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11/01/88 Delbert M. Patzner, v. Gregory W. Baise

November 1, 1988

DELBERT M. PATZNER, PETITIONER-APPELLEE

v.

GREGORY W. BAISE, SECRETARY OF THE DEPARTMENT OF TRANSPORTATION, ET AL., RESPONDENTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

530 N.E.2d 588, 175 Ill. App. 3d 818, 125 Ill. Dec. 430 1988.IL.1587

Appeal from the Circuit Court of Ogle County; the Hon. F. Lawrence Lenz, Judge, presiding.

APPELLATE Judges:

JUSTICE INGLIS delivered the opinion of the court. LINDBERG, P.J., and UNVERZAGT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

Respondents, Gregory W. Baise, Secretary of the Department of Transportation of the State of Illinois, and the Department of Transportation of the State of Illinois (Department), appeal from the trial court's order issuing a writ of mandamus directing Baise to institute condemnation proceedings against property owned by petitioner, Delbert M. Patzner. The issue on appeal is whether the circuit court had jurisdiction to issue a writ of mandamus compelling the institution of an eminent domain action where petitioner's property was not taken for public use. We reverse.

Petitioner owns a parcel of property located on what is now known as Seventh Street in Rochelle, Illinois. The property is improved with a commercial building from which petitioner previously operated a real estate business. Prior to 1980, the roadway fronting petitioner's property was designated as U.S. 51. Petitioner's property occupied 69 feet of frontage along U.S. 51 and had direct access to that highway. Sometime in 1980, the Department began a construction project to elevate U.S. 51 above a railroad right-of-way and various intersections in Rochelle. The overpass, now designated as Illinois Route 251, was constructed directly above that portion of U.S. 51 fronting petitioner's property. No part of petitioner's property was taken to accommodate the overpass; however, the parking area on petitioner's property was frequently occupied by construction machinery during the period of construction. As a result of the construction, petitioner's property is now located immediately adjacent to the overpass, and the ground level roadway fronting petitioner's property is located directly under the overpass and terminates in cul-de-sacs immediately north and south of petitioner's property. Petitioner vacated the property in December 1983 and relocated his real estate business.

On February 15, 1985, petitioner filed his petition for a writ of mandamus to compel Baise to institute eminent domain proceedings to compensate petitioner for the taking and damaging of his property. A previous petition filed against Baise's predecessor at the Department was dismissed for lack of jurisdiction on the basis that petitioner's property was damaged rather than taken and his remedy therefore lay in the Illinois Court of Claims. Based on that court's order, respondents in the instant action moved to dismiss petitioner's second petition arguing that it was barred under the doctrine of res judicata. The trial court denied respondents' motion, and this court affirmed on the basis that dismissal of the first petition for lack of jurisdiction did not operate as an adjudication on the merits and was therefore not res judicata as to the second petition. See Patzner v. Baise (1986), 144 Ill. App. 3d 42, 43-44.

On October 27, 1987, petitioner filed his amended petition for a writ of mandamus alleging that the Department, by constructing the overpass, (1) trespassed on petitioner's property by parking construction vehicles on it; (2) eliminated the air, light, and view serving petitioner's property; and (3) eliminated the practical access from petitioner's property to Illinois Route 251. After a hearing on that petition, the trial court found that petitioner had suffered damage and a taking by the Department. The court ruled that a writ of mandamus would issue and further ordered Baise to commence condemnation proceedings within 30 days following issuance of the writ. The court subsequently entered a written order in accordance with its oral ruling, and respondents brought this timely appeal.

Respondents contend that the circuit court did not have jurisdiction to issue a writ of mandamus compelling respondents to institute eminent domain proceedings since no portion of petitioner's property was actually taken for public use. Respondents argue that to the extent petitioner's property was damaged by elevation of the highway, his sole remedy as against the State is an action for damages brought in the Illinois Court of Claims. We agree.

We begin our analysis by noting that the Illinois Constitution provides that "[private] property shall not be taken or damaged for public use without just compensation." (Emphasis added.) (Ill. Const. 1970, art. I, § 15.) Our supreme court has nonetheless distinguished between property "taken" and property which is merely "damaged" as the result of a public improvement. (See Horn v. City of Chicago (1949), 403 Ill. 549, 554.) In Horn, the court stated that where the construction of a public improvement results in the actual physical invasion of property, it constitutes a "taking" within the meaning of the Constitution. (403 Ill. at 554.) However, where there has been a loss or impairment of access absent an actual physical invasion, the property is said to have been "damaged." (See Granite City Moose Lodge No. 272 v. Kramer (1983), 96 Ill. 2d 265, 271.) The distinction between property "taken" and property "damaged" is important as it is generally held that a property owner is not entitled to have condemnation proceedings instituted to determine damages occasioned by a public improvement where no part of the property has been taken. (See Horn, 403 Ill. at 554.) The court characterized damage to property not taken as "consequential," and went on to note that a property owner suffering such damage is not deprived of his constitutional right to just compensation where he is remitted to an action at law to recover for that damage. (403 Ill. at 559.) However, the court has also acknowledged that constitutional limitations on bringing actions for damages against the State would result in those property owners being left without a remedy. (See People ex rel. First National Bank v. Kingery (1938), 369 Ill. 289, 291-92.) To alleviate this constitutional conflict and ensure that a remedy is available to property owners whose property is damaged as a result of a State improvement project, the court has in some cases permitted mandamus to issue compelling a State official to institute eminent domain proceedings. See 369 Ill. at 292-93; see also People ex rel. Haynes v. Rosenstone (1959), 16 Ill. 2d 513, 516; People ex rel. O'Meara v. Smith (1940), 374 Ill. 286, 290.

Notwithstanding Kingery and its progeny, the Appellate Court for the Fifth District recently considered the precise issue pending before this court in a case equally identical on its facts and held that the circuit court did not have jurisdiction to issue a writ of mandamus to compel the institution of eminent domain proceedings where property was damaged but not taken. (Rothschild v. Baise (1987), 157 Ill. App. 3d 481, 486.) Focusing on the distinction between property "taken" and property "damaged," the Rothschild court engaged in an extensive analysis of the early supreme court decisions and addressed the effect modern constitutional and legislative developments have had on the continued validity of mandamus as a remedy where property has been damaged but not taken. (157 Ill. App. 3d at 484-85.) A similar analysis is imperative to an understanding of our Disposition.

In 1938, our supreme court decided the case of People ex rel. First National Bank v. Kingery (1938), 369 Ill. 289. The issue before the court in that case was whether a property owner could compel the institution of eminent domain proceedings to obtain compensation for the loss of access to her property when the roadway fronting her property was lowered 20 feet. (369 Ill. at 290-91.) At that time our constitution provided, as it does today, that "[private] property shall not be taken or damaged for public use without just compensation." (Ill. Const. 1870, art. II, § 13; see Kingery, 369 Ill. at 291.) However, the 1870 Constitution further provided that the State could not be made a defendant in any court of law or equity. (Ill. Const. 1870, art. IV, 26; see Kingery, 369 Ill. at 291.) The Kingery court nonetheless recognized that the petitioner was entitled to a remedy for damage to her property and therefore construed the action as against the director of the State department involved in the dispute and not against the State. (Kingery, 369 Ill. at 292.) In so holding, the court ruled that a writ of mandamus action would lie to compel the State official to institute eminent domain proceedings. 369 Ill. at 293.

The General Assembly subsequently enacted legislation vesting exclusive jurisdiction over damage claims against the State, including claims for just compensation for property damaged for public use, in the Court of Claims. (See O'Meara, 374 Ill. at 288.) That legislation was found to be unconstitutional in O'Meara, and the O'Meara court continued to apply the holding in Kingery. O'Meara, 374 Ill. at 288-90; see also Rosenstone, 16 Ill. 2d at 516 (following Kingery and O'Meara even though legislation concerning the ...


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