Appeal from the Circuit Court of Lake County. No. 97--ED--15 Honorable Charles F. Scott, Judge, Presiding.
The opinion of the court was delivered by: Justice Hutchinson
Plaintiff, the Village of Round Lake, filed a condemnation proceeding to establish a public right-of-way. A trust, the Prtizker Family Trust, held the fee interest in the land under the proposed right-of-way and was developing the land in conjunction with a real estate developer, the Penguin Group (collectively, Penguin). Neither entity is a party to this appeal. Penguin had agreed to construct a roadway and dedicate the property to plaintiff. Defendants, Marianne Amann, Jack Pittelkow, and Janice Pittelkow, claimed an easement by prescription over the land proposed for the right-of-way. The trial court denied defendants' traverse and motion to dismiss and subsequently entered a judgment for condemnation that awarded nominal damages to each defendant as just compensation for the taking. Defendants appeal, contending that (1) the trial court erred when it denied their traverse and motion to dismiss; (2) the trial court used an improper method of valuation to establish the amount of compensation; and (3) the trial court improperly considered the testimony of plaintiff's appraiser (defendants' third contention is addressed in a nonpublished portion of this opinion). We affirm.
Defendants are the owners of two residential properties in unincorporated Lake County near Round Lake. Defendants Jack and Janice Pittelkow own one lot, which is approximately three acres in size and is improved with a single-family residence. Defendant Amann owns the neighboring lot, which is approximately four acres in size and is also improved with a single-family residence. A gravel driveway, approximately 1,100 feet long, extends from State Route 134 south to the defendants' properties. The driveway crosses property that is being developed by Penguin. Each defendant claimed an easement for ingress and egress by prescription in the driveway. Amann supported her claim with an affidavit prepared in 1990 by a predecessor in interest and subsequently recorded. The affidavit describes an easement for a private road 33 feet wide that extends from Route 134 along a slightly curving path past the Pittelkow property to the Amann property. The affidavit further alleges that the easement has been in use in excess of 70 years. Penguin proposed a residential subdivision on its property and agreed to dedicate land for public roadways within the subdivision to plaintiff.
On December 9, 1997, plaintiff filed a complaint for condemnation naming defendants and unknown owners. The complaint alleged that plaintiff had by resolution and ordinance approved the acquisition of a public right-of-way but had been unable to agree with defendants upon the amount of compensation to be paid for the property.
The complaint further alleged:
"That the [Village] now seeks to acquire a public right-of-way in and to the real property legally described as follows:
[the complaint included a legal description substantially conforming to the description in the recorded affidavit] all subject to a non-exclusive easement for the benefit of adjoining property owners, their successors and assigns for ingress and egress over and upon the premises sufficient to accommodate reasonable vehicular traffic to and from Route 134."
On March 11, 1998, defendants filed a traverse and motion to dismiss alleging, inter alia, that the taking was not for a public purpose, plaintiff lacked the authority to acquire the property, and the taking of defendants' property was not necessary for any valid public purpose. The trial court conducted a hearing on the motion on June 11, 1998.
At the hearing, Raymond Wolfel, plaintiff's zoning administrator and building commissioner, testified that he was familiar with a planned development known as Valley Lakes and defendants' properties. Wolfel was also familiar with the driveway that extended from defendants' properties to Route 134. Wolfel testified that, as part of the Valley Lakes plan, the driveway would be improved to plaintiff's standards for a public street and dedicated to plaintiff for a public right-of-way. The planned right-of-way would be located along the same route as the existing driveway.
On cross-examination, Wolfel testified that plaintiff's purpose in acquiring the property was to build a public street. Wolfel admitted that he received a letter from the village attorney in 1996 that opined that defendants' claim of an easement would not prevent development of the area. Wolfel testified that the roadway was originally planned along a route west of the easement but that the plan had been modified in response to Amann's claim of a prescriptive easement. The easement was the sole means of ingress and egress for defendants' properties. Wolfel admitted that he was aware Penguin had negotiated to purchase defendants' properties but Penguin and defendants had been unable to agree on a price. Wolfel admitted that the purpose for acquiring a public right-of-way was to allow the Penguin property to be developed for single-family home sites. Wolfel testified that he was aware defendants had filed a lawsuit against Penguin. The trial court took judicial notice that a complaint had been filed in that suit; however, we note that a copy of that complaint is not contained in the record on appeal. Wolfel admitted that plaintiff's condemnation action was commenced in response to the suit against Penguin. On redirect examination, Wolfel testified that the right-of-way would be dedicated to plaintiff and would be a public street open to anyone.
After plaintiff rested its case, defendants moved for a directed verdict arguing, inter alia, that "public right-of-way" did not adequately describe an interest in real property. The trial court denied the motion but reserved the issue of whether the phrase "right-of-way" described a property interest subject to condemnation.
Defendant Marianne Amann testified that she and her neighbors maintained a private road leading from their residences to Route 134. Amann testified that the road was eight feet wide. However, Amann claimed an interest in an easement 33 feet wide based on the affidavit that had been recorded with title to her property. Amann testified that plaintiff had offered to pay $500 as compensation for her interest in the easement. She rejected the offer because she believed she had a right to limit use of the easement and felt the loss of privacy she would suffer was more valuable than the $500 plaintiff offered as compensation.
Defendant Janice Pittelkow testified that she and her husband had also been offered $500 for their interest in the easement. They rejected the offer because they had expended more than that amount maintaining the gravel roadway.
Following closing arguments, the trial court denied defendants' motion in part but reserved the issues of whether the phrase "right-of-way" adequately described an interest in property and whether plaintiff had negotiated in good faith. The trial court ordered the parties to brief the two reserved issues and continued the matter for its ruling. On July 9, 1998, the trial court held that the complaint failed to describe an interest in real property and granted defendants' motion to dismiss. The trial court subsequently granted plaintiff's motion to reconsider, denied defendants' motion to dismiss, and set the matter for trial.
At trial, Raymond Wolfel testified that he was familiar with defendants' property and the proposed development. The development plan included a street to be constructed on top of defendants' easement, which would then be dedicated as a public right-of-way.
On cross-examination, Wolfel testified that the entire development plan included approximately 850 acres and called for the construction of approximately 1,800 homes. The original development plan proposed a road to the west of the easement, but the plan was changed in response to defendants' assertion of easement rights and now followed the existing driveway. Wolfel testified that the public right-of-way would be subject to a nonexclusive easement in favor of defendants' property. Wolfel believed that plaintiff was taking none of defendants' rights to use the property.
Thomas Canelakes testified that he was familiar with defendants' property and the driveway connecting the property to Route 134. Canelakes appraised the driveway portion of the property and considered the value of the driveway in conjunction with defendants' properties. Over defendants' objection, Canelakes testified that he had examined an appraisal made by defendants' expert, David Schwandt, and agreed with Schwandt's conclusions regarding the value of the properties before the taking. Canelakes opined that the value of the Pittelkow property was $180,000 before the taking and remained unchanged after the taking. Canelakes further opined that the value of the Amann property was $110,000 before the taking and remained unchanged after the taking. Over defendant's objection, Canelakes testified that if considered as a separate property the value of the easement was zero before the taking and remained zero after the taking.
On cross-examination, Canelakes testified that he did not believe any property rights were being taken from defendants because the public right-of-way would follow the existing easement and defendants would retain the right to use the public right-of-way. Canelakes admitted that his opinion regarding the nature of the rights taken from defendants formed part of the basis for his valuation of the taking.
Marianne Amann testified that she held an easement for ingress and egress to Route 134. She testified that the driveway was 10 to 12 feet wide but that the full 33-foot width was used for vehicular traffic. She and the Pittelkows shared in the maintenance expense for the ...