No. 3--03--0747

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

This appeal involves issues and circumstances surrounding alocal authority's attempt to exercise its eminent domain power. The plaintiff, Bruce Trotter (commissioner), acting in hiscapacity as the highway commissioner of the Goose Lake TownshipRoad District, filed a complaint for condemnation of 2.541 acreslocated in Grundy County. The defendants are landowners havingan interest in that parcel of land. Defendants filed a traverseand motion to dismiss the complaint. The circuit court of GrundyCounty denied the landowners' motion and, after a bench trial,entered judgment awarding the landowners $8,200 for fullcompensation of the parcel. Only landowners Phillips, Holdermanand Johnson appeal.

BACKGROUND

White Tie Road runs through Goose Lake Township in GrundyCounty, Illinois. This road is essentially an east-west roadthat has a bow to the north creating an "S" curve at the sectionwhich is the subject of this litigation. Claypool Ditch runsalong the south side of the road near the section that containsthe curve.

In accordance with section 6--303 of the Illinois HighwayCode (the Code) (605 ILCS 5/6--303 (West 2002)), a petition wasfiled with the highway commissioner seeking to "modify, alter andimprove White Tie Road." Modifying White Tie Road in the mannerrequested by the petitioners would also necessitate the alteringof Claypool Ditch to prevent White Tie Road from flooding.

Pursuant to section 6--305 of the Code (605 ILCS 5/6--305(West 2002)), a public meeting was held on the petition. Aftertaking evidence, a "final decision" was entered by the highwaycommissioner. The commissioner made the following findings inthis final decision:

"1. White Tie Road, in its present configuration, poses a threat to the safety of motorists and their property. In order to eliminate that threat, it is in the best interest of the public and in the economic interest of the District to improve White Tie Road as prayed for in the Petition and as depicted on Exhibit A to the Petition.

2. The Claypool Drainage Ditch, in its present configuration, poses a threat to the safety of motorists and their property.  In order to eliminate that threat, it is in the best interest of the public and the economic interests of the District to construct an overflow channel for the Claypool Drainage Ditch as prayed for in the Petition and as depicted on Exhibit A to the Petition.

3. The aforesaid improvements will require the acquisition of the property described in the Petition and it is in the best interest of the public and economic interest of the District to do so.

4. After the aforesaid improvements are made, any person residing or owning land within 2 miles of that portion of White Tie Road proposed to be altered, modified and improved, will still have reasonable access thereto by way of motor vehicle and other portable farm machinery commonly used in the area and to community and trade centers."

The landowners offered no evidence below contesting the validityof the commissioner's findings.

The commissioner then granted the petition and announced"that the property described in the Petition be acquired inconformance with the authority set forth in 605 ILCS 5/6--303, etseq." Five weeks later, the commissioner adopted a "resolution"providing for the acquisition of the 2.541 acres of land. Theresolution stated that the commissioner could not agree with thelandowners as to an amount of just compensation and that hedetermined it was necessary to file a condemnation action.

The commissioner filed a condemnation suit approximately onemonth following the adoption of the resolution. The condemnationcomplaint attached and incorporated by reference the originalpetition, commissioner's final decision and resolution. Thelandowners filed a traverse and motion to dismiss, which wasdenied. A judgment order was entered following a bench trialfixing the landowners' compensation for the 2.541 acres of land. The landowners appeal only the denial of their traverse andmotion to dismiss.

ISSUE ON APPEAL

The landowners claim that the petition, final decision,resolution and complaint in this matter are faulty for failing tonotify them that the condemnation authority being utilized by thehighway commissioner was, in part, that found in section 6--802of the Code. 605 ILCS 5/6--802 (West 2002). The gravamen of thelandowners' argument is that the highway commissioner wasmandated to cite every statute granting him authority to take anypart of the parcel at issue in the condemnation complaint. Thefailure to do so formed the basis for the landowners' traverseand motion to dismiss, the denial of which they claim is error.

The landowners begin their argument by noting that section7--102 of the Eminent Domain Act (735 ILCS 5/7--102 (West 2002)states that a condemning authority "may apply to the circuitcourt of the county where the property or any part thereof issituated, by filing with the clerk a complaint, setting forth, byreference, his, her or their authority in the premises, thepurpose for which the property is sought to be taken or damaged,a description of the property, the names of all personsinterested therein as owners or otherwise as appearing of record,if known, or if not known stating that fact and praying suchcourt to cause the compensation to be paid to the owner to beassessed." 735 ILCS 5/7--102 (West 2002).

The landowners claim the phrase "setting forth, byreference, his, her or their authority" within section 7--102mandates that the condemnation complaint set forth everystatutory authority through which the commissioner seeks to takeany part of the parcel of land. The landowners allege that theirpetition is supported by City of Mound City v. Mason, 262 Ill.392, 104 N.E.2d 685 (1914), and Goldman v. Moore, 35 Ill. 2d 450,220 N.E.2d 466 (1966). We disagree.

ANALYSIS

In Goldman v. Moore, our supreme court held that thepetition filed by the condemning authority was invalid because noformal resolution concerning the acquisition of the land inquestion had been adopted at the time the petition was filed inthe circuit court. The Goldman opinion predominately addressesthe requirement of formal action by the condemnor in determiningthe necessity for the taking. Because the condemning authorityin Goldman made no formal resolution prior to filing itspetition, the court stated that "no record existed by which anyproperty owner or interested citizen could determine the positionof the board with respect to the acquisition of the property inquestion." Goldman, 35 Ill. 2d at 453-54. As the highwaycommissioner in the case sub judice did adopt a resolution onAugust 8, 2002, more than one month prior to the complaint beingfiled, we fail to see how Goldman supports defendants'contention. The final decision and resolution adopted by thecommissioner clearly set forth the land to be taken, necessityfor the taking and position of the commissioner with respect tothe acquisition. Moreover, an adequate record existed to informthe landowners of the commissioner's intention.

Furthermore, we believe the landowners' reliance on MoundCity is misplaced. In City of Mound City, 262 Ill. 392, 104N.E.2d 685 (1914), a judgment assessing compensation in favor ofthe landowner was entered following a jury trial. Mound City'scondemnation complaint stated "that the petitioner is authorizedto construct, maintain and improve its levees or protectiveembankments for the purpose of preventing inundations andoverflows, and is also authorized and empowered to acquire realestate, by purchase or condemnation proceedings." Mound City,262 Ill. at 394. While the supreme court notes that thecondemnation complaint did "not refer expressly to any statute"(Mound City, 262 Ill. at 394), the court ultimately held that"the authority of the petitioner was sufficiently set out" byreference in the complaint (Mound City, 262 Ill. at 397).

Ultimately, the court held Mound City's condemnationcomplaint was inadequate, not for failing to cite the statuteunder which the city was seeking to take the land, but forfailing to set forth all the facts necessary to authorize thecourt to act. Mound City, 262 Ill. at 394. Mound City wasattempting to condemn land for the purpose of obtaining earth toraise and strengthen a levee system. Mound City, 262 Ill. at393. The statute under which it attempted to take the landallowed for cities, villages and incorporated towns subject to,in danger of, or threatened with overflow or inundation fromrivers or other sources to construct, widen, raise, strengthen,improve, repair and maintain levees. Mound City, 262 Ill. at394-95. The court found the condemnation complaint deficientbecause it contained no allegation that the plaintiff "is a citysubject to, in danger of or threatened with overflow orinundation from a river." Mound City, 262 Ill. at 395.

The court continued that it was not necessary for Mound Cityto cite either an ordinance or resolution in its condemnationcomplaint since Mound City's power of condemnation was derivedfrom the statute. Mound City, 262 Ill. at 396. As such, MoundCity offers no support to the landowners' argument that thecomplaint was deficient for failing to cite section 6--802 of theCode.

When reviewing a traverse and motion to dismiss, we mustdetermine whether the trial court's order was against themanifest weight of evidence. City of Naperville v. Old SecondNational Bank of Aurora, 327 Ill. App. 3d 734, 763 N.E.2d 951(2002).

While the order appealed from briefly states that thetraverse and motion to dismiss is denied, the trial court focusedon two areas in open court when explaining its ruling to theparties. The trial judge noted that the landowners could produceno case law supporting their proposition that the condemnationcomplaint must contain a citation to every authority under whichthe land is sought to be taken. The judge discussed the casecited by the landowners, Mound City, and noted that it stands forthe exact opposite proposition of law.

The trial judge also discussed the fact that the finaldecision of the commissioner, incorporated by reference andattached to the complaint, notes the commissioner is proceedingunder "605 ILCS 5/6--303, et seq." (Emphasis added.) The trialjudge stated that he believed "the entire statute is referred byreference with the use of the phrase et seq. which isincorporated in the complaint."

Section 6--303 of the Code states that "roads may bewidened, altered, or vacated, and new township and district roadsmay be laid out in the manner provided in this Division of thisCode. 605 ILCS 5/6--303 (West 2002). Inherent in this authorityis the ability to construct the altered road in a mannerconsistent with public safety. As such, it may obviously becomenecessary to alter ditches and other land in proximity to thenewly altered road so it does not flood or wash out during thefirst rainstorm. The record indicates that some of the 2.541acres sought to be taken was for just such a purpose. While thelandowners had numerous opportunities to put on evidence to thecontrary, they refused to do so. Any claim of surprise orprejudice resulting from the commissioner's failure to citesection 6--802 of the Code in the complaint is disingenuous.

We hold the trial court's denial of the landowners' traverseand motion to dismiss was not error. There was no surprise tothe landowners regarding what land was to be taken or as to theintent of the commissioner. The record accumulated by thecommissioner and his condemnation complaint does refer to theauthority under which he seeks to take the 2.541 acres.

CONCLUSION

For the forgoing reasons, the circuit court of Grundy Countyis affirmed.

Affirmed.

LYTTON, and McDADE, JJ., concur.