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Dept. of Transportation v. Mc Govern





APPEAL from the Circuit Court of Madison County; the Hon. CLAYTON WILLIAMS, Judge, presiding. JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:

This is an interlocutory appeal from a ruling of the circuit court of Madison County entered in a condemnation proceeding instituted by petitioner, the Department of Transportation of the State of Illinois, in which respondents, Henry Ross and Henry Ross Construction Company, Inc., filed a cross-petition for damages. The Department's motion to dismiss such cross-petition was denied, and this court granted the Department's petition for leave to appeal from that ruling.

On appeal the Department contends that: (1) the cross-petition failed to state a cause of action; (2) cross-petitioners were without standing to pursue the claims set forth in the cross-petition; and (3) assuming cross-petitioners have both a cause of action and standing, the Illinois Court of Claims and not the circuit court is the proper forum for that cause of action.

The first two of these contentions apparently raise issues not yet considered by Illinois courts> of review; however, it is not necessary for this court to address them in view of our conclusion that the cause must be reversed upon the Department's third contention.

The record establishes that the Department in the case at bar sought to condemn a parcel of real estate which is a portion of a larger tract of land which cross-petitioners had obtained an option to purchase prior to April of 1976 for the purpose of developing and erecting a shopping center. In their cross-petition, respondents allege that they requested that the Department issue a driveway permit for access to a presently existing highway but that by letter dated April 30, 1976, the Department notified them that the land was needed by it for future development. It is further alleged that by letter to cross-petitioners and the owners of the parcel dated June 10, 1976, the Department stated:

"You are hereby notified that the department, at this time, does not intend to acquire the needed right of way * * *."

According to the allegations of the cross-petition, respondents thereafter procured surveys, engineering data, tentative plans and other necessary information and studies preliminary to their development of the real estate. The amended cross-petition further avers that respondents, in reliance upon the June 10, 1976, letter, proceeded with their shopping center plans, making substantial expenditures for engineering data, drawings, estimates, consultations, and virtually all of the preliminary work necessary for sending out invitations for bids to develop the project. According to the cross-petition, after additional written and oral declarations by the Department of its lack of interest or intent to condemn, the Department, by letter dated February 25, 1977, rescinded its letter of June 10, 1976, and again declared an intent to take the property in question.

Respondents allege that the Department failed to comply with section 4-510 of the Illinois Highway Code (Ill. Rev. Stat. 1979, ch. 121, par. 4-510). They sought damages alleged to have resulted from their failure to exercise their option to purchase the real estate in question after expending large sums in reliance upon the Department's representation that it did not intend to acquire the land in question.

Section 4-510 of the Code provides in part as follows:

"* * *[N]o one shall incur development costs or place improvements in, upon or under the land involved * * * without first giving 60 days notice by registered mail to the Department. * * * The Department shall have 45 days after receipt of that notice to inform the owner of the Department's intention to acquire the land involved; after which, it shall have the additional time of 120 days to acquire such land by purchase or to initiate action to acquire said land through the exercise of the right of eminent domain. When the right of way is acquired by the State no damages shall be allowed for any construction, alteration or addition in violation of this Section unless the Department has failed to acquire the land by purchase or has abandoned an eminent domain proceeding initiated pursuant to the provisions of this paragraph." Ill. Rev. Stat. 1979, ch. 121, par. 4-510.

The parties concede that cross-petitioners never exercised their option to purchase the real estate which is the subject matter of this dispute. However, respondents urge that their claim is not for compensation for the taking of a property interest, compensable in eminent domain proceedings; instead, they emphasize that they seek damages resulting from the Department's failure properly to comply with section 4-510 of the Illinois Highway Code. The Department maintains that pursuant to the Court of Claims Act, cross-petitioners' claims were under the exclusive jurisdiction of the court of claims.

The Court of Claims Act provides in pertinent part as follows:

"The court shall have exclusive jurisdiction to hear and determine the following matters:

(a) All claims against the State founded upon any law of the State of Illinois, or upon any regulation thereunder by an executive or administrative officer or agency * * *.

(d) All claims against the State for damages in cases sounding in tort, if a like cause of action would lie against a private person or corporation in a civil suit * * ...

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