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02/01/88 the Department of v. Gorden G. Gass Et Al.

February 1, 1988

STATE OF ILLINOIS, PETITIONER-APPELLEE AND CROSS-APPELLANT

v.

GORDEN G. GASS ET AL., RESPONDENTS-APPELLANTS AND CROSS-APPELLEES



Before addressing the issues raised by both parties, we first must answer a motion to dismiss the Gasses' appeal taken with the case. The Department believes the Gasses have forfeited their right to appeal by "accepting the fruits of the award" (see County of Cook v. Malysa (1968), 39 Ill. 2d 376, 380-81, 235 N.E.2d 598, 601; Department of Public Works & Buildings v. Forbeck (1969), 118 Ill. App. 2d 231, 235, 254 N.E.2d 182, 184), or in this instance, by withdrawing the preliminary just compensation awarded in the quick take proceeding. The Department's contention, which incidentally the Department did not even address at oral argument, has absolutely no merit. First, the Department has misinterpreted the two cases cited above. Neither involved the withdrawal of quick take awards but rather involved only the withdrawal of final verdict amounts prior to appealing the judgments. The Gasses have not withdrawn the additional compensation awarded to them. They have not accepted yet the fruits of the award from which they are appealing. More importantly, however, to so penalize the Gasses would not only fly in the face of the statutory provisions (see Ill. Rev. Stat. 1985, ch. 110, pars. 7-106, 7-107, 7-109) and destroy the entire quick take procedure, but also would leave landowners without just compensation for the immediate taking of their property for many years. We refuse to accept the Department's strained position.

APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

THE DEPARTMENT OF TRANSPORTATION ex rel. THE PEOPLE OF THE

519 N.E.2d 90, 165 Ill. App. 3d 562, 116 Ill. Dec. 500 1988.IL.111

Appeal from the Circuit Court of Madison County; the Hon. Nicholas G. Byron, Judge, presiding.

APPELLATE Judges:

JUSTICE KARNS delivered the opinion of the court. HARRISON, P.J., and LEWIS, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KARNS

Gorden G. Gass and Mary Jane Gass (the Gasses) appeal from a judgment of the circuit court of Madison County awarding them $205,174.90 as just compensation in an eminent domain proceeding for the taking and damaging of their property by the Department of Transportation of the State of Illinois (the Department). The Department cross-appeals from the circuit court's supplemental judgment order assessing interest on the verdict at the rate of 12 3/4% per annum. We affirm both appeals.

In October of 1983, the Department filed a petition for condemnation seeking fee simple title to 32.978 acres owned by the Gasses for the construction of Interstate 255. The Gasses' property is generally located north of Illinois Route 162, east of Illinois Route 111 and south of Interstate 270 in Madison County. Prior to the taking, the Gasses owned a total of 1,058 acres in the area. Their farm originally was divided into two sections separated by an abandoned railroad right-of-way running east and west that had been converted into a nature trail. With the construction of Interstate 255, which runs generally north and south, and the taking of a portion of their land, their farm is now divided into four tracts. The northeast field is composed of 51.334 acres, the southeast field of 4.621 acres, the southwest field of 23.189 acres, and the northwest field of the remaining 945.98 acres. Access to the properties remaining on the east side of Interstate 255 is now limited to an undedicated road constructed along the west side of Interstate 255 going south, then under the overpass for Interstate 255 constructed over Illinois Route 162 and then back north along the westernmost side of Interstate 255. This road is elevated 18 feet higher than what the ground was prior to the improvement and is only 15 feet wide. Mr. Gass testified that some of his farm equipment is 21 feet 6 inches wide.

In addition to the farmland the Gasses own, they also lease approximately 1,000 acres, most of which adjoins their property on the east. Because of this fact, the Gasses filed a cross-petition for damages to their leasehold interests as a result of the taking. The trial court upon motion dismissed this aspect of their petition, finding it improper to consider such damages in the instant proceeding.

Witnesses for the Gasses testified the value of the property taken ranged from $98,934 to $108,800, with damages to the remainder ranging from $115,308 to $327,175. The Department's witness testified the value of the property taken was $98,900 with damage to the remainder in the amount of $15,000. The jury returned a verdict of $103,000 for the property taken and $102,174.90 as damage to the remainder. The circuit court entered judgment upon the verdict for the sum of $76,272.90 plus interest as additional compensation over the preliminary just compensation awarded in an earlier "quick take" proceeding. In a supplemental judgment order, the court imposed over objection a 12 3/4% interest rate per annum on the additional sum due for the taking of the Gasses' land.

The Gasses argue in their first point on appeal that the trial court erred in dismissing that portion of their cross-petition pertaining to damages in connection with their leasehold interests. They believe that because some of the leased farmland is contiguous to their fee holdings (the remaining leased land being contiguous to this leased land) and because their access to these lands has been impaired with the construction of Interstate 255 so that farming all of the property as a single unit is no longer feasible, their leasehold interests and their land not taken have been additionally damaged. The Gasses argue severance damages should be determined in the instant proceeding, viewing the farm as one unit instead of on a case-by-case basis for each leased parcel taken or damaged. According to the Gasses, the "sum of the parts may not equal the whole."

It is true that in order to recover damages in an eminent domain proceeding for property not taken, the land not taken and the condemned land must be contiguous or so inseparably connected in use that the taking of one will necessarily injure the other. (See City of Chicago v. Equitable Life Assurance Society of the United States (1956), 8 Ill. 2d 341, 346, 134 N.E.2d 296, 299.) Here the lands are contiguous in part. But, contiguity alone is not sufficient. Another necessary element is unity of title. (See State of Illinois Medical Center Comm'n v. United Church of the Medical Center (1986), 142 Ill. App. 3d 498, 505, 491 N.E.2d 1327, 1332, cert. denied (1987), 480 U.S. 922, 94 L. Ed. 2d 698, 107 S. Ct. 1385; City of Lake Forest v. First National Bank (1977), 52 Ill. App. 3d 893, 896-97, 368 N.E.2d 156, 158-59.) This the Gasses cannot establish. The Gasses do have an interest in these lands, but it is not sufficient to permit them to qualify for severance damages in an eminent domain proceeding. ( Cf. Medical Center Comm'n, 142 Ill. App. 3d at 506, 491 N.E.2d at 1333.) The Gasses are not without remedy, however. As lessees, they are entitled to share in the condemnation awards of their landlords for any injury suffered to their leasehold interests. (See City of Lake Forest, 52 Ill. App. 3d at 895, 368 N.E.2d at 157.) And, for that leased land which has not been condemned, just as an abutting property owner can bring an action to recover damages for injury to his property when his land has not been taken (see Rothschild v. Baise (1987), 157 Ill. App. 3d 481, 483, 486, 510 N.E.2d 418, 420, 422; Department of Conservation v. Franzen (1976), 43 Ill. App. 3d 374, 378, 356 N.E.2d 1245, 1248), so too can the Gasses bring an action at law for damages to their interests. Additionally, we do not see how in this instance a damaged interest in leased land, even though the desirability and profitability of using such lands may have dropped significantly, decreases the value of the property owned.

The Gasses next argue the trial court erred in permitting testimony concerning the proposed construction of a drainage ditch when the plans for the ditch did not exist as of the date the petition for condemnation had been filed and had not been finally approved prior to ...


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