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Dept. of Transportation v. Western Nat. Bank

SEPTEMBER 16, 1974.

THE DEPARTMENT OF TRANSPORTATION, PLAINTIFF-APPELLANT,

v.

WESTERN NATIONAL BANK OF CICERO, AS TRUSTEE, ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Lake County; the Hon. JAMES H. COONEY, Judge, presiding.

MR. JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:

This appeal arises out of an eminent domain proceeding whereby the State of Illinois, Department of Transportation, seeks to acquire land for the reconstruction of an existing freeway.

The jury found that the value of the land taken was $80,000. No issue is involved as to the just compensation for the land taken. The jury further found that the damage to the remainder not taken was $127,000. It is admitted that there is some damage to the remainder, because the taking would disrupt part of the sewer and water mains and roads servicing the property not taken. The engineer for the Department testified that the cost for such reconstruction would be $32,792.10. The engineer for the property owners testified that such cost would be $45,643. However, as indicated above, the jury brought in a verdict of $127,000 for the damage to the remainder. It is obvious that the jury based its award, in part, upon the loss of access to the property not taken. The basic question is whether, under the facts presented herein, the property owners are entitled to damages to the remainder for loss of access.

A brief statement of the facts will help to outline the issues developed at the trial. For several years prior to 1957 the defendant, Murphy, and members of his family, owned and operated a gas station and trailer park at the intersection of Route 43 (then known as Telegraph Road) and Route 120 (also known as Belvidere Road). The property at that time had direct access to both Route 43 and Route 120 from this intersection.

In 1957 the Department of Transportation of the State of Illinois (hereinafter referred to as the "State") began acquiring property to improve Route 120 and make it a freeway. In so doing, it became necessary to alter the intersection of then Telegraph Road (Route 43) and Route 120 and for this purpose the State acquired the lots at the southeastern corner of the Murphy property. (This was the northwestern corner of the intersection.) The State acquired this land after negotiations with Mr. Francis Murphy by a document entitled "Dedication of Right-of-Way for a Freeway" which document was properly executed by Murphy and the other members of the Murphy family who were the co-owners for the consideration, as recited therein, of $125,000. The deed of dedication, after legally describing the land to be dedicated, concluded:

"And the grantors, further as part of this dedication, on behalf of himself, his heirs, executors, administrators and assigns, does hereby release, quit claim and extinguish any and all rights or easement of access and crossing under which the tract of land herein conveyed and dedicated might otherwise be servient to abutting lands of the grantor.

Notice to vacate premises herein shall not be given by the Department of Public Works and Buildings to the grantors herein prior to April 1, 1958."

After the land described in the above quoted document had been acquired the State constructed a frontage road running south from Washington Street (an east-west street several blocks north of the property, just inside Route 43), along the east edge of the property, then curving alongside the southern edge of the trailer park running in a westerly direction parallel to and north of Route 120. At the point where the frontage road turned west an access was constructed from the frontage road onto Route 120. While the State contended this was an illegal or "bootleg" entrance, not built by the State, Murphy testified it was built and maintained by the State. It is undisputed in any event, that the State put up and maintained "Stop" signs at this entrance from Route 120. At a point some three blocks west of the access point above described another access road was provided from Route 120, which the States does not deny was constructed and maintained by the State, including "Stop" signs. Following the 1958 purchase of some of the property by the State Murphy acquired additional land to the north and west and certain streets were laid out and were connected with the frontage road. Some of these later were vacated.

In 1971 the State determined that it was necessary to again widen and improve Route 120 and accordingly this condemnation action was begun in 1972 to acquire additional land of the defendant for said improvements. The taking of such land and the widening of the highway as planned required the elimination of the access point nearest the intersection of Route 120 and Route 43 and this is what poses the question of damage to the remainder of the property not taken.

At the trial, Murphy testified that in late 1957 he negotiated with the State for the purchase of the lots acquired by the State in the first transaction in 1958. He could not recall the exact date of such negotiations nor the name of the person who represented the State, but testified that he had an attorney representing him in the negotiations. However, the attorney only handled "the money situation and some dram shop suits that were against us." Murphy testified that he had nothing in writing from the State but that one of the right-of-way representatives of the State — whose name he did not recall — told him that a "by-pass road" would be built for an exit to and from Washington Street and that as to Route 120 "we would always have a good access entrance" and "that such access would be at two points, approximately where the access was at the time located and another access some two or three blocks west."

On cross-examination Mr. Murphy said he talked with "one or two" negotiators, one in about July or August of 1957, the other possibly a month later, but he did not recall the names of either of them. He acknowledged signing the deed of dedication in January of 1958 and said he "went over the legal part and discussed it" with his lawyer before he and the other co-owners signed it. Mr. Murphy testified there never was any other person present when he negotiated with the State Highway Department representative.

Following Murphy's testimony the trial judge, after argument by counsel, ruled that the language of the dedication of the right-of-way respecting relinquishment of access is "uncertain" and that uncertainty and the actual physical layout of the streets, private, public or otherwise from the Murphy property to the frontage road "all must militate against the State." Accordingly, the judge ruled at that point that the question of loss of access might be submitted to the jury as part of the damages to the remainder.

Upon the State's counsel suggesting that he would proceed to put Mr. Murphy on the stand to ask him about the dedication and the money he received for it, defense counsel objected in the following language:

"I want to say now, your honor, that I would object to any mention of the price paid to Mr. Murphy in 1957 because if that is mentioned quite clearly what we are going to have to do is try the 1957 case too, to show that ...


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