dissenting:
I do not concur in the conclusions reached on several questions decided in the foregoing opinion. I am not in accord with the finding of the opinion that the date of the filing of the commissioners’ report in the county court must be fixed as the date of valuing the property condemned. The commissioners’ report was filed July 15, 1915. The trial as to this property began October 2, 1917, and a judgment on the whole case was entered March 8, 1918. Counsel for appellant offered to prove on the trial that its machinery had advanced in market value between the date of the filing of the commissioners’ report and the time of the trial over $300,000; that such machinery would cost that much more to re-instate' it in a new building. They also offered to prove that the buildings of appellant were worth $150,000 more at the time of the trial than at the filing of the commissioners’ report. The evidence in the record seems to show, without controversy, that the advance in building cost in that time was over twenty-five per cent. The city’s figures appeared to show that the enhanced cost of the buildings between those dates' would have been at least $105,000, while the testimony of appellant’s witnesses' is to the effect that the advance in the cost of the buildings would be $262,000.
The general rule is that damages should be assessed and compensation determined as of the time of the taking. Difficulties, however, sometimes arise in determining when the actual taking occurs and different rules have been laid down in different jurisdictions, doubtless because of the diversity of constitutional and statutory provisions governing eminent domain proceedings, In several jurisdictions the rule is that the date of filing the petition in eminent domain proceedings will be taken as the time when damages should be assessed, while in others the date is determined by that of the issuance of summons or the filing of the bond or assessment, appraisement or award, and in some States the rule varies in different classes of takings. (10 R. C. L. 214; 2 Lewis on Eminent Domain,—3d ed.—sec. 705.) Most of the authorities state that in condemnation proceedings the value of the land should be measured at the time of the taking or its appropriation by the public authorities. In Sanitary District v. Chapin, 226 Ill. 499, this court said (p. 503) : “The provision of the constitution that private property shall not be taken for public use without just compensation requires that the owner shall receive the market value of his property at the time of the taking, and as to this proposition the courts are agreed. (Citing authorities.) There is, however, a great diversity of opinion as to when the property is taken, in legal contemplation, for the public use.” (This decision is found with an extensive note in 9 Ann. Cas. 113.) In Cook v. South Park Comrs. 61 Ill. 115, this court held (p. 122) that the legislature of the State could not by arbitrary enactment take property for public use and limit the owner’s right to recover compensation to the date of the law, when the property might greatly enhance in value between the passage of the law and the commencement of the proceedings to condemn. In that case the court said that the date of the filing of the petition might be, in practice, a fair one in the average case, commenting on the fact that the Eminent Domain statute, as construed by this court, was evidently intended to dispose of the proceedings in a summary and speedy manner without delay. (See, also, to the same effect, Moll v. Sanitary District, 228 Ill. 633.) In this last case it was held that under the peculiar circumstances of the case the judgment in favor of the property owner, on which interest could be drawn, should be reckoned from the date when the owner was deprived of his property and not from the date when the petition under which the property was condemned was technically filed.
Section 13 of article 2 of the constitution of 1870 provides that “private property shall not be taken or damaged for public use without just compensation.” It is manifest, under the decisions of this State and those of other jurisdictions construing similar constitutional provisions, that the owner should be compensated for the amount of his loss. This court has said that in condemnation cases the owner of the property “is not required to make any pecuniary sacrifices at all. He is entitled to whatever the property is worth to him or to anyone else, for any purpose to which" it is adapted.” (Chicago and Northwestern Railway Co. v. Chicago and Evanston Railroad Co. 112 Ill. 589.) In discussing this question all courts have endeavored to lay down a rule that is certain, simple and practical and that will do justice in the greatest number of cases. Beyond question, in the ordinary condemnation proceeding, which can be summarily disposed of, the rule adopted by the trial court in this case will tend to do justice in the greatest number of cases and is certain and simple and should therefore be followed in such ordinary cases, but if the condemnation proceeding extends through years, it is apparent that the enhancement or depreciation of the property during that time might be very large, and to follow arbitrarily the date of filing the petition or the commissioners’ report will in some cases do great injustice. As this court said in Sanitary District v. Chapin, supra, in discussing a similar question (p. 505) : “The argument does not meet the fact that there has been a great advance in the value of the property, and if the petitioner can now maintain the action and have the rule applied that the property was taken when the petition was filed, it would be able to acquire the property at much less than its value at the actual taking.” In order to do justice in each case the rule ought to be, of course, as nearly as practicable to enforce the fixing of the time of the actual taking or appropriation by the public authorities as the time of fixing the valuation. As was said by Chief Justice Shaw in Parks v. City of Boston, 32 Mass. 198, on page 208: “The true rule of justice for the public would be, to pay the compensation with one hand whilst they apply the ax with the other.” This doctrine could be readily applied in the ordinary proceeding in an agricultural community, where the condemnation could be summarily and quickly disposed of, but this rule must be departed from, as intimated by Chief Justice Shaw in the case just quoted from, when sometimes it is necessary, by the forms of law, to conduct a lengthy inquiry. In a case of that kind such a rule may be unfair, for the public authorities might not take the property until long after the trial. Under our statute, until judgment is entered, the city, in a proceeding of this kind, might dismiss its proceedings without the consent of the parties whose lands were sought to be condemned,—and this notwithstanding that judgment had been entered as to part of the property. City of Evanston v. Knox, 241 Ill. 460.
It is true that it may be. impracticable, under our method of procedure, to ascertain the value at the time of the actual taking, as that would necessitate a supplemental hearing, but that does not answer the argument that in a proceeding of this kind to ascertain the value we should approximate, as nearly as practicable, to the actual time of the taking or appropriation. In an ordinary case, which .is quickly disposed of, the time of filing the petition will generally give a fair value as to the interests of all parties, yet to enforce that rule arbitrarily in 'all cases, even when years have elapsed between the filing of the petition and the time of the hearing to fix the value, will result in great wrong and injustice. It is true, as argued by counsel for appellee, that in exercising the right of eminent domain the question of just compensation to be paid to the owner means that such compensation is to be ascertained that is not only just to the individual whose property is taken but to the public which is to pay for it, (Searl v. School District, 123 U. S. 553,) and that the provision in our constitution that private property shall not be taken or damaged for public use without compensation is not intended to reach every possible injury that may be occasioned by a public improvement, (Illinois Central Railroad Co. v. Trustees of Schools, 212 Ill. 406,) but the provision of our constitution as to the payment of just compensation for taking private property was intended to do equal justice, as nearly as possible, to all parties interested, in every case. To hold, as does the opinion in this case, that because of the general rule that has been fixed in this State that in the ordinary case the date of the filing of the petition in a condemnation proceeding shall be assumed as the valuation date in all cases, is to follow an arbitrary rule not in harmony with justice. To argue that it is impracticable to change the date to the time of the hearing in a case such as is here before us, is to concede that under our forms of law justice cannot be properly administered. To me this seems to be sacrificing substance to form. The law is not so inelastic as to require this conclusion. This arbitrary rule has been departed from heretofore in Sanitary District v. Chapin, supra, and Moll v. Sanitary District, supra, and the reasoning of this court in Cook v. South Park Comrs. supra, is clearly against such an arbitrary conclusion.
I agree with the opinion that in the ordinary case the time for filing the petition,—or, under the Local Improvement act, the date of filing the commissioners’ report,— might well be taken, but in a case like this, where property has greatly enhanced in value since the beginning of the proceedings or has greatly depreciated in value during that time, such a rule, if strictly enforced, will necessarily not bring just and equitable results. In my judgment it is entirely practicable, in an exceptional case of this kind, to fix the" date of the beginning of the trial before the jury as to finding the value as the date at which the value of the property should be fixed. While such a date may not do exact justice, it will approximately come nearer doing so in cases of this kind than it will to follow an arbitrary rule by fixing the time as of the filing of the petition in the ordinary condemnation proceeding or the filing of the commissioners’ report under the Local Improvement act. I think the trial court should have permitted the appellant to make proof of the enhancement of the value as to the machinery and building materials between the date of the filing of the commissioners’ report and the date of the beginning of the trial. Under this reasoning it necessarily follows that the evidence of the value of the additional machinery put in the plant by appellant, if it was shown that it was installed in good faith to keep up the working efficiency of the manufacturing plant, should have been allowed, as well as the evidence to prove the actual damage to this additional machinery by the condemnation • of the plant. The owner of the property should not be prevented from improving the same in accordance with the needs of his business, pending hearing on the condemnation proceeding, if he does so in good faith. Driver v. Western Union Railroad Co. 32 Wis. 569; Warren v. First Division of St. Paul and Pacific Railroad Co. 21 Minn. 424; Mills on Eminent Domain, (2d ed.) sec. 174.
The opinion in this case states that what constitutes market value is a question of law and not one of fact to be submitted to the jury. This, in my judgment, is not in harmony with the decision of this court in Chicago and Northwestern Railway Co. v. Chicago and Evanston Railroad Co. supra. I am in accord with the definition of market value as given in the foregoing opinion. In the case last cited one railroad was endeavoring to condemn a strip for right of way across the right of way of the Chicago and Northwestern railway as already located, and the question of market value and how to fix it was one of the chief questions in dispute. The court in that case said (p. 606) : “One of the controverted questions in the case was whether, as a matter of fact, property circumstanced as this was had any market value in that vicinity. We think the evidence tended to prove it had not, whatever the weight-of evidence may have been on that question. And as the court had refused all instructions, with the exception above mentioned, presenting this aspect of the case and had undertaken to instruct the jury fully with respect to their duty, it should have told them how the amount of compensation was to be determined if the proofs failed to establish a market value for property situated as that was. This the court did not do.” One of the instructions in that case, as shown by the records on file in this court, was to the effect that the jury were to decide, from the evidence, whether or not such land had a market value, and it is manifest from a reading of the opinion in that case that the court reversed the case, not because this instruction was given but because the jury were not fully instructed as to how they should decide upon the value if the proofs failed to establish that the property had a market value. It seems to me that the same conclusion was reached in Sanitary District v. Pittsburg, Ft. Wayne and Chicago Railway Co. 216 Ill. 575. Whether the question of market value is for the court or jury is referred to in Chamberlayne on Evidence, (vol. 3, sec. 2099a,) where it is intimated that it was for the court to decide the question,—citing two cases, one from New York and one from Utah,—while in the Encyclopedia of Evidence (vol. 13, p. 510,) it is stated that the existence of such value is a question of fact,—citing, among other decisions, Todd v. Gamble, 67 Hun, 38. It is true that there are some questions of fact so clear that the court will have a judgment about them of its own, but such questions in ordinary trials at law, where a finding of preliminary questions of fact by the court is justified, are those that relate to the competency of a witness or the incompetency of a certain class of evidence and are merely incidental to the admissibility of evidence.
The claim of counsel for appellee that the question of market value was a preliminary question, which should be decided by the trial court as a guide to the admission of evidence, does not.fit the facts as found in this proceeding. The trial court did not deal with this question as if it were a preliminary one. As I understand the record, a motion for a ruling on this question was presented by counsel for the city, afterward joined in by counsel for the appellant. At the close of appellee’s testimony the attention of the court was called to this pending motion and a ruling of the court was asked as to whether the property had a market value or not. The decision of the court was postponed until the conclusion of the petitioner’s testimony. No distinct ruling on this motion was made until the end of the trial, although it appears that rulings were made at various times which in effect held that the market value was the test. Under the rulings of this court in Chicago and Northwestern Railway Co. v. Chicago and Evanston Railroad Co. supra, and in accordance with what I believe to be the proper rule of law, the trial court should have submitted to the jury, as a question of fact, whether or not this property had a market value, to be considered under instructions given setting forth fully the law as applied to the different theories of counsel, on the facts presented, as to whether or not the property did actually have a market value.
This brings me to the discussion of the question as to whether or not the opinion is right in holding that the evidence proved this property had a market value. The opinion concedes that property, in a few exceptional cases, may have such a special use that market value ought not to be considered decisive; that if it does not have such a value market value cannot be the legal standard to fix for the compensation to be paid for taking the same; but the opinion further holds that on the evidence in this case the property of appellant cannot come within such exception. I do not agree with that conclusion. The great weight of authority in other jurisdictions, it seems to me, is to the contrary, as well as the reasoning of this court in its former decisions. In St. Louis, Jerseyville and Springfield Railroad Co. v. Kirby, 104 Ill. 343, the court said (p. 349) : “The value of land consists in its fitness for use, present or future, and before it can be taken for public use the owner must have just compensation. If he has adopted a peculiar mode of using that land by which he derives profit and he is to be deprived of that use, justice requires that he be compensated for the loss. That loss is the loss to himself. It is the value which he has and of which he is deprived which must be made good by compensation.” In Chicago and Northwestern Railway Co. v. Chicago and Evanston Railroad Co. supra, the court approved the doctrine laid down in the Kirby case just quoted, that the owner had a right to the value which his property had in view of the particular use to which it was adapted, and said (p. 606) : “Indeed, in all cases where a piece of property, by reason of having been applied to a particular use, has a special value to the owner, the rule announced by the court would be improper, and if observed by the jury would necessarily lead to an unjust result. It is claimed by appellant, and it will not be denied that the evidence tends at least to show, that this particular piece of ground constituted a part of the terminal facilities of appellant’s great railway, extending thousands of miles. * * * It is also claimed by appellant, and the evidence tends to prove the fact, that no other property in that vicinity so essential and desirable for the purposes of the company’s business can be obtained if that is taken. Now, it is manifest that by reason of the use to which this property is applied and its connection with the company’s business generally, it has a special value to the company which it does not have to anyone else, and which the general market value of other property in that locality not thus circumstanced throws but little, if any, light upon, much less furnishes a rule by which to determine its value. Strictly speaking, the market value of anything is determined by what it would sell for in market in due course of business, and this is ascertained by actual sales or offers for like articles. This applies to land as well as anything else. But the term is sometimes used in a more extended sense, as including the estimation which well im formed persons would put upon an article in the absence of a market value in the strict sense of that term, and this kind of evidence is always admissible to show value.” To illustrate the rule laid down in that case the court further stated hypothetically a case of the owner of a farm who had adapted it to the dairy business by spending several thousands of dollars in preparing necessary stalls and sheds for his cows and in making suitable preparations for the handling of the milk and converting it into butter and cheese, the opinion stating with reference to this illustration that when the farm was thus thoroughly fitted up for this purpose it would have a special value to the owner that it would not have for ordinary farming purposes, and that the owner of the farm, under the circumstances, could not be required to change the use of his farm, and the court would have no right to dictate to him that he should, and require it to be taken in condemnation proceedings at such a value as would be fixed for it for ordinary farming purposes. In that case, as in this, the property bordered on a branch of the Chicago river, and it was urged there, as it is here, that this location furnished dock facilities for the shipment of freight that it would be very difficult to duplicate in other localities. It was in the light of such facts that the court said in that opinion that the owner of the property was not required to make any pecuniary sacrifice at all (p. 609) : “He is entitled to whatever the property is worth to him or anyone else, for any purpose to which it is adapted.” In Ligare v. Chicago, Madison and Northern Railroad Co. 166 Ill. 249, this court said (p. 263) : “That if the property had a special value to appellant, from whatever cause, growing out of the best use to which, from its situation, it was adapted, such special value belonged to appellant, and he was entitled to have it considered.” See, also, the reasoning of this court in Johnson v. Freeport and Mississippi River Railway Co. 111 Ill. 413; Hercules Iron Works v. Elgin, Joliet and Eastern Railway Co. 141 id. 491; Cahill v. Village of Norwood Park, 149 id. 156; Sanitary District v. Pittsburg, Ft. Wayne and Chicago Railway Co. supra; Bradley Manf. Co. v. Traction Co. 229 Ill. 170; Chapman v. City of Staunton, 246 id. 394.
I agree with the opinion that the cases cited by counsel for appellant that have to do with the taking over by cities or other public authorities of entire water systems, gas plants or other public utilities, including the entire business of the companies, are not controlling on a question of this kind, and, at the most, can only be persuasive in their reasoning; but there is another class of authorities that have applied a somewhat similar doctrine to manufacturing plants where the business could be continued after condemnation, the same as it can be in this case. Southern Railway Co. v. Michaels, 126 Tenn. 702, was a proceeding by a railway company to condemn a right of way through a saw-mill property. The strip taken separated the mill proper from a log harbor. The effect was to impair or destroy the value of the harbor in connection with the operation of the mill. The court held that the value of the property in one alternative was properly to be fixed on the basis of the mill plant, inclusive of the harbor, as a going concern, and that if the log harbor was being used in connection with defendant’s mill at the time of the condemnation he would be entitled to be compensated for the cash market value of his mill as a going concern, and the use of the harbor to the mill and mill operations could be estimated as a part of the property taken.
Yates & Donelson Co. v. City of Memphis, 194 S. W. Rep. (Tenn.) 903, was a proceeding to recover damages from the city and from several railway companies for interference with the Yates & Donelson Company’s right of ingress and egress to and from its flouring mill.- The court held the closing of access to the property by an established route was the taking of a property right for which compensation should be paid, and that in considering the compensation the company should be considered a going concern.
In St. Louis, Memphis and Southeastern Railroad Co. v. Continental Brick Co. 198 Mo. 698, there was a proceeding to condemn a right of way through a brick manufacturing plant. The owner’s witnesses were men experienced in brick manufacturing but had no actual knowledge of land values in that vicinity, while most of the petitioner’s witnesses, if not all of them, were familiar with land values. but had no knowledge of brick manufacturing, and it was said in that case, that, as in ordinary business affairs, the opinions of witnesses who had been for the best part of their lives in the same kind of business should have greater wéight in estimating the value of the property of a plant equipped for that kind of business than the opinions of men who only knew the general market value of the land upon which the plant was situated but knew nothing of its general value as a site for a brick plant.
Jeffery v. Osborne, 145 Wis. 351, was a proceeding by a railway company to condemn a strip of land 100 feet wide through Jeffery’s automobile manufacturing plant at Kenosha, Wisconsin. On a prior hearing a verdict had been rendered for $125,000, which was reversed on appeal. The second trial resulted in a verdict for $133,000. The strip of land was 100 feet wide and over 1000 feet long, containing 2.3 acres. It took no substantial buildings, but it separated the principal buildings of the factory on the east from the testing factory on the west and took other space upon which a building had already been begun. The court, in discussing the method that should be followed in valuing this strip of land, said (p. 361) : "If the question at issue had been the mere question of the value of land which had no value except for residence or farming purposes, they clearly would not have been qualified witnesses. But this was not the question. There was practically no dispute on the question of the value of the strip as mere land. The plaintiff fixed its value at about $1100 per acre, and no one disputed him. The question was as to the value of the strip as part of the manufacturing plant conducted by the plaintiff, and this was the question upon which these witnesses testified. They showed themselves to be experts in the manufacturing business, and well acquainted, from long years of experience, with the values and needs of plants of this kind. It also appeared that they knew, by examination of the property at or very soon after the time when the land was taken, what its situation, condition and general adaptability to the plaintiff’s business was. This knowledge, we think, qualified them to testify as experts on the question of the value of the manufacturing property before and after the strip was taken.” In-that case the court treated the entire plant as a unit and valued the strip condemned as it affected the value of the plant as a whole. The actual value of the land taken, according to the testimony, would be approximately $2600, but the award was $133,000, and the court there held that this did not include any element of damage to the remainder but was the value of the property taken as a part of the operating plant, and affirmed the judgment and the award of $133,000 for the land actually taken. See, also, Raleigh, Charlotte and Southern Railway Co. v. Mecklenburg Manf. Co. 169 N. C. 156; Jackson v. State, 213 N. Y. 34; King v. Minneapolis Union Railway Co. 32 Minn. 224; State v. Williams, 123 Wis. 61; Hunter’s Admr. v. Chesapeake and Ohio Railway Co. 107 Va. 158.
The real estate witnesses for appellant in this proceeding, in testifying, gave the value of this property as an operating plant consisting of machinery, buildings and land, giving the values of these separate items. They testified that the property would be worth more than the market value of the different elements of machinery, buildings and land if taken separately; that when a manufacturing plant, operating, has been demonstrated to be a success it would be worth more than the mere valué of its physical elements; that "a plant which has stood the test of experience and had been found successful would have a “going value,” or what the witnesses and counsel for appellant call an “efficiency value.” Two witnesses also testified for appellant who had more or less extended experience in estimating the value of soap manufacturing plants, and they gave the efficiency or going value of this manufacturing plant as worth, independently of its physical parts, from $300,000 to $500,000. The real estate experts for the city all testified that they had valued the property only with reference to its physical elements. One of the witnesses conceded, on cross-examination, that he considered it only as if it were not a going concern; that he was estimating it as if there was no business conducted there,—as to the value of the land, buildings and machinery,—the latter two items being considered as junk. The opinion in this case practically reaches the same conclusion.
The evidence offered here shows that there had been no sales of soap manufacturing plants in Chicago or in the vicinity that in any way assisted in fixing the market value of this property if put on the market as a going concern. If, when a part of a mill site or an automobile plant or a brickyard is taken, the strict test "of market value should not be applied in finding the value to the owner, I do not see why the same rule should not be applied in taking a portion of a manufacturing plant, such as here in question. If it is proper in such cases to deduce a market value from the intrinsic value of the property and its value to the owner for the special purpose for which it is used,—that is, to prove all the varied elements of value, all the. facts which the owner would properly and naturally press upon the attention of a buyer with whom he was negotiating a sale, and all other facts which would naturally influence a person of ordinary prudence desiring to purchase a going concern,—then I think the owner is entitled to have similar evidence considered showing the capabilities of this property as to the business or use to which it has been devoted.
Counsel for appellee argue that as all the evidence on this question offered by appellant was admitted on the trial, therefore appellant has no reason to complain on account of the trial court’s rulings in this regard. It is true that the court admitted the evidence on this question offered on behalf of appellant, but the court’s rulings during the trial of the case and in the giving of instructions were practically to the effect that the property in question had a market value. These rulings would necessarily lead the jury to believe that the way to reach a verdict as to the fair and just compensation to be given to the owner was to ascertain such market value, and as the court by its rulings held that this property had a market value, the result was that the jury were told, in effect, that the value of the property for the peculiar use to which the owner was putting it in its business, as testified to by the witnesses for appellant, should not be considered by them in reaching their verdict as to the fair and just compensation to be given for the property. It was because of the misleading character of the rulings of the trial court and the instructions given on somewhat similar questions in Chicago and Northwestern Railway Co. v. Chicago and Evanston Railroad Co. supra, that the court reversed that case and held that in condemnation cases the owner of the property condemned was not required to make any pecuniary sacrifices at all.
If the rule be adopted as laid down in the foregoing opinion, that market value was a question of law to be decided by the court, then in my judgment the trial court was wrong in holding that under the evidence in this case this property had a market value in accordance with the ordinary use of that term. Furthermore, I can reach no other conclusion than that the valuation fixed by the jury as to the property taken and the damages to the remainder is contrary to the great weight of the testimony in this record.