Department of Transp. of State of Ill. for and on Behalf of People v. Rasmussen, 81-691

• Decision Date: 06 August 1982
• Docket Number: No. 81-691,81-691
• Citation: 439 N.E.2d 48,108 Ill.App.3d 615,64 Ill.Dec. 119
• Court: United States Appellate Court of Illinois
• Parties: , 64 Ill.Dec. 119 The DEPARTMENT OF TRANSPORTATION OF the STATE OF ILLINOIS for and on Behalf of the PEOPLE of the State of Illinois, Petitioner-Appellant and Cross-Appellee, v. Clarence D. RASMUSSEN, Wilbur E. Rasmussen, Russ Myers and "Unknown Owners", Defendants-Appellees and Cross-Appellants.

Page 48

439 N.E.2d 48

108 Ill.App.3d 615, 64 Ill.Dec. 119

The DEPARTMENT OF TRANSPORTATION OF the STATE OF ILLINOIS for and on Behalf of the PEOPLE of the State of Illinois, Petitioner-Appellant and Cross-Appellee, v. Clarence D. RASMUSSEN, Wilbur E. Rasmussen, Russ Myers and "Unknown Owners", Defendants-Appellees and Cross-Appellants.

No. 81-691.

Appellate Court of Illinois Second District.

Aug. 6, 1982.

Rehearing Denied Sept. 14, 1982.

Tyrone G. Fahner, Atty. Gen., Chicago, Frank M. Daly, Sp. Asst. Atty. Gen., Waukegan, Douglas R. Engel, Sp. Asst. Atty. Gen., DeKalb, Roy E. Frazier, Jr., Asst. Atty. Gen., Springfield, for petitioner-appellant and cross-appellee.

Edward T. Graham, P. C., Glen Ellyn, for defendants-appellees and cross-appellants.

SEIDENFELD, Presiding Justice:

The Department of Transportation of the State of Illinois appeals from a judgment of $31,530 for damage to land not taken after a quick-take easement over part of defendants' property was granted in connection with construction of an overpass on State Route 51 in the City of Rochelle. (No appeal is taken from the award of $1800 for the easement.) The Department alternatively claims that prejudicial trial errors require a new trial. The defendants cross-appeal from the judgment which awarded interest at 6% per annum on the excess of final over preliminary just compensation, which they claim denies them fair compensation.

Defendants' property on which they operate a gasoline filling and service station is located at the southwest corner of Lincoln Avenue and Illinois Route 51 in Rochelle. The property is bounded to the south by a Chicago & North Western Railway right-of-way. The property has one driveway entrance on the north (Lincoln Avenue) side and two driveways on the east side.

On October 18, 1979, the Department filed a petition to condemn a three-year construction easement along the eastern edge of defendants' property. The easement was granted pursuant to the "quick-take" provisions of the Eminent Domain statute (Ill.Rev.Stat.1979, ch. 47, par. 2.1 et seq. ). The Department deposited $1080 as preliminary compensation to the defendants for the taking of the easement. An order vesting the Department with title in the easement was entered December 12, 1979.

The easement occupies about 1,245 square feet along the eastern edge of defendants' property at a width of either five or ten feet. The Department obtained the easement to facilitate the construction of a highway overpass which will elevate Route 51 over a distance stretching from about a block north of defendants' property to about nine hundred feet south of the property. Construction of the overpass began in early 1980.

I. Damage to Defendants' Property Not Taken

Initially the Department argues that the trial court erred in finding that defendants suffered a constitutionally compensable impairment of access to and from their property as a result of the construction of the overpass and attendant alteration of Route 51. The Department contends that defendants' property remained the same before and after the taking of the easement and construction of the overpass, with no change in access to the adjoining street, Old Route 51, and that defendants suffered no compensable injury when the flow of traffic is diverted to a new location, new Route 51. We think this is an oversimplification, and agree with the defendants' argument that access to the property was materially impaired when the old route was cut off in both a north and south direction by the abutments of the overpass, and by the closing of a direct access railroad grade crossing.

Roughly, the following depicts the traffic access prior to the improvement.

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

And, after the improvement:

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

Before construction of the overpass, Route 51 ran directly past the defendants' property and crossed the railroad right-of-way to the south at grade with no impediment to traffic flow both from the north and the south. After the construction of the elevated overpass, while the street on the eastern edge of defendants' property remains open to traffic at approximately the same grade as before (under the overpass), travel to and from defendants' property is restricted both to the north and to the south by the abutments of the overpass together with the closing of the railroad grade crossing. Before construction, vehicles exiting defendants' property eastward could drive directly onto Route 51 and proceed north along that route; now they must drive north to Lincoln Avenue, then west one block, then north on a connecting street, then east on Fourth Avenue to gain access to Route 51. Vehicles turning south off the property will no longer be able to proceed to an east-west street south of the property; they will have to turn around at the former grade crossing and proceed north. Vehicles which could have approached directly from the south of the property before the construction must first proceed north of the property and then south to approach it.

Under these circumstances we must reject the Department's argument that mere circuity of travel, shared by the public generally, resulted from the relocation of part of Route 51 and that the decrease in the value of the defendants' property is therefore not compensable. See Dept. of Public Works & Bldgs. v. Mabee, 22 Ill.2d 202, 205, 174 N.E.2d 801 (1961); Dept. of Pub. Wks. & Bldgs. v. Wilson & Co., 62 Ill.2d 131, 136-37, 340 N.E.2d 12 (1975); Streeter v. County of Winnebago, 85 Ill.App.3d 116, 120, 39 Ill.Dec. 67, 404 N.E.2d 451 (1980).

Article I, section 15 of the Illinois Constitution provides that private property shall not be "taken or damaged" for public use without just compensation. A "taking" requires an actual physical invasion of property. (Department of Transportation v. Lake Ka-Ho, Inc., 98 Ill.App.3d 1052, 1055, 54 Ill.Dec. 538, 425 N.E.2d 50 (1981).) The words "or damaged" were added to the Constitution in 1870 to compensate landowners for harm to their property rights caused by activities not amounting to takings. As explained in the seminal case of Rigney v. City of Chicago, 102 Ill. 64, 78 (1882):

"[U]nder the present constitution it is sufficient if there is a direct physical obstruction or injury to the right of user or enjoyment, by which the owner sustains some special pecuniary damage in excess of that sustained by the public generally, which, by the common law, would, in the absence of any constitutional or statutory provisions, give a right of action."

The words "or damaged" make it possible for a landowner to claim compensation "for the destruction or disturbance of easements of light and air, and of accessibility, or of such other intangible rights as he enjoys in connection with, and as incidental to, the ownership of the land itself." (Horn v. City of Chicago, 403 Ill. 549, 554-55, 87 N.E.2d 642 (1949).) The claimant must show a direct physical disturbance peculiar to his property; depreciation suffered in common by all lands in the vicinity of an improvement is not compensable. (Dept. Public Works & Bldg. v. Bloomer, 28 Ill.2d 267, 273, 191 N.E.2d 245 (1963).) The harm suffered by the landowner must be different in kind and not merely greater in degree from that suffered by the general public. Dept. of Pub. Wks. & Bldgs. v. Wilson & Co., 62 Ill.2d 131, 140, 340 N.E.2d 12 (1975).

An owner of property which abuts a highway has a constitutionally protected "right of access," and the deprivation or material impairment of the right of access is compensable as a "damaging" of property. (Wilson, 62 Ill.2d 131, 140-41, 340 N.E.2d 12 (1975).) Whether the right of access has been taken or materially impaired is a question of law. Wilson, 62 Ill.2d 131, 141, 340 N.E.2d 12 (1975).

Of particular significance to us in this case is the fact that it is not merely the public use of the highway which has changed; the physical characteristics of the adjoining highway in relation to the subject property have substantially changed as well. The effect of the reconstruction of Route 51 parallels that of erecting barricades along the railroad right-of-way and the north line of Lincoln Avenue. The road along the property's eastern boundary is blocked at one end and open, yet redundant with the northern boundary, at the other.

Cases which have dealt with street obstructions, vacations, dead ends and blind courts therefore seem most nearly relevant. In Rigney v. City of Chicago, 102 Ill. 64, the claimant owned property fronting on Kinzie Street in Chicago, slightly east of its intersection with Halsted Street. The City installed a viaduct over Halsted and across Kinzie, cutting off the claimant's access to the west along Kinzie. The trial court refused an instruction which would have permitted compensation if the jury had found that by constructing the viaduct on Halsted Street access was prevented to Halsted Street from plaintiff's premises over and along Kinzie Street (except by means of a pair of stairs). The Supreme Court held that the claimant's property had been "damaged" by construction of the viaduct and reversed and remanded for determination of damages for impaired access to the west of the property. In City of Chicago v Burcky, 158 Ill. 103, 42 N.E. 178 (1895), the claimant owned property on the corner of 61st Street and State Street. The City vacated a portion of 61st Street, within the block in which the claimant's property was located but just west of the property's western edgeline, and built a viaduct along the southern edge of 61st Street. It is not clear whether access from the south via State Street was blocked. The Supreme Court held that the claimant could recover as she had suffered an injury not common to the public at large because communication south and west of the property was shut off and the abutting 61st Street...