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03/31/87 Lake County Forest v. the First National Bank of

March 31, 1987

LAKE COUNTY FOREST PRESERVE DISTRICT, PLAINTIFF-APPELLANT

v.

THE FIRST NATIONAL BANK OF WAUKEGAN ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

506 N.E.2d 424, 154 Ill. App. 3d 45, 106 Ill. Dec. 717 1987.IL.413

Appeal from the Circuit Court of Lake County; the Hon. Fred A. Geiger, Judge, presiding.

APPELLATE Judges:

JUSTICE HOPF delivered the opinion of the court. UNVERZAGT and DUNN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HOPF

This is an action in eminent domain. Plaintiff, the Lake County Forest Preserve District, appeals from a trial court order dismissing its petition to condemn certain real estate belonging to defendant landowners. Plaintiff asserts that the trial court order should be overturned because (1) the defendants' traverse and motion to dismiss were not timely filed, (2) the trial court erroneously admitted certain testimony offered by defendants, (3) the trial court erred in refusing to admit plaintiff's master plan, and (4) the trial court's ruling is contrary to law and the manifest weight of the evidence.

Over a period of approximately 15 years prior to this suit the plaintiff, Lake County Forest Preserve District (the District), had been acquiring land for an urban forest preserve (Greenbelt Forest Preserve). The land, located in the cities of Waukegan and North Chicago, was the subject of numerous condemnation suits. Defendants (the Drobnicks) were parties in over 20 of those suits. By the time the instant suit was being litigated, the District had acquired over 500 acres for the forest preserve and developed it with trails, a lake, and picnic facilities. The land which is the subject of this suit, approximately 3.08 acres, was one of the last parcels to be acquired for the Greenbelt Forest Preserve.

In 1983 the District passed a resolution determining that the Drobnicks' property was necessary for forest preserve and other purposes and providing for its acquisition. While the evidence is not altogether clear as to what transpired between the District and defendants regarding the purchase of the property, it is evident that at least some Discussions and/or negotiations ensued. Since the parties were unable to reach agreement, the District filed a condemnation petition in August 1984. The case was set for trial on August 26, 1985. After numerous continuances the parties were given a final continuance to March 10, 1986.

On February 7, 1986, the defendants filed a traverse and motion to dismiss plaintiff's petition to condemn alleging essentially as follows: the property sought by plaintiff was not necessary or desirable for the purposes stated by the District; the District had not made a bona fide attempt to agree with defendants on compensation for defendants' land; an excessive amount of real estate was being sought by plaintiff; the land was not a natural forest; the District lacked authority to seek condemnation of defendants' property; the District did not have the consent of the city of Waukegan to condemn the property. The District responded with a motion to strike defendants' pleading, asserting that a traverse is a form of a motion to dismiss which should be filed at the earliest opportunity. Plaintiff also charged that the defendants' traverse and motion raised new issues and constituted a delaying tactic. The motion to strike was denied.

Hearing on the traverse began on February 25, 1986, and, after three continuances, concluded on March 24, 1986. Numerous documentary exhibits, as well as testimony from witnesses for both parties, were admitted into evidence. The testimony of the witnesses will be set forth as needed for examination and resolution of the issues.

At the Conclusion of the hearing the court made the following relevant findings: the subject property is suitable for reforestation and is contiguous to an existing forest preserve; the District had made a prima facie case as to the necessity for the land it sought; the landowners had refuted plaintiff's prima facie case; the taking of defendants' property was an abuse of discretion, not necessary, and excessive. The court dismissed the petition to condemn and the District filed this appeal.

The District asserts that its motion to strike defendants' traverse and motion to dismiss should have been granted because defendants' motion was not timely filed. Plaintiff analogizes the traverse to a motion for involuntary dismissal under section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-619) which requires that such motions be filed during the time for pleading. Based on this analogy plaintiff argues that the traverse and motion should have been filed as soon as possible after condemnation proceedings were instituted. It is pointed out that the defendants did not file such pleadings until 18 months after the District filed its petition and then they filed without leave of court. The District also insists that the traverse was filed only after it was evident that the trial court would not grant further trial continuances. Plaintiff concludes that since defendants did not traverse the petition and move for dismissal in a timely manner, those pleadings should have been stricken.

We cannot deny that this case has been protracted. Plaintiff's petition to condemn was filed on August 29, 1984. Defendants did not file their traverse and motion until February 7, 1986. In between those dates the matter was set for an August 26, 1985, trial date but continued to October 15, 1985. According to an order entered on October 8, 1985, the October 15 date was continued to January 21, 1986, and this was to be a final continuance. On January 9, 1986, defendants filed a motion for another continuance to the following May. The court set the matter for trial on March 10, 1986, and again noted that this was a final continuance. Defendants then filed their traverse and motion to dismiss. While we sympathize with the District's frustration over the numerous and lengthy delays in this case, we do not think the trial court erred in denying plaintiff's motion to strike.

Section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-619) provides for involuntary dismissal on a variety of grounds which either bar or avoid the legal effect of or defeat a claim. A traverse and motion to dismiss challenge the right of the petitioner to condemn (Board of Education v. City of Chicago (1949), 402 Ill. 291, 298, 83 N.E.2d 714) and will result in dismissal where the petitioner cannot show its right to condemn by proper proof. (City of Evanston v. Piotrowicz (1960), 20 Ill. 2d 512, 517, 170 N.E.2d 569.) While we acknowledge that there appear to be similarities between a section 2-619 motion and a ...


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