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Dept. of Bus. & Econ. Dev. v. Pioneer T. & S. Bk.

NOVEMBER 15, 1973.

THE DEPARTMENT OF BUSINESS AND ECONOMIC DEVELOPMENT, PETITIONER-APPELLEE,

v.

PIONEER TRUST AND SAVINGS BANK ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Kane County; the Hon. GEORGE UNVERZAGT, Judge, presiding.

MR. PRESIDING JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:

Defendants appeal from an order of the circuit court of Kane County denying defendants' Petition and Traverse filed almost three years after the entry of an order for "quick-take" in eminent domain proceedings.

The principal questions present are (1) whether section 72 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 72) applies to eminent domain proceedings, (2) whether defendants' Petition and Traverse were barred by a stipulation in the "quick-take" hearing as to jurisdiction, acceptance of preliminary just compensation, and an adverse ruling on an earlier Motion and Traverse filed by them, and (3) whether the "quick-take" orders entered three years earlier are void for lack of jurisdiction.

On January 2, 1969 the Department of Business and Economic Development of the State of Illinois ("Department" or "State") filed a petition for condemnation of defendants' vacant land in Kane County, Illinois, consisting of 49.2 acres ("Parcel 169 (1)") to be turned over to the United States Atomic Energy Commission ("AEC") for the construction of a high energy BEV Particle Accelerator. (See Ill. Rev. Stat. 1967, ch. 127, par. 47.21). Parcel 169 (1) is at the southeast corner of Wilson and Kirk roads and in the northwesterly corner of the 6800 acre tract in Kane County, Illinois, acquired for the National Accelerator Laboratory (NAL). On January 10, the Department filed its motion for the immediate vesting of title pursuant to sections 2.1 through 2.10 of the Eminent Domain Act (Ill. Rev. Stat. 1967, ch. 47, pars. 2.1 through 2.10 as amended). At a hearing on January 24th the defendants entered into a stipulation with the Department "as to the three main necessities under the Act." Among other specific facts stipulated to were that one of the objects of the Department is to encourage and stimulate economic growth throughout the State and the encouragement and location of new plants from outside the State; that the State of Illinois tried to secure the accelerator for Illinois; that 229 sites were submitted to AEC by 49 other States; Illinois made an offer previously given by other States to furnish the land cost-free to AEC and the Legislature passed an Act authorizing an offer (See Ill. Rev. Stat. 1967, ch. 127, par. 47.23); that the total amount of money which will be spent for construction of the project on the 6800 acres required by AEC was estimated at $250,000,000 and operating expenses of about $60,000,000 per year; and that the proofs submitted by the stipulation "were sufficient for the court to grant quick-take orders thereon."

On February 11th a further stipulation was entered into between the Department and the defendants that $196,800 constituted preliminary finding as to just compensation for defendants' parcel. Accordingly, on that date the "quick-take" order was entered, finding that the Department had authority to exercise the right of eminent domain, that property rights sought to be taken are subject to the exercise of said right by petitioners, such right is not being improperly exercised, and that reasonable necessity exists for the "quick-take" proceeding, and directing the Department to deposit 125% of that sum, namely, $246,000 with the Clerk of the Circuit Court of Kane County. *fn1 On March 4th and 11th, 1969, further orders were entered vesting title in the Department and authorizing distribution of $196,800 as therein set forth; the funds were accordingly accepted and withdrawn by the defendants. On March 18th, the State of Illinois deeded the parcel to the United States AEC.

More than two years later, on March 30th, 1971, defendants filed a Motion and Traverse based largely on the alleged failure of the Department to attempt in good faith to agree with defendants on compensation. The Department filed its Motion to dismiss setting forth the stipulation as to preliminary just compensation and defendants' withdrawal of that amount as well as defendants' failure to appeal within 30 days from the order for immediate vesting of title. On March 5, 1971 the trial court entered an order allowing the Department's motion to dismiss and denied the defendants' Motion and Traverse.

On November 29, 1971 defendants filed a Petition and Traverse, in part under Section 72 of the Civil Practice Act, alleging in substance that at the time of filing the condemnation petition the Department knew that prior thereto the State had entered into an agreement with AEC whereby AEC would grant to the State a 250-foot wide easement along the western boundary of the accelerator site for the proposed North-South Highway or Fox Valley Freeway; that the Department failed to disclose such fact and thereby fraudulently concealed from the defendants that "the property was being taken contrary to law and without regard to actual needs of the AEC"; and that defendants had no knowledge of the existence of such agreement until about November of 1971. Defendants prayed that (1) the condemnation petition be dismissed, (2) the orders of February 11th and March 4th, 1969, be vacated, (3) the conveyance of the property to the United States be declared void, and (4) defendants be authorized to tender and return to the Clerk of the Circuit Court the funds withdrawn by them as a result of the "quick-take" orders.

The Department's motion to dismiss on the ground of lack of jurisdiction because of defendants' failure to appeal within 30 days of the entry of the "quick-take" orders was denied by the trial court on December 8th, 1971. The Department thereafter filed its answer to defendants' Petition and Traverse followed by the Department's reply. The Petition and Traverse was then set for hearing.

After hearing the evidence the trial court on May 15th, 1972, entered an order finding that defendants failed to prove any fraud committed against them, that the "quick-take" procedure complied with statutory requirements, and defendants' failure to appeal from the orders of February 11th and March 4th, 1969 barred any relief, and denied the Petition and Traverse and the relief therein requested.

We consider first the question of the applicability to eminent domain proceedings of Section 72 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 72) which allows relief from judgments and decrees more than thirty days after the entry thereof but within a two year period. It is true as contended by the Department that the "quick-take" statute (Ill. Rev. Stat. 1969, ch. 47, par. 2.2) specifies that such order "shall be a final order, and an appeal may be taken therefrom by either party within thirty (30) days * * * but not thereafter, unless extended by the court for good cause shown." The only case cited by the Department is Department of Public Works & Bldgs. v. Dust (1960), 19 Ill.2d 217, 166 N.E.2d 36, which holds that the time for appeal cannot be extended beyond thirty days after the "quick-take" orders are entered. In the case at bar the Petition and Traverse does not constitute an appeal. It was filed under Section 72 of the Civil Practice Act to allow relief from a final judgment after the time for appeal expired. Section 72 expressly provides that all relief heretofore obtainable for attacking judgments either by common law or by equitable proceedings "shall be available in every case, by proceedings hereunder, regardless of the nature of the order, judgment or decree from which relief is sought or of the proceedings in which it was entered. There shall be no distinction among actions at law, suits in equity and other proceedings, statutory or otherwise, as to availability of relief, grounds for relief or the relief obtainable."

• 1 Section 1 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 1) provides,

"The provisions of this Act apply to all civil proceedings both at law and in equity, except in * * * eminent domain * * * in which the procedure is regulated by separate statutes. In all those proceedings the separate statutes control to the extent to which they regulate procedure but this Act applies as to matters of procedure not so regulated by separate statutes."

There being no procedure provided in the Eminent Domain Act for relief from a final judgment after the time for appeal has expired, section 72 of the Civil Practice Act would be clearly applicable.

• 2, 3 The Department contends that the Petition and Traverse were barred by (1) defendants' stipulation at the "quick-take" hearing in January, 1969, that the proof submitted was sufficient to permit condemnation, (2) defendants' acceptance of preliminary just compensation in March, 1969, and (3) defendants having filed an earlier Motion and Traverse on March 30, 1971, which had been dismissed by the court on the State's motion. Stipulations between parties are enforced by the courts unless there is a showing that the stipulation is a result of fraud or is contrary to public morals. (People v. Spring Lake Drainage and Levee District (1912), 253 Ill. 479, 492, 97 N.E. 1042; Kazubowski v. Kazubowski (1968), 93 Ill. App.2d 126, 134, 235 N.E.2d 664, cert. den., 393 U.S. 1117, 22 L.Ed.2d 122.) After ...


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