Department of Conservation v. Kyes

373 N.E.2d 304, 57 Ill. App. 3d 563, 15 Ill. Dec. 34, 1978 Ill. App. LEXIS 2168
Appellate Court of Illinois·Decided February 22, 1978·No. 76-324·Published·Cited by 5 cases

Opinion

Mr. JUSTICE GUILD

delivered the opinion of the court:

On May 29, 1974, the Department of Conservation of the State of Illinois (hereinafter referred to as the State) filed a petition to condemn the real estate located at 512 Bouthillier Street in Galena, Illinois. Named as defendants in this proceeding were William E. Kyes and Neil J. Robbins, the owners of the property, Lois Zurliene, a contract purchaser of the property, and the Galena State Bank and Trust Company, which held a mortgage on the property. The jury returned a verdict of $48,000 as just compensation and judgment was entered upon the verdict. The State’s post-trial motion was denied and the State appeals.

The property has approximately 60 feet of frontage on Bouthillier Street and varies in depth from 127 to 133 feet. It is immediately contiguous to the U. S. Grant Home State Memorial. The improvements on the property consist of a small house which has been renovated for commercial usage as a restaurant and a small outbuilding. Prior to hearing any testimony the jury viewed the subject property.

Thereafter the State presented only one witness, a real estate appraiser who testified that, in his opinion, the value of the property was *14,500. He characterized the highest and best use of the property as a “limited commercial” use for something like a small restaurant, gift or antique shop. His testimony included evidence of approximately 20 real estate transactions, all but one of which involved sales of residential real estate. He considered these sales comparable because there was no zoning in Galena at the time and, therefore, he felt that the properties could have been converted to commercial uses if the owners had so desired.

Defendants Kyes and Robbins both testified to their acquisition of the subject property, improvements made upon it by them, and their operation of a restaurant on the premises during the last two months of the tourist season in 1972. They further testified to the negotiations resulting in a contract to sell the subject property to defendant Zurliene and her default on that contract after learning of the State’s intention to acquire the subject property. Zurliene also testified to the negotiations and contract for sale of the property to her. In addition, she testified at length concerning her plans to build a carriage and harness museum on the subject property.

The defense also introduced the testimony of two valuation witnesses. Both testified that the highest and best use of the property was commercial, especially because of its location next to the Grant Home. Both also testified concerning the sale of the Grantview Inn, directly across the street-from the subject property, as a comparable sale. One witness valued the subject property at *48,000 and the other at *56,256. Finally, there was rebuttal testimony concerning the issue as to when defendants Kyes and Robbins first acquired knowledge that the State might be interested in acquiring the subject property.

The State contends that it is entitled to a new trial because of the following allegedly erroneous actions of the trial court: (1) admitting evidence of the *68,000 asking price which Kyes and Robbins placed on the subject property when they offered it for sale; (2) admitting evidence of the defaulted contract between Kyes and Robbins and Zurliene (hereinafter referred to as the Zurliene contract); (3) admitting evidence of a *25,000 mortgage on the subject property; (4) admitting evidence concerning defendant Zurliene’s plans for use of the property; (5) admitting evidence of the sale of the Grantview Inn as a comparable sale and the testimony of the defense valuation witnesses based on it; and (6) allowing improper comments by defense counsel during closing argument.

It is a well established rule in condemnation cases that when the jury has viewed the premises and the amount of the verdict is within the range of the evidence, the verdict of the jury will not be disturbed unless the record clearly shows that it has been influenced by passion or prejudice or unless there was a clear and palpable mistake. (See, e.g. Trustees of Schools v. LaSalle National Bank (1961), 21 Ill. 2d 552, 173 N.E.2d 464; Department of Public Works and Buildings v. Lambert (1952), 411 Ill. 183, 103 N.E.2d 356.) In addition, even the improper admission or exclusion of value evidence does not constitute reversible error when there is other evidence of value on both sides and the jury has the opportunity of weighing the conflicting evidence. Trustees of Schools v. LaSalle National Bank.

With these principles in mind, we turn to the State’s first allegation that the trial court erred in permitting testimony that when Kyes and Robbins listed the subject property for sale, their asking price for the entire restaurant business thereon, including substantial amounts of personal property, was *68,000. The State complains of four specific instances in which such testimony was elicited. The first time the asking price was mentioned was in answer to a direct question concerning what the amount of that price was. The witness completed a rather lengthy answer before the State objected that such testimony was not an indication of the fair cash market value of the property. The court replied that it was competent as an asking price and that he would allow it, but only as an asking price, whereupon defense counsel replied that that was all that they were introducing it as. The remaining three instances in which the price was mentioned were during the testimony of the defendants about the negotiations leading up to the Zurliene contract. In response to one objection by the State, the court stated that the defense was only explaining the transaction between the defendants. Another time the court specifically instructed the jury that it was only an asking price.

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Department of Conservation v. Kyes, 373 N.E.2d 304, 57 Ill. App. 3d 563, 15 Ill. Dec. 34, 1978 Ill. App. LEXIS 2168 (Ill. Ct. App. 1978).

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