BNSF RAILWAY COMPANY, a Delaware Corporation, Plaintiff-Appellee and Cross-Appellant,
DAVID F. GROHNE, as Trustee Under the David F. Grohne Revocable Trust Dated February 14, 1996; NONRECORD CLAIMANTS; UNKNOWN OWNERS; ndCHICAGO TITLE AND TRUST COMPANY, as Trustee Under Trust No. 8002346417 Defendants David F. Grohne and Chicago Title and Trust Company, Defendants-Appellants and Cross-Appellees.
from the Circuit Court of the 12th Judicial Circuit, Will
County, Illinois. Circuit Nos. 14-ED-65 14-ED-66 14-ED-67
Honorable Roger D. Rickmon, Judge, Presiding.
PRESIDING JUSTICE SCHMIDT delivered the judgment of the
court, with opinion. Justice McDade concurred in the judgment
and opinion. Justice Wright concurred in part and dissented
in part, with opinion.
SCHMIDT PRESIDING JUSTICE.
1 Plaintiff-appellee and cross-appellant, BNSF Railway
Company (BNSF), filed three eminent domain lawsuits for the
condemnation of tracts of land owned in trust by
defendants-appellants and cross-appellees, David F. Grohne
and Chicago Title and Trust Company (collectively, Grohne).
Plaintiff sought to build an intermodal railway facility
along BNSF's main rail line in Will County, Illinois,
using the condemned land. After the trial court's ruling
on the pending traverse actions, the court held a jury trial
for the valuation of Grohne's tracts of land for purposes
of exercising eminent domain. The jury awarded Grohne
compensation for all three takings.
2 Grohne appeals, claiming the trial court erred by (1)
limiting his cross-examination of experts on a comparable
land sale contract at the valuation hearing pertaining to
Will County case No. 14-ED-65, (2) denying his traverse and
motions to dismiss in Will County case Nos. 14-ED-66 and
14-ED-67, and (3) misinterpreting section 10-5-110 of the
Eminent Domain Act (Act) (735 ILCS 30/10-5-110 (West 2014))
pertaining to Will County case No. 14-ED-67.
3 BNSF cross-appeals, raising the following issues regarding
the compensation awards: (1) whether, absent a substantial
and material change, the trial court erred in granting a new
valuation date for the properties pertaining to Will County
case Nos. 14-ED-66 and 14-ED-67 and (2) whether the final
judgment orders should have been entered based upon the
parties' stipulations of value as of October 20, 2014,
rather than the jury's verdicts as of July 21, 2017.
4 I. BACKGROUND
5 On October 20, 2014, BNSF filed three eminent domain
lawsuits to condemn three separate, but closely located
tracts of land in Will County case Nos. 14-ED-65, 14-ED-66,
and 14-ED-67. The complaints in the first two cases named
David F. Grohne, as trustee of the David F. Grohne Revocable
Trust, as defendant. The third lawsuit, Will County case No.
14-ED-67, named David F. Grohne, as well as Chicago Title and
Trust Company, as holder of a land trust with David F. Grohne
named as the beneficiary, as defendants.
6 BNSF intended to build an intermodal facility along its
main line near Interstate 55 and Lorenzo Road in Will County,
Illinois. The northernmost tract (Grohne North), the
subject of case No. 14-ED-65, consists of 81.251 acres. BNSF
sought 51.872 acres. The two tracts to the south, the
subjects of case Nos. 14-ED-66 (Grohne South) and 14-ED-67
(CTT), consist of 73.118 and 72.717 acres, respectively. BNSF
sought 11.733 and 59.316 acres of these tracts, respectively.
The BNSF main line splits the Grohne tracts subject to taking
in all three cases.
7 On September 25, 2014, the BNSF Board of Directors (Board),
with unanimous consent, signed a resolution outlining the
details and necessity of an intermodal facility.
Specifically, the resolution stated the following:
"[I]n order to alleviate congestion on the [BNSF main
line], prevent blocking of the main line and facilitate the
Company's ability to meet the current demands of its
existing customers and the future demands of additional
development in the area, the Company proposes to construct
and operate a multimodal facility adjacent to the [BNSF main
line]. The facility will operate as a freight terminal and
intermodal facility and will start from a connection to the
Chillicothe Subdivision just east of Lorenzo Road and extend
that facility west to a second connection to the Chillicothe
Subdivision at Murphy Road. The second connection at Murphy
Road is required to provide access to the facility from both
ends to facilitate safe and expeditious operation of the main
line. The facility will consist of multiple tracks and
related connections, paved parking for holding containers and
trailers waiting for local delivery or for loading onto rail
cars, cranes for handling the containers and trailers and
support facilities. There will also be truck gate structures
to facilitate entrance and exit of containers and trucks to
and from the facility. Full build out of the facility will
require between 300 and 450 acres[.]"
resolution also outlined in detail the property to be
acquired, including 122.921 total acres from Grohne.
8 BNSF, in the complaints filed in these consolidated cases,
restated the purpose it laid out in the Board's
resolution. Further, the complaints stated, "[t]he
multimodal facility, once constructed and open for
operations, will be used for the benefit of all users of
BNSF's railroad without discrimination."
9 On November 24, 2014, Grohne filed a traverse and motion to
dismiss in each of BNSF's lawsuits. On April 6, 2015, the
trial court consolidated the cases. Grohne subsequently
withdrew the traverse with respect to Grohne North. Thus, the
traverse hearing covered only the 71.049 acres comprising
Grohne South and CTT.
10 With respect to Grohne South and CTT, Grohne argued BNSF
sought to acquire his private property, in part, for the
purpose of providing direct rail service to a private,
neighboring industrial park, RidgePort Logistics Park
(RidgePort). Specifically, Grohne maintained BNSF's
conceptual plan for the intermodal facility included a
private track, or spur track, designed to provide RidgePort
and its attracted customers or tenants with direct access to
the newly constructed southern switch on BNSF's main
11 In further support of the traverse, Grohne argued BNSF
desired to acquire Grohne South for unstated or speculative
future uses. BNSF did not specifically identify these uses in
its conceptual plan. As such, Grohne claimed BNSF attempted
to acquire "significantly more" than the amount of
acreage necessary for the planned intermodal facility
12 On July 27, 2015, the trial court held a hearing on the
traverse. James Ball, senior manager of real estate for BNSF,
testified about the Board's plan for the construction of
an intermodal facility. Ball was in charge of acquiring
property for the benefit of BNSF. Ball discussed the purpose
and nature of the operations of intermodal facilities in
general. Ball also stated that in October 2014, BNSF made
three separate offers for the acquisition of Grohne's 124
acres. Grohne rejected each offer.
13 John Hovland, director of marketing and facility
development for BNSF, testified before the court. Hovland
explained that his responsibilities included siting,
developing, and maintaining intermodal and automotive
facilities. Hovland was responsible for determining the
specific land necessary to construct an intermodal facility.
In this case, Hovland anticipated the ultimate size of the
proposed intermodal facility would be within the standard
size for constructing intermodal facilities, approximately
14 Hovland also described the operations and demand for the
proposed intermodal facility. In particular, Hovland
discussed how BNSF's four other intermodal facilities in
the area were too small and had minimal expansion
capabilities. The newly proposed intermodal facility would
take three years to construct. BNSF needed the additional
intermodal facility due to forecasted growth in the Chicago
area over the next five years. Further, the proposed
intermodal facility could include and/or require support
tracks for trains entering and leaving the facility, support
facilities, an administration building, repair facilities for
instrumentalities and equipment, parking areas, an overpass,
water retention/detention facilities, grade separations,
emergency facilities, and relocated power lines.
15 Hovland clarified that the plans were conceptual and would
be implemented in phases, rather than all at once. Since BNSF
had not acquired the necessary tracts of land, final planning
and permitting could not be completed. Completion of the
plans required additional engineering, surveying, and
geotechnical exploration. The Grohne South and CTT tracts
would potentially become the site of lead outs for the
intermodal tracks, parking areas, water retention/detention
facilities, and a grade separation for nearby roads. BNSF
would be unable to construct the proposed intermodal facility
without Grohne South and CTT. In Hovland's view, the
proposed intermodal facility would serve many customers,
16 Opposing counsel cross-examined Hovland about the proposed
spur track directly linking RidgePort to the main line.
Hovland averred that the spur track was necessary to provide
rail service to the industries attracted by RidgePort and to
distribute the products of RidgePort's customers or
tenants. Hovland admitted the spur track was not necessary to
the intermodal facility itself but was essential for the
industrial track to be fully functional.
17 David Irving, a civil engineer and vice president for
Trans Systems Corporation, directed the design of the
proposed intermodal facility. Irving testified that the
intermodal facility and spur track were separate projects. He
also approximated the spur track would traverse four acres of
Grohne South and CTT. BNSF intended the spur track to serve
Ridgeport's customers with direct access to ship their
goods via railway.
18 Irving agreed that the plans for the intermodal facility
were conceptual. However, plans for the intermodal facility
were difficult to conceive without Grohne South, as the
project required 8000 feet of clear track. Further,
additional tracks, water retention/detention areas, and
parking, among other things, could encumber both tracts. The
proposed intermodal facility did not yet include concrete
plans for about 50% to 70% of Grohne South.
19 James Gordon, director of economic development for
BNSF's northern lines, testified that BNSF entered a
separate letter agreement with RidgePort outlining the
parties' roles in constructing and paying for a spur
track. Gordon explained that BNSF was to take on the task of
using commercially reasonable efforts to acquire the land
necessary for the construction of the spur track to link
RidgePort's customers directly to the main line.
RidgePort had begun advertising the spur track to potential
private customers or tenants.
20 BNSF planned to construct the spur track in phases. One
phase would include going south and west across CTT and
Grohne South to BNSF's southern switch. Gordon stated
BNSF was constructing the first phase of the spur track, but
nothing else was contemplated until the Grohne tracts were
available. He agreed BNSF desired the spur track for the
purpose of providing RidgePort with direct access to the main
line. If private customers or tenants were attracted, as
planned, RidgePort, 1200 to 1500 acres in total size, would
comprise 300 acres of rail-serviced property. BNSF had
devoted approximately $20 million to the spur track project
at the time of the traverse hearing.
21 Gordon clarified that as RidgePort attracted more
rail-serviced customers across 300 acres, the spur track
would be necessary for BNSF to manage increased traffic from
RidgePort on what is already one of the busiest rail lines in
North America. In particular, the spur track would provide a
way for trains to enter and exit the main line from both
directions without causing impediments to or congestion of
the main line. The proposed design was the most effective way
for BNSF to ensure this purpose, while also expanding its
local operations, utilizing the acquired property, and
serving customers located across RidgePort.
22 In closing arguments, Grohne argued the takings, namely
for the spur track, were for a private purpose and excessive.
Grohne also pointed out that BNSF's current plan did not
include stated current uses for significant portions of the
takings but, rather, mere speculative future uses. BNSF
responded that it would not be serving merely one customer,
RidgePort, with the side or spur track but potentially 300
acres of future rail-serviced customers. As such, BNSF
maintained its takings were for the public, necessary, and
23 On July 31, 2015, the trial court denied Grohne's
traverse and motions to dismiss. The trial court stated that
after reviewing the pleadings, suggestions, and arguments of
the parties, it found that BNSF's takings were for a
necessary, not excessive, public purpose.
24 The court set the trial for August 22, 2016, less than two
years from the date BNSF filed its complaint for
condemnation. In July 2016, Grohne filed a motion to reset
the valuation date for the parcels. The court denied his
first motion; it reset the jury trial for May 12, 2017. In
April 2017, Grohne filed a motion to reconsider the
court's denial of his motion for a new valuation date.
The court, again, denied Grohne's motion. Instead of
proceeding to trial in May, the parties entered into various
stipulations regarding, inter alia, the 2014 value
of the parcels. On May 30, 2017, Grohne once again filed a
motion for a new valuation date. This time, the trial court
granted Grohne's motion to reset the valuation date. It
set the new values as of July 21, 2017. The court indicated
it set a new valuation date to minimize error. It did not
reach the issue of a substantial and material change but did
state, "I would probably have found *** that there would
be a substantial, material change." The court set the
date for trial.
25 On September 27, 2017, Grohne offered to settle with BNSF
on CTT. Grohne's proposed settlement included a joint
stipulation that CTT was worth $3.9 million as of July 21,
2017, provided BNSF agreed to use the July date as the date
of valuation. Additionally, Grohne's offer was only good
so long as he retained the ability to appeal the trial
court's denial of his traverse motion. BNSF rejected the
26 The parties filed a variety of motions in limine.
For the purpose of this appeal, our focus is on BNSF's
motion to bar the use of comparable sales from before October
2014. The court denied BNSF's motion.
27 On October 16, 2017, the trial commenced. At trial, each
party called two appraisers. For BNSF, Joseph Thouvenell
opined that the values of the tracts of land were as follows:
(1) $3, 371, 680 for Grohne North, (2) $645, 315 for Grohne
South, and (3) $2, 965, 800 for CTT.
28 Prior to Thouvenell's cross-examination, BNSF argued
that the trial court should limit Grohne's questioning on
an unexercised option to buy additional land, contained
within a comparable land sale contract for a property
adjacent to the Grohne tracts and relied upon in valuing the
Grohne tracts. Elion Partners, RidgePort's predecessor,
owned the adjacent property. Elion sold it to Batory Foods.
Grohne argued that the option showed how downward adjustments
in value were calculated for tax increment finance benefits
on the adjacent property.
29 The trial court barred discussion of the unexercised
option provision, acknowledging that there were two parts to
the comparable land sale contract for the adjacent
property-an actual sale and an unexercised option. The court
reasoned that questioning on the unexercised option was far
more prejudicial than probative. The trial court found that
Grohne could cross-examine BNSF's experts on their
calculations for the actual sale but did not believe the jury
could consider the value of an option that was, and might
30 Susan Enright, also for BNSF, opined that the values of
the tracts of land were as follows: (1) $3.5 million for
Grohne North and (2) $2.5 million for CTT. Enright did not
give an opinion as to the value of Grohne South.
31 For Grohne, Michael MaRous opined that the values of the
tracts of land were as follows: (1) $6, 095, 000, plus $225,
000 in damages to the remainder for Grohne North, (2) $880,
000 for Grohne South, and (3) $4, 210, 000 for CTT.
32 John Mundie, also for Grohne, opined that the values of
the tracts of land were as follows: (1) $6, 485, 000, plus
$100, 000 in damages to the remainder for Grohne North, (2)
$1, 020, 000 for Grohne South, and (3) $4.5 million for CTT.
Grohne requested the jury award amounts consistent with the
appraisals of MaRous.
33 On October 20, 2017, the jury awarded the following
amounts for the Grohne takings: (1) $4, 927, 840, plus $100,
000 in damages to the remainder for Grohne North, (2) $862,
375.50 for Grohne South, and (3) $4, 063, 146 for CTT. On
October 24, 2017, the trial court entered judgment orders
consistent with the jury's awards.
34 Both BNSF and Grohne filed posttrial motions. The trial
court denied all posttrial motions. Grohne filed a notice of
appeal. BNSF cross-appealed.
35 II. ANALYSIS
36 Grohne raised the following three issues on appeal: (1)
whether prohibiting cross-examination about a comparable land
sale contract constituted an abuse of discretion with respect
to Grohne North, (2) whether denying the traverse and motions
to dismiss pertaining to Grohne South and CTT was against the
manifest weight of the evidence, and (3) whether the trial
court's interpretation of ...