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

SEPTEMBER 5, 1974.

THE DEPARTMENT OF PUBLIC WORKS AND BUILDINGS, N/K/A THE DEPARTMENT OF TRANSPORTATION, PETITIONER-APPELLANT,

v.

LAWRENCE KELLER, JR., ET AL., DEFENDANTS-APPELLEES — (J.C. BREMER, DEFENDANT.)



APPEAL from the Circuit Court of Jersey County; the Hon. HOWARD LEE WHITE, Judge, presiding. MR. PRESIDING JUSTICE SMITH DELIVERED THE OPINION OF THE COURT:

Rehearing denied October 10, 1974.

The circuit court of Jersey County dismissed the petition of the Department of Public Works and Buildings (now Department of Transportation) in an eminent domain proceedings to condemn approximately 21.32 acres of land under the provisions of the Illinois Highway Code (Ill. Rev. Stat. 1967, ch. 121, par. 4-201.15). In general terms this statute provides for the acquisition of the fee simple title or a lesser interest in property in order to "provide for the preservation of the natural beauty of areas through which State highways are constructed, * * *." The defendants filed their traverse stating in substance that the State was without authority to acquire this particular piece of land for the simple reason that there had been an operating rock quarry on it for more than 50 years, that natural beauty of the area had thus been eroded and there was no natural beauty to preserve.

The Kellers are the owners of the tract and the defendant Bremer is the tenant. The rock quarry is now in operation and had been for close to a half century or longer. Evidence was taken and the trial court held that this particular statute was not available under the facts in this case for the reason that the authorization legislatively given was to preserve and did not authorize a restoration of the area. This case seems to be one of first impression in Illinois. It may well be asked whether under the circumstances in this case can it be said that a statute authorizing preservation likewise by necessary implication implies the right to restore all or any part of the area to its natural condition.

The area in question is FA Route 155 extending a distance of 15 miles from Alton, Illinois to Grafton, Illinois, with high bluffs on the right side of such highway and the Mississippi River on the left side. The tract here involved is the western end or edge of this 15-mile area. The testimony of the State landscape architect stated in substance that the area in question was regarded as a scenic route and in cooperation with the Federal Government under the Federal Highway Beautification Act of 1965 was intended to make a continuous scenic route between Alton and Grafton. In addition, the specific parcel of land with which we are now concerned would permit the general public to reach the top of the bluff and there observe the confluence of the Mississippi and Illinois Rivers by construction of a roadway. In connection with this project, the State has acquired an antique shop in the area close to Elsah, Illinois, and a portion of a resort area known as "Chautauqua" as well as some frontage property owned by Principia College, all in this 15-mile area. In response to a question inquiring "just what is the natural beauty of a rock quarry, the witness responded, "Number one, the formation of the rock are still there, and in that particular area it was allowed to remain in that vertical cut and I imagine it's anywhere from 110 to around 200 feet, so you do see complete rock out-cropping." He conceded however that this occurrence had been developed by the very quarrying of the rock on the tract in question, but that any other areas of the 15-mile road segment the same type of view as to the rocks was visible all along the road and in its natural state, and that the rock condition exposed as a result of the quarrying is the only segment that is not in its natural state. The witness likewise stated that the existing natural beauty of the location would necessarily be disturbed by establishing a road through the naturally beautiful area to the site providing a view of the junction of the two rivers.

The defendant, Lawrence Keller, testified as to his ownership, his lease with the defendant Bremer providing for the payment of $3,000 per year for the removal of 30,000 tons of rock annually, plus $.10 per ton for any excess, and that the limestone is a good grade with a high magnesium content used for paving of secondary roads and in fact was used for a highway between Alton and Grafton, as well as other roads.

The trial court held that the statute in question was a preservation statute and not a restoration statute, and that had the legislature intended that there was to be any restoration of the area it would have provided in the statute for such restoration.

It is readily conceded that under recent developments of the law, if the public desires to preserve scenic features of privately-owned lands, the power of eminent domain is available to satisfy that desire. (29A C.J.S. Eminent Domain § 63 (1965). In the decision of the United States Supreme Court in Berman v. Parker, 348 U.S. 26, 99 L.Ed. 27, 75 S.Ct. 98, Justice Douglas speaking for the entire court said: "The concept of the public welfare is broad and inclusive * * *. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled." 348 U.S. at 33, 99 L.Ed. at 38.

• 1 In 1965, Congress enacted the Highway Beautification Act. (23 U.S.C. § 319), where it is provided for Federal funding of projects in connection with the "highway right-of-way and for acquisition of interests in and improvement of strips of land necessary for the restoration, preservation, and enhancement of scenic beauty adjacent to such highways * * *." Following such enactment, the Illinois General Assembly amended the Highway Code to include among the general powers given the Department of Transportation the additional authority "[t]o provide for the preservation of the natural beauty of areas through which State highways are constructed, and to acquire the fee simple title, or such lesser interest as may be desired, including scenic easements, to any land, rights or other property necessary therefor." (Ill. Rev. Stat. 1965, ch. 121, par. 4-201.15.) It seems quite clear that the problem for this court is to determine whether or not the language just quoted is sufficient to authorize the acquisition of a parcel where it is apparent from the facts that a degree of change will be necessary. We think it is clear in Illinois that where a traverse is filed as here, the burden falls upon the petitioner to establish a specific grant of the power to acquire property by eminent domain and that such grant is to be strictly construed. (Department of Public Works & Buildings v. Ells, 23 Ill.2d 619, 179 N.E.2d 679; Department of Public Works & Buildings v. Ryan, 357 Ill. 150, 191 N.E. 259; Department of Public Works & Buildings v. Neace, 13 Ill. App.3d 982, 301 N.E.2d 509.) If we turn to the dictionary, we find that restoration refers to the act of restoring a person or thing to its former place of condition. Preservation on the other hand implies a purpose to keep intact or unimpaired or to maintain an existing condition. Each is mutually contradictory of the other. In New Jersey, the state is authorized to acquire property for the restoration, preservation and enhancement of scenic beauty. In construing this statute which is of course broader than our own, the court in Wes Outdoor Advertising Co. v. Goldberg, 55 N.J. 347, 262 A.2d 199, used the following language: "The Act contemplates that there is a certain basic beauty in natural terrain and vegetation unspoiled by the hands of man, which it proposes to recapture or maintain."

Once again turning to the dictionary, we find that the word "natural" means untouched by man or by the influences of civilization; wild; untutored. Natural condition of the land is used to indicate that the condition of the land has not been changed by any act of a human being. (Restatement of Torts § 363(b) (1965) and § 840 (1939).) Natural condition of land in which it is entitled to lateral sport means a condition which is in no way the result of human activity including soil which has not been cultivated, graded or otherwise disturbed. (Olson v. Mullen, 244 Minn. 31, 68 N.W.2d 640.) The word "natural" is the opposite of the word "artificial". (California Casualty Indemnity Exchange v. Industrial Accident Commission, 13 Cal.2d 529, 90 P.2d 289.) A bank which has been created by quarrying operations of the previous owner and which, since abandonment of the quarry, surrounded a reservoir was an artificial bank and not a natural bank. (Schaffer v. Claremont Country Club, 168 Cal.App.2d 351, 336 P.2d 254.) When a condition on land is created by the action of man, the condition is artificial and not natural for purposes of the application of the attractive nuisance doctrine. Clarke v. Edging, 20 Ariz. App. 267, 512 P.2d 30.

In the light of these decisions, the testimony of Mr. Keller becomes important. He testified that here had been quarried about 15% of the total rock present on the tract.

Question: "And the rock that does exist there is natural formation?"

Answer: "I guess you'd call it natural rock. The good Lord put it there."

Question: "* * * Is there some area that has not been ...


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