Department of Transp. ex rel. People v. Central Stone Co., 4-89-0939

• Decision Date: 02 August 1990
• Docket Number: No. 4-89-0939,4-89-0939
• Citation: 558 N.E.2d 742,200 Ill.App.3d 841
• Parties: , 146 Ill.Dec. 779 The DEPARTMENT OF TRANSPORTATION ex rel. the PEOPLE of the State of Illinois, Plaintiff-Appellant, v. CENTRAL STONE COMPANY, a Corporation, and Minerva Oil Company, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 742

558 N.E.2d 742 200 Ill.App.3d 841, 146 Ill.Dec. 779 The DEPARTMENT OF TRANSPORTATION ex rel. the PEOPLE of the
State of Illinois, Plaintiff-Appellant,
v.
CENTRAL STONE COMPANY, a Corporation, and Minerva Oil
Company, Defendants-Appellees. No. 4-89-0939. Appellate Court of Illinois,
Fourth District. Aug. 2, 1990.
Rehearing Denied Sept. 5, 1990.

Page 743

[200 Ill.App.3d 842] [146 Ill.Dec. 780] Robert W. Neirynck, Sp. Asst. Atty. Gen., Bloomington, Michael J. Luke, Sr. Asst. Atty. Gen., State of Ill., Springfield, for plaintiff-appellant.

Keefe, Gorman & Brennan, (Jerry L. Brennan, of counsel), Quincy, for defendants-appellees.

Page 744

[146 Ill.Dec. 781] Justice STEIGMANN delivered the opinion of the court:

The Department of Transportation (DOT) appeals from a jury verdict awarding a landowner, Central Stone Company, compensation totaling $1,776,300 for land taken by DOT in eminent domain proceedings. DOT argues that Thomas Newman, a valuation expert [200 Ill.App.3d 843] called by Central Stone, improperly valued only the limestone reserves rather than the land as a whole.

We agree and remand for a new trial.

The Illinois Constitution states, "[p]rivate property shall not be taken or damaged for public use without just compensation as provided by law." (Ill. Const. 1970, art. I, § 15.) The purpose of this provision is not to place the owner in a better position than he was in before his land was taken, but to make him whole. (Department of Public Works & Buildings v. Hubbard (1936), 363 Ill. 99, 103, 1 N.E.2d 383, 385.) "Just compensation is the fair market value of the property at its highest and best use on the date of filing of the petition." Department of Public Works & Buildings v. Association of Franciscan Fathers (1977), 69 Ill.2d 308, 314, 13 Ill.Dec. 681, 683, 371 N.E.2d 616, 618.

"The highest and best use may be the present use to which the property is actually put or:

'any capacity for future use which may be anticipated with reasonable certainty, though dependent upon circumstances which may possibly never occur, * * * if it in fact enhanced the market value of the land in its present condition and state of improvement. The future prospective use affecting value must be a present capacity for a use which may be anticipated with reasonable certainty and made the basis of an intelligent estimate of value.' Crystal Lake Park District v. Consumers Co. (1924), 313 Ill. 395, 406 [145 N.E. 215]."

City of Chicago v. Anthony (1990), 136 Ill.2d 169, 174-75, 144 Ill.Dec. 93, 95-96, 554 N.E.2d 1381, 1383-84.

The fair market value of the property is the measure for determining just compensation. (City of Chicago v. Cunnea (1928), 329 Ill. 288, 295, 160 N.E. 559, 562.) The Code of Civil Procedure defines "fair market value" as follows:

"Except as to property designated as possessing a special use, the fair cash market value of property in a proceeding in eminent domain shall be the amount of money which a purchaser, willing but not obligated to buy the property, would pay to an owner willing but not obliged to sell in a voluntary sale, which amount of money shall be determined and ascertained as of the date of filing the complaint to condemn. In the condemnation of property for a public improvement there shall be excluded from such amount of money any appreciation in value proximately caused by such improvement, and any depreciation in value proximately caused by such improvement. However, such appreciation or depreciation shall not be excluded[200 Ill.App.3d 844] where property is condemned for a separate project conceived independently of and subsequent to the original project." Ill.Rev.Stat.1987, ch. 110, par. 7-121.

There are three methods for calculating fair market value:

"The cost approach consists, basically, of estimating the value of the land and then adding to it the value of the improvements less depreciation. * * * The market approach is used by finding similar land and improvements which have recently been sold, and then comparing those with the present real estate to determine a fair value. The income approach is reached by determining what income the real estate would produce if it were rented." (Department of Transportation v. Quincy Coach House, Inc. (1976), 64 Ill.2d 350, 354, 1 Ill.Dec. 13, 15, 356 N.E.2d 13, 15.)

The Illinois Supreme Court has approved of each of these methods of valuation "if the proper circumstances are present." People ex rel. Director of Finance v. YWCA (1979), 74 Ill.2d 561, 571, 25 Ill.Dec. 649, 654, 387 N.E.2d 305, 310.

Page 745

[146 Ill.Dec. 782] The presence of minerals under the surface affects the valuation of condemned land.

"It is the rule in Illinois that minerals deposited on land to be condemned should not be considered separately in any determination of value. Department of Public Works and Buildings v. Hubbard, 363 Ill. 99, 102, 1 N.E.2d 383; Forest Preserve Dist. of Cook County v. Caraher, 299 Ill. 11, 17, 132 N.E. 211. It is felt that a separate valuation on the deposits must include the elements of prospective profits, market demands, costs and other factors of a speculative nature and therefore are too uncertain to be properly employed. City of Chicago v. Central Nat. Bank in Chicago, 5 Ill.2d 164, 125 N.E.2d 94. It is proper, however, to consider the presence of the minerals as part of the overall value of the land." Illinois Building Authority v. Dembinsky (1967), 90 Ill.App.2d 451, 455, 233 N.E.2d 38, 40.

See also Department of Transportation v. Toledo, Peoria & Western R.R. Co. (1979), 75 Ill.2d 436, 27 Ill.Dec. 482, 389 N.E.2d 546; Department of Transportation v. Mullen (1983), 120 Ill.App.3d 268, 75 Ill.Dec. 803, 457 N.E.2d 1362.

When only a portion of the owner's land is taken by eminent domain, additional issues are raised. First, the trier of fact must determine what is to be paid for the portion taken. Next, the trier of fact must decide whether the remainder has been damaged and, if so, the amount of compensation for the damage. (Department of [200 Ill.App.3d 845] Transportation v. Bouy (1979), 69 Ill.App.3d 29, 39, 25 Ill.Dec. 499, 506, 386 N.E.2d 1163, 1170.) The portion of the tract to be taken in eminent domain must first be valued as a part of the whole tract before the taking and not as a separate piece of property. (Tri State Park District v. First National Bank (1975), 33 Ill.App.3d 348, 337 N.E.2d 204.)

"The measure of compensation for land not taken by the improvement is the difference between the fair cash market value of such property before and after the improvement. (Illinois Power Co. v. Wieland, 324 Ill. 411 [155 N.E. 272]; Brand v. Union Elevated Railroad Co., 258 [Ill.] 133, [101 N.E. 247].) Compensation for land taken is to be estimated on the value of the land as land, with all its capabilities." ( Hubbard, 363 Ill. at 101-02, 1 N.E.2d at 384.)

(See also Department of Transportation v. Shell Oil Co. (1987), 156 Ill.App.3d 304, 306, 108 Ill.Dec. 900, 902, 509 N.E.2d 596, 598; Department of Public Works & Buildings v. Crumbaugh (1971), 1 Ill.App.3d 761, 762, 274 N.E.2d 161, 162.) "The measure of recovery for damages to the remainder in a condemnation action is the depreciation in market value of the remainder resulting from the taking." Department of Transportation v. Hsueh (1983), 117 Ill.App.3d 945, 947, 73 Ill.Dec. 500, 502, 454 N.E.2d 360, 362.

The market approach, also known as the comparable sales approach, is appropriate for valuing the condemned property in this case. This approach looks "to comparable sales of land based on similarities in locality, character, time, proximity, market...