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Dept. of Pub. Wks. & Bldgs. v. Wilson & Co.





Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Du Page County; the Hon. Alfred E. Woodward, Judge, presiding. MR. CHIEF JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 22, 1976.

In this eminent domain proceeding the State's Department of Public Works and Buildings sought to acquire part of a tract of land owned by defendant, Wilson and Company, Inc. That property consisted of a 5.24-acre L-shaped tract in Du Page County with a frontage of 151.2 feet abutting the north side of Roosevelt Road, a four-lane, heavily traveled highway with two lanes for eastbound traffic and two lanes for westbound traffic. The direct access to Roosevelt Road afforded by such frontage was the only access from the tract in question to any public street. Monterrey Avenue was located 240 feet west of the premises and formed a "T" intersection with Roosevelt Road from the north. Route 83 crossed Roosevelt Road on an overpass approximately 1,500 feet east of the premises. The only improvement on the property was an old barn.

The Department instituted this condemnation proceeding to acquire land in connection with construction of an exit ramp from Route 83 to the northern or westbound lanes of Roosevelt Road. The portion of the premises needed was a .55-acre tract ranging from 150 to 200 feet in depth along the property's entire frontage on Roosevelt Road, thus eliminating direct access to Roosevelt Road from the remaining 4.69 acres. In lieu of that direct access the Department proposed to construct a 26-foot-wide, paved frontage road over the .55 acres taken which would run from the west line of defendant's remaining property approximately 240 feet in a westerly direction to Monterrey Avenue at a point 85 feet north of its intersection with Roosevelt Road. A chain link fence would be constructed between the frontage road and Roosevelt Road to prevent any passage between the two. This frontage road would provide the only means of access from the 4.69 acres to public streets.

Prior to the commencement of the trial of the case before a jury, the Department filed a motion in limine "for the entry of an Order pursuant to Supreme Court Rule 218, limiting the testimony of any witness for the landowner in the above matter to prohibit them from considering as an element of their damages, loss of access or change in highest and best use because of the placing of the defendant's property on a frontage road as such action by the State is non-compensable as a matter of law." The motion was denied, and the case proceeded to trial.

An expert appraisal witness for defendant testified that on the basis of various factors including the commercial character of the neighborhood, the availability of utilities, the size, shape, elevation and location of the tract, the zoning and the availability of direct access to Roosevelt Road, the highest and best use of defendant's property prior to the taking would be "for some form of retail use." With respect to the substituted access road he stated that "in my opinion this type of access from what it had previously severely impairs and limits the use of the remainder of the property." He was of the opinion that after the taking the remainder lost its suitability for retail use and that its highest and best use would revert to an industrial use such as "a storage contractor's yard and the like, not relying on direct commercial access." It was his further opinion the fair cash market value of the remainder as a part of the whole prior to the taking was $164,000 and that its value after the taking was $100,000.

The Department made an offer of proof that its expert witness would testify that there was no damage to the remainder if the loss of direct access to Roosevelt Road and the substitution of the frontage road were not taken into account. The trial court sustained defendant's objection to the offer of proof, and the Department offered no further evidence.

On defendant's motion the trial court then directed a verdict in the amount of $21,400 as stipulated damages for the land taken, and $64,000 for damages to the remainder in accordance with the evidence presented by defendant, and entered judgment accordingly. On appeal by the Department from that part of the judgment awarding damages to the remainder, the appellate court affirmed (22 Ill. App.3d 302), and we granted leave to appeal.

The only real issue presented is whether the trial court erred in denying the State's motion in limine and permitting proof concerning damages to the land not taken as a result of the loss of direct access to Roosevelt Road.

The question of a property owner's right to compensation for loss of direct access rights when the street or highway upon which his property abuts is changed to a limited-access highway thus restricting him to the use of frontage roads or other indirect means of ingress and egress to and from his property is one as to which very little unanimity can be found in the substantial number of decisions in other States which have considered this question. (See Annot., Abutting Owner's Right to Damages for Limitation of Access Caused by Conversion of Conventional Road into Limited-Access Highway, 42 A.L.R.3d 13 (1972); Nichols, The Law of Eminent Domain sec. 14.2431 (J. Sackman rev. 3d ed. 1974).) Some jurisdictions apply the rule that an abutting property owner is not entitled to damages if he is given access to a frontage road which in turn affords him "reasonable" access to the main system of public roads. (E.g., State ex rel. State Highway Com. v. Lavasek (1963), 73 N.M. 33, 385 P.2d 361; Arkansas State Highway Com. v. Bingham (1960), 231 Ark. 934, 333 S.W.2d 728; Brock v. State Highway Com. (1965), 195 Kan. 361, 404 P.2d 934; Haymore v. North Carolina State Highway Com. (1972), 14 N.C. App. 691, 189 S.E.2d 611.) Property owners who have been placed on frontage roads and required to travel as far as 2 1/2 miles to the nearest entrance to the highway they previously had direct access to have been determined to have reasonable access within the above rule. (E.g., Stefan Auto Body v. State Highway Com. (1963), 21 Wis.2d 363, 124 N.W.2d 319.) Either explicitly or implicitly, these decisions are premised on the conclusion that a property owner's right of access does not encompass direct access to an abutting highway. (State ex rel. Herman v. Schaffer (1970), 105 Ariz. 478, 467 P.2d 66.) The contrary view is that a property owner with direct access to an abutting highway is entitled to compensation when his existing free and convenient access is taken or substantially impaired. (E.g., People v. Ricciardi (1943), 23 Cal.2d 390, 144 P.2d 799; State ex rel. Department of Highways v. Linnecke (1970), 86 Nev. 257, 468 P.2d 8; McMoran v. State (1959), 55 Wn.2d 37, 345 P.2d 598.) The fact that a frontage road has been provided bears not on the question of compensability but is relevant in mitigation of damages resulting from the elimination of the existing direct access.

It is the Department's contention that under existing Illinois law any damages resulting from elimination of direct access to Roosevelt Road and the substitution of the frontage road therefor was damnum absque injuria created by the proper exercise of the State's police power to regulate traffic and provide safety on the public highways. It is further contended that the State should be able to substitute reasonable indirect access for loss of direct access to an adjoining highway without being liable for compensatory damages. Before turning to a discussion of the Illinois precedent relied upon by the Department for these contentions, it is appropriate to review the constitutional context in which this issue must be decided.

Section 15 of article I of the 1970 Constitution provides: "Private property shall not be taken or damaged for public use without just compensation as provided by law. Such compensation shall be determined by a jury as provided by law." Insofar as is pertinent for the questions raised on this appeal, the 1970 Constitution carries forward the provisions of the 1870 Constitution without any change in substance. The 1870 Constitution (art. II, sec. 13) had, however, added the words "or damaged" which did not appear in the 1848 Constitution (art. XIII, sec. 11). In Rigney v. City of Chicago (1881), 102 Ill. 64, 74-75, this court considered the effect of that addition, saying:

"This [earlier] construction making an actual physical invasion of the property affected, the test in every case, excluded from the benefits of the constitution many cases of great hardship, for, as in the present case, it often happened that while there was no actual physical injury to the property, yet the approaches to it were so cut off and destroyed as to leave it almost valueless. Under this condition of affairs the framers of the present constitution, doubtless with a view of giving greater security to private rights by affording relief in such cases of hardship where it had before been denied, declared therein that `private property shall not be taken or damaged for public use without just compensation.' The addition of the words `or damaged,' can hardly be ...

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