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Commonwealth Edison Co. v. Danekas

ORIGINAL OPINION FILED FEBRUARY 11, 1982.

COMMONWEALTH EDISON COMPANY, PETITIONER-APPELLEE,

v.

HERMAN F. DANEKAS ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Ogle County; the Hon. F. LAWRENCE LENZ, Judge, presiding.

JUSTICE VAN DEUSEN DELIVERED THE OPINION OF THE COURT:

Rehearing allowed February 23, 1982.

In this action by Commonwealth Edison Company under the Illinois Eminent Domain Act (Ill. Rev. Stat. 1979, ch. 47, par. 1 et seq.) to acquire perpetual easement rights in certain portions of a farm owned by Herman and Dora Danekas and to determine just compensation to be paid to defendants for such rights, a jury verdict was returned in the amount of $50,000 for the easement. A special verdict found no damage to the remainder. Defendant property owners appeal the judgment entered on this verdict.

On August 13, 1979, Commonwealth Edison Company (hereinafter Edison) filed a petition which in substance sought to condemn a perpetual easement in, on, over, along, across and through defendants' property with rights of ingress and egress for the construction, operation and maintenance of a 345,000 volt (345 kv) electric transmission line together with any appurtenances and facilities necessary for the operation and maintenance thereof.

Edison had previously acquired a 150-foot-wide by 6,500-foot-long easement (hereinafter original easement) for a single electric transmission line, with five electric transmission towers, in 1972. The petition in the instant case was for the acquisition of an additional 100-foot width of easement adjoining the original easement along its northerly boundary. Edison's exhibit B shows that the original easement and the additional easement at issue in the instant case comprise a 250-foot-wide band traversing part of a 681-acre farm owned by defendants Herman and Dora Danekas (hereinafter Danekas).

On September 26, 1979, Danekas filed a cross-petition alleging damage to the remainder of the property as a result of the taking and requesting assessment of damages to the remainder in the same proceedings.

Edison's authority to acquire the easement was not contested in the proceedings; however, the issue of just compensation was contested. The jury award of $50,000 for the easement rights was very near the maximum estimate of damages offered at trial. These estimates ranged from Edison's witnesses' low estimate of $22,735 with no damage to the remainder to Danekas' witnesses' high estimate of $56,000 with damage to the remainder in the amount of $246,000.

On July 12, 1978, which was prior to Edison's filing its condemnation petition in the instant case, the Illinois Commerce Commission had granted Edison a certificate of convenience and necessity for construction, operation and maintenance of a 345 kv electric transmission line and related facilities and repairs. Edison's trial exhibits all show Edison's plan to construct a single electric transmission line, with eight single-shafted pole structures located approximately 900 feet apart. No wires would be closer than 29 feet above ground level. Edison's evaluation witnesses based their evaluations on the limited use of the easement for a single electric transmission line, and each of these witnesses concluded that the remainder of the Danekas property was not damaged by the taking on the basis that the easement was limited to a single electric transmission line. In his opening statement and in his closing argument to the jury, Edison's trial counsel verbally assured the jury that the easement would be limited to a single electric transmission line with eight ground structures.

Thirty-eight photographs showing the land and the existing transmission line easement a few months before trial were introduced into evidence at trial, and a photo of the single-shaft structure was also admitted. Also Edison's exhibits A and B, a large aerial photo and a large plat showing the original easement strip as well as the new 100-foot proposed easement strip adjacent to the old easement, were shown to the jury. All of these items were allowed in the jury room during deliberations.

At the close of its case, Edison was permitted to read to the jury a "Unilateral Stipulation" in which Edison agreed to remain within the boundaries of its easement at all times, to restore the easement area after disturbance by Edison and to pay for any present and future crop damage as a result of Edison's activities upon the easement.

After instructions, the jury deliberated and returned its verdict in the amount of $50,000 compensation for the new easement strip and found no damage to the remainder. Additionally, the jury answered a special interrogatory on the issue of damages to the remainder, the land outside the strip. The special findings were consistent with the general verdict.

The trial court entered a final judgment order granting Edison a perpetual easement in, on, over, along, across, and through the tract of land in question along with the right of ingress and egress therefrom "for the construction, operation and maintenance of a 345 kv electrical transmission line together with such additions, extensions, repairs, renewals, or improvements to changes and such electrical transmission lines which are, or may become, reasonably necessary," the right to assign Edison's easement rights to other authorized public utilities where "required by public convenience and necessity" and the authority to enter on the easement and use the property in accordance with the easement rights set out in the condemnation petition and the judgment order.

On appeal, Danekas asserts that the issue of just compensation for damage to the remainder was not properly put before the jury. Defendants claim that Edison acquired very broad and extensive easement rights, while the evidence put to the jury and the relevant instructions all concerned a much narrower and more limited easement. Therefore, Danekas requests this court to reverse the judgment and remand the cause to the lower court on the issue of just compensation.

• 1 Danekas first alleges that the trial court erred in allowing Edison's evidence at trial because that evidence was at variance with the easement rights set forth in the petition for condemnation. Specifically, they contend that Edison received broadly described easement rights which were not limited to a single electric transmission line, while Edison's evidence led the jury to believe that the easement was limited to a single line. Clearly, as Danekas asserts, a landowner is entitled to recover all of his damages caused by the taking of land from him by condemnation as well as that which may arise on account of construction and future operation by the condemnor upon the land taken. (McReynolds v. City of West Frankfort (1954), 3 Ill. App.2d ...


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