of Public Works & Bldgs. v. Divit, 25 Ill.2d 93 at 101.

Two witnesses testified in behalf of petitioner concerning the value to the land taken and the damage to the land not taken. Both testified that the highest and best use of the land, both before and after the taking, was for farm purposes. Neither of these witnesses was even asked nor did either testify that the value of the remainder of the tract would be benefited by the road in question.

Over the objection of the defendant, the attorney for the petitioner repeatedly inquired of defendants' valuation witnesses whether the value of the remainder would not be enhanced by the new highway cutting through it because it would then be suitable for purposes other than farming. Thus, petitioner's attorney was allowed to inject speculation regarding enhancement of the property's value for other uses despite all witnesses, including petitioner's having limited their evaluations to the property as farm land, there being no evidence of other uses or other values. This was highly speculative, at variance with petitioner's pleadings and basic evidence, and patently designed to be harmful to defendants.

Counsel for petitioner cross-examined defendant J. Max Mitchell as follows:

"Q. What in your knowledge from knowing about new highways in this area, would you say that when a new highway is built in the area that land adjacent to the highway where it is not a freeway and no limited access, becomes more valuable adjacent to that highway?

A. This is farm land and that is not true as to this farm land.

Q. Don't you think since no access limitations here and no freeway that this land could be used for other purposes after this new improvement has been built other than farming?

MR. HARRIS: Object to that.

Q. Don't you believe that since no restrictions to access and no freeway that this land adjacent to this highway could be used for more purposes more valuable than farming?

A. In the first place there is —

Q. Just a minute, Mr. Mitchell, I know you are an attorney and this is difficult, but just answer my question. Is it in your opinion more valuable other than ...


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