PEOPLE EX REL. DEP'T OF TRANSP. v. Birger

507 N.E.2d 1321, 155 Ill. App. 3d 130
CourtAppellate Court of Illinois
DecidedMay 5, 1987
Docket5-86-0011
StatusPublished

This text of 507 N.E.2d 1321 (PEOPLE EX REL. DEP'T OF TRANSP. v. Birger) 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
PEOPLE EX REL. DEP'T OF TRANSP. v. Birger, 507 N.E.2d 1321, 155 Ill. App. 3d 130 (Ill. Ct. App. 1987).

Opinion

155 Ill. App.3d 130 (1987)
507 N.E.2d 1321

THE PEOPLE ex rel. DEPARTMENT OF TRANSPORTATION, Petitioner-Appellant,
v.
BERNARD B. BIRGER et al., Respondents-Appellees (John W. Leskera et al., Respondents).

No. 5-86-0011.

Illinois Appellate Court — Fifth District.

Opinion filed May 5, 1987.

*131 *132 *133 Neil F. Hartigan, Attorney General, of Springfield (Roma Jones Stewart, Solicitor General, Roy E. Frazier, Jr., Assistant Attorney General, of Springfield, and Paul D. Giamanco, Special Assistant Attorney General, of Mt. Vernon, of counsel), for appellant.

John W. Leskera, of Dunham, Boman & Leskera, of East St. Louis, and Harry J. Sterling, of Sterling & Stanley, of Fairview Heights, for appellees.

Judgment affirmed.

PRESIDING JUSTICE KARNS delivered the opinion of the court:

The Department of Transportation of the State of Illinois (the Department) appeals from a judgment of the circuit court of Madison County awarding the Birgers the sum of $165,882 as additional just compensation for the taking and damaging of their property. We affirm.

The Department filed a petition for condemnation seeking fee simple title to a parcel of land held in trust by Bernard B. and Marguerite J. Birger (the Birgers). The property taken consisted of 47.65 acres, out of a total of 115.174 acres owned by the Birgers, located in the northwest quadrant of the intersection of Illinois Route 157 and Interstate 55/70 within the city limits of Collinsville, Illinois.

Witnesses for the Birgers testified the value of the property taken ranged from $1,024,500 to $1,906,000, with damages to the remainder ranging from $0 to $506,400. The Department's witness testified the value of the property taken was $455,000 with no damage to the remainder. The jury returned a verdict of $1,143,600 for the property taken and $22,282 as damage to the remainder for a total of $1,165,882. The circuit court entered judgment upon the verdict for the sum of $165,882 as additional compensation over the preliminary just compensation awarded in an earlier "quick take" proceeding.

On appeal, the Department argues the trial court erred in denying the motions to strike the testimony of the Birgers' valuation witnesses. The Department contends these witnesses based their valuation opinions upon improper factors, including noncomparable sales prices and speculative future developments in the area. The Department concludes the jury was therefore misled as to the proper value of the property taken and, because the jury was so misled, a new trial is required. The Department further argues because of additional alleged errors occurring during the course of the trial, the verdict was a result of passion or prejudice or a clear and *134 palpable mistake. We disagree.

• 1-4 The owner of property condemned for public use is entitled to just compensation for the taking of his land. (E.g., Department of Public Works & Buildings v. Hufeld (1966), 68 Ill. App.2d 120, 127, 215 N.E.2d 312, 316.) Just compensation is determined by looking to the fair market value of the property for its highest and best use on the date of the filing of the condemnation petition even if the land is not being put to that use at the time of the filing. (E.g., Forest Preserve District v. South Holland Trust & Saving Bank (1976), 38 Ill. App.3d 873, 876, 349 N.E.2d 689, 692. See also City of Benton v. Odom (1984), 123 Ill. App.3d 991, 995, 463 N.E.2d 785, 788.) Both parties have the right to adopt their own theory as to the highest and best use of the land taken. (E.g., Department of Public Works & Buildings v. Roehrig (1976), 45 Ill. App.3d 189, 196, 359 N.E.2d 752, 760; Department of Business & Economic Development v. Pioneer Trust & Savings Bank (1976), 39 Ill. App.3d 8, 11, 349 N.E.2d 467, 471.) Fair market value, in turn, is the amount of money which a willing buyer under ordinary circumstances would pay to a willing owner in a voluntary sale, neither being under any obligation to buy or sell. (E.g., Department of Public Works & Buildings v. Oberlaender (1969), 42 Ill.2d 410, 415, 247 N.E.2d 888, 892; Department of Business & Economic Development v. Pioneer Trust & Savings Bank (1976), 39 Ill. App.3d 8, 10, 349 N.E.2d 467, 470.) Fair market value usually is determined in part by looking to comparable sales of land based on similarities in locality, character, time, proximity, market conditions, improvements, and modes of payment. See, e.g., People ex rel. Director of Finance v. YWCA (1979), 74 Ill.2d 561, 570, 387 N.E.2d 305, 310.

The parties here agree the highest and best use of the condemned property is for commercial development. The parties disagree, however, as to the evidence and factors to be considered in determining the value of the land.

• 5, 6 The determination of whether a sale of land is a comparable sale and is admissible into evidence rests within the sound discretion of the trial court. (E.g., Department of Business & Economic Development v. Pioneer Trust & Savings Bank (1976), 39 Ill. App.3d 8, 12, 349 N.E.2d 467, 472.) While it is generally true that an expert's opinion based upon improper elements is incompetent and should be excluded or stricken upon proper motion (see Department of Transportation v. Bouy (1979), 69 Ill. App.3d 29, 38, 386 N.E.2d 1163, 1169), errors in rulings on the admissibility of evidence do not necessarily require reversal. Forest Preserve District v. Kelley *135 (1979), 69 Ill. App.3d 309, 314, 387 N.E.2d 368, 373.

The Department specifically takes issue with two of the valuation witnesses' selections of "comparable sales." The Department argues most of these sales were not arm's length transactions but rather were between related parties as part of an assemblage of land (individual parcels of land acquired to form a large, unified tract) for a specific, definite development, namely Eastport Plaza. After the first purchase in an assemblage sale, the buyer needs adjacent property more than the average buyer in an open market. The Department believes the property would therefore acquire a "special value" to the assemblage buyer, reflecting his "special need," which would color the purchase price of the land.

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507 N.E.2d 1321, 155 Ill. App. 3d 130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-dept-of-transp-v-birger-illappct-1987.