Dept. of Transp. v. First Bank of Schaumburg

631 N.E.2d 1145, 260 Ill. App. 3d 490, 197 Ill. Dec. 686
CourtAppellate Court of Illinois
DecidedNovember 5, 1992
Docket1-91-2497
StatusPublished
Cited by12 cases

This text of 631 N.E.2d 1145 (Dept. of Transp. v. First Bank of Schaumburg) 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
Dept. of Transp. v. First Bank of Schaumburg, 631 N.E.2d 1145, 260 Ill. App. 3d 490, 197 Ill. Dec. 686 (Ill. Ct. App. 1992).

Opinion

JUSTICE LINN

delivered the opinion of the court:

To facilitate the widening of Golf Road in the Village of Schaumburg, the Illinois Department of Transportation brought a condemnation action under the State’s authority of eminent domain. In order to complete the roadway improvements, the State sought to acquire title to 4,225 square feet of the defendant’s property and also requested the imposition of two temporary easements, one along Golf Road and the other along Plum Grove Road. The defendant property owner filed a cross-petition which asserted damage to the remainder of the land not taken in the condemnation action. Both parties presented testimony by expert witnesses as to the appropriate valuation of the subject property, and upon consideration of the evidence presented, the jury returned a verdict of $85,000.

On appeal the property owner raises three principal grounds for reversal. Initially, the property owner asserts that the jury’s verdict was not within the range of the evidence. Secondly, the property owner argues that the trial court committed several evidentiary errors in admitting the testimony of Gary DeClark, the State’s property valuation expert. Finally, the property owner contends that it was deprived of a fair trial by improper and prejudicial conduct by counsel for the State. 1

We find that the jury’s verdict cannot be sustained on the evidence in the record. Therefore, we reverse the judgment entered on the verdict, and we remand the cause to the circuit court for a new trial.

BACKGROUND

The evidence adduced at trial established that the subject property consisted of a parcel of land located at the southwest corner of Golf and Plum Grove Roads in the Village of Schaumburg. The condemnation proceeding involved the taking of 4,225 square feet along Golf Road as well as the imposition of two temporary, three-year easements, one along Golf Road and the other along Plum Grove Road. The property owner operated a restaurant on the subject parcel which was improved by the restaurant building, a parking lot, and surrounding landscaping. As a result of the acquisition, several parking spaces were eliminated, and the restaurant building and parking lot were no longer in compliance with the setback requirements mandated by the village zoning ordinance.

At trial, the State called Gary DeClark as its sole expert witness on the valuation of the subject property. DeClark testified that the value of the parcel taken for the roadway improvements was $55,000; the damage to the remainder was $10,000; and the value of the easements was $9,300. DeClark also testified that there were "costs to cure” of $9,000 and that there was no damage to the remainder as a result of the temporary easements. According to DeClark, the total compensation due the property owner was $83,300.

The property owner called Fred Tadrowski and Gus Zaharias as its two expert witnesses on the valuation of the property. Fred Tadrowski testified that the value of the parcel taken for the roadway improvements was $85,000; the damage to the remainder was $115,000; the value of the easements was $12,000; and the damage to the remainder as a result of the temporary easements was $10,000. According to Tadrowski, the total compensation due the property owner was $222,000.

Gus Zaharias, the property owner’s second expert witness, testified that the value of the parcel taken for the roadway improvements was $63,380, and the damage to the remainder was $296,620. Zaharias did not testify as to the value of the temporary easements or as to the damage to the remainder as a result of the easements. According to Zaharias, the total compensation due the property owner was $360,000.

The jury returned a verdict of $60,500 for the property actually taken by the State; $12,500 for the damage to the remainder; $12,000 for the imposition of the temporary easements; and $0 for the damage to the remainder caused by the temporary easements. Thus, the total compensation awarded the property owner by the jury was $85,000.

OPINION

I

The property owner initially asserts that the jury’s verdict of $12,500 for damage to the remainder was not within the range of evidence adduced at trial.

The verdict of a jury in a condemnation proceeding cannot be sustained where the damages allowed do not fall within the range of the values testified to by the witnesses. (See Central Illinois Public Service Co. v. Rider (1957), 12 Ill. 2d 326, 329, 146 N.E.2d 48.) In the instant case the minimum value for damage to the remainder was $10,000, as stated by DeClark, and the maximum value was $296,620, as stated by Zaharias. Based upon this testimony, the jury’s verdict of $12,500 was well within the range, of the evidence presented by the expert witnesses.

The property owner contends, however, that the minimum value on this element of damage should properly have been $19,000, and consequently, the jury’s verdict of $12,500 was not within the range of the evidence. In presenting this claim, the property owner urges that the minimum value stated by DeClark must include his valuation of the damage to the remainder ($10,000) plus his valuation of the "costs to cure” ($9,000). Thus, the property owner argues that these two values should be combined into an aggregate number which would then represent the minimum value for this element of damage. We find that this argument is without merit.

The relevant inquiry presented here is whether the jury’s verdict was within the range of the competent and properly admissible evidence. The measure of damages to the remainder is the difference between its fair market value before the acquisition and its fair market value after the acquisition. (Department of Public Works & Buildings v. Bloomer (1963), 28 Ill. 2d 267, 272-73, 191 N.E.2d 245; Department of Transportation v. Schlechte (1981), 94 Ill. App. 3d 187, 190, 418 N.E.2d 1000.) Thus, the recovery for damage to land not taken is the reduction in its value resulting from the acquisition. Bloomer, 28 Ill. 2d at 272-73.

Expenditures made and costs incurred in adapting the land to use after the acquisition are relevant, if reasonable and economical, as evidence of the depreciation in value, but not as recoverable items in themselves. (Bloomer, 28 Ill. 2d at 273; Department of Transportation v. Gonterman (1976), 41 Ill. App. 3d 62, 65, 354 N.E.2d 76.) Consequently, an expert valuation witness may consider expenses made necessary by reason of the acquisition to adjust the property to the changed conditions brought about by the taking. (City of Freeport v. Fullerton Lumber Co. (1981), 98 Ill. App. 3d 218, 223, 423 N.E.2d 924.) Yet, such costs cannot be recovered specifically and are not the measure of damages.

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631 N.E.2d 1145, 260 Ill. App. 3d 490, 197 Ill. Dec. 686, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dept-of-transp-v-first-bank-of-schaumburg-illappct-1992.