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05/27/87 the Department of v. Shell Oil Company Et Al.

May 27, 1987

THE DEPARTMENT OF TRANSPORTATION, PLAINTIFF-APPELLANT

v.

SHELL OIL COMPANY ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

509 N.E.2d 596, 156 Ill. App. 3d 304, 108 Ill. Dec. 900 1987.IL.682

Appeal from the Circuit Court of Cook County; the Hon. Alfred T. Walsh, Judge, presiding.

APPELLATE Judges:

JUSTICE WHITE delivered the opinion of the court. RIZZI and FREEMAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WHITE

The Department of Transportation of the State of Illinois (Department) used its powers of eminent domain to acquire part of a service station owned by Shell Oil Company (Shell). A jury awarded Shell $88,000 as just compensation for the taking. The Department appeals.

The Department sought to add a turning lane at the southeast corner of the intersection of Sauk Trail Road and Chicago Road in South Chicago Heights. To do so it needed to acquire a triangular piece of land from the Shell service station on that corner. The Department filed its complaint for condemnation in November 1984, and, on February 19, 1985, the court ordered that the title be vested in the Department with just compensation to be determined later. The Department completed its work on the corner in September 1985.

Prior to taking, the Shell service station occupied a rectangular lot of approximately 24,500 square feet. The triangular piece which the Department took from that lot consisted of 741 square feet. Before the taking, the Shell station had almost 190 feet of frontage along Chicago Road and 126 feet of frontage along Sauk Trail Road; after the taking it had 152 feet of frontage along Chicago Road and 88 feet of frontage along Sauk Trail Road. It had four entrances both before and after the taking, but the entrances were approximately 48 feet across before the taking, and 32 feet across after the taking. Prior to the taking the entrances formed 45 degrees angles with the roadway; afterwards the angles were altered to 90 degrees.

At trial the Department presented Charles Southcomb as its principal witness. Southcomb testified that the lot was best used as a service station. In his opinion the value of the property taken was $6,400. The value of the remainder before the taking was $288,600, and after the taking the value would again be $288,600 once the advertising sign and lights were relocated. He estimated that the relocation of the sign and lights would cost about $4,500. In his opinion the access to the property was basically the same after the taking as it had been before the taking.

The Department made a motion in limine to exclude testimony relating to the volume of sales at the Shell station. The trial court denied the motion.

Shell presented Lon Gardner, its senior administrative analyst, as its first witness. Gardner testified that in 1983 Shell shipped an average of about 50,000 gallons of gasoline each month to the gas station at issue. In 1984, Shell shipped 55,300 gallons per month, and Shell maintained that average from January 1985 until September 1985. In September 1985, Shell shipped only 33,000 gallons; in October it shipped 25,000 gallons; in November 42,000; in December 50,000; in January 1986 it shipped 34,000 gallons; in February 26,000; and in March 1986, the last month for which figures were available, it shipped 34,600 gallons. Thus, after the taking was completed, Shell shipped an average of only 34,000 gallons per month to the same station to which it had previously shipped an average of 55,300 gallons per month. Gardner did not testify regarding damages or the value of the property, nor did he attempt to explain the decrease in sales.

Shell next presented real estate broker Arthur Sheridan, who testified that in his opinion the property taken was worth $6,670. He found that access to the remainder was substantially impaired because the driveways were made smaller and cars needed to make sharper turns in order to enter the station. In his opinion the remainder was worth $301,860 before the taking, and after the taking it was worth $213,860, a decrease in value of $88,000. Sheridan relied principally on sales of similarly situated service stations in arriving at his estimates of the value of the remainder. He also took into account the cost of relocating the pumps and the service bays in order to restore access to the property to some extent. The driveways could not be expanded beyond 35 feet in width due to Department regulations. (92 Ill. Adm. Code 550.70 (1985).) On cross-examination, Sheridan admitted that he took the decreased sales into account, but he viewed the decreased sales only as an indication that the taking substantially impaired access to the station. He testified that ease of ingress is of primary importance in determining the value of a service station.

On appeal the Department contends that the trial court erred when it denied the Department's motion in limine to exclude testimony related to the volume of sales at the station, because the volume of sales is irrelevant to determination of just compensation for the taking. Just compensation for a partial taking consists of (1) the fair market value of the property taken at its best use on the date of filing and (2) the difference between the fair market value of the remainder prior to the taking and its fair market value after the taking and improvement. (Department of Public Works & Buildings v. Barton (1939), 371 Ill. 11, 16, 19 N.E.2d 935.) The Department's expert testified that the remainder was best used as a service station. Shell's expert testified, without objection, that ease of ingress is of primary importance for determining the value of a service station. Shell contends that the sales evidence was relevant to the issue of access to the station.

Shell operated the station both before and after the taking, selling essentially the same product there after the taking as it sold there before. For three years before the improvement Shell sold, on average, almost 55,000 gallons of gasoline each month at that station; in the six months following the improvement it sold only an average of 34,000 gallons at that location each month. The Department contends that the decrease in sales is irrelevant because the change in sales could have been caused by any of a wide variety of factors unrelated to ease of access. The Department relies ...


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