County Bd. of School Trustees of Macon County v. Batchelder, 33632

• Decision Date: 23 November 1955
• Docket Number: No. 33632,33632
• Citation: 130 N.E.2d 175,7 Ill.2d 178
• Parties: COUNTY BOARD OF SCHOOL TRUSTEES OF MACON COUNTY, Appellee, v. Mollie BATCHELDER et al., Appellants.
• Court: Illinois Supreme Court

Page 175

130 N.E.2d 175

7 Ill.2d 178

COUNTY BOARD OF SCHOOL TRUSTEES OF MACON COUNTY, Appellee, v. Mollie BATCHELDER et al., Appellants.

No. 33632.

Supreme Court of Illinois.

Nov. 23, 1955.

Vail, Mills & Armstrong, of Decatur, for appellants.

Weilepp, Wilson & Dyar, Decatur, for appellee.

KLINGBIEL, Justice.

The county board of school trustees filed a petition in the circuit court of Macon County seeking to condemn 1.45 acres of land for playground and other school purposes. The owner, Mollie Batchelder, and her husband, Charles, filed a traverse and motion to dismiss on the grounds that no effort was made to acquire the land by negotiation and agreement, and that the land sought was not necessary for public use. After a hearing on such issues the court found in favor of the plaintiff and ordered a jury. The jury returned a verdict fixing the compensation at $4,750, judgment was entered upon the verdict, and defendants appeal.

The first assignment of error challenges the sufficiency of the evidence at the hearing on the motion. The Eminent Domain Act provides for the taking of property where 'the compensation to be paid * * * cannot be agreed upon by the parties interested, * * *.' (Ill.Rev.Stat.1953, chap. 47, par. 2,) and the School Code ordains that whenever any lot is needed by a school district for any educational purpose 'and compensation for the lot or parcel of land cannot be agreed upon between the owners thereof and the trustees,' the school district may have the compensation determined in the manner provided by law for the exercise of the right of eminent domain. (Ill.Rev.Stat.1953, chap. 122, par. 14-7.) As a preliminary, therefore, to submitting to the jury the question of compensation the court must determine whether the right of condemnation exists in the particular case. City of Chicago v. Jewish Consumptives' Relief Society, 323 Ill. 389, 154 N.E. 117. The petition filed in this case alleges that the tract in question is necessary for a playground or other school purposes, and that the Board has endeavored to acquire the same by purchase. These allegations are denied by the traverse and motion to dismiss.

To sustain its burden of showing its right to condemn the plaintiff introduced evidence that the tract in question was located 110 feet east of a school building; that in 1942 defendants had leased it to the school for a term of 10 years; that it was used continuously since 1942 as a playground and athletic field; and that in 1953 the school had about 80 more students than it had in 1942, and around 40 more than in 1948. It also appears that a letter dated September 5, 1952, was received by defendants wherein the attorney for the Board made an offer of $500 for the land provided the offer was accepted by September 15; that defendants did not reply to the letter; and that an informal meeting by the Board with Mr. and Mrs. Batchelder was had at which defendants stated they had been negotiating with an oil company about building a service station at the north end of the tract and wanted to retain the north portion for such purpose. There was some discussion about a trade of the north half for a lot in the southeast portion of the school property, and defendants offered to sell the south portion of the tract. No price was mentioned, however, and the meeting ended with a promise by the Board to have another meeting. No further meeting occurred prior to the institution of this suit. The evidence further discloses statements by defendants that they did not know what the property was worth and had no price on it.

As this court observed in City of Chicago v. Lehmann, 262 Ill. 468, 104 N.E. 829, 830, 'the question whether the particular property sought to be appropriated is necessary for the public use is for the courts. If the necessity does not exist the land cannot be taken, and the property owner would be without the protection to which he is entitled if the determination of a corporation, private or municipal, to take his property conclusively settled the necessity of the taking. If that were so, the law would not require any averment of necessity but only an allegation of intention to take the property. The owner of property may challenge the right to take it by denying the averment of necessity, and the issue so made is a preliminary one, to be decided by the court.' Upon careful consideration of the evidence we think the burden of showing necessity has been satisfied in the case at bar. The word 'necessary,' as used in this connection, is construed to mean expedient, reasonably convenient, or useful to the public, and does not mean 'indispensable' or "an absolute necessity." Department of Public Works and Bldgs. v. Lewis, 411 Ill. 242, 103 N.E.2d 595, 597. A determination of the question of necessity is left largely to the corporation or municipality, and its determination will be rejected only for an abuse of the power. Department of Public Works and Bldgs. v. Lewis, 411 Ill. 242, 103 N.E.2d 595; County of Fayette v. Whitford, 365 Ill. 229, 6 N.E.2d 157. No such abuse has been shown here.

Defendants' contention that there was a failure to prove inability to agree on compensation before the petition was filed must likewise be rejected. By letter addressed to defendants they were offered the sum of $500 for their land, and no reply was made to the letter. Under such circumstances no further attempt to negotiate was necessary. There was sufficient effort on the part of the Board to agree with defendants. See County of Fayette v. Whitford, 365 Ill. 229, 232, 6 N.E.2d 157; Public Service Co. v. Recktenwald, 290 Ill. 314, 125 N.E. 271, 8 A.L.R. 466; County of Mercer v. Wolff, 237 Ill. 74, 86 N.E. 708. Although the defendants insist the offer was not bona fide, they point to no proof of this other than the inadequacy of amount. Since the evidence shows, in addition to the offer, that a meeting was held by the Board with defendants and that the latter would not put a price on the property themselves, we cannot conclude that the offer was made in bad faith, or that a sufficient attempt to negotiate was not made.

Defendants further assign as error rulings on evidence at the motion hearing which refused to permit them to show (1) that there was unused school-owned land near the school; (2) the amount of rental payable by the Board under the lease; and (3) the discussion if any, during the Board meeting at which, according to the Board's minutes the first mention of condemning defendants' land occurred. It is also assigned as error that at the trial before the jury the court refused to allow defendants to show the course of land values in the area during the preceding several years. No argument or citation of authority is supplied to support any of such assignments of error, however, and we therefore need not consider them. Shell Oil Co. v. Industrial Comm., 2 Ill.2d 590, 598, 119 N.E.2d 224; People ex rel. Montgomery v. Lierman, 415 Ill. 32, 43, 112 N.E.2d 149.

The next group of matters complained of concerns rulings on evidence at the jury trial on the question of value. First among these is the objection that defendants were not allowed to show the ease with which the land could be annexed to the village of Warrensburg, thus exempting it from...