Forest Pres. Dist. of Cook Cnty. v. Eckhoff

• Decision Date: 07 December 1939
• Docket Number: No. 25230.,25230.
• Parties: FOREST PRESERVE DIST. OF COOK COUNTY v. ECKHOFF et al.
• Court: Illinois Supreme Court

372 Ill. 391

24 N.E.2d 52

FOREST PRESERVE DIST. OF COOK COUNTY

v.ECKHOFF et al.

No. 25230.

Supreme Court of Illinois.

Oct. 13, 1939.

As Modified on Denial of Rehearing. Dec. 7, 1939.

Condemnation proceeding by the Forest Preserve District of Cook County against Cora Eckhoff and others, wherein the landowners filed a cross-petition for damages to land not taken. From the judgment, the landowners appeal.

Affirmed.Appeal from Circuit Court, Cook County; Benjamin P. Epstein, judge.

Daniel S. Wentworth, of Chicago (George P. Novak, John W. Gorby, Jr., and Leon Weiss, all of Chicago, of counsel), for appellants.

George A. Basta and Frank S. Righeimer, both of Chicago (Frank S. Righeimer, Jr., of Chicago, of counsel), for appellee.

GUNN, Justice.

A petition for condemnation was filed in the circuit court of Cook county, by the Forest Preserve District of Cook county, appellee, to take approximately 20 acres out of an 80-acre tract of land owned by appellants. A cross-petition for damages to land not taken was filed, but during the course of the trial it was conceded there were no damages to the land not taken, though the cross-petition was not withdrawn or dismissed.

The evidence shows the 80-acre tract is located near the southwest corner of Park Ridge; that Western avenue is one-half block east of said tract, with platted ground with buildings thereon, located between Western avenue and the property taken. The land in controversy is unplatted, but two sides abut upon property that has been subdivided. The tract is improved with a four-room dwelling and some outbuildings. About 15 acres of the land taken is tillable and has been rented for truck gardening, but the balance is wooded and a small stream runs through the property. Appellants claim its use as a subdivision is the highest and best purpose to which it is adapted. The verdict of the jury awarded $20,000 for the land taken, or approximately $1,000 per acre.

Appellants assign as error proof made by the park district that it contemplated the construction of a road on the property taken that would afford access to the part not taken, and that such proof was made by secondary evidence. This objection was waived, not only because the record shows that no objection was made at the time the evidence was offered (Illinois Iowa Power Co. v. Guest, 370 Ill. 160, 18 N.E.2d 193), but, also, by a statement of counsel that he was not going to object to the manner in which the proof was made because he knew appellee's counsel could properly establish it. However, assuming the waiver applies only to the secondary character of the evidence, it was, nevertheless, material to the issues involved. Where there is a cross-petition claiming damages to land not taken, it is proper to show what use the corporation exercising the right of eminent domain intends to make out of the property so obtained. Jacksonville & Savanna Railroad Co. v. Kidder, 21 Ill. 131;Sanitary District of Rockford v. Johnson, 343 Ill. 11, 174 N.E. 862. A stipulation of the nature of the improvement intended was made into the record by counsel for the parties, which, in accordance with the ruling of this court in Illinois & St. Louis Railroad Co. v. Switzer, 117 Ill. 399, 7 N.E. 664,57 Am.Rep. 875, and East Side Levee and Sanitary District v. Jerome, 306 Ill. 577, 138 N.E. 192, would bind appellees to make the improvement as stipulated or become liable in damages. The cross-petition was not withdrawn and, therefore, it was not error for the court to receive this testimony and refuse to strike it upon motion of appellants.

It is also urged that the court permitted evidence of sales of property in the vicinity of appellants' land, without proof that they were voluntary in character. This objection applies to three of petitioner's witnesses. The record, however, shows that the sales in question were the result of negotiations between the parties, which ordinarily excludes the idea of an involuntary sale. A person may be compelled by force of circumstances to part with property which he might desire to hold, but involuntary sales imply compulsion under a decree, execution or something more than inability to pay up-keep charges. The admission of testimony of this character is largely a question of discretion of the trial court. South Park Com'rs v. Livingston, 344 Ill. 368,173 N.E. 546. This objection is not made to the remaining sales proven by witnesses for appellee and hence cannot be raised here for the first time. City of Mt. Olive v. Braje, 366 Ill. 132, 7 N.E.2d 851.

Appellants also objected to testimony of other sales because it is claimed they did not involve similar property and were made at different periods of time. In regard to the degree of similarity which must exist between the property concerned of which proof is offered, and the property taken, and the nearness in respect of time and distance, no general rule can be laid down; it is largely a matter of discretion for the trial court. King v. Manning, 305 Ill. 31, 136 N.E. 730;Forest Preserve District v. Kean, 298 Ill. 37, 131 N.E. 117;Forest Preserve District v. Wallace, 299 Ill. 476, 132 N.E. 444. The sales proven were all in the neighborhood of the property. The proof discloses wherein they are...