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Department of Conservation v. Franzen

OPINION FILED OCTOBER 15, 1976.

THE DEPARTMENT OF CONSERVATION, PLAINTIFF-APPELLEE,

v.

R.A. FRANZEN ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Lake County; the Hon. FRED H. GEIGER, Judge, presiding. MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

Mr. JUSTICE SEIDENFELD delivered the opinion of the court:

The defendants, La Salle National Bank, as trustee under Trust No. 23832 and S.A. Bowles, as trustee under Trust No. 540 (record title holders of parcels of real estate described in the condemnation petition), and R.A. Franzen and William Ziegler, as beneficiaries under both trusts, appeal under Supreme Court Rule 308 (Ill. Rev. Stat. 1973, ch. 110A, par. 308) from an interlocutory order denying leave to file a cross-petition for alleged damages to land not taken. The trial judge struck the cross-petition on the basis of his finding that there was no unity of title as to the parcel condemned and the alleged remainders. The defendants contend that where the property sought to be taken and that contiguous to it are held in title by separate land trusts but with common and identical beneficiaries, the part taken and the remainder are to be considered as one parcel for the purpose of determining damages to the remainder.

The eminent domain petition was filed on July 9, 1974, to acquire property for the expansion of the Chain of Lakes State Park. The petition described property here referred to as Parcels 11 and 12. The La Salle trust as record owner of Parcel 11 and the Bowles trust as record owner of Parcel 12 were named as defendants. The cross-petitioner, R.A. Franzen, was made a party to the condemnation suit allegedly in his capacity as a taxpayer of record. The cross-petitioner, William Ziegler, was not made a party defendant.

The appearances of the La Salle trust, Bowles trust and R.A. Franzen were filed on July 24, 1974. On June 25, 1975, the trial as to Parcels 11 and 12 was set for August 25, 1975. On July 16, 1975, the above named defendants, without leave of court, filed a cross-petition alleging that Parcels 11 and 12, consisting of 245 acres, are a part of a larger tract "owned by said defendants" of which there is a remainder of approximately 167 acres in Parcel 11 (referred to in the briefs as the "West Remainder") in the same La Salle trust and an additional 189.7-acre remainder contiguous to Parcel 11 (designated Parcel 7, and referred to as the "North Remainder").

On August 7, 1975, petitioners filed a motion to strike the cross-petition alleging that it was not timely filed and that the title holders to Parcels 11 and 12 as well as Parcel 7 "are different for each of said parcels and there is therefore no unity of title * * *." The court struck the cross-petition on the same date, with the finding that "title to Parcels 11, 12 and 7 are in different trustees, and that there is therefore no unity of ownership."

Ziegler and Franzen presented a second cross-petition on August 15, 1975, alleging that both Ziegler and Franzen were owners of the beneficial interests in the La Salle and Bowles trusts and that they were "actual owners of Parcel 7" (the North Remainder), with fee title in F.C. Brehm, trustee under Trust No. 630. Defendants' motion to reconsider was denied August 20, 1975. Defendants appeal from both the August 7 and August 20 orders.

Defendants essentially argue that the fact that Franzen and Ziegler have title to the North Remainder (Parcel 7) in a separate land trust from those holding title to the condemned parcels does not preclude their claim for damages. They reason that those with beneficial interests are in fact the proper parties to sue even though they do not have legal title; that a cross-petition may be filed by one other than a necessary party, i.e., by the beneficiary or beneficiaries of a land trust; that unity of use between the part taken and the remainder is not an essential element of a cross-petition; but that in any event there is both unity of title and use in Parcel 11 and the West Remainder.

The State argues that the beneficiaries of an Illinois land trust owning only personal property are not necessary parties to condemnation proceedings and therefore had no right to file a cross-petition for alleged damages to the North Remainder (Parcel 7). The State further argues that the order of the trial court was proper for the additional reason that there has been no showing of either unity of use or unity of ownership between the part taken and the remainders.

• 1 It has long been held that a beneficiary of a land trust is not a necessary party to condemnation proceedings against land held in title by a trustee. See Chicago North Shore & Milwaukee R.R. Co. v. Title & Trust Co., 328 Ill. 610, 613 (1928). See also Chicago Land Clearance Com. v. Darrow, 12 Ill.2d 365, 371 (1957). And see Ill. Rev. Stat. 1975, ch. 29, par. 8.31.

We do not agree, however, with the initial claim of the State that only a necessary party to the condemnation suit can cross-petition for alleged damages to property not taken.

Section 11 of the Eminent Domain Act (Ill. Rev. Stat. 1973, ch. 47, par. 11) provides as material:

"Any person not made a party may become such by filing his cross petition, setting forth that he is the owner or has an interest in property, and which will be taken or damaged by the proposed work; * * *."

• 2 Under this section and section 2 of the Act (Ill. Rev. Stat. 1973, ch. 47, par. 2) the holder of an unrecorded interest in the property who is not a necessary party defendant to the condemnation proceedings may be entitled, nevertheless, to file a cross-petition. (Illinois Power Co. v. Miller, 11 Ill. App.2d 296, 305-9 (1956).) In addition, a cross-petition is an appropriate method for a named defendant to seek compensation for other property taken or damaged by virtue of the condemnation and not described in the original petition. Johnson v. Freeport & Mississippi River Ry. Co., 111 Ill. 413, 416-17 (1884).

• 3 However, an abutting owner, no part of whose land is taken, cannot file a cross-petition in the eminent domain proceedings. (County of Mercer v. Wolff, 237 Ill. 74, 76-77 (1908). See also City of Chicago v. A.J. Schorsch Realty Co., 127 Ill. App.2d 51, 70 (1970).) The right to recover damages for injury to property from the construction of public works may be asserted by an adjoining owner as a plaintiff in an action at law where none of his property is actually taken (or as a defendant in an eminent domain proceedings for the condemnation of property actually ...


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