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Dept of Transp. v. Toledo





Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Peoria County, the Hon. Robert E. Hunt, Judge, presiding.


Rehearing denied May 30, 1979.

Petitioner, the Illinois Department of Transportation, formerly the Department of Public Works and Buildings, filed an action in the circuit court of Peoria County to condemn 42.6 acres of land owned by respondent, Toledo, Peoria & Western Railroad Company. Petitioner moved that it be immediately vested with fee simple title (Ill. Rev. Stat. 1971, ch. 47, par. 2.1 et seq.), the court made a preliminary finding of just compensation, and funds in the required amount were deposited by petitioner and withdrawn by respondent. Subsequently, petitioner filed a motion in limine to exclude certain evidence at the trial to determine just compensation. The circuit court denied the motion and included in its order the findings requisite to an application for leave to appeal. (Supreme Court Rule 308 (58 Ill.2d R. 308).) The appellate court allowed petitioner's application for leave to appeal and reversed the order of the circuit court (59 Ill. App.3d 886). We allowed respondent's petition for leave to appeal.

In stating the issues presented, and announcing its rulings, the circuit court said:

"It is apparent from the pleadings and the evidence taken at the `quick take' hearing that the plans for Interstate By-Pass 474 called for a bridge across the Illinois River and across some lowlands near the property subject to this Petition for Condemnation. After the bridge was partially constructed, contracts were let to obtain fill material for a dike road inasmuch as a portion of the land is subject to flooding. In connection with these contracts, a subcontractor did purchase from the defendant, Toledo, Peoria & Western Railroad, certain quantities of fill material from the area presently subject to this condemnation suit at an arm's length contract on the open market for 12 cents per cubic yard. Thereafter the state sought to condemn the subject property and filed this Petition, the only use to be made of the property being the extraction of fill material for the nearby right-of-way roadbed.

It is the ruling of this Court that the proper measure of damages to be submitted to the jury is the value of the land including the mineral content thereof; that the jury is entitled to know that the sole purpose of acquiring the land was to obtain minerals; that there had previously been a contract arrived at an arm's length by subcontractor for these minerals for this purpose a short period prior to the filing of this Petition, because each of these facts would have been considered by a willing buyer and a willing seller in determining what market price might be established for this property at the time of the filing of the Petition for Condemnation."

The circuit court certified the following questions for interlocutory appeal:

"In determining the amount of damages for land taken, where the purpose of the taking is not for right of way but solely to acquire fill from nearby land:

(a) Is the proper measure of damages the value of the land, considering but not limited to the value of the fill material to be extracted?

(b) May evidence be introduced that the improvement is creating a `one time' market for the fill material which a willing buyer and seller would consider in arriving at a fair cash market value at the time of the filing of the petition?

(c) May the fact be shown that in the earlier stages of the improvement a contractor in an arm's length purchase paid to owner $.12 per cubic yard for fill material for the improvement?

(d) May the actual amount of fill material taken after a `quick take' and before trial be admitted into evidence?"

The appellate court held that the land taken was to be valued at its fair cash market value, as a whole, for its highest and best use; that the land included all the minerals, improvements and appurtenances connected therewith, all of which may be considered as factors in the determination of the fair cash market value "but under no circumstances is the fair cash market value to be the sum of such factors." (59 ...

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