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Dept. of Public Wks. v. Exchange Nat'l Bank

OPINION FILED JULY 15, 1976.

THE DEPARTMENT OF PUBLIC WORKS AND BUILDINGS, PETITIONER-APPELLEE,

v.

EXCHANGE NATIONAL BANK OF CHICAGO ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Du Page County; the Hon. ALFRED E. WOODWARD, Judge, presiding.

MR. JUSTICE DIXON DELIVERED THE OPINION OF THE COURT:

The defendants appeal from an eminent domain judgment awarding them a total of $357,650 as just compensation following a jury verdict in Du Page County. They contend that various trial errors prevented a fair trial and that the proceedings should have been stayed and petitioner compelled to seek permission of the Illinois Commerce Commission for the taking of and damages to the property of Nordic Park Water and Sewage Disposal Co., Inc.

I

The proceedings were commenced by the State on October 20, 1969, to acquire certain parcels of land for the construction of Federal Aid Route No. 61. The Water Company was not made a named party (except as Unknown Owners) because a title search had not disclosed any interest of record in that company. It had unrecorded interests.

Nordic Investment Corporation, of which William F. Smeja was president, and William F. Smeja were made parties. Smeja was also president of the Water Company.

Pursuant to motion and after notice to Smeja and the Investment Company the court held a hearing under the quick take statute and on October 28, 1969, entered an order fixing preliminary compensation in the quick take proceedings.

On November 25, 1969, the Water Company entered an appearance and filed a cross-petition alleging that it was the owner of certain subsurfaces and easements in the properties condemned and claimed damages to the remainder. It further alleged that it was a public utility company subject to jurisdiction of the Illinois Commerce Commission and that the petitioner had failed to obtain the approval of the Commission for the taking of the property of the Water Company. It prayed that the court stay all proceedings (except withdrawal of preliminary compensation in the quick take). The Water Company did not bring the matter to the attention of the trial court. On January 13, 1970, an order was entered finding that petitioner had deposited the funds provided for in the order of October 27, 1969, and vesting title in petitioner to the land involved.

A withdrawal petition was filed by all defendants including the Water Company and on January 28, 1970, orders were entered as to each parcel that the amounts found as preliminary compensation be paid out. No specific amount was awarded to the Water Company by this order.

The Water Company filed another petition on July 27, 1970, alleging that there were wells on the property obtained in the quick take which had not been capped and which were contaminating the water supply and asking that the wells be covered and damages be determined in the condemnation proceedings. The court later found that the wells had been capped.

In various pleadings the Water Company requested that its property be valued as a special use property. It, through a memorandum of law, stated "the cross petition filed by Nordic Park Water in this cause does not challenge the jurisdiction of the Court nor does it challenge the authority of the Department * * * to condemn the property in question." It asked for a stay. The request for stay was denied and all matters were consolidated for trial.

When the matter came before the jury the Water Company stipulated to the amount of its damages — $4,000.

Only a temporary easement which has since expired was acquired on the property leased by the Water Company.

A 1957 amendment to section 2 of the Eminent Domain Act (Ill. Rev. Stat., ch. 47, par. 2) added a concluding sentence as follows:

"No property belonging to a railroad or other public utility subject to the jurisdiction of the Illinois Commerce Commission may be taken or damaged, pursuant to the provisions of this chapter, without the prior approval of the Illinois Commerce Commission."

The quick take statute (Ill. Rev. Stat., ch. 47, par. 2.1) was added in 1957 and it has a similar requirement as follows:

"[N]o land or interests therein now or hereafter owned, leased, controlled or operated or used by, or necessary for the actual operation of * * * any other public utility subject to the jurisdiction of the Illinois Commerce Commission, shall be taken * * * without first securing the approval of such Commission."

Section 2.1 also requires a certified copy of the order of the Commission granting approval to be attached to the quick take petition.

• 1 The requirement of prior approval of the Illinois Commerce Commission is a statutory condition which should exist. But, it is for a court to decide, as a preliminary question, when called on, whether the statutory conditions authorizing the exercise of such power exists, and, if such statutory conditions are not found to exist in the specific case, to dismiss the petition for condemnation. Bierbaum v. Smith, 317 Ill. 147, 148.

• 2 The Illinois eminent domain statute (ch. 47, par. 2) requires that all persons interested in the premises, as owners or otherwise, appearing of record, must be made parties defendant in a condemnation proceeding. This would appear to require the plaintiff in such suits to proceed only against persons who appear of record as owners or otherwise. Here the owners of record were named defendants. There is nothing to show notice sufficient to put the State on notice that the Water Company had any interest although the Water Company, by virtue of service on its president could hardly claim that it had no notice. (See Illinois Power Co. v. Miller, 11 Ill. App.2d 296, 309.) At the time of the commencement of the proceedings and even at the time of the quick take the Water Company was not a necessary party to the proceeding. (Illinois Power Co., at 309.) At the time of the filing of the petition for condemnation, the State had a perfected right of eminent domain and at the time of the quick take proceeding the State had a perfected right of quick take. Approval of the Commerce Commission was not then a condition precedent to the jurisdiction of the Court. The jurisdiction of the court had been properly invoked (Central Illinois Electric & Gas Co. v. Scully, 17 Ill.2d 348, 352), as the petition to condemn and the quick take motion stated every fact the law required to be stated to give the court jurisdiction to hear and determine the proceedings.

At the hearing on quick take the trial court, pursuant to statute (ch. 47, par. 2.2(b)) determined that the petitioner had authority to condemn. This order is final and appealable as soon as it is entered and remains appealable for thirty days unless the court on good cause shown shall extend the time for taking such appeal. (Department of Public Works & Buildings v. Dust, 19 Ill.2d 217, 220.) This provision as to finality and appealability is controlling. (Dust, at 222.) A motion to vacate does not suspend the order nor does a motion for a stay of proceedings suspend the order since section 2.2(b) is special in scope. Dust, at 222; Ill. Rev. Stat., ch. 110, par. 1.

• 3 Not having appealed from the quick take order of October 28, 1969, the parties cannot on this appeal challenge further the finding of that order that the petitioner had authority to condemn.

II

• 4 One of defendant's valuation witnesses, Auble, had previously been employed by the State to appraise the subject property. This previous employment was kept from the jury. Defendants claim error. This issue was first discussed in Illinois by this court in Department of Business & Economic Development v. Schoppe, 1 Ill. App.3d 313, 317 (1971); it was thoroughly discussed in Department of Public Works & Buildings v. Guerine, 19 Ill. App.3d 509, 512-14 (1974), and again in ...


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