Department of Transportation v. Jones

358 N.E.2d 402, 44 Ill. App. 3d 592, 3 Ill. Dec. 235, 1976 Ill. App. LEXIS 3536
CourtAppellate Court of Illinois
DecidedDecember 23, 1976
Docket75-242
StatusPublished
Cited by4 cases

This text of 358 N.E.2d 402 (Department of Transportation v. Jones) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Department of Transportation v. Jones, 358 N.E.2d 402, 44 Ill. App. 3d 592, 3 Ill. Dec. 235, 1976 Ill. App. LEXIS 3536 (Ill. Ct. App. 1976).

Opinion

Mr. JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

Defendants appeal from a judgment rendered upon a jury verdict in the Circuit Court of Alexander County in a proceeding involving the condemnation of land for highway improvements. Defendants, owners of the property affected, challenge the verdict finding just compensation for damages to the remainder in the amount of *14,250. Defendants contend that the trial court erred in overruling their objections to the admission of certain evidence regarding elements of damage to the remainder and that, as a result, the jury was improperly influenced in reaching its verdict. They raise no question regarding the verdict for damages to the land taken.

Defendants owned two tracts of land, referred to in the record as Parcel 37 and Parcel 47. All of Parcel 47 and a portion of Parcel 37 were taken. The alleged error concerns damage to the remainder of Parcel 37 on which sits defendants’ restaurant and truck stop.

Defendants produced three expert witnesses who testified as to the difference in the fair market value of the remainder of Parcel 37 before and after petitioner’s taking. Based on this difference each witness found damage to the remainder in the respective amounts of *96,500, *102,000 and *87,340. One of the factors taken into account by defendants’ witnesses in arriving at their assessment of damage was the effect of the partial taking on an entrance to defendants’ station. It was established that after completion of the highway improvements a truck rig standing at the diesel pumps would block an entrance into defendants’ truck stop and restaurant and that the maneuverability of the large truck rigs normally serviced at defendants’ station would be severely restricted.

On cross-examination defendants’ witness Charles Thebus, a professional appraiser, testified that in finding that the remainder of Parcel 37 was damaged in the amount of *87,340 he had assumed that a typical buyer would expect to have to relocate certain equipment in order to continue using the property as a truck stop. Thebus stated that the fuel pumps were part of the equipment that would have to be moved.

Three expert witnesses testified for petitioner. Frank Newman, a professional real estate appraiser, testified that the damage to the remainder of Parcel 37 would be *3,000. On cross-examination, Newman stated that this estimate of damage was based on the cost of relocating the fuel pumps. Petitioner’s witness Jack Ebersohl, who was in the business of installing fuel tanks and pumps, testified that the diesel pumps could be moved to another location on the remainder property. Ebersohl did not indicate what the cost of such relocation would be, but did state that he submitted his cost estimates to real estate appraiser Glenn Grosse, plaintiff’s final expert witness. Grosse testified that the damage to the remainder would be *3,000 based on his consideration of Ebersohl’s estimate of the cost of relocating the pumps and on the fact that the east property line of Parcel 37 was somewhat irregular after the taking.

Defendants contend that the trial court committed reversible error in admitting the testimony of Ebersohl and certain portions of the testimony of Newman and Grosse over defendants’ objections. It is argued that this testimony was inadmissible because it amounted to an estimate of the actual cost of an individual item of damage.

The test in Illinois for determining if there is any damage to the remainder of condemned property is whether the fair cash market value of the remainder, after the taking and improvement, has been depreciated. (Department of Public Works & Buildings v. Maddox, 21 Ill. 2d 489, 493-94, 173 N.E.2d 448, 450.) Thus, the damage to the remainder is the difference between the fair market value of the remainder, as a part of the whole parcel prior to the taking and improvement, and the fair market value of the remainder after the taking and improvement. (Department of Public Works & Buildings v. Barton, 371 Ill. 11,16-17, 19 N.E.2d 935, 937-38.) Costs incurred in making the remainder usable after the improvement are relevant, if reasonable and economical, but are not recoverable as specific items of damage in themselves. (Department of Public Works & Buildings v. Bloomer, 28 Ill. 2d 267, 191 N.E.2d 245; Department of Transportation v. Galley, 12 Ill. App. 3d 1072, 299 N.E.2d 810.) Thus, expenses that are necessary to adjust property to changed conditions resulting from the improvement are to be considered in determining any depreciation in fair market value, but evidence as to such expenses must be specifically related to a diminution in the fair market value of the remainder. The purposes for this rule were alluded to by the Illinois Supreme Court in Department of Public Works & Buildings v. Lotta, 27 Ill. 2d 455, 456-57, 189 N.E.2d 238, 240, where a trial court was upheld in striking the testimony of an expert witness who testified that he reached his conclusion as to damages to the remainder by adding the value of the remaining property to the value of a building standing on that property:

“We have consistently held that the fair market value of improved property is not the sum of the value of the building and the value of the land computed separately. For this purpose, the whole does not necessarily equal the sum of the parts. The value of unimproved land, adaptable for any use, may diminish, as land, when improved by the construction of a building and so committed to a particular use. For similar reasons, the construction of a building may not produce an increment in value equal to its cost, since the improvement may not be desirably situated. To avoid misleading and confusing the jury, the evidence may properly be confined to the value directly at issue, that is, the value of the improved land as a whole.” (27 Ill. 2d 455, 456-57.)

See also Department of Transportation v. Quincy Coach House, Inc., 64 Ill. 2d 350, 356 N.E.2d 13.

The potential danger involved in permitting evidence to be introduced with respect to specific elements of damage is readily apparent. Property owners could claim a variety of incidental damages to the remainder of their condemned property because of various changed conditions which have no real effect on the fair market value of the remainder. If allowed to admit evidence with respect to specific elements of damage, a complaining property owner could persuade a jury that it should reach a determination of damage simply by adding together specific elements of damage. Problems would also arise if the State were allowed to introduce evidence of specific elements of damage without relating such evidence to a diminution in the fair market value of the remainder.

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Bluebook (online)
358 N.E.2d 402, 44 Ill. App. 3d 592, 3 Ill. Dec. 235, 1976 Ill. App. LEXIS 3536, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-transportation-v-jones-illappct-1976.