APPEAL from the Circuit Court of Du Page County; the Hon.
BRUCE R. FAWELL, Judge, presiding.
MR. JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:
In April 1970, the Department of Public Works and Buildings, now the Department of Transportation (Department), filed a petition to condemn 9.828 acres of a 235-acre tract owned by the Franciscans in Oak Brook, Illinois. The land which the Department sought to condemn was needed to complete a reconstruction project for Route 83 in the area of the Franciscan property. The Franciscan property is bounded by 31st Street on the north, 35th Street on the south, Route 83 on the east and Midwest Road on the west. Thereafter, the Department filed a motion for immediate vesting of title, and the Franciscans filed a traverse and motion to dismiss. The Du Page County circuit court granted the Department's motion for immediate vesting of title and denied the Franciscans' traverse and motion to dismiss. The court found the preliminary just compensation to be $196,500 and granted the Franciscans leave to file a cross-petition for damage to the remainder. On July 10, 1970, the Franciscans filed a cross-petition for damage to the remainder and a notice of appeal from the "quick-take" proceedings. On January 24, 1972, the appellate court dismissed the appeal. 3 Ill. App.3d 503, 278 N.E.2d 111.
In March 1972, the Department filed a petition to condemn the Franciscans' access rights along Route 83. The trial court originally consolidated the two petitions for trial but subsequently vacated that order. The original condemnation suit proceeded to trial on December 4, 1972, and judgment was entered on the jury verdict of $196,560 for the 9.828 acres taken and $22,575 for damage to the remainder. The Franciscans appealed and this court reversed and remanded (44 Ill. App.3d 49, 360 N.E.2d 70), finding that the trial court erred in instructing the jury on the issue of the reasonable probability of rezoning. The Illinois Supreme Court affirmed the appellate court. 69 Ill.2d 308, 371 N.E.2d 616.
On October 23, 1978, the trial court entered an order dismissing the 1972 access rights case and, finding that the Department could have chosen to litigate the access rights issue under the original petition by virtue of the Franciscans' cross-petition for damage to the remainder, ruled that evidence regarding compensation for loss of access rights would be allowed as relevant to the issue of damage to the remainder on retrial. Thereafter, the Department filed a demand for a bill of particulars relating to damages to the remainder. The Franciscans were ordered to respond to the bill of particulars and in their answer specified that their claim of damage to the remainder was based on loss of direct access to Route 83 and 31st Street.
At the second trial, which the present appeal concerns, the Franciscans presented testimony from several appraisal witnesses and land planners. The testimony of those witnesses was reasonably consistent in concluding that the highest and best use of the Franciscan property was a commercial area in the northeast corner of the property with the balance consisting of a mix of residential uses. The valuations of the Franciscans' witnesses ranged from $635,000 to $856,000 on the 9.828 acres taken and from $200,000 to $750,000 on the damage to the remainder. The Department's witnesses testified that the highest and best use of the subject property was residential and their valuations ranged from $157,248 to $191,650 on the part taken with no damages to the remainder. The jury awarded the Franciscans $200,000 as compensation for the land taken but awarded nothing for damage to the remainder. Judgment was entered on the verdict, and from this the Franciscans pursued this appeal.
These issues are presented for review:
(1) Whether the trial court erred in permitting the question of access rights to be litigated in this action;
(2) Whether the trial court erred in refusing to rule as a matter of law that there was an actionable taking or material impairment of access entitling the Franciscans to compensation;
(3) Whether the jury was properly instructed;
(4) Whether the trial court abused its discretion in ruling on comparable sales;
(5) Whether the Franciscans were entitled to compensation for 18.086 acres of land taken rather than 9.828 acres;
(6) Whether the trial court erred in its rulings relating to the testimony of witnesses.
The Franciscans set forth the following argument: The original petition to condemn filed in 1970 did not seek to condemn access rights to Route 83, but only sought to condemn the land itself and only with the filing of the 1972 suit did the Department explicitly seek condemnation of the Franciscans' access rights. When the trial court permitted the Department to acquire the access rights on retrial of the 1970 suit without a refiling of the access rights case and without an amendment to the pleadings in the 1970 case, the Department, in effect, was able to acquire those rights at a valuation date more than 2 years prior to the date it first sought to obtain them. Further, the Franciscans argue that the action of the trial court in permitting the issue of access rights to be litigated in the 1970 case is not supported by the earlier decisions in this case. For example, in reviewing the first trial in this case, the court said:
"While the trial court originally ordered these two actions consolidated, he later vacated this order and ordered that the two cases be tried separately. Thus, it would appear that the value of the lost access rights was not properly before the jury ...