APPEAL from the Circuit Court of La Salle County; the Hon.
THOMAS R. FLOOD, Judge, presiding.
MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 8, 1979.
This is an appeal from the order of the Circuit Court of La Salle County granting defendant Harold's Farm's second motion to dismiss and traverse in an eminent domain action brought by the Department of Conservation of the State of Illinois (hereinafter referred to as "petitioner"). The circuit court, on its own motion pursuant to Rule 308 (Ill. Rev. Stat. 1977, ch. 110A, par. 308), found that the interlocutory order granting defendant's motion involved a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate determination of the litigation. Accordingly, it certified the following question to this court:
"Whether the petitioner, considering the totality of the circumstances, has the authority to condemn less than the entire interests of the defendants as to Tract No. 3?"
The petition to condemn in this action was filed on January 5, 1973. It sought to condemn 888 acres in La Salle County for use as part of the Marseilles Conservation Area, which in its entirety will encompass more than 2500 acres. The petition contained legal descriptions of four tracts of land in La Salle County which made up the 888 acres, and it sought to take a fee simple interest in the four tracts, excepting only the coal and mineral rights and the right to mine and remove the same underlying Tract No. 3. The property, it was alleged, was to be used for the "breeding, hatching, propagation and conservation of wild birds or wild animals, and public hunting grounds; and a wildlife refuge." Named as defendants were Harold's Farm, Inc., the record owner, Mutual Life Insurance Company of New York, as holder of a mortgage on the property, and "unknown owners." Proper notice was given by petitioner. Subsequent thereto, defendant Garrow Gravel Service, Inc., appeared, claiming an interest in the subject property, and Garrow was added as a party-defendant.
Harold's Farm filed a motion to dismiss and traverse, later joined in by Garrow Gravel Service, which motion alleged, among other things, that the petitioner lacked the authority to take the land; that the petitioner was taking more land than it needed; and that the contemplated use was not for the purposes stated, but for a National Guard training area. A lengthy hearing followed, in which the court found that the petitioner had met its burden of showing its authority for the taking, the necessity of the taking, and a valid purpose for the taking, all in accordance with the Eminent Domain Act (Ill. Rev. Stat. 1973, ch. 47, par. 1 et seq.). The court entered its order so finding, and, in addition, it also found that the property would be used jointly by the petitioner, for the alleged purposes, and by the Military and Naval Departments of the State of Illinois (hereinafter referred to as "National Guard"). Specifically, the court found that the petitioner had authority to acquire the property for the purpose of exchanging it, under the joint use arrangement, for property held by the National Guard on the shore of Lake Michigan, which was to be converted to conservation purposes. Accordingly, the defendants' motion to dismiss and traverse was denied on August 11, 1975. No appeal was taken from that order. Lengthy discovery followed and also several trial continuances.
On December 20, 1976, Harold's Farm and Garrow Gravel Service filed a second motion to dismiss and traverse, which motion was later amended twice. It is from the order granting this second motion, with respect to Tract No. 3, that the present appeal arises. In that motion, in pertinent part, the defendants alleged (1) that the petitioner had no authority or authorization to take less than a fee simple interest in all the lands, specifically Tract No. 3, and (2) that all rights to Tract No. 3, including the coal and mineral rights, excluded in the petition, would have to be obtained by petitioner if the property were to be used by the National Guard as they contemplated using it, that is, as a firing range. An affidavit accompanying the second motion to dismiss and traverse stated that it had newly come to the defendants' attention that the petition excluded the coal and mineral rights, underlying Tract No. 3, from condemnation. Prior to this time, apparently, these parties had been proceeding as if a fee simple interest in all the property was being condemned. Objections interposed by the petitioner to the second motion, based upon res judicata and estoppel grounds, were overruled, and a new hearing was held.
The defendants presented extensive evidence at the hearing in support of their contention that the petitioner was not condemning all the land that it needed for the proposed uses of the property. That evidence disclosed that the National Guard planned to use part of the Marseilles Conservation Area as a rifle and pistol range. The plans for the firing range indicated that part of Tract No. 3 would be used for the range. The regulations which would govern such firing range operation were admitted into evidence and disclosed that if the land were to be used for a firing range, no unauthorized personnel would be permitted within the range area, including a broad "impact area" surrounding the actual firing range. It was the defense contention that this planned use by the National Guard would be incompatible with the exclusion from condemnation of the coal and mineral rights underlying Tract No. 3, since the mining and removal of coal or other minerals would presumably require personnel to be within the restricted range area.
The defense presented other evidence which purported to show that the Department's exclusion of coal and mineral rights was, in fact, an error occasioned originally by the title examiner who prepared the title commitment on the subject property at the request of the petitioner. Numerous exhibits were introduced and much testimony given concerning the state of title and ownership in the subject tract and its present uses. It is unnecessary to go into any detail as to that evidence since it is largely collateral to the question before us, addressing, as it does, principally, the question of the authority of petitioner to condemn less than the entire interests of defendants in Tract No. 3.
After the presentation of the evidence and arguments of counsel, the trial judge granted the motion to dismiss and traverse as to Tract No. 3. At the time of his ruling he stated:
"It seems to the Court and I am not intending by this ruling to say that the State must condemn a whole fee; I am simply saying that under the totality of the facts and circumstances of this case that the Court is of the opinion that the State must take the total fee and not take the surface rights separately from the mineral rights."
At that time he certified for review by interlocutory appeal the question before us:
"Whether the petitioner, considering the totality of the circumstances, has the authority to condemn less than the entire interests of ...