Department of Transp. For and In Behalf of People v. Shaw

• Decision Date: 09 February 1976
• Docket Number: No. 74--408,74--408
• Citation: 36 Ill.App.3d 972,345 N.E.2d 153
• Parties: The DEPARTMENT OF TRANSPORTATION of the State of Illinois, for and in Behalf of the PEOPLE of the State of Illinois, Petitioner-Appellant, v. William SHAW and Earlene Shaw, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 153

345 N.E.2d 153

36 Ill.App.3d 972

The DEPARTMENT OF TRANSPORTATION of the State of Illinois for and in Behalf of the PEOPLE of the State of Illinois, Petitioner-Appellant, v. William SHAW and Earlene Shaw, Defendants-Appellees.

No. 74--408.

Appellate Court of Illinois, Fifth District.

Feb. 9, 1976.

Rehearing Denied April 26, 1976.

William J. Scott, Atty. Gen., Springfield (Roy E. Frazier, Jr., Asst. Atty. Gen., Ronald C. Mottaz, Sp. Asst. Atty. Gen., Alton, of counsel), for petitioner-appellant.

Durr & Durr by Wendell Durr, Edwardsville, for defendants-appellees.

CARTER, Justice.

This is an appeal from an action of inverse condemnation. Pursuant to the mandate of a writ of mandamus issued July 30, 1971, the petitioner, the Department of Transportation of the State of Illinois, filed a condemnation petition on July 31, 1973. The parties disputed the purposes of this action. Defendants, William and Earlene Shaw, contended prior to trial that the question to be determined by the jury in the condemnation action was the amount of compensation due them for the taking of their access rights to Interstate 55 (U.S. Route 66) cut off by the closing of a township road. Defendants urged, as an alternative theory of recovery, that their counterclaim for damages to land not taken also presented a proper jury question. The petitioner, however, argued that only the question raised in defendants' counterclaim was a proper one for the jury. The judge denied petitioner's motion for summary judgment in the condemnation action and the cause was tried on the petition and counterclaim both for just compensation as a result of taking defendants' rights of access and for damage to land not taken.

The jury returned a verdict finding that the defendants were due compensation in the amount of $48,000.00 as a result of the taking of their property rights of access. Judgment was entered on the verdict. Thereafter in a non-jury hearing, the court awarded attorneys' fees in the sum of $16,000.00 and judgment was entered thereon. Petitioner appeals from both judgments.

The following questions are presented for review: 1) whether the circuit court erred in denying petitioner's motion for summary judgment; 2) whether the circuit court committed error in ruling on certain motions relating to the pleadings; 3) whether the court erroneously admitted or improperly excluded certain evidence; 4) whether the court erred in instructing the jury; 5) whether the court improperly allowed attorneys' fees; and 6) if allowance of attorney's fees was proper, whether the amount awarded was excessive. Defendant filed in this Court a motion to strike portions of the petitioner's brief and to dismiss the appeal. We denied the motion to dismiss but took the motion to strike with the case. The questions presented by this motion will be considered after recitation of the facts.

Prior to 1955, the only state highway serving what is now defendant's property was Illinois Route 157, now referred to as old Route U.S. 66. In 1955 the State acquired from the defendant's predecessor in title an acre of land upon which to construct a portion of the road and right of way of new U.S. Route 66. That portion of land was a triangular piece depicted below. Petitioner also acquired all direct access rights to the remaining 1.13 acres onto new U.S. Route 66. This acreage is located between old and new U.S. Route 66 (Interstate 55). The taking of this access right prohibited defendants from going directly onto new Route 66 from their 1.13 acre tract.

In addition to owning the tract between the highways defendants and their predecessors in title owned a five acre tract lying north of old U.S. Route 66. The exhibit below establishes the boundaries of both tracts as they have existed since 1955. It also shows the highway system since 1967. From 1955 to 1967 Township Road 123 crossed U.S. 66. Because of a change in policy regarding access to interstate highways, the township road was ordered closed on May 22, 1963, by the Director of Public Works. The township road was physically closed in January of 1967.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Defendants acquired title by quit claim deed dated November 29, 1962 (land deeded to D. E. Orman, now Earlene Shaw), but did not record it until August 20, 1963. The deed specifically excluded the rights of way transferred to the State in 1955 and any land located within a public roadway. The attorney representing the defendants in this purchase had also represented their predecessors in title at the time the access rights were conveyed to the state.

Prior to the physical closing of Township Road 123 it was possible to drive onto U.S. Route 66 from the defendants' 5 acre and 1.13 acre tracts by traveling about 300 feet on old U.S. 66, making a left turn onto the township road, and then going 150 feet to the intersection of the township road and new U.S. Route 66. It was also possible to drive across new U.S. Route 66 and continue on the township road in the direction of Illinois Route 4. After the closing it became, and still is, necessary to travel about two and a half miles north or one mile south on old U.S. Route 66 to get onto new U.S. Route 66.

On April 27, 1967, the Shaws filed an action seeking to enjoin the Director of the Division of Highway and Robert E. Kronst, District Highway Engineer, from interfering with their rights of ingress onto and egress from new U.S. Route 66 by closing the township road at its intersection with new U.S. Route 66 (now interstate 55) without prior condemnation proceedings. The circuit court allowed the State's motion to dismiss. On appeal to the Illinois Supreme Court the State alleged that the Shaws had an adequate remedy at law in a mandamus action. On that basis the Supreme Court affirmed the dismissal. Shaw v. Lorenz, 42 Ill.2d 246, 246 N.E.2d 285 (1969).

Thereafter on May 2, 1969, the defendants demanded by certified mail that the State institute eminent domain proceedings. The State did not act, so on May 26, 1969, the defendants filed a petition for writ of mandamus in the circuit court. On July 30, 1971, the court ordered that a writ of mandamus issue directing the State to institute eminent domain proceedings to take the Shaws' rights of access to Interstate 55 (new U.S. Route 66). The court also found that there had been a taking of the defendants' property rights of access, that no condemnation proceedings had been instituted to determine compensation for the destruction of these rights, and that the only question remaining for the jury was the value of the property rights taken.

The State's appeal taken from the judgment of the circuit court ordering that mandamus issue was dismissed on procedural grounds. Shaw v. Kronst, 9 Ill.App.3d 807, 293 N.E.2d 153 (5th Dist.1973).

At trial on the instant petition for condemnation and on defendant's counterclaim for damages to land not taken the following evidence was presented concerning the question of the amount of compensation or damages due the defendants.

Since 1955 the five acre tract has been used for farming and the 1.13 acre tract has not been used. Both parties agreed that because of Madison County's zoning and setback requirements, the 1.13 acre tract could not be used for constructing improvements of a commercial nature.

The testimony of defendant's first witness, Loren Burger, who was called under Section 60 of the Civil Practice Act, established that the State of Illinois does not own the fee under old U.S. Route 66, the road separating the two tracts owned by the defendants. Over objection Burger testified that it was his opinion that the access from the township Road onto new U.S. Route 66 included entry onto both the northbound and southbound lanes.

Defendants next called Tom Thebus, a real estate appraiser. Thebus explained that the value of access rights taken is the difference between the value of the land with and without these rights. In his opinion the highest and best use of the five acre tract was for commercial purposes because of its frontage, visibility, proximity, and access to new U.S. Route 66. The witness related that he had studied zoning change patterns and that all other property with access to highways had been rezoned for business use when requested. Thebus testified that with access rights intact, the defendants' property had a value of $115,000.00 as of July 31, 1973. Over petitioner's objection, he valued the tracts as a single unit. After the closing of the Township Road, the witness testified that there would be no commercial value and that the highest and best use of the land would be for a rural home site, the value of which would be $5,750.00 The damages, according to Thebus, were $109,250.00. In making this appraisal Thebus assumed that the defendants held title to the land under old U.S. Route 66 and that the defendants and the public would have the right of access onto new U.S. Route 66. He also assumed that access included the right to enter or leave both the north and southbound lanes of new U.S. Route 66. Where this not true, he stated, his evaluation would have been affected. Thebus further testified that if only the defendants themselves (and not their social guests and business invitees) had the right to use the Township Road for access to new U.S. Route 66, the land in question would be without commercial value.

On cross-examination petitioner was prohibited from asking Thebus the separate values of the two tracts. Petitioner was also precluded from inquiring whether other properties adjacent to defendants' property would also have commercial value. Thebus explained that he has not sold any property and has not been personally involved in any sales of real estate in the area. Over objection, the witness was allowed to testify regarding sales in the area, although he had no personal knowledge of them. He related that a two acre sale took...