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Central Ill. Public Service Co. v. Gibbel

OPINION FILED NOVEMBER 8, 1978.

CENTRAL ILLINOIS PUBLIC SERVICE COMPANY, PETITIONER-APPELLANT AND CROSS-APPELLEE,

v.

ELIZABETH K. GIBBEL ET AL., RESPONDENTS. — (ROBERT P. FELBER ET AL., RESPONDENTS-APPELLEES AND CROSS-APPELLANTS.)



APPEAL from the Circuit Court of Macoupin County; the Hon. JOSEPH P. KOVAL, Judge, presiding.

MR. JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 12, 1978.

Condemnation.

Replacement cost used.

Error.

Reversed and remanded.

Central Illinois Public Service Company (CIPS) filed a condemnation petition requesting a right-of-way over respondents' land in order to install power lines. At trial, the two principal witnesses were appraiser Wayne Briggs for the petitioner CIPS and appraiser Edward Collins for the respondents (Felber). The witnesses made appraisals of the Felber property as to three different aspects: (1) value of land actually taken; (2) damage to the part of the easement not occupied by structures; and (3) damage to property outside the easement strip. The major disagreement between the appraisers centered on the third category, damage to property outside the easement strip. Briggs testified there would be no damage, whereas Collins testified there would be damage in the amount of $19,985. The jury was obviously more impressed with Collins' appraisal since it returned a verdict of $17,500 in order to compensate respondents for damage to their property outside the easement strip.

On appeal, CIPS criticizes Collins' testimony in two respects: (1) that Collins' appraisal was improper since his calculation for the total value of the property was based (in part) on the replacement value of the Felber home; and (2) that sales of dissimilar property were improperly introduced into evidence during Collins' testimony. We agree with CIPS on the first issue and therefore reverse and remand for a new trial.

APPEALABILITY

Before the merits of the first issue can be examined, we must initially decide whether the issue has been properly preserved for appeal. CIPS did not object to Collins' valuation until the end of his testimony when the following exchange occurred:

"MR. TRAYNOR [attorney for CIPS]: At this time I would move to strike all the testimony of this witness as his valuations are not based upon proper elements and if the Court would like to hear —

THE COURT: Motion will be denied."

• 1-3 First of all, we note that the objection is sufficiently specific to apprise the trial court of defendant's objection and any lack of specificity can be excused by the trial court's interruption in the middle of CIPS's objection, thereby preventing a further explanation. Furthermore, we find that the objection was timely. Collins' direct testimony, although very difficult to follow, does include a description of the Felber house but does not specifically mention its value or how he computed its value except to say that he needed the square footage of the house in order to compute its replacement value. Collins does not place a value on the house during his direct examination. Thus, CIPS did not have a clear opportunity to object to Collins' use of the replacement value of the house in his valuation of the Felber property. A motion to strike evidence is timely when the character of the objectionable testimony is apparent or as soon as it becomes apparent. (Louis L. ...


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