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Lawless v. Pierce

OPINION FILED SEPTEMBER 6, 1983.

LAWRENCE LAWLESS, PLAINTIFF-APPELLANT,

v.

ROBERT PIERCE ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. Myron T. Gomberg, Judge, presiding.

PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Plaintiff, Lawrence Lawless, brought this action against defendants Pierce, Notarus, Meredith and Henize — individually and as agents of defendants villages of Park Forest and Park Forest South — defendants Kaganove, Marzuki and Schwartz — individually and as agents for the not-for-profit corporation defendant Thorn Creek Preservation Association — and defendants Mendelson and Warren — individually and as agents for Governors State University and Illinois Department of Conservation. The facts, as well as a history of the previous litigation in this case, will be briefly summarized.

The property which is the subject of this lawsuit is a four-acre tract of land situated in an unincorporated area between the villages of Park Forest and Park Forest South in Will County. In 1962, plaintiff became owner of the land which was improved with a residence, garages and out buildings, and contained a one-acre pond. In 1969, the Thorn Creek Preservation Association (the Association) was chartered to seek acquisition of Thorn Creek Woods, a 800-acre tract of wooded land to which plaintiff's land abutted. A "Joint Management Committee for Thorn Creek Woods" was established and the Association, Governors State University and the individuals named in this lawsuit were appointed to it.

In 1972, the Illinois Department of Conservation notified plaintiff that it intended to purchase his property as part of an overall plan to develop Thorn Creek Woods Nature Preserve. Between January 1976 and March 1978, unsuccessful negotiations took place between plaintiff and the Department and, on January 31, 1978, the Department notified plaintiff of its intent to take his property by eminent domain. Those proceedings were not initiated at that time, however.

Plaintiff's amended complaint alleges that on June 4, 1978, defendants, jointly and severally, sponsored, advertised and invited approximately 1,000 members of the public to a public dedication ceremony of the area, including plaintiff's private property, as a nature preserve. Plaintiff alleges that his property was portrayed as public, his residence as an interpretive center, his private land as public picnic grounds and parking areas, and that public nature walks were displayed throughout his property.

On June 27, 1978, plaintiff sought a writ of mandamus against the Department to compel condemnation of his property. A default judgment was granted against the Department on August 9, 1978. An eminent domain proceeding was initiated when the Department filed a petition to condemn on July 28, 1978. Plaintiff was awarded the sum of $180,000 by a jury in the condemnation action as compensation for the taking of his property from the date of the "taking" (which was the date of dedication), June 4, 1978. Thereupon, the Department appealed from the mandamus judgment, and plaintiff appealed from the trial court's denial of his plea for certain fees and costs. The third district of this court, in Department of Conservation v. Lawless (1981), 100 Ill. App.3d 74, 426 N.E.2d 545, appeal denied (1982), 88 Ill.2d 550, affirmed the judgment in the mandamus action and vacated the eminent domain judgment as to the amount of judgment. The cause was remanded to reconsider the question of reasonable attorney fees and other costs.

In the present action, *fn1 plaintiff filed a four-count amended complaint which alleged that: from June 4, 1978, the date of the public dedication, until January 28, 1981, the date the State paid the compensation award, defendants portrayed and represented his property to be public, and induced and invited members of the public to commit acts of trespass; defendants' actions were wilful thereby warranting punitive damages; defendants violated the Illinois Antitrust Act (Ill. Rev. Stat. 1979, ch. 38, par. 60-3(2)); and defendants committed common law conspiracy.

Defendants filed motions to dismiss plaintiff's complaint. (Ill. Rev. Stat. 1979, ch. 110, pars. 45, 48.) The trial court granted this motion, ruling that plaintiff's causes of action were barred by the doctrine of election of remedies, and that plaintiff's cause of action for conspiracy in violation of the antitrust statute could not be sustained because no restraint of trade was shown. Plaintiff now appeals from the order entered by the court dismissing his complaint.

I

Plaintiff strongly urges that the trial court's dismissal of his complaint be reversed in order that he receive compensation for the taking of his property as guaranteed by the United States and Illinois constitutions. (U.S. Const., amend. V; Ill. Const. 1970, art. I, sec. 15.) Plaintiff acknowledges that although he has already taken proper action against the Department of Conservation, which is not a defendant here, the only recourse available to him against the instant defendants is an action in trespass for damages.

The third district of this court held that the date of "taking" of plaintiff's property was June 4, 1978, the date of the public dedication. *fn2 In addition, it was judicially established that plaintiff retained actual possession of the property between June 4, 1978, and the date of the condemnation verdict of June 26, 1980. (Department of Conservation v. Lawless (1981), 100 Ill. App.3d 74, 79.) The court also affirmed the Will County trial court's denial of plaintiff's claim for statutory interest from June 4, 1978, the date of "taking," together with mortgage interest plaintiff owed on the subject property from June 4, 1978, to June 26, 1980. In the present action, plaintiff theorizes that because he retained exclusive possession of the property from June 4, 1978, until the date the condemnation award was paid, he should be compensated for the wrongful acts of entry upon his land during this period.

• 1 Plaintiff argues that, contrary to the trial court's ruling in the instant case, his action is not barred under the doctrine of election of remedies. In accordance with that principle, when a party pursues one remedy which is inconsistent with other possible remedies to the extent that to follow one is to renounce the other, the satisfaction of the chosen remedy acts as a bar to the others. Casati v. Aero Marine Management Co. (1980), 90 Ill. App.3d 530, 536-37, 413 N.E.2d 122.

Plaintiff contends that the doctrine of election of remedies does not bar an action for trespass which antedates condemnation. The case upon which plaintiff heavily relies for support is Wehrum v. Village of Lincolnwood (1968), 91 Ill. App.2d 418, 235 N.E.2d 343, appeal denied (1968), 38 Ill.2d 630. In that case, the local municipality had converted plaintiffs' private property into a playground in 1960, but the condemnation proceedings were not instituted until 1965. As a result of those proceedings, plaintiffs received an award which determined the value of their property as of 1965. Wehrum sought damages for the condemnor's tortious acts of trespass upon the land for the period between 1960 and 1965. The appellate court concluded that as the only issue litigated in the condemnation action was the value of the land as of the date the petition to condemn was filed (1965), plaintiffs' action for damages, which were incurred prior to this date, was not barred by the doctrine of res judicata. See Wehrum v. Village of Lincolnwood (1968), 91 Ill. App.2d 418, 420-21, 235 N.E.2d 343.

A review of eminent domain law in Illinois reveals that traditionally, and as provided for statutorily, the date of valuation in a condemnation suit is the date of the filing of the petition to condemn. (Ill. Rev. Stat. 1979, ch. 47, par. 9.7; Trustees of Schools v. First National Bank (1971), 49 Ill.2d 408, 411, 274 N.E.2d 56.) It has been recognized, however, that this valuation date may work an injustice in a case where the property owner initiated inverse condemnation proceedings after a governmental entity had already taken the party's property. Department of Transportation v. Shaw (1976), 36 Ill. App.3d 972, 982-83, 345 N.E.2d 153, rev'd in part (1977), 68 Ill.2d 342, 351, 369 N.E.2d 884, where the supreme court held that where there was no actual ...


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