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Department of Natural Resources v. Brauer

May 22, 2003


Appeal from the Circuit Court for the 12th Judicial Circuit, Will County, Illinois Nos. 91-ED-1 and 92-ED-2 Consolidated under 99-ED-1 Honorable Ludwig J. Kuhar, Judge, Presiding

The opinion of the court was delivered by: Presiding Justice McDADE


This appeal arises out of a condemnation proceeding initiated against property owned by the defendants. During the 2½ years between the filing of the complaint and the adjudication of fair compensation and entry of judgment, the defendants sold utility easement rights on the property. After judgment, the State filed a motion for a setoff against the compensation award equal to the $35,000 the defendants received for the sale of the easements. The trial court granted the motion, and the defendants appeal. For the reasons that follow, we reverse.


The defendants owned a 10.25-mile-long strip of land that was formerly a railroad right-of-way in Will County, Illinois. The parcel is 100 feet wide and runs from Joliet, south past the Village of Manhattan, to the Joliet Arsenal. All told, the abandoned railway consists of 128.25 acres. The defendants were in the business of salvaging the railroad ties and tracks from the old railway line and also made money selling easements to utility companies and municipalities.

With the intent of turning the right-of-way into a conservation and recreation trail, the Illinois Department of Natural Resources (IDNR) filed an action to condemn the property. A trial was held, and on July 23, 2001, the jury found the defendants were entitled to just compensation in the amount of $1,154,250. The judgment on this verdict was entered on October 11, 2001.

Between the filing of the complaint on January 7, 1999, and the jury verdict on July 23, 2001, the defendants granted a series of easements on the property. The City of Joliet purchased an easement for public utilities. The defendants also granted easements to the Village of Manhattan and three private utilities so those companies could provide services to the village. At no time did the State seek an injunction to prevent the sale of the easements, for which defendants were paid $35,000.

The IDNR filed a motion to set off this $35,000 from the judgment. In response, the defendants argued that IDNR's motion was not timely filed; that they were free to do what they wished with the property until title was actually vested in the State of Illinois; that IDNR had not shown that the new easements decreased the value of the property; and that the setoff resulted in an unconstitutional taking. The trial court heard argument on the motion and ruled in favor of the State.

The defendants appeal. They raise five arguments: first, that by granting IDNR the setoff, the trial court essentially changed the valuation date of the property; second, that they had the right to deal with the property as they pleased until title actually vested in the State or until they were enjoined from doing so by the court; third, that the setoff was a modification of judgment that the court lacked jurisdiction to grant because the motion was filed more than 30 days after the judgment; fourth, that the value of the property did not decrease as a result of the easements being granted and there is, therefore, no basis for a setoff; and, fifth, that the State can file for ejectment of the easement holders and can thereby recoup the property rights that were sold by the defendants.


We are asked to determine whether the court erred in granting the setoff. Whether the State is entitled to the setoff is a question of law, which we review de novo. Woods v. Cole, 181 Ill. 2d 512, 516, 693 N.E.2d 333, 335 (1998).

We first consider whether the trial court had jurisdiction to award the setoff. The record shows that the order setting fair compensation was filed on October 11, 2001. Since the State's October 3, 2001, motion for setoff was filed prior to the judgment, the court had jurisdiction to hear the motion. We reject the defendants' claim of untimeliness.

We next turn to the merits of defendants' claims on appeal. When the State filed its action for condemnation, its rights to the property became fixed. Board of Junior College District, 504 v. Carey, 43 Ill. 2d 82, 85, 250 N.E.2d 644, 646 (1969). Also fixed at that time was the value of the property, which serves as the basis for the jury award of just compensation. Carey, 43 Ill. 2d at 85, 250 N.E.2d at 646. Title does not vest, however, until the determination and payment of just compensation. Carey, 43 Ill. 2d at 84, 250 N.E.2d at 646. Just compensation is equal to the fair cash market value of the property for its highest and best use. Department of Public Works & Buildings v. Oberlaender, 42 Ill. 2d 410, 415, 247 N.E.2d 888, 892 (1969). The fair cash market value of the property is the price for which the land would sell under ordinary circumstances; that is, if there were a willing seller and buyer who were under no compulsion to engage in the transaction. (735 ILCS 5/7-121 (West 2002).

The State has produced no law that establishes a right to the requested setoff. In condemnation proceedings, it is the State's burden to prove the fair market value of the property. Department of Transportation v. White, 264 Ill. App. 3d 145, 150, 636 N.E.2d 1204, 1208 (1994). Here, since the State is the party seeking to reduce the jury's compensation award, it should also have the burden of proving a decrease in value due to the easement sales.

The State has presented no evidence that indicates that the value of the property for its intended use decreased due to the granting of the easements. Nor has the State shown that the existence of the easements is relevant to the valuation of the property. We believe it was improper for the trial court to grant the setoff in the amount of $35,000. Although the defendants were able to sell the easements for that amount, it does not follow and, more importantly, has not been demonstrated that the value of the property decreased accordingly.

The State argues, however, that whether there is or is not a change in value of the property is irrelevant to the determination of whether it is entitled to a setoff, claiming that the relevant fact is that it has been denied property rights to which it was entitled. The State has produced no case law in support of this proposition, nor offered any compelling argument for ignoring the plain ...

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