Department of Transp. v. Western Nat. Bank of Cicero

• Citation: 63 Ill.2d 179,347 N.E.2d 161
• Decision Date: 29 March 1976
• Docket Number: No. 47127,47127
• Parties: The DEPARTMENT OF TRANSPORTATION, Appellee, v. WESTERN NATIONAL BANK OF CICERO et al., Appellants.
• Court: Supreme Court of Illinois

Page 161

347 N.E.2d 161

63 Ill.2d 179

The DEPARTMENT OF TRANSPORTATION, Appellee, v. WESTERN NATIONAL BANK OF CICERO et al., Appellants.

No. 47127.

Supreme Court of Illinois.

March 29, 1976.

Rehearing Denied May 27, 1976.

Morrison & Nemanich, Waukegan (Donald T. Morrison, Waukegan, of counsel), for appellants.

William J. Scott, Atty. Gen., Chicago (Frank M. Daly, Sp. Asst. Atty. Gen., Waukegan, of counsel), for appellee.

PER CURIAM:

The Department of Transportation of the State of Illinois (Department) filed a petition in the circuit court of Lake County for condemnation of a parcel of real estate owned by the defendants. This parcel is part of a larger tract which is improved as a mobile home park. The property is located at the northwest corner of the intersection of State Route 43 (a generally north and south highway) and U.S. Route 120 (an east and west highway). The petition alleges that improvements are to be made to State Route 43; that U.S. Route 120 has been designated a freeway and that direct access to the freeway will not be permitted from abutting property.

The defendants filed a cross-petition alleging that the value of the remainder of the property will be substantially reduced by the construction of the proposed highway improvement and prayed that the jury award compensation for damages to the remainder.

The jury returned a verdict fixing the compensation for the property taken at $80,000 and the compensation for damages to the remainder at $127,000. The appellate court reversed and remanded for a new trial (22 Ill.App.3d 47, 316 N.E.2d 663), holding that the submission to the jury of the question of damages to the remainder, based on loss of access, was not proper. We granted leave to appeal.

Previously, in 1958, the State had acquired a portion of defendants' property by deed of dedication after negotiations with Francis Murphy, one of the defendants. The land was acquired so that the Department could improve Route 120 and make it a freeway. Prior to this conveyance, the defendants owned and operated a tavern, restaurant, and trailer park, and the property had direct access to both Route 120 and Route 43. The 1958 deed of dedication stated that:

'the Grantors further, as a part of this dedication, on behalf of himself, his heirs, executors, administrators and assigns, does hereby release, quit-claim and extinguish any and all rights or easements of access and crossing, under which the tract of land herein conveyed and dedicated might otherwise be servient to abutting lands of the grantor.'

According to the testimony of Francis Murphy, one of the defendants, he was advised at the time of the 1958 conveyance by Department negotiators that there would be a frontage road constructed on the land taken and that there would be access from the remainder of defendants' property to the frontage road and from the frontage road to Route 120. Following the acceptance of the dedication, the Department took possession of the property, constructed the frontage road, and constructed and maintained one access point from the frontage road to Route 120 about three blocks west of the intersection. There was another access point from the frontage road to Route 120 across the land that had been dedicated by the defendants which the State contends is an illegal access point.

Finding it again necessary to widen and improve Route 120, the State in 1972 filed this condemnation petition to acquire additional land from the defendants. The taking will eliminate the frontage road and both of the access points to Route 120, leaving defendants with ingress and egress only by a circuitous route.

The State contends that, by the 1958 deed of dedication, defendants released all right of access to and across the dedicated property and that, since no right of access remains to be extinguished, there is no compensable injury to defendants' remaining property. We agree.

A deed speaks for itself and its construction is dependent upon the language used. (Patton v. Vining (1958), 14 Ill.2d 11, 13, 150 N.E.2d 606.) Where there is no ambiguity in the terms used, the instrument itself is the only criterion of the intention of the parties and there is no need for us to construe it. (Ambarann Corp. v. Old Ben Coal Corp. (1946), 395 Ill. 154, 164, 69 N.E.2d 835; Fowler v. Black (1891), 136 Ill. 363, 373, 26 N.E. 596; see generally 18 Ill.L. & Pr. Evidence, sec. 256 (1956).) It is clear to us that in the 1958 deed the grantors released 'any and all rights or easements of access and crossing' which they possessed. Consequently, they have no rights remaining to be extinguished and no rights for which the State must compensate them. Defendants had the benefit of legal counsel when this deed was executed, and there is no allegation of mistake or fraud. The defendants are bound by the clear meaning of the words of their 1958 deed.

Murphy's testimony concerning the alleged assurances of the State negotiators that a frontage road and access to the highway would be constructed does not affect our decision. Preliminary negotiations and agreements made prior to a conveyance of property merge into the conveyance itself. (Stromsen v. Stromsen (1947), 397 Ill. 260, 263, 73 N.E.2d 272.) Parol evidence is not admissible to contradict the terms of the conveyance. (Walter v. Sohio Petroleum Co. (1948), 402 Ill. 33, 44, 83 N.E.2d 346; Michalowski v. Richter Spring Corp. (1969), 112 Ill.App.2d 451, 455, 251 N.E.2d 299.) Further, the fact that the State did later construct the frontage road and access points does not necessarily indicate that they did so pursuant to a prior agreement.

Defendant has not called into question the sufficiency of the $125,000 paid as compensation for the 1958 taking. We note, however, that while this is not an exorbitant sum, it does seem adequate to compensate defendants for all the property and rights--including the right of access--relinquished.

We find the terms of the 1958 deed to be clear and unambiguous, and in the absence of any mistake or fraud, we will not release defendants from the effect of their agreement. We find that they now have no rights of access left to be extinguished by the instant proceedings.

The second question presented is whether in an eminent domain case it is proper to predicate value on a present capacity for future commercial use when there is no specific testimony regarding the reasonable probability of rezoning:

The property in question is located directly across Route 120 from a large regional shopping center. Further, the condemned property is easily accessible and is located at the intersection of two major highways, and its size makes it conducive to further development. Appraisal witnesses for the defense testified that while the present highest and best use of the property is as a mobile home park there is a present capacity for future use as a commercial site. They based their opinions of value of the land on the growth of the area and the orientation of the site to take advantage of potential new growth in the next 2 to 5 years because of the regional shopping center nearby.

The reasonable probability of rezoning is a proper factor to consider in establishing value in a condemnation case. (Department of Public Works and Buildings v. Rogers (1968), 39 Ill.2d 109, 233 N.E.2d 409.) It is proper to base value upon the highest and best use permitted, not only under existing but also under other zoning classifications where there is reasonable probability of the granting of such zoning in the near future. The burden of proof of the reasonable probability of rezoning is on the landowner. It is not proper to present a witness as an expert solely to testify to the probability of a particular rezoning. (See Department of Public Works and Buildings v. Rogers (1968), 39 Ill.2d 109, 233 N.E.2d 409; Lombard Park District v. Chicago Title and Trust Co. (1968), 103 Ill.App.2d 1, 8, 242 N.E.2d 440; Park District of Highland Park v. Becker (1965), 60 Ill.App.2d 463, 208 N.E.2d 621.) If there is sufficient evidence for a court to make a determination that the reasonable probability exists, then the witnesses may testify as to value based on such probability.

We find that the trial judge's determination was correct and that testimony of the defense witnesses included sufficient factors on which the court could base its findings. Those factors include the property's location at the intersection of two major arterial highways, its proximity to a large regional shopping center, its size, recent growth in the area and the lack of other adjacent residential use.

The final issue is whether a condemnor's written appraisal reports must be furnished to the landowner pursuant to discovery proceedings in a condemnation suit. The trial court determined that such reports are discoverable. The appellate court did not pass upon this issue. However, it was raised in the State's post-trial motion, and both parties have argued it in this court.

The State argues that the appraisal reports should not be discoverable because they represent work product used by the Department in attempting to reach an agreement with the landowner and in presenting that data at trial if an agreement cannot be reached. Inability to agree must be alleged in the petition to condemn, and normally the State obtains written appraisal reports as an aid in meeting this requirement.

The Department points out in its brief that the appraisal reports include: the appraiser's valuation procedure, such as cost approach to value, market approach to value, income approach to value; a narrative analysis of the property and surrounding area, information sources, comparable sales data, and the appraiser's explanation of adjustments; the estimated highest and best use with the appraiser's assumption coupled with a synopsis pertaining to the degree of similarity of the comparable properties to the subject property; an explanation of why...