APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
510 N.E.2d 418, 157 Ill. App. 3d 481, 109 Ill. Dec. 550 1987.IL.648
Appeal from the Circuit Court of Marion County; the Hon. William R. Todd, Judge, presiding.
JUSTICE HARRISON delivered the opinion of the court. KARNS, P.J., and KASSERMAN, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON
This case is before the court on a permissive interlocutory appeal pursuant to Supreme Court Rule 308 (87 Ill. 2d R. 308). At issue is an order of the circuit court of Marion County which denied a motion to dismiss a count in petitioners' complaint seeking a writ of mandamus to compel respondent Greg Baise, Secretary of the Illinois Department of Transportation, to institute eminent domain proceedings to compensate petitioners for an alleged loss of access to their property. For the reasons which follow, we reverse.
Petitioners, Nathan and Beverly Rothschild, own a parcel of real estate, improved with a two-story building, which is located on McCord Street in Centralia. Respondent St. Louis Bridge Construction Company is presently erecting an overpass on the site of McCord Street under contract with respondent Illinois Department of Transportation as part of a project to improve State Route 161 West. For the purposes of this appeal, the parties agree that no part of petitioners' property has been physically invaded during the course of or used for construction of the overpass. Rather, the injury of which petitioners complain is the loss of access to their property from McCord Street.
Petitioners' complaint is in two counts. Count I requests a preliminary and permanent injunction to halt construction of the overpass. Count II seeks a writ of mandamus to compel respondent Greg Baise, Secretary of the Illinois Department of Transportation, to institute eminent domain proceedings in order to compensate petitioners for the aforementioned loss of access. Respondents moved to dismiss both counts. Their motion was granted as to count I, but denied as to count II. A subsequent motion by respondent Baise for reconsideration of the refusal to dismiss count II was likewise denied. Thereafter, respondent Baise filed an answer to count II, but moved for certification by the trial court that its order refusing to dismiss that count involved a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from that order may materially advance the ultimate termination of the litigation. This motion was granted. The specific question of law identified by the circuit court in its certification is whether that court has jurisdiction to issue a writ of mandamus to compel respondent Baise to institute eminent domain proceedings with respect to petitioners' property where there has been a loss of access to, but no physical invasion of, that property. We granted respondent Baise leave to appeal pursuant to Supreme Court Rule 308 (87 Ill. 2d R. 308), and this question is now before us for consideration.
Article I, section 15, of the 1970 Illinois Constitution states that "[private] property shall not be taken or damaged for public use without just compensation as provided by law." (Ill. Const. 1970, art. I, sec. 15.) This constitutional guarantee is codified in article VII of our Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 7-101 et seq.), which provides for the ascertainment of such compensation in circuit court through eminent domain proceedings. Petitioners argue that access to their real estate from McCord Street is a legally cognizable property right, the impairment of which entitles them to bring a mandamus action to compel respondent Baise to institute eminent domain proceedings under these provisions. Respondent Baise, for his part, does not deny that a property owner is entitled to compensation if access to the property from an abutting street is materially impaired. He asserts, however, that petitioners in this case can only seek such compensation in the Court of Claims and are not entitled to proceed against him in the circuit court as they are now attempting to do. We agree.
Where, as here, a loss or impairment of access does not involve an actual physical invasion of the property, it constitutes a "damaging," rather than a "taking," of the property. A "damaging" without a "taking" is not a proper subject for eminent domain proceedings in circuit court. (Lake Ka-Ho, Inc. v. Kramer (1985), 131 Ill. App. 3d 782, 786, 475 N.E.2d 1379, 1382.) As our supreme court has expressly held, an abutting property owner is not entitled to have condemnation (eminent domain) proceedings instituted to determine damages to his property occasioned by a public improvement where no part of his property is physically taken, and the authorized sovereign constructing such improvement is not required "under the constitution or the Eminent Domain Act [now article VII of our Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par.
A contrary result was reached on analogous facts by a panel of the Fourth District Appellate Court in Inn of the Lamplighter, Inc. v. Kramer (1984), 128 Ill. App. 3d 317, 470 N.E.2d 1205. In our view, that case was decided incorrectly. Inn of the Lamplighter, Inc. was based primarily on three decisions of our supreme court which predated Granite City Moose Lodge No. 272 v. Kramer (1983), 96 Ill. 2d 265, 449 N.E.2d 852: People ex rel. First National Bank v. Kingery (1938), 369 Ill. 289, 16 N.E.2d 761, People ex rel. O'Meara v. Smith (1940), 374 Ill. 286, 29 N.E.2d 274, and People ex rel. Haynes v. Rosenstone (1959), 16 Ill. 2d 513, 158 N.E.2d 577. These earlier cases do not support the result reached by the Fourth District.
In Inn of the Lamplighter, Inc., the Fourth District interpreted Kingery, O'Meara, and Rosenstone to mean that a petition for a writ of mandamus will lie to compel the bringing of eminent domain proceedings even absent a "taking" where, as here, the State is the only defendant. We do not read the cases so narrowly. As respondent Baise has pointed out, the critical factor underlying each of these cases was not simply that the State was the sole defendant. Rather, it was that unless such a proceeding were permitted, the plaintiff would be left wholly without a remedy. See, e.g., People ex rel. First National Bank v. Kingery (1938), 369 Ill. 289, 292, 16 N.E.2d 761.
When Kingery was decided, our constitution provided that the State could never be made a defendant in any court of law or equity. (People ex rel. First National Bank v. Kingery (1938), 369 Ill. 289, 291, 16 N.E.2d 761, 763.) As a result, no action for damages could be maintained against the State. The court in that case recognized, however, that the constitutional guarantee of just compensation for property damaged or taken for public use required that some remedy be afforded. Accordingly, it invoked the legal fiction that the action was actually against the director of the State department involved in the dispute and not against the State itself and held that a mandamus action would lie to compel the director to institute eminent domain proceedings. 369 Ill. 289, 292, 16 N.E.2d 761.
After Kingery was decided, the General Assembly promulgated legislation which vested exclusive jurisdiction over damage claims against the State, including claims for just compensation for property damaged for public use, in the Court of Claims. In People ex rel. O'Meara v. Smith (1940), 374 Ill. 286, 288, 29 N.E.2d 274, our supreme court acknowledged that if that legislation were constitutional, plaintiff could not obtain a writ of mandamus to compel the State to institute eminent domain proceedings to compensate plaintiff for loss of access to his property where, as here, there had been no physical invasion or taking of the property. The court concluded, ...