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Department of Transportation v. Mullen





Appeal from the Circuit Court of Livingston County; the Hon. Samuel G. Harrod III, Judge, presiding.


In this condemnation action brought by the Department of Transportation judgment was entered on the jury's verdict of $176,580 for the value of the land taken, 2.39 acres, and $107,000 for damage to the land remaining. The Department appeals, arguing that the amount of the award is attributable to the trial judge's erroneous evidentiary rulings. We agree that some of the rulings were in error and reverse and remand for a new trial.

The Department filed a petition December 2, 1976, to acquire five parcels of land in Livingston County to straighten and widen Illinois Route 23 (Federal Aid Route 24). Compensation for four of the five parcels was fixed by agreement; the fifth parcel, numbered "66," went to trial instead and is the subject of this appeal. Parcel 66 comprised two small tracts: (1) a strip 1,800 feet long and varying between 10 and 150 feet wide, 1.637 acres in all, lying along the eastern side of Route 23, which runs northwesterly through the area, and (2) .753-acre, concentrated mainly in a triangle, on the western side of Route 23 and across from the first tract. Parcel 66 was part of a 58.75-acre holding near Cornell, Illinois, owned by the 10 personal defendants, who are Hatzer family siblings and their spouses; Route 23 divided the property nearly in half. All or most of this land was leased to defendant Valley View Dirt and Gravel, Inc., a Hatzer family company. Valley View's lease was subject to a mineral lease between the Hatzer family and defendant Clow Corp. on land east of Route 23, where a shale pit was located; under a mining agreement Valley View removed the shale and delivered it to Clow's plant in Carol Stream, Illinois, for the production of clay pipe and tile. On the Hatzers' land west of Route 23 Valley View owned and operated a mobile home park.

Valley View, Clow, and the personal defendants filed cross-petitions to recover for damage to the remainder caused by taking the first tract, the one on the eastern side of Route 23; no cross-petitions were filed for damage caused by taking the second, western tract.

Several separate problems of valuation are evident. The eastern tract contained an earthern embankment that kept floodwaters from reaching the shale pit. Also, the effect of taking the eastern tract was to push back the existing setback line required for open pit mines, thus reducing the area that could be mined in the future. The western tract included part of the mobile home park. The questions raised on appeal concern the exclusion and admission of evidence on the value of the two tracts and on the damage to the remainder caused by taking the first tract. The Department argues that the trial judge erred in striking the testimony of one of its appraisal witnesses, Francis Gutschenritter, that the trial judge should have granted its motion to strike the testimony of the defendants' appraisal witness, Campbell Evans, and that the trial judge erred in not allowing it to unilaterally stipulate that it would not disturb the embankment on the eastern tract. The Department requests a new trial.

Before trial the Department filed a motion in limine to prevent the defendants from (1) introducing evidence on the profits that Valley View and Clow stood to lose as a result of taking tract 1, (2) using the income method of valuation for determining the value of the take, and (3) valuing the mineral — shale — separately from the fee. The motion was denied.

The trial began September 24, 1979. The Department's first witness, Herbert Voigts, the appraisal manager for the highway district in which the land in question is located, described the purpose and extent of the take. The jury then viewed the premises.

Wayne Kasza, an engineer from the highway district, testified that the embankment or dike on the eastern side of Route 23 had been enlarged since the Department filed its petition to condemn. The increase in size meant that part of the embankment would be included in tract 1; it would not have been affected had it remained in its former state.

Francis Gutschenritter, whose testimony was stricken on the defendants' motion, was a professional real estate appraiser. He had inspected the area of the take and had visited Clow's plant in Carol Stream. Gutschenritter testified that the highest and best use of the north part of the Hatzers' land east of Route 23 was the shale pit. The area south of this was a floodplain, useful only for recreation and wildlife. Gutschenritter believed that the highest and best use for the land west of Route 23 was the mobile home park. He also testified that the shale pit was consuming about one-quarter to one-half acre of surface area every year; 25 acres remained, and he estimated that the shale operation would last 25 to 100 more years.

Gutschenritter testified that the fair market value of the entire holding, 58.75 acres, on the date the Department filed its petition, December 2, 1976, was $176,250, that the value of the land remaining was $169,000, and that the value of the take was therefore $7,200. He did not believe that the take was damaging the land remaining. Gutschenritter based his appraisal on the state of the shale industry and on recent comparable sales of farmland in that township; the farmland had been sold for $4,000 to $4,500 an acre. He believed that the land being taken was inferior to farmland and assigned it a value of $3,000 per acre. Gutschenritter added $500 for the cost of moving a sign that stood on the western tract in the mobile home park. Therefore, total compensation should be $7,700.

Defense counsel moved to strike Gutschenritter's testimony because he had mentioned several uses for the land — the shale pit, recreation and wildlife, and the mobile home park — yet had based his appraisal on sales of farmland. The trial judge granted the motion and instructed the jury to ignore the testimony.

The Department then examined James Johnson, Clow's plant manager at Carol Stream, as an adverse agent under section 2-1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-1102). Johnson explained that shale is used in making clay sewer pipes. Clow's demand for shale was enlarging the pit on the Hatzers' land by about five-eighths acre a year; Clow used 58,000 tons from the pit in 1976.

Herbert Voigts then testified for the Department again. Voigts did appraisals privately in his off-duty hours; he testified that the entire property was worth $250,000 as of December 2, 1976, that the value of the remainder, after the take, was $240,000, and that the value of the take was therefore $10,000. The highest and best uses of the land were the current, commercial uses. The Department then rested.

Richard Hatzer, one of the defendants, testified about the general operations of the shale pit and the mobile home park. He explained that the State's mining rules and regulations require setbacks from highway rights-of-way: the setback must be 10 feet plus 1 1/2 times the depth of the pit. The shale pit was 80 feet deep and therefore required a setback of 130 feet. The tract being taken on the eastern side of Route 23 lay entirely on the area of the current setback. The condemnation will push back the existing setback line, however, preventing mining in an area that could otherwise have been mined. Also, that tract contained an embankment 900 feet long that kept floodwaters out of the shale pit.

Hatzer said that they had changed the embankment since 1976 only by raising it a foot or two in some areas and that the cost of building a new one would be $165,400. He also testified that the shale pit will eventually consume the southern land that the Department classified as a floodplain.

John Duffy, general superintendent of Trico Paving Company, testified that the embankment will be lost in the take and that a new one will have to be built, which will cost $200,910.

David Schmelig, a consulting engineer, testified that the new setback required after the eastern tract is taken will cost the Hatzers 40,351 square feet of surface area, slightly less than an acre.

Robert Morse, a geotechnical engineer and engineering geologist, interpreted the logs of borings that an engineering firm had made in this vicinity. The logs showed a thick layer of shale lying between 17 and 74 feet from the surface, interrupted only by a thin seam of coal .8 foot thick, leaving a 56.2-foot layer of shale. Morse then subtracted a foot from this for waste, leaving 55.2 feet of recoverable shale. Morse computed that the new setback area of 40,351 square feet covered 82,505 cubic yards of shale, or 183,574 tons — one ...

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