APPEAL from the Circuit Court of Du Page County; the Hon.
ALFRED E. WOODWARD, Judge, presiding.
MR. JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 19, 1974.
This is a condemnation case arising under the "quick take" section of the Eminent Domain Act (Ill. Rev. Stat. 1969, ch. 47, pars. 2.1-2.10) and involves a question as to interest on the award of just compensation. The respondents appeal from the decision of the Circuit Court of Du Page County allowing interest from August 1, 1971, and argue that interest should be allowed from the date on which the State made the required deposit under the "quick take" procedure which was January 9, 1970.
The appellee (who was the petitioner in the condemnation case) is the Department of Public Works. The property is located just west and north of the intersection of Route 53 and Route 20 (Lake Street). It comprised about 23,000 square feet including the buildings and was used as a restaurant and dwelling at the time of the filing of the condemnation petition. The petition to condemn under "quick take" procedure was filed on October 10, 1969, but at that time only about 4,000 square feet of vacant land was condemned, being an "L" shaped strip along the southern and western edges of respondents' property. There was only one access to the property from the highway (Route 20), and the southern strip of the "L" shaped piece condemned included this access. There was no other direct access.
On January 9, 1970 the State deposited the required 125% of the preliminary appraisal of the land condemned ($27,500) and thereupon began operations along the southern strip of the "L" (called Parcel 0023). However, the State did not, at that time, cut off the access from appellants' land to Route 20, although it legally could have done so. Instead the State allowed the appellants to have access over this southern strip to Lake Street (Route 20) during its operations until August 1, 1971, on which date the State entered into actual possession of all direct access rights to the remainder of the property and thereafter denied direct access to and from the property.
The trial court found, as a matter of fact, that the appellants occupied and used the remainder of the land until August 1, 1971, and had direct access from and to Route 20 until that date.
The appellants had previously filed a cross petition praying that the State be required to take all the appellants' property and pay the just compensation therefor. After direct access to the remainder of the property was cut off and it became evident that the remainder was landlocked, the State amended its petition to condemn to include the taking of the entire property of the defendants. After a trial to determine just compensation the jury found the just compensation for the taking of the entire property to be $92,000. In calculating the interest to be paid under the "quick take" procedure the court awarded interest on the amount of the award (less the deposit already withdrawn by the defendants) from August 1, 1971, until September 20, 1972 (the date of approval of the final award by the State).
The respondents in this appeal contend the judge erred in granting interest from August 1, 1971, only, inasmuch as the date of the "quick take" deposit was January 9, 1970. The respondents maintain that as of that date the "quick take" condemnation was affirmed and made certain and the State could have then taken possession of the property condemned, including the access. Since the State could have occupied the strip across the access at any time after January 9, 1970, it is the respondents' contention that under section 2.6 of the Eminent Domain Act interest on the award of just compensation should be paid from January 9, 1970.
Section 2.6 of the Eminent Domain Act (Ill. Rev. Stat. 1969, ch. 47, par. 2.6) reads as follows:
"The petitioner shall pay, in addition to the just compensation finally adjudged in the proceeding, interest at the rate of six per cent (6%) per annum upon:
(a) Any excess of the just compensation so finally adjudged, over the amount deposited by the petitioner in accordance with the provisions of Section 2.3(a) of this Act, from the date on which the parties interested in the property surrendered possession of the property in accordance with the order of taking, to the date of payment of such excess by the petitioner."
The State points out that since the date on which the owners of the property surrendered possession in accordance with the order of taking was, according to the court's finding, August 1, 1971, the language of the statute was followed in allowing interest from that date. The appellants however maintain that loss of market value in the remainder occurred on January 9, 1970, making interest payable from that date. The property was damaged, according to the appellants' theory, as soon as its potential market value for sale or lease was diminished or destroyed. They insist interest must be paid from the date that occurred, which in this case was January 9, 1970, the date on which the State confirmed its "quick take" condemnation by depositing the required deposit and thereby became entitled to possession of the property.
The appellants contend that to interpret the Eminent Domain Act as allowing interest only from the actual date of surrender of possession of the property is to place the Act in opposition to the Illinois Constitution. The Constitution, article I, section 15, states, "Private property shall not be taken or damaged for public use without just compensation as provided by law." They maintain that since the property was damaged when its potential value was diminished or destroyed by confirmation of the "quick take" condemnation on January 9, 1970, vesting the right to title and possession to the State, it would contravene the Illinois Constitution if interest was not paid from that date. The respondents cite People ex rel. First National Bank v. Kingery (1938), 369 Ill. 289, in support of the proposition that compensation is payable under Illinois law for loss of market value and the date of impairment of market value should therefore be the date on which the interest starts to run. However, we do not perceive any parallel between that case and the case before us. The cited case was concerned with the enforcement of a substantive right for damages under the former state constitution by writ of mandamus and the case merely confirms the substantive right to recover for actual damage sustained. It was not concerned with the date from which interest was payable on an award.
The respondents further contend that in any event the allowance of interest only from August 1, 1971, is error because the words "from the date on which the parties interested in the property surrendered possession of the property in accordance with the order of taking," in paragraph (a) of section 2.6 of the Eminent Domain Act, do not mean surrender of actual possession but surrender of the right to possession. Inasmuch as the State acquired the right to occupy and the right to possession of ...