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08/18/89 the Town of Libertyville, v. Continental Illinois

August 18, 1989

THE TOWN OF LIBERTYVILLE, PLAINTIFF-APPELLANT

v.

CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY OF CHICAGO, AS EX'R UNDER THE WILL OF JOHN F. CUNEO, ET



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

al., Defendants-Appellees

543 N.E.2d 350, 187 Ill. App. 3d 84, 135 Ill. Dec. 115 1989.IL.1277

Appeal from the Circuit Court of Lake County; the Hon. Alvin I. Singer, Judge, presiding.

APPELLATE Judges:

JUSTICE NASH delivered the opinion of the court. McLAREN and REINHARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

Plaintiff, the town of Libertyville, filed a complaint pursuant to the Township Open Space Act (the Act) (Ill. Rev. Stat. 1985, ch. 139, par. 321 et seq.), in which it sought to condemn fee simple and less than fee simple interests in real property held by defendants, Continental Illinois National Bank and Trust Company of Chicago, as executor under the will of John F. Cuneo; Continental Illinois National Bank and Trust Company of Chicago, John F. Cuneo, Jr., Consuela Cuneo McAlister, Charles L. McEvoy and William G. Myers, as trustees under trust Number 31-45799-9; Continental Illinois National Bank and Trust Company of Chicago, Julia Shepherd Cuneo, Lawrence A. Byrne and Russell G. DeYong, as trustees under the will of John F. Cuneo; Julia Cuneo; and The Cuneo Foundation.

The fee simple interest sought to be taken was alleged to be in land which cannot be farmed and the property in which less than a fee simple interest was sought to be taken by plaintiff was used primarily for farming purposes. Plaintiff appeals from an order of the trial court which granted defendants' motion for summary judgment and dismissed its complaint. Plaintiff contends that defendants' property is not exempt from condemnation under section 4.02 of the Act (Ill. Rev. Stat. 1985, ch. 139, par. 324.02) because the fee simple property is not used for farming or agricultural purposes, and the remaining property is primarily held for investment and development, and not for agricultural purposes. Alternatively, plaintiff requests this court to reconsider its decision in Town of Libertyville v. Bank of Waukegan (1987), 152 Ill. App. 3d 1066, 1070-71, 504 N.E.2d 1305, where we held that the Act does not permit the taking of a conservation easement by this plaintiff where the real estate presently qualifies as farm or agricultural land. We affirm.

Initially, we note that, while plaintiff's complaint contains a legal description of all of the land it seeks to condemn, it cannot be determined from the record which portions of defendants' land plaintiff seeks to take in fee simple and those portions in which it seeks a less than fee simple interest. The parties agree that of the 880 acres of land involved in this case, plaintiff seeks to acquire a less than fee interest in approximately 780 acres, which plaintiff refers to as the easement property on appeal.

The complaint alleges that the Act authorizes Libertyville to acquire for the purpose of its open-space program a fee simple title, or such lesser interest as it desires in the property, and that it adopted a resolution declaring taking of the property to be a matter of public necessity. The complaint also alleges that the less than fee simple interests to be taken will be restricted by the township to certain uses, including farming, agricultural, existing residential, and foot and bicycle trails. The less than fee interest is described in the resolution as "that interest, the acquisition of which will restrict and limit the development of those portions of the Property to activities for which they are presently used, subject to certain conservation and other restrictions necessary to accomplish the purposes of the Open Space Act."

Defendants first moved to dismiss the complaint on the ground, inter alia, that plaintiff had no eminent domain power to condemn the property because of the farmland exemption under the Act. (See Ill. Rev. Stat. 1987, ch. 139, par. 324.02.) Before the trial Judge ruled on this motion, defendants "move[d] for a summary judgment of dismissal of the Complaint For Condemnation" requesting the trial court "to enter an order granting defendant summary judgment in their favor and against the Plaintiff, dismissing the complaint."

Defendants' motion for summary judgment reasserted that plaintiff did not have the authority to condemn the property because it is used for farming or agricultural purposes, that all of the property has been and is currently devoted primarily to raising and harvesting crops and that our decision in Town of Libertyville v. Bank of Waukegan thus precludes condemnation. The affidavit of William G. Myers, a defendant in this case, states that the real estate which plaintiff seeks to condemn is part of a 1,520-acre tract of land commonly known as Hawthorn-Mellody Farms. For many decades, and currently, Hawthorn-Mellody Farms has been devoted primarily to income-producing farming and agricultural purposes which have included the raising and harvesting of crops, and the feeding, breeding, and management of livestock. The unimproved portions of the property consist of trees and shrubs, and two bodies of water and a section of the Seavey Drainage Ditch, which together provide drainage and a source of irrigation for cropland. The property also contains roadways and rights-of-way, and the only buildings on the property are barns, silos, other farm-related structures, and five residences which occupy less than one acre of land. For the 1977 real estate tax assessment year, all of the property, with the exception of a 150-foot strip of land identified in the complaint as parcel 1, was assessed and taxed as farmland under sections 20a-1 through 20a-3 of the Revenue Act of 1939, and the use of the property has not changed since 1977. Myers further stated in his affidavit that the property continues to be assessed as farm or agricultural property under section 20e of the Revenue Act of 1939, effective August 1977 (Ill. Rev. Stat. 1985, ch. 120, par. 501e).

In a supplemental affidavit, Myers states that prior to 1984, Processing and Books, Inc., the capital stock of which is owned by the Cuneo family or trustees for their benefit, conducted all farming activities on Hawthorn-Mellody Farms. For 1984 and subsequent years, farming activities were conducted by Robert J. Meyer, an independent farmer. Payments by Meyer for the use of Hawthorn-Mellody Farms were $118,220, $123,360, and $113,000 for 1984, 1985, and 1986, respectively.

Robert W. Kozel, vice-president of Processing and Books, Inc., states in his affidavit that income and expense from the farming operations at Hawthorn-Mellody Farms in 1983 were $183,475 and $148,635, respectively. Income and expense attributable solely to the ...


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