{ "id": 3564315, "name": "THE DEPARTMENT OF TRANSPORTATION, Petitioner-Appellee, v. JOHN G. KELLER et al., Respondents-Appellants", "name_abbreviation": "Department of Transportation v. Keller", "decision_date": "1984-09-05", "docket_number": "No. 5\u201484\u20140022", "first_page": "976", "last_page": "981", "citations": [ { "type": "official", "cite": "127 Ill. App. 3d 976" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "229 Ill. 155", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5629924 ], "pin_cites": [ { "page": "163" } ], "opinion_index": 0, "case_paths": [ "/ill/229/0155-01" ] }, { "cite": "366 N.E.2d 310", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "51 Ill. App. 3d 770", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3382383 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/51/0770-01" ] }, { "cite": "103 N.E.2d 595", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "411 Ill. 242", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5312433 ], "weight": 2, "pin_cites": [ { "page": "245-46" }, { "page": "245-46" } ], "opinion_index": 0, "case_paths": [ "/ill/411/0242-01" ] }, { "cite": "274 N.E.2d 56", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "49 Ill. 2d 408", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2909926 ], "pin_cites": [ { "page": "414" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/49/0408-01" ] } ], "analysis": { "cardinality": 582, "char_count": 12556, "ocr_confidence": 0.741, "pagerank": { "raw": 1.5110469393624026e-07, "percentile": 0.6674678716790052 }, "sha256": "c98c970031d40434ef1701b77d57937c7bbeed718cd6b53233fc18c02ca94298", "simhash": "1:ab82f5240c5ca310", "word_count": 1985 }, "last_updated": "2023-07-14T19:14:53.477818+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE DEPARTMENT OF TRANSPORTATION, Petitioner-Appellee, v. JOHN G. KELLER et al., Respondents-Appellants." ], "opinions": [ { "text": "JUSTICE HARRISON\ndelivered the opinion of the court:\nAppeal is taken from an order of the circuit court of Madison County denying dismissal of a series of petitions in eminent domain filed by the Department of Transportation (petitioner). Petitioner sought acquisition of specific parcels of land for the purpose of constructing a 5.5-mile extension of Interstate 255. Petitioner also filed motions for immediate vesting of title pursuant to section 7 \u2014 103 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 7\u2014103). The landowners (respondents) subsequently filed a traverse and motion to dismiss the Department\u2019s petitions. A hearing on these motions was held on November 22 and 23, 1983. The order denying respondents\u2019 motion to dismiss was entered on December 7, 1983. A hearing on the motion for immediate vesting of title was held on December 12, 1983. Separate orders establishing preliminary compensation to respondents were entered on January 3, 1984, and January 13, 1984. From these orders, respondents appeal. The issues presented are (1) whether the evidence before the trial court was sufficient to sustain the finding that the properties were subject to the power of eminent domain, and (2) whether the trial court erred in precluding testimony of certain witnesses regarding the necessity of the proposed acquisitions.\nThe primary witness on behalf of petitioner was Mr. Frank D. Brown, a civil engineer and condemnation coordinator for the Illinois Department of Transportation. Mr. Brown described the proposed project for which petitioner sought condemnation of respondents\u2019 property. Mr. Brown testified that funding for the project had been approved by the Governor and the State legislature, and identified the various parcels needed for its construction. The amount of the land sought by petitioner was, in Mr. Brown\u2019s opinion, a reasonable quantity for construction of the highway. Other witnesses for petitioner included Mr. Laurel D. Berger and Mr. Frederick Bartelsmeyer, also civil engineers working for the Department of Transportation. Witnesses called on behalf of respondents included Mr. Dale Klohr, district engineer for the Department of Transportation, and two of the respondent landowners, John Keller and Gordon Gass. Respondents\u2019 counsel attempted to question each of these witnesses regarding the \u201cnecessity\u201d of the condemnation. Petitioner\u2019s objections to some of these questions were sustained.\nPreliminary findings of compensation in eminent domain proceedings are governed by section 7 \u2014 104 of the Code of Civil Procedure, which reads in part:\n\u201c(b) At the hearing, if the court has not previously, in the same proceeding, determined that the plaintiff has authority to exercise the right of eminent domain, that the property sought to be taken is subject to the exercise of such right, and that such right is not being improperly exercised in the particular proceeding, then the court shall first hear and determine such matters. ***\n(c) *** If the court finds that reasonable necessity exists for taking the property in the manner requested in the motion, the court then shall hear such evidence as it may consider necessary and proper for a preliminary finding of just compensation ***.\u201d\nRespondents first contend that petitioner failed to establish its right to condemn respondents\u2019 property pursuant to section 7 \u2014 104. Where a traverse is filed in an eminent domain proceeding, the burden is on the petitioner to make a prima facie case of the reasonable necessity of acquiring the disputed property. (Trustees of Schools v. First National Bank (1971), 49 Ill. 2d 408, 414, 274 N.E.2d 56.) \u201cNecessity\u201d for purposes of condemnation means simply that the State\u2019s acquisition of land is \u201cexpedient,\u201d \u201creasonably convenient,\u201d or \u201cuseful to the public.\u201d (Department of Public Works & Buildings v. Lewis (1952), 411 Ill. 242, 245-46, 103 N.E.2d 595.) Our review of the record indicates that petitioner met this burden. The testimony offered by Frank Brown, Laurel Berger, and Frederick Bartelsmeyer contained evidence sufficient to establish a prima facie showing that the project for which acquisition of the lands was sought was useful to the public, and that the acquisitions themselves were a reasonable and expedient means of effecting the project.\nRespondents also contend that petitioner was without authority to exercise the powers of eminent domain since the construction plans offered as evidence at the hearing were not \"final plans.\u201d The record indicates, however, that the State\u2019s plans were final to the extent that circumstances would reasonably allow. The fact that the Department of Transportation could not offer extensive plans for every parcel of land sought in the acquisition, or for every phase of a project which would extend over a period of several years, did not deprive the Department of authority to condemn the various tracts. Neither was the Department required, as respondents suggest, to obtain, prior to acquiring title, every permit which might be required in the course of construction. The case of Department of Public Works & Buildings v. Vogt (1977), 51 Ill. App. 3d 770, 366 N.E.2d 310, upon which respondents rely, is inapposite. In Vogt, the appellate court held that a trial court did not err in vacating its prior \"quick take\u201d order vesting title in the condemnor, where the condemnor had delayed the proposed construction for five years and, in so doing, had deprived the condemnees (who had received no compensation) of the value of their property during that period.\nRespondents next argue that public policy, expressed by the Illinois legislature in the \u201cAgricultural Areas Conservation and Protection Act\u201d (Ill. Rev. Stat. 1981, ch. 5, par. 1002), precludes petitioner from taking at least two of the parcels. We agree with the trial court that, although the statement of legislative intent contained in the Act displays a manifest desire to preserve agricultural land from unnecessary and ill-considered development, the Act does not create a barrier to eminent domain simply by virtue of the fact that the property sought is utilized for agricultural purposes. Condemnation of the tracts in the instant case was not, in our judgment, precluded by either the statute or the policy upon which it was founded.\nRespondents\u2019 final contention is that the court erred in restricting the examination of the aforementioned witnesses with regard to the \u201cnecessity\u201d of the condemnations. In ruling on one of the objections, the trial court offered the following analysis:\n\u201cThe question we are limited to here is whether the lands which are sought to be taken here are going to be put to a public use, and whether the land that is being taken is necessary for that public use as determined by the legislature and executive department, who is determined to take this property. *** The question then becomes whether *** the land that is being taken is necessary for that public use. And I think for the Court to consider a necessity, meaning whether it is necessary to go here or across a golf course, would open up all the ranges of discretionary determinations that are made by this branch of the government.\u201d\nThe court\u2019s remarks imply that the term \u201cnecessary,\u201d and consequently the issue of whether the acquisitions are \u201cnecessary,\u201d are subject to two meanings, one of which forms the basis of an inquiry which is properly before the court, and one of which is not. This is another way of stating that the term \u201cnecessary,\u201d for purposes of condemnation proceedings, is subject to a definition other than that to which the term is subject in common discourse. This distinction was recognized implicitly by the Supreme Court of Illinois in Department of Public Works & Buildings v. Lewis (1952), 411 Ill. 242, 245-46, 103 N.E.2d 595:\n\u201cThe word \u2018necessary\u2019 in statutes such as the [Eminent Domain Act] \u2018should be construed to mean \u201cexpedient,\u201d \u201creasonably convenient\u201d or \u201cuseful to the public,\u201d and cannot be limited to an absolute physical necessity.\u2019 [Citations.] Conversely, the word \u2018necessary\u2019 does not mean \u2018indispensable\u2019 *** or \u2018an absolute necessity.\u2019 The general rule is that, where the right of eminent domain is granted, the necessity for its exercise, within constitutional restrictions, is not a judicial question, and its exercise is not a proper subject for judicial interference or control unless to prevent a clear abuse of such power. [Citations.] This Court *** in Smith v. Claussen Park and Levee Drainage District, 229 Ill. 155, 163, stated, \u2018If the court finds that the use for which the property is to be taken is a public one, then the court will not inquire into the extent to which the property is necessary for such use unless it appears that the quantity of property taken is grossly in excess of the amount necessary for the use.\u2019 \u201d\nThe question of whether a public taking is \u201cnecessary,\u201d then, may be an inquiry directed to one of two fields of reference. It may, first, constitute an attempt to determine the veracity of that proposition of which the petitioner is obliged to make a prim a facie showing in the first instance \u2014 ie., that the purpose for which the land is sought is one of public convenience, and the acquisition, reasonable in scope, is an expedient means of accomplishing the purpose. It may, second, constitute an attempt to determine whether, given the legitimacy of the project, a given acquisition is \u2018 \u2018indispensable\u201d \u2014 i e., the only means of accomplishing a purpose, the public convenience and reasonable scope of which are not at issue. According to the rule set forth in Lewis, the first question would fall within the scope of judicial inquiry and the second question would not. The resolution of the issue presented in the instant case thus depends on a determination of precisely what questions the witnesses were not allowed to answer.\nThe record reveals that respondents have no legitimate complaint with regard to the testimony of their own witnesses, John Keller and Gordon Gass. Both witnesses were permitted to express their personal opinions regarding the necessity of the proposed acquisitions insofar as the acquisitions would promote public convenience or utility. The problematical question asked of respondents\u2019 witness Dale Klohr appears to have referred to \u201cnecessity\u201d in the sense of public utility; however, contrary to the implications in respondents\u2019 brief, Mr. Klohr was permitted to answer the question. The testimony of petitioner\u2019s witnesses, Frank Brown and Laurel Berger, was not, in our judgment, unfairly limited. The questions regarding \u201cnecessity\u201d asked of Mr. Brown, to which the court sustained objections, were directed to the possibility of alternate routes (\u201cnecessity\u201d in the second sense), and not to the public utility of the project or the scope and expedience of the acquisitions. Petitioner\u2019s objections were properly sustained. The question asked of Laurel Berger regarding the \u201cnecessity\u201d of the highway project appears to have been directed to the issue of public utility. While petitioner\u2019s objection to the question was sustained, Mr. Berger answered, prior to the objection, that he had no opinion on the matter. The court\u2019s apparent error in sustaining the objection cannot, therefore, be viewed as prejudicial. The court also sustained petitioner\u2019s objections to questions asked Frederick Bartelsmeyer. Mr. Bartelsmeyer was not allowed to state whether he participated in the decision as to whether the highway project was \u201cnecessary.\u201d This question, again, appears directed to the issue of public utility, and Mr. Bartelsmeyer should have been allowed to answer. Nevertheless, we cannot view the trial court\u2019s ruling as reversible error. The evidence before the court, including the opinions of the other witnesses, was sufficient to enable the court to make an informed decision on the issue of public convenience. It cannot be inferred from the record that the opinion of Mr. Bartelsmeyer was critical in this regard.\nFor the foregoing reasons, the judgment of the trial court is affirmed.\nAffirmed.\nKARNS and JONES, JJ., concur.", "type": "majority", "author": "JUSTICE HARRISON" } ], "attorneys": [ "Harry J. Sterling, P.C., of Fairview Heights, for appellants.", "Neil F. Hartigan, Attorney General, of Springfield (Roy E. Frazier, Jr., Assistant Attorney General, and Paul D. Giamanco, Special Assistant Attorney General, of counsel), for appellee." ], "corrections": "", "head_matter": "THE DEPARTMENT OF TRANSPORTATION, Petitioner-Appellee, v. JOHN G. KELLER et al., Respondents-Appellants.\nFifth District\nNo. 5\u201484\u20140022\nOpinion filed September 5, 1984.\nHarry J. Sterling, P.C., of Fairview Heights, for appellants.\nNeil F. Hartigan, Attorney General, of Springfield (Roy E. Frazier, Jr., Assistant Attorney General, and Paul D. Giamanco, Special Assistant Attorney General, of counsel), for appellee." }, "file_name": "0976-01", "first_page_order": 998, "last_page_order": 1003 }