APPEAL from the Circuit Court of Lake County; the Hon. HENRY
H. CALDWELL, Judge, presiding.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT: The defendants appeal from a judgment of condemnation in which they were awarded $205,000 as just compensation in accordance with the jury verdict. They contend that various trial errors deprived them of a fair trial, that the verdict was not within the range of the evidence, that they were improperly refused permission to file a cross-petition for severance damages, and that no prejudice would result from ordering a new trial because a necessary party was not joined in the proceeding.
The condemnation petition was filed on February 16, 1973, and the case was tried in March, 1974. The subject property consists of 56.1 acres of land located on the north side of Route 60 (Town Line Road) about a quarter of a mile east of Route 21 (Milwaukee Avenue), south of the town of Libertyville. It is bounded on the west by the Des Plaines River with the property to the west, between the river and Route 21, being under the same ownership. The Hawthorn Shopping Center and a related development called New Century Town are located immediately northwest of the intersection of Routes 21 and 60. The entire condemned parcel is heavily wooded and contains no building improvements. Public sanitary sewer and water serve the area immediately west of Route 21 but do not serve the condemned property or the commonly owned property between the condemned property and Route 21. According to a topographical map introduced into evidence, approximately 28 acres of the 56.1 are within the flood plain of the Des Plaines River Valley. The applicable Lake County Zoning Ordinance contained a set of special regulations restricting the use of property in the flood plain.
George C. Duffy, a professional real estate appraiser, testified for the plaintiff. It was his opinion that as of February 16, 1973, the highest and best use of the subject property was to hold for future development for uses that would be permitted under the existing zoning regulations and that the fair cash market value of the property was $190,000. Plaintiff's other expert, William A. McCann, was of the same opinion as to the highest and best use of the property. He stated that in his opinion the fair cash market value of the property as of February 16, 1973, was $220,000. The evidence of comparable sales adduced by the plaintiff ranges from $4,800 to just under $5,000 an acre.
John F. Butler, Jr., testified for the defendants and gave his opinion that the highest and best use of the subject property was for 200,000 square foot home sites, a use permitted under current zoning. It was his opinion that the fair cash market value of the property as of the date of the filing of the petition to condemn was $436,340.
Defendants argue first that the conduct of plaintiff's counsel in allegedly bringing to the attention of the jury the wealth of the Cuneo family, the beneficial owners of the property, and in allegedly and repeatedly referring to inadmissible evidence prejudiced the jury and prevented a fair trial. Defendants note in this connection that the jury, although confronted with several complicated exhibits, deliberated only 15 minutes and then reached a verdict in the amount requested by plaintiff.
On the question of whether plaintiff improperly prejudiced the jury by a reference to the owners' wealth, the following facts are considered: The defendants called Lawrence Bern to rebut testimony of one of the plaintiff's witnesses who had indicated that almost all of the condemned property was under water for a good portion of the year. On direct examination of Mr. Bern defendants' counsel established that Bern had been employed by a Mr. Cuneo as a farm manager for 12 years, that he had observed the condemned property at close range once or twice a week during that time, and that he resided at Hawthorn Mellody Farm. Mr. Bern described his home as being located on the "farm proper" and gave a description of its location which would place it on the west side of Route 21 between Route 60 and the E.J. & E. tracks. On cross-examination Mr. Bern was asked to step down from the stand and answer certain questions, utilizing an aerial photograph which had been admitted into evidence as Defendants' Exhibit No. 1. The questions and answers objected to by the defendants as being designed to improperly introduce the matter of the Cuneos' wealth into the proceedings are as follows:
"Q. * * * Now, you recognize the intersection of Milwaukee Avenue and Route 60 here in the left-hand corner of this picture?
Q. Okay, and you live between that intersection and the EJ&E tracks, which runs along this line that I am putting the pointer on here now, across the upper third of the picture, right?
Q. You live in that house there?
Q. Who lives in that house?
[Defendants' Counsel]: I object, Your Honor.
THE COURT: I will sustain the objection, you may interrogate him as to anything that he testified to on direct examination.
Q. [By Plaintiff's Counsel]: This is the Hawthorn Mellody farm, as I understand it, is that right?
A. No, that's extensive; it goes all the way over to Butterfield Road here.
Q. Where is Butterfield Road?
A. I can't determine that on ...