dissenting:
In connection with the construction of Interstate 72 and the construction of a bridge across the Illinois River, IDOT desired to acquire 35 acres of land controlled by IDOC. Various actions were filed by objectors seeking to block the construction of the highway through this area. In 1985, IDOT entered into an agreement with IDOC for the 35 acres, in exchange for IDOT acquiring the following land for IDOC: (1) fee title to 400 acres specified by IDOC and (2) control of interests in another several hundred acres as specified by IDOC, including defendant’s land. This agreement was not mandated by any federal authority. No federal case was pending at the time of the agreement. IDOC had desired these lands for many years but had been unable to obtain funding from the General Assembly.
Section 4—509 of the Code deals with the acquisition of property to replace the property of a public agency. 605 ILCS 5/4—509 (West 1992). Unfortunately for IDOT, that statute limits the right to take property to such “property as may be necessary to replace the public property being acquired.” (Emphasis added.) 605 ILCS 5/4—509 (West 1992). Apparently recognizing the difficulty of an argument that acquisition of 400 acres and more was necessary to “replace” 35 acres, IDOT did not attempt to rely upon section 4—509 in the circuit court. Defendant tells us that IDOT never mentioned section 4—509 until the case reached this court. No evidence was presented to the circuit court that the acquisition of the 400 acres was necessary to replace the 35 acres, and the circuit court never made such a finding.
Instead, IDOT filed a complaint seeking the acquisition of the properties under the “scenic easement” provisions of section 4—201.15. 605 ILCS 5/4—201.15 (West 1992). IDOT later amended its complaint to further allege that the acquisition was necessary under section 4—501 (605 ILCS 5/4—501 (West 1992)), which provides for the acquisition by eminent domain of property “necessary for the construction, maintenance or operation of State highways.” IDOT argued that it was “necessary” that it acquire the 400 acres because that was what it had agreed to with IDOC. The circuit court accepted IDOT’s argument:
“That the court herein finds that the agreement by and between the [Department] and [Conservation] was an agreement deemed necessary by both agencies and therefore deemed necessary by the legislature, and therefore the lands which are the subject of those agreements are hereby determined ‘necessary’ land taken for ‘public use.’ ”
The circuit court denied the count seeking acquisition as a scenic easement. The acquisition was not shown to be necessary “for the preservation of the natural beauty of areas through which State highways are constructed” (605 ILCS 5/4—201.15(a) (West 1992)), and was necessary only because of the agreement with IDOC.
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. Department of Public Works & Buildings v. Farina, 29 Ill. 2d 474, 477, 194 N.E.2d 209, 211 (1963). Is it really necessary to have a highway between Springfield and Quincy? Is it really necessary for the highway to go through Pike County? Is it really necessary that the highway be a four-lane highway? All these questions are clearly for the legislature and for IDOT, and not for the courts. It is apparent, however, that the question before us is not of that nature. IDOT says that it is necessary to acquire the 400 plus acres because that is what IDOC required. As IDOT’s deputy chief counsel testified, “we were directed by [Conservation] to do it.”
As defendant argues, what if IDOC had decided that it wanted 5,000 acres of land, or if it wanted defendant’s home and farm 20 miles from the road? What if IDOC had demanded that IDOT build a new IDOC residence and service/office building? (IDOC did so here.) We should reject the idea that IDOC has unbridled discretion. We should reject IDOT’s attempt to avoid the limitations of section 4—509. IDOT has only such powers of eminent domain as are conferred upon it by the legislature. The law conferring the authority must be strictly construed. City of Mount Carmel v. Partee, 74 Ill. 2d 371, 378, 385 N.E.2d 687, 690 (1979). IDOT recognizes that there are limits upon its power to acquire land by eminent domain. The argument that there are no limits upon IDOC’s power to demand replacement property, perhaps in reaction to pressure by environmental groups, is without support. IDOC does not have the right to force IDOT to choose between acceding to its unreasonable demands or abandoning the highway.
The majority opinion notes that the agreement was “reached with the aid of several experts to determine and evaluate the private lands necessary to replace” the 35 acres, that studies were commissioned and outside experts were employed, and that significant expertise was brought to bear on this problem. 305 Ill. App. 3d at 403. I have no doubt that the 400 acres acquired in fee and the several hundred acres in which a lesser interest were acquired are useful to IDOC and will have a beneficial impact on animal wildlife and habitat. I do question whether IDOC and its experts had any motivation to limit the lands taken to those necessary to replace the 35 acres. The trial court made no finding that such replacement was necessary, and it appears IDOT did not address that issue in the trial court.
The majority states that intergovernmental agreements are encouraged. I believe that is true but I would caution that an agreement between two governmental bodies should not be allowed to compromise basic rights of individuals. The government is not entirely free to take a person’s property whenever it is willing to compensate him. We should reverse the decision of the trial court. The fact that IDOT and IDOC have entered into an agreement that IDOT acquire 400 acres for IDOC does not require a finding that such acquisition is necessary under section 4—501.
That is not to say that IDOC must return all the lands and rights that IDOT has acquired for it and that IDOT must return Interstate 72 to IDOC. See M.A. Felman Co. v. WJOL, Inc., 104 Ill. App. 2d 66, 72-73, 243 N.E.2d 33, 36-37 (1968) (impossibility of performance because of governmental laws or regulations); see also 810 ILCS 5/2—615 (West 1992) (nondelivery of goods by compliance in good faith with any applicable foreign or domestic governmental regulation or order). I would read the agreement between IDOT and IDOC to include the implied condition that the agreed-to acquisitions be approved by the court. I would hold that IDOC did not have the right to insist on the conditions that it did in this agreement. Nevertheless, IDOC may be able to argue that it was not a party to these proceedings and may have the right to litigate any dispute with IDOT elsewhere.