"That the [Village] now seeks to acquire a public right-of-way in and to the real property legally described as follows:

[the complaint included a legal description substantially conforming to the description in the recorded affidavit] allsubject to a non-exclusive easement for the benefit of adjoining property owners, their successors and assigns foringress and egress over and upon the premises sufficient to accommodate reasonable vehicular traffic to and fromRoute 134."

On March 11, 1998, defendants filed a traverse and motion to dismiss alleging, inter alia, that the taking was not for apublic purpose, plaintiff lacked the authority to acquire the property, and the taking of defendants' property was notnecessary for any valid public purpose. The trial court conducted a hearing on the motion on June 11, 1998.

At the hearing, Raymond Wolfel, plaintiff's zoning administrator and building commissioner, testified that he was familiarwith a planned development known as Valley Lakes and defendants' properties. Wolfel was also familiar with the drivewaythat extended from defendants' properties to Route 134. Wolfel testified that, as part of the Valley Lakes plan, the drivewaywould be improved to plaintiff's standards for a public street and dedicated to plaintiff for a public right-of-way. Theplanned right-of-way would be located along the same route as the existing driveway.

On cross-examination, Wolfel testified that plaintiff's purpose in acquiring the property was to build a public street. Wolfeladmitted that he received a letter from the village attorney in 1996 that opined that defendants' claim of an easement wouldnot prevent development of the area. Wolfel testified that the roadway was originally planned along a route west of theeasement but that the plan had been modified in response to Amann's claim of a prescriptive easement. The easement wasthe sole means of ingress and egress for defendants' properties. Wolfel admitted that he was aware Penguin had negotiatedto purchase defendants' properties but Penguin and defendants had been unable to agree on a price. Wolfel admitted that thepurpose for acquiring a public right-of-way was to allow the Penguin property to be developed for single-family home sites.Wolfel testified that he was aware defendants had filed a lawsuit against Penguin. The trial court took judicial notice that acomplaint had been filed in that suit; however, we note that a copy of that complaint is not contained in the record onappeal. Wolfel admitted that plaintiff's condemnation action was commenced in response to the suit against Penguin. Onredirect examination, Wolfel testified that the right-of-way would be dedicated to plaintiff and would be a public street opento anyone.

After plaintiff rested its case, defendants moved for a directed verdict arguing, inter alia, that "public right-of-way" did notadequately describe an interest in real property. The trial court denied the motion but reserved the issue of whether thephrase "right-of-way" described a property interest subject to condemnation.

Defendant Marianne Amann testified that she and her neighbors maintained a private road leading from their residences toRoute 134. Amann testified that the road was eight feet wide. However, Amann claimed an interest in an easement 33 feetwide based on the affidavit that had been recorded with title to her property. Amann testified that plaintiff had offered topay $500 as compensation for her interest in the easement. She rejected the offer because she believed she had a right tolimit use of the easement and felt the loss of privacy she would suffer was more valuable than the $500 plaintiff offered ascompensation.

Defendant Janice Pittelkow testified that she and her husband had also been offered $500 for their interest in the easement.They rejected the offer because they had expended more than that amount maintaining the gravel roadway.

Following closing arguments, the trial court denied defendants' motion in part but reserved the issues of whether the phrase"right-of-way" adequately described an interest in property and whether plaintiff had negotiated in good faith. The trialcourt ordered the parties to brief the two reserved issues and continued the matter for its ruling. On July 9, 1998, the trialcourt held that the complaint failed to describe an interest in real property and granted defendants' motion to dismiss. Thetrial court subsequently granted plaintiff's motion to reconsider, denied defendants' motion to dismiss, and set the matter fortrial.

At trial, Raymond Wolfel testified that he was familiar with defendants' property and the proposed development. Thedevelopment plan included a street to be constructed on top of defendants' easement, which would then be dedicated as apublic right-of-way.

On cross-examination, Wolfel testified that the entire development plan included approximately 850 acres and called for theconstruction of approximately 1,800 homes. The original development plan proposed a road to the west of the easement, butthe plan was changed in response to defendants' assertion of easement rights and now followed the existing driveway.Wolfel testified that the public right-of-way would be subject to a nonexclusive easement in favor of defendants' property.Wolfel believed that plaintiff was taking none of defendants' rights to use the property.

Thomas Canelakes testified that he was familiar with defendants' property and the driveway connecting the property toRoute 134. Canelakes appraised the driveway portion of the property and considered the value of the driveway inconjunction with defendants' properties. Over defendants' objection, Canelakes testified that he had examined an appraisalmade by defendants' expert, David Schwandt, and agreed with Schwandt's conclusions regarding the value of the propertiesbefore the taking. Canelakes opined that the value of the Pittelkow property was $180,000 before the taking and remainedunchanged after the taking. Canelakes further opined that the value of the Amann property was $110,000 before the takingand remained unchanged after the taking. Over defendant's objection, Canelakes testified that if considered as a separateproperty the value of the easement was zero before the taking and remained zero after the taking.

On cross-examination, Canelakes testified that he did not believe any property rights were being taken from defendantsbecause the public right-of-way would follow the existing easement and defendants would retain the right to use the publicright-of-way. Canelakes admitted that his opinion regarding the nature of the rights taken from defendants formed part ofthe basis for his valuation of the taking.

Marianne Amann testified that she held an easement for ingress and egress to Route 134. She testified that the drivewaywas 10 to 12 feet wide but that the full 33-foot width was used for vehicular traffic. She and the Pittelkows shared in themaintenance expense for the easement, and she expended approximately $500 annually for materials.

Jack Pittelkow testified that Amann is his neighbor and that he uses the same easement for access to his property. Jackmaintains the easement, spreading gravel and grading the surface. He spends approximately $1,000 annually for materialand Amann usually pays one-half of the costs. Jack asserted that only he, his wife, and Amann had a right to use theeasement.

Janice Pittelkow testified that Amann is her neighbor. Janice testified that she had heard the questions asked of her husbandand that her answers would be the same. Plaintiff rested its case.

David Schwandt, a real estate appraiser, testified for defendants. Schwandt testified that he had appraised the Amannproperty. The sole means of access to the property was an easement that extended to Route 134. Schwandt determined thatthe highest and best use of the property was as residential real estate and that the fair market value of the property was$110,000. Schwandt's opinion considered the whole property including the easement.

Plaintiff objected to this method of valuation of an easement interest; the trial court overruled the objection.

Schwandt further testified that he considered the loss of seclusion and privacy in valuing the property after the taking.Schwandt based his valuation on the loss of the exclusive nature of the right-of-way. He considered the property before ashaving a long driveway and believed the property would be less valuable after the taking because of the nuisance factor ofincreased traffic. Schwandt testified that the loss of seclusion would result in depreciation of 10% of the value of theAmann property or $11,000. Schwandt based this opinion on his experience that houses located on cul-de-sacs generallysold for 10% more than houses located on busier streets with heavy traffic.

Schwandt also testified that he had appraised the Pittelkow property and concluded that its fair market value was $180,000.Schwandt determined that loss of the easement rights would decrease the value of the property by $18,000 based on thesame factors identified for the Amann property.

On cross-examination Schwandt testified that the full 10% diminution in market value was due to factors related toincreased traffic and noise. Schwandt stated that he chose 10% as a result of his past experience. However, Schwandtadmitted that other appraisers might value seclusion differently and that he had not included comparable sales in his reportto support the 10% value.

Marianne Amman testified that the use and enjoyment of her property had decreased as a result of the taking. She testifiedthat her property was less valuable because trees had been cleared from the property surrounding the easement and traffichad increased. Amman also complained that her dog barked when cars passed which disturbed her. Amman considered theresponsibility of maintaining the easement a benefit because her neighbor cleared snow from the easement and she did notbelieve plaintiff would clear snow as effectively.

On cross-examination, Amman claimed that her easement gave her the right to preserve the trees that surrounded thedriveway to the full extent of the 33-foot easement. However, Amann admitted that the clearing of trees from the propertybeyond the easement was not an issue in the case.

Janice Pittelkow testified that approximately 30 lots would be built along the easement if plaintiff acquired it as a publicright-of-way. Janice testified that this would affect the privacy and security of her property. She feared that there would beincreased traffic along the roadway. She also worried that children would bother the chickens and dogs she kept on herproperty.

On cross-examination, Janice admitted that she did not own the land under the easement. She also admitted that she did notown the property outside the easement. Janice contended that she would suffer a loss because she would have to contendwith the public on the roadway.

The trial court held that defendants held an easement over the servient property but noted that the owner of that propertycould grant others the same right and concluded that the easement was nonexclusive. The trial court held, however, thatplaintiff condemned an interest in real property, because the condemnation would convert the private easement into a publicright-of-way.

The trial court further held that the appropriate measure of damages was the diminution in value of the easement strip as aresult of the imposition of the right-of-way and rejected defendants' argument that the diminution in value of the wholeshould be considered. The trial court concluded that no tangible loss resulted from the imposition of the right-of-waybecause defendants retained the same rights of ingress and egress after the taking that they held before the taking.Accordingly, the trial court awarded only nominal damages of $50 each to Amann and the Pittelkows. The trial courtfurther found that any damage resulting from a loss of privacy should have been brought as counterclaim for damages to theremainder and denied any recovery on that basis. Defendants appeal.

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Defendants first contend that the trial court erred when it dismissed their traverse and motion to dismiss. Defendants arguethat (1) the petition failed to describe an interest in property; (2) taking defendants' easement rights was unnecessary; and(3) the taking did not serve a public purpose.

A traverse and motion to dismiss challenges the plaintiff's right to condemn the defendant's property and will result in adismissal when the plaintiff cannot show its right to condemn by proper proof. Village of Cary v. Trout Valley Ass'n, 282Ill. App. 3d 165, 169 (1996). A municipality can exercise only those powers of eminent domain granted it by legislativeenactment, and a statute or ordinance granting the power of eminent domain must be strictly construed. Trout Valley, 282Ill. App. 3d at 169; Forest Preserve District v. Estes, 222 Ill. App. 3d 167, 175 (1991). When a traverse and motion todismiss is filed challenging the authority to condemn, the plaintiff bears the burden of making a prima facie case of thedisputed allegations. Estes, 222 Ill. App. 3d at 175. Our standard for reviewing a trial court's decision on a traverse andmotion to dismiss is whether the order is against the manifest weight of the evidence presented. Village of Skokie v.Gianoulis, 260 Ill App. 3d 287, 295 (1994).

Defendants first argue that plaintiff was authorized to acquire "property" by section 11--61--1 of the Illinois MunicipalCode (65 ILCS 5/11--61--1 (West 1998)) and that a "right-of-way" is not property. Defendants concede that plaintiff has theright to acquire an easement through eminent domain but argue that, because the complaint did not contain the word"easement," the complaint failed to describe an interest in real property. Defendants further argue that this deficiency wascompounded because plaintiff did not seek to take all of defendants' rights in the property.

A plaintiff must reasonably describe the property to be taken in the enabling action, whether by ordinance or resolution, andthe failure to properly describe the property to be taken is fatal to the petition. Illinois State Toll Highway Authority v.DiBenedetto, 275 Ill. App. 3d 400, 405 (1995). When a defendant's rights are only partially extinguished, the responsibilityfor an accurate description of the rights taken rests on the plaintiff, not the defendant or the court. Department of PublicWorks & Buildings v. Finks, 10 Ill. 2d 20, 25 (1956).

Here, the petition and the enabling actions authorized plaintiff to acquire a "public right-of-way in and to" the real propertyover which defendants held an easement. "It is settled that a right of way is an easement." Kurz v. Blume, 407 Ill. 383, 385(1950); see also 16A Ill. L. & Prac. Easements