BNSF Ry. Co. v. Grohne

• Citation: 2019 IL App (3d) 180063,437 Ill.Dec. 808,145 N.E.3d 381
• Decision Date: 03 July 2019
• Docket Number: Appeal No. 3-18-0063
• Parties: BNSF RAILWAY COMPANY, a Delaware Corporation, Plaintiff-Appellee and Cross-Appellant, v. David F. GROHNE, as Trustee Under the David F. Grohne Revocable Trust Dated February 14, 1996; Nonrecord Claimants; Unknown Owners; and Chicago Title and Trust Company, as Trustee Under Trust No. 8002346417 Dated April 25, 2006, Defendants (David F. Grohne and Chicago Title and Trust Company, Defendants-Appellants and Cross-Appellees).
• Court: United States Appellate Court of Illinois

2019 IL App (3d) 180063
145 N.E.3d 381
437 Ill.Dec. 808

BNSF RAILWAY COMPANY, a Delaware Corporation, Plaintiff-Appellee and Cross-Appellant,
v.
David F. GROHNE, as Trustee Under the David F. Grohne Revocable Trust Dated February 14, 1996; Nonrecord Claimants; Unknown Owners; and Chicago Title and Trust Company, as Trustee Under Trust No. 8002346417 Dated April 25, 2006, Defendants

(David F. Grohne and Chicago Title and Trust Company, Defendants-Appellants and Cross-Appellees).

Appeal No. 3-18-0063

Appellate Court of Illinois, Third District.

Opinion filed July 3, 2019

PRESIDING JUSTICE SCHMIDT delivered the judgment of the court, with opinion.

437 Ill.Dec. 811

¶ 1 Plaintiff-appellee and cross-appellant, BNSF Railway Company (BNSF), filed three eminent domain lawsuits for the condemnation of tracts of land owned in trust by defendants-appellants and cross-appellees, David F. Grohne and Chicago Title and Trust Company (collectively, Grohne). Plaintiff sought to build an intermodal railway facility along BNSF's main rail line in Will County, Illinois, using the condemned land. After the trial court's ruling on the pending traverse actions, the court held a jury trial for the valuation of Grohne's tracts of land for purposes of exercising eminent domain. The jury awarded Grohne compensation for all three takings.

¶ 2 Grohne appeals, claiming the trial court erred by (1) limiting his cross-examination of experts on a comparable land sale contract at the valuation hearing pertaining to Will County case No. 14-ED-65, (2) denying his traverse and motions to dismiss in Will County case Nos. 14-ED-66 and 14-ED-67, and (3) misinterpreting section 10-5-110 of the Eminent Domain Act (Act) (735 ILCS 30/10-5-110 (West 2014)) pertaining to Will County case No. 14-ED-67.

¶ 3 BNSF cross-appeals, raising the following issues regarding the compensation awards: (1) whether, absent a substantial and material change, the trial court erred in granting a new valuation date for the properties pertaining to Will County case Nos. 14-ED-66 and 14-ED-67 and (2) whether the final judgment orders should have been entered based upon the parties' stipulations of value as of October 20, 2014, rather than the jury's verdicts as of July 21, 2017.

¶ 4 I. BACKGROUND

¶ 5 On October 20, 2014, BNSF filed three eminent domain lawsuits to condemn three separate, but closely located tracts of land in Will County case Nos. 14-ED-65, 14-ED-66, and 14-ED-67. The complaints in the first two cases named David F. Grohne, as trustee of the David F. Grohne Revocable Trust, as defendant. The third lawsuit, Will County case No. 14-ED-67, named David F. Grohne, as well as Chicago Title and Trust Company, as holder of a land trust with David F. Grohne named as the beneficiary, as defendants.

¶ 6 BNSF intended to build an intermodal facility along its main line near Interstate 55 and Lorenzo Road in Will County, Illinois.¹ The northernmost tract (Grohne

145 N.E.3d 385

437 Ill.Dec. 812

North), the subject of case No. 14-ED-65, consists of 81.251 acres. BNSF sought 51.872 acres. The two tracts to the south, the subjects of case Nos. 14-ED-66 (Grohne South) and 14-ED-67 (CTT), consist of 73.118 and 72.717 acres, respectively. BNSF sought 11.733 and 59.316 acres of these tracts, respectively. The BNSF main line splits the Grohne tracts subject to taking in all three cases.

¶ 7 On September 25, 2014, the BNSF Board of Directors (Board), with unanimous consent, signed a resolution outlining the details and necessity of an intermodal facility. Specifically, the resolution stated the following:

"[I]n order to alleviate congestion on the [BNSF main line], prevent blocking of the main line and facilitate the Company's ability to meet the current demands of its existing customers and the future demands of additional development in the area, the Company proposes to construct and operate a multimodal facility adjacent to the [BNSF main line]. The facility will operate as a freight terminal and intermodal facility and will start from a connection to the Chillicothe Subdivision just east of Lorenzo Road and extend that facility west to a second connection to the Chillicothe Subdivision at Murphy Road. The second connection at Murphy Road is required to provide access to the facility from both ends to facilitate safe and expeditious operation of the main line. The facility will consist of multiple tracks and related connections, paved parking for holding containers and trailers waiting for local delivery or for loading onto rail cars, cranes for handling the containers and trailers and support facilities. There will also be truck gate structures to facilitate entrance and exit of containers and trucks to and from the facility. Full build out of the facility will require between 300 and 450 acres[.]"

The resolution also outlined in detail the property to be acquired, including 122.921 total acres from Grohne.

¶ 8 BNSF, in the complaints filed in these consolidated cases, restated the purpose it laid out in the Board's resolution. Further, the complaints stated, "[t]he multimodal facility, once constructed and open for operations, will be used for the benefit of all users of BNSF's railroad without discrimination."

¶ 9 On November 24, 2014, Grohne filed a traverse and motion to dismiss in each of BNSF's lawsuits. On April 6, 2015, the trial court consolidated the cases. Grohne subsequently withdrew the traverse with respect to Grohne North. Thus, the traverse hearing covered only the 71.049 acres comprising Grohne South and CTT.

¶ 10 With respect to Grohne South and CTT, Grohne argued BNSF sought to acquire his private property, in part, for the purpose of providing direct rail service to a private, neighboring industrial park, RidgePort Logistics Park (RidgePort). Specifically, Grohne maintained BNSF's conceptual plan for the intermodal facility included a private track, or spur track, designed to provide RidgePort and its attracted customers or tenants with direct access to the newly constructed southern switch on BNSF's main line.

¶ 11 In further support of the traverse, Grohne argued BNSF desired to acquire Grohne South for unstated or speculative future uses. BNSF did not specifically identify these uses in its conceptual plan. As such, Grohne claimed BNSF attempted to acquire "significantly more" than the

145 N.E.3d 386

437 Ill.Dec. 813

amount of acreage necessary for the planned intermodal facility project.

¶ 12 On July 27, 2015, the trial court held a hearing on the traverse. James Ball, senior manager of real estate for BNSF, testified about the Board's plan for the construction of an intermodal facility. Ball was in charge of acquiring property for the benefit of BNSF. Ball discussed the purpose and nature of the operations of intermodal facilities in general. Ball also stated that in October 2014, BNSF made three separate offers for the acquisition of Grohne's 124 acres. Grohne rejected each offer.

¶ 13 John Hovland, director of marketing and facility development for BNSF, testified before the court. Hovland explained that his responsibilities included siting, developing, and maintaining intermodal and automotive facilities. Hovland was responsible for determining the specific land necessary to construct an intermodal facility. In this case, Hovland anticipated the ultimate size of the proposed intermodal facility would be within the standard size for constructing intermodal facilities, approximately 460 acres.

¶ 14 Hovland also described the operations and demand for the proposed intermodal facility. In particular, Hovland discussed how BNSF's four other intermodal facilities in the area were too small and had minimal expansion capabilities. The newly proposed intermodal facility would take three years to construct. BNSF needed the additional intermodal facility due to forecasted growth in the Chicago area over the next five years. Further, the proposed intermodal facility could include and/or require support tracks for trains entering and leaving the facility, support facilities, an administration building, repair facilities for instrumentalities and equipment, parking areas, an overpass, water retention/detention facilities, grade separations, emergency facilities, and relocated power lines.

¶ 15 Hovland clarified that the plans were conceptual and would be implemented in phases, rather than all at once. Since BNSF had not acquired the necessary tracts of land, final planning and permitting could not be completed. Completion of the plans required additional engineering, surveying, and geotechnical exploration. The Grohne South and CTT tracts would potentially become the site of lead outs for the intermodal tracks, parking areas, water retention/detention facilities, and a grade separation for nearby roads. BNSF would be unable to construct the proposed intermodal facility without Grohne South and CTT. In Hovland's view, the proposed intermodal facility would serve many customers, without discrimination.

¶ 16 Opposing counsel cross-examined Hovland about the proposed spur track directly linking RidgePort to the main line. Hovland averred that the spur track was necessary to provide...