Ill. Pattern Jury Instr. (Civil) 300.00

INTRODUCTION

Eminent domain is the inherent power of a state to take or damage private property for a

public use. In Illinois, it is subject to the constitutional limitation that, “Private property shall not

be taken or damaged for public use without just compensation as provided by law.” Ill. Const.

Art. 1, §15 (1970). Illinois has, by legislation, delegated similar powers to governmental units,

public bodies and public service corporations.

There are two statutory procedures available to take private property for public use. 1 One

is se t forth in Article 7 of the Illinois Code of Civil Procedure, 735 ILCS 5/7- 101 to 7-129

(1994). The other is set forth as part of local improvement procedures in connection with special

assessments. Illinois Municipal Code, 65 ILCS 5/9-2-14 to 9-2-37 (1994). The rules of procedure

and evidence under the two Acts differ.

Procedure Under Article 7

Under the provisions of Article 7, suit is commenced by the filing of a complaint setting

forth the plaintiff's right to exercise the power, legally describing the property to be taken, the

nature of the interest to be taken, and naming the parties of record. The complaint may also

describe property not taken but which might be damaged as a result of the taking. The complaint

must also state the purpose of the public use, its necessity, and that the compensation cannot be

agreed upon, or that the owners are incapable of consenting, or are non-residents (&p;7-102).

All persons having an interest of record in the property or possessory rights are proper

defendants. Thus, it may be desirable to investigate the rights of occupants, since questions may

arise as to the taking or damaging of leaseholds that are not recorded.

The complaint is not to be answered and defendants are not defaulted. However, the

complaint may be attacked by a motion to dismiss or traverse, to test the legal sufficiency of the

proceeding in advance of trial. The motion may question the plaintiff's right to exercise the

power of eminent domain, the propriety of the proposed use, its necessity, and whether a bona

fide attempt to agree on compensation has been made. See Lake County Forest Preserve Dist. v.

First Nat. Bank, 154 Ill.App.3d 45, 506 N.E.2d 424, 106 Ill.Dec. 717 (2d Dist.1987).

1

Under limited circumstances governmental land use decisions may constitute a “taking.” (See First English

Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987); cf.

MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 106 S.Ct. 2561, 91 L.Ed.2d 285 (1986); Foster &

Kleiser v. City of Chicago, 146 Ill.App.3d 928, 497 N.E.2d 459, 100 Ill.Dec. 481 (1st Dist.1986); Suhadolnik v. City

of Springfield, 184 Ill.App.3d 155, 540 N.E.2d 895, 133 Ill.Dec. 29 (4th Dist.1989); Mahoney Grease Service, Inc.

v. City of Joliet, 85 Ill.App.3d 578, 406 N.E.2d 911, 40 Ill.Dec. 708 (3d Dist.1980).) In such cases the landowner

affected, rather than the governmental unit, is the plaintiff, and therefore this is known as “inverse condemnation.”

The instructions in this series have been drafted to cover the usual eminent domain proceedings brought by the

governmental unit.

Any person not made a party may become such by filing an intervening petition, setting

forth that the petitioner is the owner of or has an interest in the property which will be taken or

damaged by the proposed work (&p;7-124). While the statute refers only to a “person not made a

party,” the cases and legislat ive history indicate that a party defendant may also file a petition

(now a counterclaim) asserting that property not described in the complaint will be damaged by

the taking of the described property. See Department of Conservation v. Franzen, 43 Ill.App.3d

374, 381; 356 N.E.2d 1245, 1248; 1 Ill.Dec. 912, 915 (1976); Johnson v. Freeport & M.R.R. Co.,

111 Ill. 413, 416, 417 (1884).

As far as a jury trial is concerned, the 1870 Constitution (Art. 2, §13) provided, in

pertinent part (emphasis added):

Private property shall not be taken or damaged for public use without just compensation.

Such compensation, when not made by the state shall be ascertained by a jury, as shall be

prescribed by law.

In Department of Public Works & Bldgs. v. Kirkendall , 415 Ill. 214, 112 N.E.2d 611

(1953), the Illinois Supreme Court was faced with the issue of whether there is a right to a jury

trial in a condemnation proceeding where the compensation is to be paid by the State. The court

concluded that where the sovereign state exercises its right of eminent domain, the right to a jury

trial is not guaranteed by common law or the constitution nor is it required by any statute. The

court also specifically said it was not holding or inferring that a jury trial would be prohibited,

merely that there was no right “unless and until the General Assembly acts upon the subject.”

415 Ill. at 223, 112 N.E.2d at 615.

The 1970 Illinois Constitution amended article 2, §13 of the 1870 constitution by

eliminating the phrase “when not made by the state” and providing that:

Private property shall not be taken or damaged for public use without just compensation

as provided by law. Such compensation shall be determined by a jury as provided by law.

Illinois Constitution of 1970, article 1, §15.

The eminent domain provisions of the Code of Civil Procedure (735 ILCS 5/7-101 et seq.

(1994)), however, make a distinction between cases in which compensation is made by the state

and cases in which the compensation is not made by the state. Section 7-101 provides, in relevant

part (emphasis added):

Private property shall not be taken or damaged for public use without just compensation,

and in all cases in which compensation is not made by the state in its corporate capacity . .

. such compensation shall be ascertained by a jury, as hereinafter prescribed. Where

compensation is so made by the state ... any party upon application may have a trial by

jury to ascertain the just compensation to be paid.

Quick Take

There is a special procedure concernin g the taking of property by certain public bodies

and for certain purposes specified in the statute (see 735 ILCS 5/7-103 (1994)) in which there is a

preliminary hearing by the court without a jury. In that hearing the court determines an amount as

preliminary just compensation. If it has not done so previously, the court passes upon the

plaintiff's authority to condemn, its proper exercise of that authority, and whether the property to

be taken is subject to the power of eminent domain. If the plaintiff deposits with the court the

amount fixed as preliminary just compensation, the court then enters an order vesting title in the

plaintiff. The preliminary just compensation deposited in court by the state may be withdrawn by

the defendants, subject to a condi tion of reimbursement of any excess in the event that the final

award of just compensation is less than the preliminary award (735 ILCS 5/7- 106, 7-109, 7-123

(1994)). If the final award is greater than the preliminary compensation deposited, the

condemning party must deposit the balance (§7- 123) plus interest under certain circumstances

(see §7-108 and Department of Transp. v. Rasmus sen, 108 Ill.App.3d 615, 439 N.E.2d 48, 64

Ill.Dec. 119 (1982); Waukegan Port Dist. v. Kyritsis , 128 Ill.App.3d 751, 471 N.E.2d 217, 83

Ill.Dec. 918 (1984)).

Trial

There are some special rules regarding the admissibility of evidence ( see 735 ILCS 5/7-

119 (1994)), but in general, the rules of evidence are the same as in other cases. The testimony

consists mainly of opinions of persons having knowledge of values and proof of voluntary sales

of similar property. The condemning body has the burden of introducing evidence as to the value

of property taken. That evidence may be controverted by witnesses called for the defense. The

defendants have the burden of proving that their property which is not taken will be damaged and

have the further burden of introducing evidence as to the nature and extent of that damage. The

burden of proceeding with the evidence and the right to open and close may shift under certain

circumstances. Department of Business & Economic Development v. Brummel, 52 Ill.2d 538, 288

N.E.2d 392 (1972); Department of Business & Economic Development v. Baumann, 56 Ill.2d

382, 386-387, 308 N.E.2d 580, 582 (1974); Department of Public Works & Bldgs. v. Roehrig, 45

Ill.App.3d 189, 359 N.E.2d 752, 3 Ill.Dec. 893 (1976). Under §7- 121, all evidence of value and

the determination by the jury of just compensation must be made as of the date on which the

complaint was filed. However, the property owners have the right to establish the amount of any

depreciation in the value of their property which was proximately caused by the public

improvement for which their property was taken. City of Rock Isla nd v. Moline National Bank ,

54 Ill.App.3d 853, 368 N.E.2d 1113, 11 Ill.Dec. 505 (1977). And in Kirby Forest Industries, Inc.

v. United States lain , 467 U.S. 1, 104 S.Ct. 2187, 81 L.Ed.2d 1 (1984), the Supreme Court said

that if the owner of the property is given substantially less than the market value of his property

at the time of the “taking” by the government, the fifth amendment is violated. Therefore, if an

owner's property appreciates substantially between the time the complaint is filed and the time

that payment is tendered, it is arguable that §7 -121 may be subject to qualification or exception.

There are presently no Illinois appellate decisions considering the effect of the Kirby decision on

Illinois condemnation law and practices.

Either party has the right to have the jury view the premises (§7- 118). This is true even

though there has been a substantial alteration of the premises between the date of filing the

petition and the time of the jury view. Department of Public Works & Bldgs. v. Remmer ie, 29

Ill.2d 40, 192 N.E.2d 877 (1963). The view of the premises is in the nature of evidence and may

be considered by the jury in their deliberations. City of Chicago v. Chicago Title & Trust Co.,

331 Ill. 322, 163 N.E. 17 (1928); Rock Island & P. Ry. Co. v. Leisy Brewing Co., 174 Ill. 547, 51

N.E. 572 (1898). A verdict above the maximum or less than the minimum fixed by testimony

will not be sustained. Central Illinois Public Service Co. v. Rider , 12 Ill.2d 326, 329; 146 N.E.2d

48, 50 (1957). The question of a petitioner's right to acquire property is one with which the jury

has no concern, and it is improper to call the jury's attention to the fact that the land is being

taken against the owner's will. Waukegan Park Dist. v. First Nat. Bank, 22 Ill.2d 238, 174 N.E.2d

824 (1961).

When the issue of apportionment is given to the jury in a proceeding involving a landlord

and tenant, “it is the duty of the jury to first fix the fair cash market value of the entire property as

between the petitioner and all t he defendants, and then to divide the same according to the

respective rights of the defendants.” Lambert v. Giffin , 257 Ill. 152, 158; 100 N.E. 496, 499

(1913); see also Chicago B. & Q. R. Co. v. F. Reisch & Bros., 247 Ill. 350, 353; 93 N.E. 383, 385

(1910); City of Rockford v. Robert Hallen, Inc., 51 Ill.App.3d 22, 25- 26; 366 N.E.2d 977, 979; 9

Ill.Dec. 466, 468 (2d Dist.1977).

Whether the jury trial right extends to separate apportionment proceedings under 735

ILCS 5/7 -123, 7- 126, and 7- 127, is unclear. Such separate, post -deposit apportionment

proceedings are allowable because “[t]he statute does not make it mandatory that the jury shall

apportion the award.” Commercial Delivery Service v. Medema , 7 Ill.App.2d 419, 423; 129

N.E.2d 579, 580 (1st Dist.1955). No court has expressly ruled on the right to jury trial in such an

apportionment proceeding. In Chicago & N.W. Ry. Co. v. Mi ller, 251 Ill. 58, 66; 95 N.E. 1027,

1030 (1911), the court found that two tenants of land taken by the railroad for a passenger station

had a right to a jury trial on the assessment and awarding of damages due them from the owner of

the fee. The court stated: “[s]uch a trial is a matter of right in a case of this kind.” However, the

right found by the supreme court to exist for the tenants was in the procedural context of the

initial condemnation proceeding, not in a separate apportionment proceeding.

Local Improvement Proceedings

A local improvement proceeding is instituted by the adoption of an ordinance which

provides for the taking or damaging of property for a specific improvement. A petition is filed in

the name of the municipality to ascertain the just compensation for the property taken or

damaged, the property to be benefited by the improvement, and the amount of those benefits.

Commissioners are designated to prepare a report of the assessment of the cost of the

improvement (735 ILCS 5/9-2-16 and 9-2-18 (1994)).

Questions concerning the value of property taken, the damage, and the benefits are heard

by a jury. The commissioners' report is prima facie evidence of the correctness of the amounts

assessed.

The court, in its discretion, may allow the jury to view the premises. 65 ILCS 5/9-2-29

(1994). However, the view is not evidence. City of Chicago v. Koff , 341 Ill. 520, 173 N.E. 666

(1930); Rich v. Chicago, 187 Ill. 396, 58 N.E. 306 (1900); Chicago v. Van Schaack Bros.

Chemical Works, 330 Ill. 264, 161 N.E. 486 (1928).

Instructions

The following instructions have been drafted for use under the eminent domain

provisions of article 7 of the Code of Civil Procedure.

The instructions may be used in a local improvement proceeding where appropria te

although they will have to be modified. For example, the local improvement proceedings still are

commenced by a “petition” rather than by a “complaint” as in eminent domain proceedings. In

the instructions the party filing the complaint is referred to a s “plaintiff” rather than “petitioner”

or “condemnor.”