dissenting:
I respectfully dissent. I agree with the majority’s conclusion that the trial court erred in finding that section 4 — 210 restricts Lowderman’s property from being landlocked. Where I disagree with the majority is over the question of whether any access rights remain after the State has acquired all direct access rights to Route 136.
The record reflects that the State acquired through condemnation “all of the rights of access” to the remainder property at issue. All that was left after condemnation was a statement in the order that “[ajccess to the remaining land of the Grantor shall be provided by way of a frontage road along the Grantor’s southerly property line.” The question is whether this statement created a “right of access” or merely a licence. If “all rights of access” to the remainder were acquired by the State through eminent domain, then the frontage road provision was not a right of access, but was instead merely a license. Since it is clear that the State acquired all rights of access through condemnation, we should hold that the frontage road access could be nothing other than a licence. Where the State acquired all rights of access by deed, it had no obligation to compensate the remainder when it subsequently took the frontage road access. See Department of Transportation v. Cavagnaro, 62 Ill. App. 3d 881, 379 N.E.2d 863 (1971). Here, the State acquired all rights of access to the property, albeit by condemnation rather than by deed. However, I see no meaningful distinction between whether the State acquired all access rights to the property by deed or by condemnation. The fact remains that the frontage road in either situation was merely a license and not an access right.
The resolution of this matter should, therefore, be controlled by the holding in Department of Public Works & Buildings v. Wilson & Co., 62 Ill. 2d 131, 340 N.E.2d 12 (1975). The issue in Wilson was whether the trial court should have allowed the landowner to present evidence to the jury concerning the damage to the remainder as a result of the loss of direct and unlimited access to the roadway. Wilson, 62 Ill. 2d at 136. The same issue is presented in the instant matter.
In Wilson, the court found:
“It is clear *** that a property owner suffers compensable damages if his access to an abutting street is completely eliminated. The precise question, however, is the effect of substituted indirect access via a frontage road, and that question does not appear to have been squarely ruled upon by this court. However, it has been implicitly recognized that the substitution of a frontage road for previously existing direct access does not preclude an award of compensation but instead is a fact to be considered in determining the extent of damages.” Wilson, 62 Ill. 2d at 139-40.
The Wilson court then determined that where the state action resulted in a complete elimination of all direct access with the substitution of a frontage road, the action constituted a taking of access. Wilson, 62 Ill. 2d at 144. In such cases, the court found:
“It is appropriate for the jury to consider that fact in determining the extent of damages to the remainder in an eminent domain proceeding. This does not, of course, mean that every loss or material impairment of direct access to abutting highways automatically results in compensable damage to the remaining property. Whether any compensable damage has occurred will ordinarily depend, in large measure, upon the substitute access provided. It may well be that in some cases the substitute access by means of a frontage road or otherwise will so nearly equal the original direct access as to eliminate any question of damages to the remaining property. As we earlier indicated, that issue is for the trial court initially. In the more usual case, however, that question will go to the extent of damages and not to the right to compensation in the first instance.” Wilson, 62 Ill. 2d at 144.
Here, Lowderman sought to present evidence as to the damage to his remainder where the State took direct access to the highway and substituted limited frontage road access. There is no evidence in the record that the substituted access was nearly equal to the original direct access. Thus, under the precedent established in Wilson, he should have been allowed to present his evidence of damages to the jury. I recognize that the Wilson court does not use the word “license” in describing the interest left in the parcel after the State had acquired “all direct access.” However, it is clear that if “all direct access” was taken, whatever remained was not a “right” in the property, but some kind of permit or permission to the acquired property. The Wilson decision dealt with the taking of all direct access, as does the instant matter. I find nothing in the cases cited by the majority that overrules or limits the holding in Wilson. Therefore, I would reverse the trial court and remand for further proceedings and I dissent on that basis.