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Dept. of Pub. Wks. & Bldgs. v. Jensen

APRIL 19, 1973.

THE DEPARTMENT OF PUBLIC WORKS AND BUILDINGS, PLAINTIFF-APPELLEE,

v.

CARL JENSEN ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Lake County; the Hon. LLOYD A. VAN DEUSEN, Judge, presiding.

MR. JUSTICE AKEMANN DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 31, 1973.

This is an appeal from the trial court judgment in a land condemnation case to determine the value of nine parcels of land in Lake County, Illinois. No cross-complaint was filed in the trial court so the only issue was the value of the land taken. The jury fixed the valuations of the land taken in its verdict and, since the defendants had withdrawn an amount in excess of the verdict returned, a judgment was entered against the defendants in the sum of $4100 for the excessive withdrawal, from which judgment order this appeal is taken.

Five assignments of error are made by defendants' brief as follows:

(1) that defendants' motion to strike plaintiff's expert testimony should have been granted;

(2) that defendants' offered testimony on comparable sales should have been received;

(3) that plaintiff's expert testimony was in error in contending certain parcels were non-buildable;

(4) that a volunteered statement by one of plaintiff's witnesses constituted reversible error; and

(5) that the trial court's conduct toward defendants' counsel constituted reversible error.

The plaintiff's proof consisted of testimony of a civil engineer employed by the Division of Highways who generally described the relationship of the several properties being condemned to the improvement for which they were taken; three appraisers who qualified as experts on the valuation of the property taken; one witness who purchased property in the immediate area of several of the properties; and a contractor who located sewer lines in the area of the properties and who testified to the purchase and sale of several comparable properties in the area.

The defendants' proof consisted of testimony of a civil engineer who testified on the dimensions of the whole parcels and on the part taken and to the location of sewer lines in the area; one of the defendants who testified to many rezonings for the purpose of rebutting plaintiff's witnesses' testimony on highest and best use being residential and to show probability of rezoning and who also testified to value based on probability of rezoning for business use; a real estate broker and insurance agent, Turowski, with a B.A. degree from Lake Forest College without indication of any additional education or training in appraisal or real estate courses, without membership in any real estate or appraisal associations, or multiple listing service, whose primary sales were to the defendants themselves and whose sales and purchases average eight to ten a year; and another broker, Sutkus, who testified on values of the several parcels, and whose qualifications as an appraiser were at best minimal.

• 1, 2 With respect to defendants' first assignment of error, they argue that with regard to several of the parcels, a serious error was made in not describing an adjacent vacated alley as a part of the whole parcel.

This contention is not valid for several reasons:

(a) Defendants stipulated to plaintiff's exhibits on the boundaries in question without objection to their now-exclusion of any alley. They cannot lay back and later try to take advantage of a misdescription in which they ...


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