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Lake Co. For. Pres. v. Reliance Std. Life Ins.

JUNE 9, 1975.

LAKE COUNTY FOREST PRESERVE DISTRICT, PLAINTIFF-APPELLEE,

v.

RELIANCE STANDARD LIFE INSURANCE COMPANY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Lake County; the Hon. HARRY D. STROUSE, JR., and the Hon. FRED H. GEIGER, Judges, presiding.

MR. JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT:

This case arises from a petition filed by plaintiff (District) to condemn for a forest preserve approximately 355 acres of land owned by defendant (Reliance). A traverse and motion to dismiss the petition was denied and, upon trial, a jury awarded Reliance $1,330,800 as compensation for the taking of the property. Reliance appeals the trial court's order denying its traverse and motion to dismiss, and appeals the amount of the judgment award.

In 1965 and 1968, the District passed ordinances to acquire for a forest preserve property which included the Reliance property. The ordinances authorized negotiating a purchase or instituting condemnation proceedings. No action was taken pursuant to either of these resolutions.

On February 26, 1971, the District made a written proposal to purchase the property for $1,239,000 or $3500 per acre, payable in installments. Reliance rejected this offer on May 21, but agreed to reconsider the offer in 6 months. On July 8, 1971, the District sent a letter notifying Reliance that it intended to pass a resolution at its August 19 meeting to acquire the property by purchase or condemnation and that members of the District were willing to confer with Reliance representatives prior to that time to reach an agreement for its purchase. No conference occurred.

At its August 19 meeting, the District passed a resolution which determined the need to acquire the property and offered to purchase it, for cash or by installment, for $1,239,000 or $3500 per acre. The resolution further provided that if the owner refused to accept, the District would make a final written offer which was to include an invitation to discuss the purchase with the District. Reliance was to be given 30 days after mailing of the final offer in which to accept or reject the invitation to discuss the purchase. The final written offer was also to include notice that, not less than 60 days after the mailing date, the District would begin eminent domain proceedings if agreement could not be reached. Three certified copies of the resolution were forwarded on that same day to Reliance by its agent. The transmittal letter concludes with the following remark: "I sincerely trust we now have a basis for a contract for the sale of your property to the District."

At a meeting on September 22, 1971, the land acquisition committee of the District agreed to send Reliance a registered letter notifying them that condemnation proceedings would be commenced on November 22, 1971. This letter was never sent. However, a meeting with representatives of Reliance and the District was held on October 13, 1971, at which time the District again offered to purchase the property for $3500 an acre. (In a letter dated October 21, 1971, Reliance rejected the District's "offer" of $3500 an acre.) The chairman of the District's land acquisition committee testified that his understanding from this meeting was that Reliance felt a condemnation proceeding was the best means to determine value of the land in order to protect the interest of the Reliance shareholders. He further testified that, based upon this understanding, the District commenced condemnation proceedings by filing its petition on November 3, 1971.

• 1 Reliance first argues that the District did not make a bona fide attempt to agree on compensation, that failure to do so rendered void its action to condemn and that the court therefore erred in not granting the traverse and motion to dismiss. Under section 2 of the Eminent Domain Act, suit can be filed by a condemning party when "the compensation to be paid * * * cannot be agreed upon by the parties interested * * *." (Ill. Rev. Stat. 1971, ch. 47, § 2.) A written offer may constitute a bona fide attempt to agree as required by the Act. (Village of Deerfield v. Rapka, 54 Ill.2d 217, 225 (1973); County Board of School Trustees v. Boram, 26 Ill.2d 167, 170 (1962); Illinois State Toll Highway Authority v. Karn, 9 Ill. App.3d 784, 791 (1973).) In the instant case, there were several attempts to agree, including written offers, the letter of February 26, 1971, the resolution of August 19, and a negotiating session on October 13, 1971. Moreover, Reliance believed an offer had been made as evidence by its letters of May 21, 1971, and October 21, 1971, wherein it rejected the District's "offer." There was sufficient evidence introduced for the court to find that the statutory requirement of an attempt to agree was satisfied. Its conclusion on this issue was not manifestly against the weight of the evidence. City of Chicago v. Riley, 16 Ill.2d 257, 261 (1959).

• 2 On this same issue, Reliance also contends that because the District failed to satisfy the requirements of the August 19 resolution, it was without authority to file the petition to condemn. We initially note that the petition to condemn, founded upon the resolution, met the statutory jurisdictional requirements in that it (1) recited the District's authority, (2) set forth the purpose for which the property was being sought, (3) described the land to be condemned, (4) named all persons interested in the land as owners, and (5) prayed that just compensation be paid to the owner. (Ill. Rev. Stat. 1971, ch. 47, § 2.) The additional provisions contained in the resolution (reference to a final offer in writing and the lapse of 60 days before filing of the petition) were neither jurisdictional nor required.

• 3 While no separate formal letter of "final offer" was sent, three certified copies of the resolution, not required to be served upon Reliance, were forwarded to it on the day the resolution was adopted, 60 days prior to the filing of the petition herein. The resolution itself, in lieu of a separate letter reiterating the contents of the resolution, might be considered as the final offer and thereby constitute substantial compliance. Under the facts presented, however, we need not base our determination on this factor. The unrebutted evidence is that, subsequent to the adoption of the resolution, at the meeting held on October 13, 1971, Reliance "invited" the condemnation proceeding as a fair means of determining the value of the land for its shareholders. By doing so, Reliance waived the non-jurisdictional provisions of a separate formal letter of final offer and the 60-day interim before filing of the petition.

Reliance claims that the trial court limited its cross-examination of the District's expert witnesses and that it was thereby precluded from impugning the bases for their evaluations of the property. Specifically, it argues that certain of the District's objections should not have been sustained. We have reviewed the record and find that in every instance, irrespective of the sustained objections, Reliance succeeded in placing before the jury, through cross-examination, the evidence it sought to establish. We therefore find no error in this regard.

• 4 When the sale of other property is offered for the purpose of comparing it to the property being condemned, the trial court has wide discretion in determining whether the properties are sufficiently similar. (Department of Business & Economic Development v. Baumann, 9 Ill. App.3d 1, 8 (1972), reversed on other grounds, 56 Ill.2d 382 (1974).) There is no specific rule to determine the degree of similarity necessary for evidence of a sale to be admissible. "Similar" does not mean "identical." Other sales need be only sufficiently similar in character and locality to provide the jury some reasonable basis for comparison. City of Evanston v. Piotrowicz, 20 Ill.2d 512, 522 (1960).

• 5 Reliance argues that two sales introduced by the District for comparative purposes were dissimilar and therefore should not have been allowed. It pointed out that one of the sales occurred 2 3/4 years, the other 3 years, prior to the filing of the instant petition and that both were substantially smaller than the subject property. One parcel was adjacent to industrial uses and was characterized by one of the District's appraisers as suitable for homes for "the average workman." Reliance property was not adjacent to industrial uses and the same appraiser estimated that residences on the subject property would range from $60,000 to several hundred thousand dollars. These dissimilarities were declared to the jury. On the other hand, there were similarities among all three properties: they had identical drainage, river frontage, were partially located in the flood plain, and none of the three were subdivided or had any buildings, sewer or water.

"Wherever there is a reasonable basis for comparison between the property sold and that being condemned, evidence of the sale is not incompetent, and the dissimilarities between the properties, which are declared to the jury, affect the weight and value of the testimony rather than its competency. Forest Preserve Dist. v. Folta, 377 Ill. 158; City of Chicago v. Vaccarro, 408 Ill. 587." (City of Evanston v. Piotrowicz, 20 Ill.2d 512, 522.)

We hold that the trial court did not abuse its discretion by admitting into evidence the sales ...


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