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City of Freeport v. Fullerton Lumber Co.

OPINION FILED MAY 28, 1981.

THE CITY OF FREEPORT, PLAINTIFF-APPELLEE,

v.

FULLERTON LUMBER COMPANY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Stephenson County; the Hon. FRANCIS X. MAHONEY, Judge, presiding.

MR. JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:

Rehearing denied August 11, 1981.

This is an appeal by the defendant Fullerton Lumber Co. (hereinafter referred to as Fullerton) from a condemnation proceeding brought by the City of Freeport. An ordinance passed by the City of Freeport (hereinafter referred to as City) authorized the acquisition of title to certain real estate in order to accommodate the widening and improvement of Armstrong Avenue. A portion of said real estate (.3547 acre) was owned by Fullerton.

At the first part of the proceeding, Fullerton filed a motion to dismiss and traverse, contesting the City's right to condemn. They urged that the City had failed to show the necessity for the taking and that there was vacant land nearby that would be a more reasonable alternative. This motion was denied by the trial court.

A newspaper article in the Freeport Journal Standard was published prior to trial, and this article gave various appraisal figures obtained from counsel for the City. This article formed the basis for Fullerton's petition for a change of venue, in which it was urged that Fullerton would be unable to receive a fair trial in Stephenson County. Fullerton argued that the newspaper article prejudiced the inhabitants of the county. Fullerton's petition for a change of venue was denied.

While the previous motions were heard by the court, a jury heard the second portion of the proceedings, and testimony was considered by the jury to determine the value of the property taken and the amount of damage to the remainder. This testimony ranged between $6955 to $8260 for the value of the land taken, and $0 to $39,145 for damage to the remainder. The jury returned a verdict in the amount of $7500 for the land taken and $18,600 to compensate Fullerton for the damage to the remainder.

The property taken consisted of an area that Fullerton had been using for access to their loading docks and for a parking lot. Witnesses for Fullerton testified as to the problems that trucks would have in reaching the loading area, drainage problems and fewer parking places that would result from the improvement.

Fullerton presents six issues for review. It is alleged that the trial court erred, first, in denying Fullerton's motion to dismiss and traverse; second, in denying Fullerton's petition for a change of venue; third, in ruling on the admissibility of evidence concerning the costs of rehabilitation; fourth, in striking the complete testimony of the owner of the property; fifth, in making statements which prejudiced the jury; and sixth, in denying Fullerton's motion for a new trial and for an injunction.

Fullerton's motion to dismiss and traverse alleged that the City had failed to show that the Fullerton property was necessary for the construction or improvement of a public road. Citing Trustees of Schools v. First National Bank (1971), 49 Ill.2d 408, 274 N.E.2d 56, they contend that if the property owner contests the petitioner's right to condemn by traverse, the burden is on the petitioner to maintain his right to condemn by proper proof. Defendant Fullerton argues that the City failed to sustain its burden of proving the necessity for the taking. However, closer inspection of the cited case reveals that the City followed the proper procedure.

"Defendant is correct in his assertion that the burden of proof on the issue of necessity is upon the petitioner. [Citation.] However, where a resolution of the governing body which makes the finding of necessity is introduced into evidence a prima facie case is made. It is then the duty of the defendant to go forward with evidence in support of his contention that there was an abuse of discretion by the governing body. [Citations.]" Trustees of Schools v. First National Bank (1971), 49 Ill.2d 408, 414, 274 N.E.2d 56.

• 1 Therefore, a prima facie case was made to show the necessity of the taking when the ordinance of the City was admitted into evidence (as Exhibit No. 1). At no time has Fullerton indicated that there was an abuse of discretion by the City. Rather, they argue that a different engineering design could have made the improvement by taking vacant, less valuable land.

• 2, 3 Defendant Fullerton's witness, an engineer, gave an alternative realignment of the roadway that would have used property other than that owned by defendant. The fact that an alternative route could have been chosen does not indicate that the City abused its power by selecting the route that it did. The courts> do not deny the right to condemn on the ground that the exercise of the power is unnecessary or not expedient. (City of Chicago v. Vaccarro (1951), 408 Ill. 587, 97 N.E.2d 766.) Defendants failed to sustain their traverse, and the trial court properly denied the motion to dismiss.

The second issue raised by Fullerton in this case concerns its petition for a change of venue. A newspaper article published in the Freeport Journal Standard contained quotes from the City's counsel giving various appraisal figures for the property which is the subject of this case. The petition was supported by affidavits of two employees of Fullerton stating that it was their belief that Fullerton would not receive a fair trial in Stephenson County because the article had prejudiced the inhabitants of the county.

Section 4 of the Venue Act (Ill. Rev. Stat. 1975, ch. 146, par. 4, now found in Ill. Rev. Stat. 1979, ch. 110, par. 504), provides that the judge, at his discretion, may grant or deny a motion based on prejudice of the inhabitants of a county. While a change of venue may be an absolute right when assignment of a different judge is sought, a different standard exists when the petition alleges ...


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