Appeal from the Circuit Court of Sangamon County; the Hon.
Richard J. Cadagin, Judge, presiding.
JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
Plaintiffs James R. Grady and Ruth H. Grady, as assignees of the original plaintiff, Inn of the Lamplighter, Inc., appeal from an order of the circuit court of Sangamon County striking their complaint for the issuance of a writ of mandamus against the defendants. The writ was sought to compel the defendants to bring an action in eminent domain to compensate the plaintiffs for their alleged loss of access to their property. This has sometimes been referred to as "inverse condemnation."
Plaintiffs owned approximately 8.7 acres of land south of Springfield on what was U.S. Route 66 and afterwards Interstate Route 55. A resort motel complex was operated on the premises.
In 1948 and 1951, when Route 66 was being constructed in the area, plaintiffs' predecessors in title dedicated two portions of land for that purpose. The 1948 document provides:
"Reasonable outlet from the grantor's abutting property will be permitted, but only via a service drive to be constructed on the outside portion of the adjacent highway right of way. The service drive will not connect with the main highway traffic lanes except at the South line of the said NW 1/4, Sec. 34, and at a point 7980 ft. N. thereof."
The 1951 dedication contains similar language as follows:
"Reasonable outlet from the grantor's abutting property will be permitted, but only via a service drive to be constructed on the outside portion of the adjacent highway right of way. The service drive will not connect with the main highway traffic lanes except at the North line of the said Northeast Quarter, Southwest Quarter, Section 34 (Station 245펟)."
The right of access reserved in these dedications was located at the intersection of U.S. 66 and what is commonly known as Hoechester Road. It thus appears that one wishing to get to the motel would turn off U.S. 66 onto Hoechester Road, and thence onto the frontage road to the premises.
In 1970, apparently as part of the upgrading of U.S. 66 to interstate standards, defendants' predecessors in office caused Hoechester Road to be blocked off. Plaintiffs alleged that this caused them to close the motel, at a substantial financial loss. It is admitted that no compensation was paid for the closing of Hoechester Road.
In 1974 plaintiffs filed the instant suit seeking to compel the defendants to institute condemnation proceedings so that compensation could be paid to plaintiffs for their loss of access to their property. The trial court denied defendants' motion to dismiss and they then answered. Later, defendants filed a motion to reconsider based upon a decision of the supreme court in Granite City Moose Lodge No. 272 v. Kramer (1983), 96 Ill.2d 265, 449 N.E.2d 852. The trial court then held that under this authority it was without jurisdiction and dismissed the suit. While it is not specifically articulated in the trial court's order, the inference is that plaintiffs' remedy is for damages in the Illinois Court of Claims. We believe that the trial court has misread the Granite City case, and we reverse and remand.
Since it is admitted that no part of plaintiffs' land was taken by the State, the precise question becomes: Under what circumstances may a property owner force the State to bring a condemnation action when his property has been only damaged? The answer lies in a close examination of the interplay among certain constitutional provisions, both under the 1970 and 1870 organic documents, their statutory implementation, and decisions of the supreme court on the subject.
The 1970 Illinois Constitution, like its 1870 predecessor, provides that private property shall not be taken or damaged for public use without just compensation (Ill. Const. 1970, art. I, sec. 15). The same section provides that such compensation shall be determined by a jury. The 1970 Constitution also provides, "Except as the General Assembly may provide by law, sovereign immunity in this State is abolished." (Ill. Const. 1970, art. XIII, sec. 4.) This represents a radical departure from the prior provision: "The State of Illinois shall never be made defendant in any court of law or equity." Ill. Const. 1870, art. IV, sec. 26.
In reaction to the 1970 provision, the General Assembly passed Public Act 77-1776, effective January 1, 1972, providing that except as provided in the Court of Claims Act, the State should not be made a defendant or a party in any court. Ill. Rev. Stat. 1973, ch. 127, par. 801.
The Illinois Court of Claims has existed for many years; its function has been to ameliorate the harsh provisions of sovereign immunity, especially under the 1870 Constitution. Prior to 1945, its jurisdiction, as defined by the General Assembly, was largely confined to actions against the State sounding in contract and tort. In 1945 there was a broadening of its jurisdiction to include "[a]ll claims against the state founded upon any law of the State of Illinois * * *." (Ill. Rev. Stat. 1983, ch. 37, par. 439.8(a).) This appears to be an effort to overcome two decisions by the supreme court, ...