Appeal from Circuit Court of Sangamon County. No. 01ED01. Honorable Leslie J. Graves, Judge Presiding.
The opinion of the court was delivered by: Justice Myerscough
Defendants, Danny Pedigo, Wanda Pedigo, Tony Capranica, Linda Capranica, and Joseph Bonefeste, treasurer of Sangamon County, Illinois (hereinafter defendants), appeal the trial court's award of summary judgment in favor of plaintiff, the Illinois Department of Natural Resources (Department), arguing the trial court erred in (1) granting summary judgment in favor of the Department, (2) barring Danny Pedigo's testimony, (3) barring Linda Capranica's testimony, (4) refusing to bar Barry W. Taft's testimony, and (5) its determination of what the "whole" of the condemned property constituted. We reverse the trial court's judgment and remand with directions.
On February 6, 2001, the Department filed a complaint for condemnation against defendants. The Department sought fee simple title to defendants' real property for the acquisition, development, and construction of the Chatham Trail Bikeway, a seven-mile bike trail from Chatham to Springfield. The Department also sought a three-year temporary construction easement. On February 26, 2001, defendants filed a traverse, challenging the Department's right to condemn their property. Defendants argued that (1) the taking was not for a public use or purpose, (2) the property sought to be acquired was not necessary or convenient for the purposes for which it was sought to be taken, and (3) the complaint was filed without legal authorization in the form of the written consent of the Governor as required by section 5-675 of the Departments of State Government Law (20 ILCS 5/5-675 (West 2000)) or in the form of formal action by the Department itself authorizing condemnation. On June 13, 2001, the trial court denied defendants' traverse, finding the Department presented sufficient evidence to sustain its burden to present a prima facie case that (1) the taking was for a public use or purpose, (2) the property sought to be acquired was necessary or convenient for the purpose for which it was sought to be taken, and (3) the complaint was filed with legal authorization in the form of written consent of the Governor.
On July 2, 2001, defendants filed a cross-complaint, alleging that the remainder of their real estate would be damaged by the Department's taking and requesting that damages be assessed. The Department moved to strike defendants' cross-complaint because defendants did not properly allege unity of use between the disputed parcel and the remainder property. The trial court granted the Department's motion to strike but granted defendants leave to file an amended cross-complaint. On January 31, 2002, defendants filed an amended cross-complaint, alleging that the land described in the complaint for condemnation was contiguous to and used in conjunction with defendants' remaining lands. On November 26, 2002, defendants filed a second-amended cross-complaint, correcting a legal description of defendants' land.
On December 23, 2002, the Department filed its first motion in limine to prevent and exclude Danny Pedigo from testifying on behalf of defendants as to his opinion of damages to the remainder property. The Department argued Pedigo considered an improper element of damages in reaching his opinion of the market value of the remainder, i.e., the potential for trespassing on his land by users of the bike path. Trespassing, the Department argued, is not a compensable element of damages. Defendants disagreed, arguing that trespassing, when not a remote threat, is a proper measure of damages. On February 19, 2003, the trial court denied the Department's first motion in limine.
On December 23, 2002, the Department also filed a motion for a judicial declaration of whole property. The Department sought this declaration because the measure of just compensation depended upon which property was considered the remainder. The Department believed only the 0.59-acre triangular parcel in section 31, from which the 0.147-acre parcel was being taken, was the "whole property." Defendants responded that the land being taken did not wholly lie within the 0.59-acre parcel and the Department's motion was fatally flawed because it did not prop-erly describe the lands to be taken. Further, defendants argued that the "whole property" constituted 58.89 acres of defendants' land, including parcel 1 located in section 29, parcel 2 located in section 31, and parcel 3 located in section 32. The Department filed a response admitting the mistaken reference to the 0.59-acre parcel. The Department argued its mistake was in name only as the taken area was properly described in exhibits submitted to defendants and the court. The Department asserted that the whole property constituted 0.90 acres, which included that portion of defendants' property in section 31 that is located south of the line where the sod farming stops and west of the bike path corridor already owned by the Department. On February 19, 2003, the trial court declared the whole property to be that portion of defendants' property in section 31, west of the property already owned by the Department and south of the line where the sod farming stops.
On March 14, 2003, the Department filed another motion in limine, seeking to prevent and exclude Danny Pedigo from testifying as to the value of the remainder because he improperly considered special value to himself as well as special value to the City of Springfield, an adjacent landowner, instead of relying on the fair-market value of the property. On March 31, 2003, the trial court denied the Department's motion. However, on the Department's motion to reconsider, the court granted the motion and excluded Pedigo from testifying as to the value of the remainder.
On April 7, 2003, the Department filed a motion for summary judgment. The Department argued that the only issue to be determined by a jury was the amount of just compensation to be awarded to defendants. Because the court had ruled that Pedigo's testimony was to be excluded, the only witness left to testify as to the value of the remainder was the Department's expert, Barry W. Taft. As such, the Department argued, summary judgment should be granted to the Department for $1,100, the amount of just compensation and the temporary construction easement. On April 30, 2003, defendants, in response to the Department's motion for summary judgment, asserted that Linda Capranica had appraised the property, and therefore, the Department's motion for summary judgment should be denied. In addition, defendants made a motion to exclude Taft's testimony because he had used improper elements in forming his opinion as to the value of the remainder property. Defendants argued that Taft (1) used the wrong evaluation dates; (2) erroneously claimed no part of defendants' land was under water; (3) believed only Danny Pedigo was the owner; (4) believed no leaseholds were involved; (5) appraised the property with limited data; (6) was unable to view a portion of the property; (7) made no effort to determine who the adjacent property owners were; (8) used a "non-arms-length" transfer as a comparable sale; (9) knew of no other comparable properties that resulted in a value as low as he valued defendants' property; (10) did not consider defendants' riparian rights to Lake Springfield water; and (11) did not recognize the value of any structure on the property. On May 22, 2003, the Department filed a motion to bar Capranica's testimony on the grounds that her disclosure as a witness was untimely. On June 3, 2003, the trial court denied defendants' motion to bar Taft's testimony and granted the Department's motion to bar Capranica's testimony. The court also denied the Department's motion for summary judgment. However, on reconsideration, the court granted summary judgment and awarded defendants $1,100 as just compensation. This appeal followed.
Defendants appeal, arguing the trial court erred in (1) granting summary judgment in favor of the Department, (2) barring Pedigo's testimony, (3) barring Capranica's testimony, (4) refusing to bar Taft's testimony, and (5) its determination of what the "whole" of the condemned property constituted. We consider these arguments in turn.
The United States Constitution forbids private property from being "taken for public use, without just compensation." U.S. Const., amend. V. Similarly, the Illinois Constitution prohibits the State from taking or causing damage to private property without just compensation. Ill. Const. 1970, art. I, *15. The purpose of these provisions is to ensure that the owner of the lands taken is made whole, not to place him in a better position than he was ...