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Dept. of Pub. Wks. & Bldgs. v. Vogt





APPEAL from the Circuit Court of Monroe County; the Hon. ALVIN H. MAEYS, JR., Judge, presiding.


Rehearing denied September 9, 1977.

Petitioner, Department of Public Works and Buildings of the State of Illinois, appeals from a judgment of the circuit court of Monroe County granting defendants' motion to dismiss a petition to take certain land pursuant to the Eminent Domain Act (Ill. Rev. Stat. 1975, ch. 47, par. 1 et seq.) (hereinafter referred to as the "Eminent Domain Act").

On August 25, 1971, petitioner filed a petition to take land owned by the defendants Bernard J. Vogt, Sharon Vogt, and James Vogt under the authority of articles 3 and 4 of the Illinois Highway Code (Ill. Rev. Stat. 1971, ch. 121, pars. 3-101 through 4-508). The purpose for the taking was the construction of a bridge across the Mississippi River. Defendants Bernard and Sharon Vogt filed a cross-petition alleging certain land would be damaged as a result of the taking and requested damages to compensate their expected loss.

On November 16, 1971, petitioner filed a motion for immediate vesting of title in accordance with the Eminent Domain Act "quick take" provisions. (Ill. Rev. Stat. 1971, ch. 47, pars. 2.1 through 2.10.) On November 23, 1971, a hearing was held to establish the authority for the "quick take," and setting preliminary just compensation for defendants' land pursuant to section 2.2 of the Eminent Domain Act (Ill. Rev. Stat. 1971, ch. 47, par. 2.2). On November 30, 1971, an order was entered by the court finding authority to exercise the "quick take" and setting preliminary just compensation. On January 25, 1972, petitioner deposited the amount determined for preliminary just compensation with the treasurer of Monroe County and the court entered an order vesting title to the property in the State. Defendants did not appeal from that order.

The only remaining segment of the condemnation proceedings was the jury trial to determine final just compensation in accordance with section 1 of the Eminent Domain Act (Ill. Rev. Stat. 1971, ch. 47, par. 1).

On April 4, 1973, the court granted defendants' motion for a continuance due to the flood stage of the Mississippi River, since it was impossible for the jury to view the land in its proper perspective. On October 10, 1973, by agreement of the parties, the jury trial was again postponed. Also, on December 11, 1973, April 4, 1974, and November 12, 1974, the case was continued apparently in the hope of reaching a settlement. On January 29, 1975, petitioner continued the case due to the unavailability of counsel.

On March 10, defendants filed a motion to dismiss the petition alleging, inter alia, that the plaintiff had not commenced construction of the bridge, and was thus depriving the defendants of the value of their property between 1971 and 1975. Petitioner's motion to strike defendants' motion to dismiss was allowed by the trial court on March 25, 1975, with leave being given to defendants to file an amended motion to dismiss. On April 23, 1975, defendants took the deposition of one of petitioner's engineers who is familiar with the construction plans. He testified that the plans of the project were still incomplete and that major modifications were yet to be made. He further testified that petitioner would no longer need some of defendants' land that it had acquired pursuant to the "quick take" proceedings, but that it would need additional land from defendants that it had not yet acquired.

On April 28, 1975, defendants filed an amended motion to dismiss which is set out below:

"1. Petitioner's petition for condemnation was filed in this court on August 25, 1971.

2. Shortly thereafter, petitioner instituted `quick-take proceedings' and acquired title to the subject property based on petitioner's representations that the construction of said project was so imminent as to require the immediate vesting of title.

3. Almost four years have passed and petitioner has still not finalized its plans for this project.

4. Since the filing of the petition in 1971, petitioner has altered its plans for this project to change it from a four-lane highway to a six-lane highway and to add the construction of one entire new bridge and to lengthen the bridges. In addition, certain access rights to and from remaining parts of defendant's property under the proposed highway, are being eliminated under the revised plans. Certain construction easements which are a part of this condemnation suit will not be required. Additional property will be required from the defendants for an access road which was not planned under the original plans, and other changes are being made which will directly affect the issues of this lawsuit.

5. Said plans have not been completed or finalized and will not be completed or finalized until next year or thereafter. Neither defendants nor their attorneys have seen copies of the final plans.

6. The issues raised in this case involved the value of property which would be taken under the present petition but which would not be needed under the revised plans and property which is not being taken in the present petition but will be needed under the revised plans and will affect access rights.

7. Defendants deposed a representative of the Highway Department on April 23, 1975 and he testified regarding the project changes as set forth above and further testified that petitioner's appraiser in this case would have to revise and update his appraisal in view of the changed plans. Defendants have no opportunity to do that since they are not aware of the details of said plans.

8. No construction is contemplated for this project until well into the future, although this petition has been on file since August of 1971.

9. There is absolutely no urgency about the acquisition of defendant's property insofar as petitioner is concerned.

10. A copy of said deposition of petitioner's agent is attached hereto as exhibit `A' and made a part hereof.

11. This case cannot be tried until petitioner's plans are finalized and until defendants know specifically which of their property is being acquired and until they know specifically what access roads will be made available to them. The defendants are unable to present evidence in this matter without having a thorough knowledge and understanding of petitioner's plans for this project.

Wherefore, defendants pray that the court hold a hearing on this matter and enter an order dismissing this cause and granting leave to petitioner to refile its action if and when its plans are finalized and if and when it becomes clear what property ...

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