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Dept. of Transp. v. Catholic Diocese

OPINION FILED AUGUST 10, 1978.

THE DEPARTMENT OF TRANSPORTATION, PETITIONER-APPELLEE,

v.

CATHOLIC DIOCESE OF BELLEVILLE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of St. Clair County; the Hon. FRANCIS E. MAXWELL, Judge, presiding.

MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Defendant, Catholic Diocese of Belleville, appeals from a judgment rendered for petitioner, the Department of Transportation, in an eminent domain proceeding. The parties settled all issues prior to trial by agreement except the issue of damage to the remainder of defendant's property caused by traffic noise and fumes. General and special jury verdicts found that defendant was not entitled to recover for damage to the remainder and the court entered judgment on the verdicts.

The defendant contends that the court erred in not entering judgment for the defendant notwithstanding the general and special verdicts; that the court ruled erroneously on certain objections to the admission and exclusion of evidence; that the jury was improperly instructed; that petitioner's counsel engaged in a course of prejudicial conduct which deprived defendant of a fair trial; and that the defendant should be granted a new trial because the verdict was against the manifest weight of the evidence.

In dealing with defendant's allegation that the court should have entered judgment n.o.v. we must review the evidence. The applicable rule of law is well settled, that is, that judgment notwithstanding the verdict should have been granted if all the evidence, viewed in its aspect most favorable to the petitioner, so overwhelmingly favored defendant that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510, 229 N.E.2d 504, 513.

The property in question is the site of Assumption High School, owned and operated by the Catholic Diocese of Belleville. The school is located in the northeast quadrant of the intersection of Illinois Route 111 and United States Route 50 in St. Clair County, Illinois. The same highways were in existence prior to the construction of the school building but under different numbers. The Department filed a petition for condemnation on September 8, 1967, and title was vested in the Department by a "quick take" proceeding on September 21, 1967. The land condemned consisted of two strips along defendant's property, each approximately 10 feet wide, on the north edge of Route 50 and the east edge of Route 111, and a triangular piece of land in the northwest corner of defendant's property approximately 104 1/2 feet wide at the widest point. The 10-foot strips were for the purpose of constructing shoulders after additional lanes were added to both highways upon the State's pre-existing right of way. The triangular section was used for the placing of dirt to build an overpass to allow traffic on Route 111 to cross over railroad tracks and a section of Interstate 64 which was scheduled to be constructed. The construction of additional lanes and a raised median on each route was completed by August 1968. This phase of the construction included relocating a truck exit to an adjoining property, Allied Mills, later Wayne Feed Co., to a point some 250 feet closer to the school. Construction of the overpass was begun July 1972, and was completed in January 1975. Interstate 64 was completed in November 1976. Defendant filed a motion to fix the date of determining the cost to rehabilitate the school as May 6, 1977, which was allowed.

Prior to trial a settlement was reached on all of the issues in the case except defendant's claim that the remaining property not taken was damaged due to increased traffic noise and fumes. A general verdict was returned by the jury in favor of the petitioner. A special interrogatory was propounded which read, "If you find damage to the remainder, do you find that the damage resulted from the construction and use of the improvement?" The jury answered "no" to this interrogatory. The jury was also polled and each juror answered that this was her or his verdict.

Defendant Diocese presented testimony by the present and two former principals of the school, a student, 17 teachers, the school business manager, two teamster truck drivers, two contractors, two appraisal witnesses, and the security guard of the school. The testimony of the principals, the business manager and the 17 teachers was similar in content. Each person testified as to her or his training and experience in the field of education, position at Assumption School, and dates of service at Assumption. Each then testified as to the extremely high noise levels in the classrooms and gave examples of disruptions and distractions in the classrooms because of the noise. The noise of trucks shifting gears to reach the top of the overpass and to enter and leave the Allied Mills property next to the school was mentioned frequently in this testimony, as was the noise of motorcycle engines. The opinion expressed by each was that the noise level had increased since the construction of the improvements to the highways. There was less emphasis in the testimony as to increased levels of traffic related fumes but an increase in fumes was mentioned in most of the testimony. Of those testifying, only Eugene Meyerpeter, Henry Ringkamp, Anthony Eberhardt, Charles Schmitt, James Monken and James Laudenbach were assigned to the school before 1967, prior to the beginning of construction. Eugene Wojcik, Conrad Seibek, Jose Ramirez, Kathleen McGuire, James Dohle, Pamela Broyles, Diane Weil, Suzanne Schmitz and Mary Beondech came to the school after the first improvements were completed, that is, the widening of the routes, but while the construction of the overpass was yet in progress. The testimony of the last mentioned, Mary Beondech, was stricken in that she was not qualified to express an opinion on quantitative noise levels. Margaret Pride, Mary Neurohr, Wallace Welch and Francis Sontag arrived after completion of all improvements. The same is true of Elaine Laws, the student who testified as to class disruptions due to noise.

The defendant also presented testimony by two professional truckers. They testified that the grade or incline of the Route 111 overpass made more gear changes necessary and doubled or trebled the noise made by a truck in passing the school while climbing that incline to cross I-64 and the railroad tracks.

Two appraisers testified that the worth of the school had been significantly decreased due to the construction of the improvements and that the recommended method of cure was to seal the windows and air condition the building completely. Each testified as to the probable cost to perform this work and the probable figure of decrease in value. Two contractors testified as to the cost estimates of sealing and air conditioning. A security guard at the school testified as to the figures she obtained in a traffic count kept by herself on the three days prior to trial.

This testimony adduced by defendant was controverted by the evidence adduced on behalf of the Department. A consulting engineer testified for the Department as to the results of sound tests he conducted at Assumption on April 22, 1971, and April 25, 1977. On the occasion of the first test he was there for approximately two hours. The second test was approximately one hour and 20 minutes. He gave specific figures as to the different readings made in the same rooms under comparable conditions in 1971 and 1977. He was permitted to testify as to his opinion concerning the noise level in the years he made the tests. He gave as his opinion that the noise level from outside noise had decreased from 1971 to 1977. He testified that from his observation during the tests, traffic volume had decreased during those years. He observed that semitrailer trucks were a significantly smaller portion of the traffic in 1977 than in 1971. He opined that sealing and air conditioning the school was unnecessary and that a great deal of the noise in the school was due to student activity. He testified that the construction of the improvements, particularly the overpass, had bettered the noise situation, as traffic, including large numbers of trucks, were no longer being backed up by trains at the crossing but instead kept moving on the overpass.

There was rebuttal testimony from the executive director of the school that part of the students were in a lunch period during the time of the 1977 sound tests and that part of the tests were made in the corridor outside the lunchroom. Further, testimony was given which indicated that during the time of the tests in 1977, the exit onto Route 111 from I-64 was closed. Evidence adduced by the petitioner, however, made it clear that even though the approach to the I-64 exit to Route 111 was blocked, it was still possible to make the turn and exit nonetheless. The period of time in which I-64 was closed on the day of the 1977 tests was established as 12 minutes, and this period of time occurred during the last few minutes of the expert's tests.

A State of Illinois traffic studies engineer testified concerning actual traffic counts made at the intersection of Routes 50 and 111 in 1966 and again in 1977. The traffic was counted manually for eight hours on May 13, June 1, 3, 1966, at different eight-hour periods. On January 12, 18, 19, and 20, 1977, a manual traffic count was done for six hours each day, at different six-hour periods. These actual figures were converted by computer into daily average traffic counts. The daily average traffic figures as prepared by the State showed a decrease of traffic on these routes from 1967 to 1977, both in total traffic and in trucks, the noise from which featured heavily in the testimony of the Diocese's witnesses. This expert identified certain exhibits which were presented by the petitioner, prepared in the form of charts and graphs, by the State of Illinois from information gathered by it. One exhibit showed that total vehicle registrations in Illinois was approximately five million in 1967 and approximately seven million in 1975. Large truck registration increased from approximately 8 1/2 thousand in 1967 to approximately 13 1/2 thousand in 1975. Motorcycle registration in St. Clair County increased from 2200 in 1967 to over 5000 in 1975.

Petitioner called a real estate appraiser who testified that he appraised the Assumption property on April 23, 1971, and again a few days before trial. In his opinion there was no damage to the remainder of defendant's property. He based this opinion on an inspection of the property, on traffic studies and traffic counts and on the reports of "experts in the field of sound" whom he named as the sound engineer who testified for the Department and also one Arthur Niemoeller.

The Department called to the stand Monsignor Sullivan of the Diocese to ask if the Diocese had hired a Dr. Niemoeller, an acoustical engineer to do sound studies at Assumption, to which ...


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