concurring in part and dissenting in part:
I concur in a reversal based on undue restriction of proof of value, but I also believe the trial court erred in refusing evidence in support of the cross petition.
On this record, I consider the land not taken (the store property) so close in proximity, so integrally connected, and so unified in use with the land taken (the customer parking lot), as to permit evidence of damage to the land not taken.
While it is often said that the tracts must be “contiguous,” it is generally recognized that physical touching or its lack is not conclusive. For the basic test is unity of use. (See 6 A.L.Rad 1197-1237.) To say here that the store property is used for retail merchandising while the parking property is not, strikes me as unrealistic. The lot is, of course, used for parking — but for store customers. In a crowded metropolitan area, this may be not only “convenient and beneficial” but vital. It seems clear that the parking lot is an integral part of the Wieboldt retail operation, and if as a result of condemning the parking property the market value of the store property declines, there should, in justice, be compensation for land damaged but not taken. Illinois Constitution, art. II, sec. 13.
If present use, rather than past acquisition and purposes, is determinative (as the majority seem to say, citing White v. Metropolitan West Side Elevated Railroad Co. 154 Ill. 620,) then the fact of acquisition “at different times, from different owners, and for different purposes,” is irrelevant. Moreover, future uses, such as the possible expansion referred to, appear not greatly material to a consideration of present value, as opposed to the present facts themselves showing a regular full use for parking by store customers. I note that the 16-foot alley said to preclude an interrelationship between the two tracts was at one time owned by the respondents and became a public way through their action, and it is of virtually no use to anyone except Wieboldt and its customers.
This is a case of first impression in Illinois. While the majority strongly rely upon two early railroad condemnation cases, White v. Metropolitan West Side Elevated Railroad Co. 154 Ill. 620 (1894), and Metropolitan West Side Elevated Railroad Co. v. Johnson, 159 Ill. 434 (1896), both may be distinguished.
In the White case, the owners’ sole contention was that “both tracts (the one north and the one south of Tilden Street) were purchased with the intention of using the same together as one property and one plant for a polytechnic institute.” There was no present unified use of the tracts.
The Johnson case involved residence properties. The railroad condemned a strip for right of way through a platted subdivision, and the court held it was proper to exclude evidence of damage as to all lots separated from those partly taken by streets, alleys, or lots owned by other parties.
Where there is a present, unified, business use, as in the instant case, courts generally have adopted a more liberal view. (See 6 A.L.R.2d 1227-37.) One reason for this is expressed as follows at page 1226-7 °f the annotation: “There is an outstanding difference between the properties heretofore considered and such properties as may be roughly termed business and industrial units. In the case of farms, ranches, timberlands, building lots and even residence properties, the remaining portion usually retains its intrinsic value, only incidentally impaired by the loss of the part taken and the use to which it is to be put. But when part of an industrial property is taken, the result is likely to be the destruction of the enterprise. This seems to call for a more liberal reading of the rule permitting severance damages where virtual contiguity is shown.”
Illustrative is Baetjer v. United, States, 143 F.2d 391, where the land not taken was separated by 17 nautical miles of water. The rationale of the court, stated at page 395, is convincing: “Integrated usé, not physical contiguity, therefore, is the test. Physical contiguity is important, however, in that it frequently has great bearing on the question of unity of use. Tracts physically separated from one another frequently, but we cannot say always, are not and cannot be operated as a unit, and the greater the distance between them the less is the possibility of unitary operation, but separation still remains an evidentiary, not an operative fact, that is, a subsidiary fact bearing upon but not necessarily determinative of the ultimate fact upon the answer to which the question at issue hinges.”
When this reasonable rule is applied to the facts here, there remains no doubt but that the court erred in refusing the respondents permission to introduce evidence in support of the cross petition.
Mr. Justice Bristow joins in the foregoing concurring and dissenting opinion.