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09/27/89 the Department of v. First Galesburg National

September 27, 1989

STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

FIRST GALESBURG NATIONAL BANK AND TRUST COMPANY, DEFENDANT-APPELLANT (FEDERAL LAND BANK OF ST. LOUIS ET AL., DEFENDANTS). -- THE DEPARTMENT OF

STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

EFFIE GERALDINE TINKHAM, DEFENDANT-APPELLANT (FEDERAL LAND BANK OF ST. LOUIS, DEFENDANT)



Before addressing the defendant's contentions, however, this court must initially respond to the Department's argument that an order denying a traverse and motion to dismiss is not a final and appealable order. The defendant in the present action followed the procedure set forth in Department of Public Works & Buildings v. Association of Franciscan Fathers (1972), 3 Ill. App. 3d 503. In Franciscan Fathers, the defendant property owner filed a traverse and motion to dismiss in a "quick take" proceeding, which was denied and from which an appeal was taken. The court found that under the former Illinois Eminent Domain Act, the defendant could appeal the court's findings as to the Department's authority to exercise the right of eminent domain, the susceptibility of the property to its exercise, and its proper exercise in the particular case. (Ill. Rev. Stat. 1969, ch. 47, par. 2.2(b) (repealed 1979, now codified at Ill. Rev. Stat. 1987, ch. 110, par. 7-104(b)).) The defendant's arguments on appeal focus on the alleged impropriety of the Department in exercising its right of eminent domain. Therefore, the defendant can appeal with regards to these issues.

APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

THE DEPARTMENT OF TRANSPORTATION ex rel. THE PEOPLE OF THE

TRANSPORTATION ex rel. THE PEOPLE OF THE

Nos. 3-88-0585, 3-88-0590 cons.

545 N.E.2d 770, 189 Ill. App. 3d 797, 137 Ill. Dec. 117 1989.IL.1505

Appeal from the Circuit Court of Warren County; the Hon. Scott I. Klukos, Judge, presiding.

APPELLATE Judges:

JUSTICE HEIPLE delivered the opinion of the court. WOMBACHER, P.J., concurs. JUSTICE SCOTT, specially Concurring.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HEIPLE

The plaintiff, the Illinois Department of Transportation (Department), filed a complaint for condemnation seeking to acquire fee simple title to the existing Route 34 right-of-way for which it already has a surface-only dedication, and, additionally, the fee simple title to strips of land adjacent to the existing right-of-way in order to widen the highway. The Department filed "quick take" motions, and the defendant, First Galesburg National Bank and Trust Company, filed a traverse and motion to dismiss. The defendant's motion was denied and the plaintiff's "quick take" motions were allowed and compensation fixed. The defendant appeals the trial court order denying the traverse and motion to dismiss.

James A. Stone, a civil engineer employed by the Department, testified that the four parcels of land that are the subject of this dispute were needed promptly to complete road improvements on Route 34, which included widening the highway from 18 feet to 24 feet and providing the necessary ditches for drainage. When questioned why the Department needed the fee interest underneath the property in question, Stone responded that it was the policy of the Department when seeking condemnation to request fee simple title to avoid any future problems over the property with the landowners. This policy stemmed from a 1957 directive from the Illinois Attorney General's office to the Department.

On appeal, the defendant raises three arguments: (1) the Department's actions were unconstitutional since they were able to acquire the fee interest in the property without adopting and following specific rules pursuant to the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1987, ch. 127, par. 1004.02); (2) there was no evidence that it was necessary for the Department to acquire the fee interest to that portion of the highway which had already been dedicated; and (3) the Department had no reason for invoking the "quick take" procedure since there was no need to acquire the property promptly.

The defendant first argues that the Department, by failing to enact specific guidelines, violated due process when it attempted to acquire the fee interest to the property in question. Section 4-501 of the Illinois Highway Code (Ill. Rev. Stat. 1987, ch. 121, par. 4-501) provides in relevant part:

"The Department . . . may acquire the fee simple title, or such lesser interest as may be desired, to any land, rights, or other property necessary for the construction, ...


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