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Dept. of Conserv. v. Aspegren Fin. Corp.

OPINION FILED SEPTEMBER 19, 1978.

THE DEPARTMENT OF CONSERVATION, APPELLEE,

v.

ASPEGREN FINANCIAL CORPORATION, APPELLANT.



Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of McHenry County, the Hon. James H. Cooney, Judge, presiding.

MR. CHIEF JUSTICE WARD DELIVERED THE OPINION OF THE COURT:

An action was brought by the plaintiff, the Department of Conservation of the State of Illinois, to condemn an unimproved tract of 160 acres in Lake and McHenry Counties owned by the defendant, Aspegren Financial Corporation. An award of $275,272 was made by the jury on which judgment was entered. The defendant appealed, and the Appellate Court for the Second District affirmed (47 Ill. App.3d 118). We allowed the defendant's petition for leave to appeal.

The defendant purchased the tract in December 1970 for $162,000, or about $1,000 an acre, with the stated intent of developing it as a recreational-residential community. In January 1971 the State announced its intention to acquire the tract as part of a proposed expansion of Chain of Lakes State Park. A petition to condemn the tract was filed on July 9, 1974.

The underlying dispute between the parties relates to the market value of the land on the latter date. On this appeal the defendant assigns numerous errors relating to the admission into evidence of testimony offered by the plaintiff, and to the exclusion of testimony offered by the defendant, in each case pertaining primarily to the question whether other property sold in the area was comparable to that owned by the defendant. The defendant also objected to the admission into evidence of the price at which it had purchased the subject tract in 1970.

The plaintiff put on two expert witnesses to testify as to the market value of the tract. One estimated it as $1,750 per acre. The other estimated it as $1,500 per acre. The defendant put on three expert witnesses whose estimates ranged from $3,000 to $3,500 per acre.

The defendant's initial contention seems to be that the plaintiff was not entitled to have admitted into evidence the price at which the subject tract had been purchased by the defendant because no "foundation proof" was made that that price was as great as the value of the property on the date when the condemnation petition was filed. As a result, the defendant states, the onus was placed upon it to offer evidence that the price paid in 1970 was less than the value of the property in 1974. The defendant asserts that this allocation of proof runs contrary to the decisions of this court in Forest Preserve District v. Krol (1957), 12 Ill.2d 139, and Department of Public Works & Buildings v. Bloomer (1963), 28 Ill.2d 267.

In Krol the defendants had purchased the property in question for $75,000 in December 1951 with the purpose of continuing its existing use as a public golf course, which plaintiff contended was its best and highest use. The plaintiff's expert witnesses testified that the value of the property as of the date of filing of the condemnation petition in September 1954 was in the neighborhood of $85,000. The defendants, who maintained that the best and highest use was for subdivision purposes, offered expert testimony that the value was from $210,000 to $262,000. Judgment was entered on an award for $100,000, and this court affirmed. It stated:

"At the time of sale the tract was being used for a golf course. The sale was, under the facts of record here, not too remote, and no error was committed in allowing evidence thereof. When a parcel of land is taken by eminent domain, the price the owner paid for it is a fact which may be considered in determining its value, provided the sale was recent and was a voluntary transaction, with no change in conditions or marked fluctuation in values having occurred since the sale. Sanitary District of Chicago v. Corneau, 257 Ill. 93; Forest Preserve Dist. v. Hahn, 341 Ill. 599." 12 Ill.2d 139, 147.

In Bloomer the time which elapsed between the purchase and the filing of the petition was four years. The court followed the principle stated in Krol (see 28 Ill.2d 267, 274), and again the judgment of condemnation was affirmed. We find nothing in either of these decisions supporting the defendant's claim that foundation testimony must be put in by the plaintiff that the purchase price fairly reflects the value of the property at the time of condemnation. See also 5 Nichols, Eminent Domain sec. 21.2 (rev. 3d ed. 1975).

Even longer periods between the purchase and the condemnation petition than that present here have been accepted in some decisions of the appellate court. (See, e.g., Department of Public Works & Buildings v. Gieseking (1969), 108 Ill. App.2d 105 (5 years); Metropolitan Sanitary District v. Industrial Land Development Corp. (1970), 121 Ill. App.2d 393 (5 1/2 years).) The weight to be given the testimony as to the present value of the property remained of course a question for the jury to decide in the light of all the testimony.

The defendant also objects to the refusal of the trial court to give a tendered instruction which provided in part that the jury should not consider the 1970 purchase price as probative of the 1974 value "unless no change in conditions or marked fluctuation in value has occurred since 1970." In denying this request the trial court stated that the instruction was defective in singling out one element, as to which the court had already instructed the jury. Since the defendant has not included in its excerpts from the record all the instructions given, this court cannot pass on this objection. Dempski v. Dempski (1963), 27 Ill.2d 69, 77.

The plaintiff offered into evidence testimony as to several sales of other property which it contended were comparable. Of those sales as to which evidence was admitted, one was a 46-acre tract two miles away from the subject tract, which was sold in May 1974 for $1,300 an acre. The second was a 120-acre tract, located within three miles from the subject property, which was sold in April 1972 for $1,000 an acre. This land was subdivided into two parcels, and in November 1973 each parcel was sold at $1,500 per acre. The third sale was of a 122-acre tract located directly across a road from the subject property, which was sold in September 1970 for $900 an acre.

The defendant's contention that none of these tracts was comparable rests primarily on the claim that the topography of the subject tract was rolling and that the tract was from 60% to 75% wooded, thus providing excellent sites for homes and a setting for riding trails, whereas the other properties were flat and much less heavily wooded, and thus unsuitable for the defendant's proposed ...


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