
28 May 1999

NO. 4-98-0184

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE DEPARTMENT OF TRANSPORTATION OF THE )   Appeal from

STATE OF ILLINOIS, for and in behalf of )   Circuit Court of

the People of the State of Illinois,    )   Pike County

Plaintiff-Appellee,           )   No. 91ED4

v.                            )

CALLENDER CONSTRUCTION COMPANY,         )   Honorable

an Illinois Corporation,                )   Michael R. Roseberry,

Defendant-Appellant.          )   Judge Presiding.

_________________________________________________________________





JUSTICE KNECHT delivered the opinion of the court:

In January 1991, plaintiff, the Department of Transpor­

ta­tion of the State of Illinois (Department or IDOT), by virtue of its power of eminent domain, filed a complaint for condemna­

tion seek­ing to condemn property of defendant landowner, Callender Con­struction Compa­ny.  In May 1991, defendant filed a motion to dis­miss and tra­verse, al­leg­ing lack of necessity and statutory au­thority for the taking.  In November 1993, the cir­

cuit judge denied the motion, holding the Depart­ment es­tab­lished a 
prima
 
facie
 case of ne­ces­sity but de­fen­dant failed to carry its burden of proof to rebut it.  In February 1998, the trial court entered judgment per the stipulation of the parties, which stipu­lated the amount of compensation to be paid but preserved defen

dant's right to appeal the ruling on the condemnation.  De­fen­dant now ap­peals.  We af­firm.

This dispute arises from the condemnation of de­­­­­­­­­­­­­­­­­fen

dant's property by the Department in connection with the con­

struc­tion of In­ter­state 72 from Spring­field, Illinois, to Quincy, Illi­nois, also known as the Central Illinois Ex­press­way (Ex­press

way).  The defendant's land was to be subject to a restric­tive easement.  The State of Illi­nois (State), through leg­is­la­tion passed by the Gen­er­al As­sembly, con­cluded that a highway connect­

ing Spring­field and Quincy was nec­essary for the public good.   See 
Wade v. Kramer
, 121 Ill. App. 3d 377,
 
381, 459 N.E.2d 1025, 1028 (1984) (hereinafter 
Kramer
).  	

To carry out the mandate of the General Assem­bly, the State found it nec­es­sary to pro­cure fed­er­al fund­ing, as the State alone did not have the re­sources to finance the construc­tion of the Expressway.  Thus, the De­part­ment was re­quired to com­ply with the man­dates of the Department of Transportation Act (see 49 U.S.C. §303 (1­982) (former­ly 49 U.S.C. §1653(f) (1976))) to re­

ceive fed­eral funds, without which the Expressway could not be con­struct­ed.  

Specifi­cally, the De­partment sought to acquire 35 acres of land in the Pike County Conservation Area (Conservation Area), which trig­gered the applica­tion of "sec­tion 4(f)," as it is com­

monly known, of the De­part­ment of Trans­porta­tion Act (49 U­.S.C. §303(c) (1982)).  The Depart­ment deter­mined it was nec­es­sary to con­struct the bridge through the Conservation Area.  The Con­ser­

vation Area land in ques­tion was sought for the con­struc­tion of a bridge across the Illi­nois Riv­er, as it is neces­sary to cross the Illi­nois River at some point to con­struct the Express­way.  See 
Kramer
, 121 Ill. App. 3d at 378, 459 N.E.2d at 1028.  However, sec­tion 4(f)(1) pro­hib­its build­ing fed­er­al­ly fund­ed high­ways through park land such as the Conservation Area un­less no fea­si­

ble or prudent alterna­tive to con­struc­tion in such areas exists.  49 U­.S.C. §303(c)(1) (1982). 

Thus, the es­sen­tial facts of this case begin with a for­mer federal law­suit involv­ing the Department's compli­ance with sec­tion 4(f)(1).  49 U.S.C. §303(c)(1) (1982).  In  
Wade v. Lew­

is
, 561 F. Supp. 913, 954 (N.D. Ill. 1983) (hereinafter 
Lewis
), a per­ma­nent­ in­junc­tion was en­tered in fed­er­al dis­trict court pre­

vent­ing the con­struc­tion of the Ex­press­way.  Al­though the court agreed no fea­sible or pru­dent al­ter­na­tive existed to the con­

struc­tion path through the Conservation Area, the Department had f­ailed to show all pos­si­ble plan­ning had been done to miti­gate damage to the Conservation Area as required by sec­tion 4(f).  49 U.S.C. §303(c) (1982).  

In an attempt to cure these defi­cien­cies and ob­tain necessary federal funding, the Department engaged experts and commissioned a series of studies that were compiled and pre­sent­ed to natural resource agencies of Illinois to obtain ex­pert ad­vice on the na­ture and extent of miti­ga­tion re­quired to pre­serve the wildlife habi­tat of the Conservation Area.  At the federal level these re­ports were re­viewed by the United States Fish and Wild­

life Ser­vice.  Upon review of the State's new proposal for miti­

gation in 
Wade v. Dole
, 631 F. Supp. 1100, 1121 (N.D. Ill. 1986) (hereinaf­ter 
Dole
), the injunction was subse­quently re­moved.  In re­mov­ing the in­junc­tion, the federal dis­trict court found the miti­ga­tion com­mit­ments made by the D­e­part­ment in the new section 4(f) plan brought it into com­pli­ance with all neces­sary federal man­dates.  

At the state level, the Department negotiated an a­gree­

ment with the Illinois Department of Conservation (Conservation or IDOC), the state agency in control of the Conservation Area, to ac­quire Conservation Area land for construc­tion of the Ex­

press­way.  Con­servation used the ex­per­tise of the Illi­nois Endan­gered Spe­cies Board (Board) to deter­mine whether to approve the con­struc­tion of the Expressway through the Conservation Area.  Ac­­­­cording­ly, the De­part­ment nego­ti­ated with and sub­mit­ted several studies to the Board, which in turn submitted­ a recommen­da­tion to Conserva­tion, ad­vis­ing it w­­­­­­­hether to approve the Expressway pro­

ject t­­­hrough the Conservation Area.  

The Board reviewed a series of studies submitted by the Department con­cerning the habitat and endangered species present in the con­struction area to determine what action was nec­es­sary to protect the habi­tat there.  Upon the Depart­ment’s com­mit­ment to acquire various interests in pri­vate lands u­sing its power of eminent domain to re­place the land acquired from the Conserva­tion Area, the Board recommended to Conservation it ap­prove the Ex­

pressway pro­ject.  Based on the B­­oard’s recommen­da­tion, the De­

part­ment in May 1984 en­tered into an i­ntergov­ernmental agree­ment with Conservation that called for the acquisition of various in­

ter­ests in sur­rounding lands and cer­tain pro­tec­tive ease­ments.

Specifically, the agreement provided for the transfer of certain Conservation Area land to the Department and for the re­place­ment of that land acquired from the Conservation Area.  Pur­su­ant to this agreement, the Department would acquire fee title to 35 acres of land in the Conservation Area upon which the Expressway would be con­struct­ed.  In exchange for this land, Conservation would receive fee title to approximately 400 acres of land, plus con­trol of interests in other tracts covering sev­

eral hun­dred addi­tional acres.  Among the various other inter­ests to be ac­quired by the Department, a restrictive easement would be taken on defendant's property.

On January 28, 1991, the Department filed its c­­omplaint for co­­ndemnation against defendant seeking to take an easement on defendant's property.  Defendant filed a motion to dismiss and traverse in May 1991, alleging lack of necessity and statuto­ry au­thor­ity.  

At a June 1991 evidentiary hearing, the Department pro­

duced three witnesses in support of its com­­­plaint.  These wit­­­

ness­es testified on the necessity of the Department's a­c­tions, in­cluding acquiring the Conservation Area land, the ensuing state and fed­eral litigation, and nego­tiating an agree­ment with Con­

servation.

After the evidentiary hearing, the trial court ordered briefs and set the cause for oral argument.  In November 1993, the trial court entered an opinion finding the Department had no authority to acquire a "scenic easement" on defendant's property  (605 ILCS 5/4-201.5 (West 1992)), but finding the De­part­ment had au­thority to take an interest in defendant's land (605 ILCS 5/4-

501 (West 1992)) based on the intergov­ern­men­tal agreement between the Department and Conservation that deemed the taking neces­sary by both agen­cies and, therefore, nec­es­sary by the legisla­ture.

Defendant filed a motion to reconsider and vacate and a supplemental motion to reconsider and vacate, which the trial court denied.  Defendant now ap­peals. 

This appeal is taken pursuant to Supreme Court Rule 303

from the final judgment of a circuit court.  155 Ill. 2d R. 303.

The determination of whether a right of condemna­tion exists in a particular case is a question of law, and the scope of review is independent of, not deferential to, the decision of the trial court.  
County of De Kalb v. Smith
, 213 Ill. App. 3d 775, 778
, 
572 N.E.2d 379, 380 (1991).

On appeal
, 
defendant challenges the Department's au­

thor­ity to ac­quire a restrictive easement on its land to re­place the public land acquired from the Conservation Area.  The issue pre­­sent­ed for review is wheth­er the trial court erred in hold­ing the De­partment had au­thority to take a re­strictive easement on defendant's prop­er­ty.  Defen­dant al­leg­es three basic points: (1) defendant’s prop­erty was not neces­sary to or conve­nient for the pur­pose of con­­­­structing the pub­lic road; (2) the taking of the re­stric­tive easement on de­­fendant’s prop­erty was without statuto­

ry au­thority; and (3) the amount of prop­erty taken was grossly ex­ces­sive, constituting an abuse of power.  
When a motion to dis­

miss and traverse the condem­nation complaint is filed chal­leng­ing the au­thority to condemn, the bur­den is on the con­demnor to make a 
prima
 
facie
 case of necessi­ty.  
De­part­ment of Pub­lic Works & Buildings v. Keller
, 61 Ill. 2d 320, 324, 335 N.E.2d 443, 447 (1975).  After the plaintiff estab­lish­es its 
prima
 
facie
 case, the burden shifts to defendant to go forward with evidence to rebut the 
prima
 
facie
 case.  
City of Oakbrook Terrace v. La Salle National Bank
, 186 Ill. App. 3d 343, 348, 542 N.E.2d 478, 481 (1989).  	

The Department has only such powers of eminent domain as are conferred upon it by the legislature.  
Department of Pub­

lic Works & Buildings v. Ells
, 23 Ill. 2d 619, 621-22, 179 N.E.2d 679, 680 (1962).  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).  Our function on review is to de­termine if the power of eminent do­main was exer­cised within the limits of the law.  
City of Mount Carmel
, 74 Ill. 2d at 378, 385 N.E.2d at 690.  

On ap­peal, de­fen­dant first con­tends the tak­ing of a re­stric­tive ease­ment on de­fen­dant’s proper­ty was not neces­sary or conve­nient for the pur­pose of con­struct­ing the Ex­press­way.  In this case, the need to ac­quire land al­ready owned by the State and de­vot­ed to a pub­lic pur­pose trig­gered the in­ter­play of the statu­to­ry re­quire­ments of Illinois High­way Code (Code) sec­tions 4-501, 4-504, and 4-509, governing the power of eminent domain (
Ill. Rev. Stat. 1991, ch. 121, pars. 4-501, 4-504, 4-509 (now 605 ILCS 5/4-501, 4-504, 4-509 (West 1992))).  Thus, in addi­tion to satis­fying fed­eral s­tatu­tory re­quirements for fund­ing, the De­

partment was also re­quired to act pursuant to the state statutory scheme to acquire the necessary Conservation Area land and that nec­es­sary for its re­place­ment. 

Sec­tion 4-501 of the Code grants the De­part­ment the general power of emi­nent do­main to acquire land neces­sary for highway construction.  Sec­tion 4-504 re­­­­quires the De­part­ment to nego­ti­ate an agreement with the state agen­cy hav­ing con­trol and cus­to­dy of public lands sought for high­way pur­poses.  Fur­ther, the De­partment is not empow­ered with au­thor­i­ty to con­demn such lands but is re­quired to gain the con­sent of the rele­vant state agency to ac­quire the public land in ques­tion.  Ill. Rev. Stat. 1991, ch. 121, par. 4-504 (now 605 ILCS 5/4-504 (West 1992)).  Fi­nal­ly, sec­tion 4-509 vests the De­part­ment with the au­thor­i­ty to acquire land to replace public lands acquired through agree­ment with other State agen­cies.  Sec­tion 4-509 fur­ther au­thorizes the De­part­ment to use its power of emi­nent domain to re­place such pub­lic lands.   

The Department has the au­thority to acquire property according to section 4-501 of the Code (Ill. Rev. Stat. 1991, ch. 121, par. 4-501 (now 605 ILCS 5/4-501 (West 1992))), which pro­

vides in part:

"The Department *** may acquire the fee sim­ple title, or such lesser interest as may be desired, to any land, rights, or other prop­erty 
necessary for the construction
, mainte­nance or operation of State highways, *** or 
necessary for any other purpose
 or use con­templated by this Code by purchase or 
by the exercise of the right of eminent domain
 under the eminent domain laws of this State ***." (Emphasis added.)	

Pursuant to section 4-501, the taking of the lesser interest, in this case the restrictive easement, must be "nec­es­

sary."  The Supreme Court of Illinois defines the term "neces­

sary," as used in stat­utes such as the Emi­nent Domain Act, as meaning "ex­pedi­ent," "rea­sonably con­ve­nient," or "use­ful to the public," and not as limited to an absolute physical necessi­ty.   
De­partment of Public Works & Buildings v. Lewis
, 411 Ill. 242, 245, 
103 N­.E.2d 595,
 
597 (­­­­­1952).  Thus, the term "necessary" as used throughout the Code provisions gov­erning emi­nent do­main retains this same meaning.  
Ill. Rev. Stat. 1991, ch. 121, pars. 4-501, 4-504, 4-509 (now 605 ILCS 5/4-501, 4-504, 4-509 (West 1992)). 

A 
prima
 
facie
 case of necessity, for the purposes of a motion to dismiss and traverse the condemnation complaint, is established by introducing a resolution, plan, declaration or the like by the authorized public agency that recites public "ne­ces­

si­ty."  
State of Illinois Medical Center Comm'n v. United Church of the Medical Center
, 142 Ill. App. 3d 498, 502
,
 491 N.E.2d 1327, 1330 (1986); see also 
Alsip Park District v. D&M P­artner­

ship
, 252 Ill. App. 3d 277, 285, 625 N.E.2d 4­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­0, 45-46 (1993) (meet­ing 
prima
 
facie
 burden by intro­duc­ing park district plan that re­cited future recre­ational needs); 
Vil­lage of Deerfield v. Rapka
, 54 Ill. 2d 217, 225, 296 N.E.2d 336, 340 (1973) (estab­

lishing 
prima
 
facie
 case with ordi­nance re­cit­ing need for recre­

ation­al center); 
City of Chicago v. Walker
, 50 Ill. 2d 69, 71, 277 N.E.2d 129, 130 (1971) (in­troduc­ing reso­lu­tion and ordi­nance in support of tak­ing in sat­is­fac­tion of 
prima
 
facie
 bur­den).

The Supreme Court of Illinois in 
Keller
, 61 Ill. 2d at 325, 335 N.E.2d at 447, held "[t]he agency on which the power [of emi­nent do­main] has been conferred *** has the au­thor­ity to de­

cide the necessity for its exercise."  Here, the De­part­ment en­

tered into an inter­gov­ern­men­tal agree­­­­­­­­­­­­­­­­­­­ment with Conservation based on ex­ten­sive envi­ronmental stud­ies.  The agreement recites the 

ne­cessity of ac­quiring the restrictive easement on defendant's land.  Fur­ther, the agree­ment it­self acknowledges it was reached with the aid of several ex­perts to de­ter­mine and evalu­ate the private lands neces­sary to replace the Conservation Area's wild­

life habi­tat.   

We agree with the findings of the trial court and con­

clude the De­part­ment satisfied its 
prima
 
facie
 burden of proof of ne­cessity under section 4-501 of the Code based on the agreement be­tween the Department and Conservation that recites the ne­ces­si­

ty of ac­quiring the restric­tive easement on defendant's land.   

Defendant’s alternate contention on appeal is the De­

partment is without authority to acquire this restrictive ease­

ment under its general eminent domain authority of sec­tion 4-501 of the Code because the easement is not being taken for the phys­

i­cal cons­truction of the Expressway. 

To fully understand the limits of the D­­epart­ment’s au­

thority, examination of the l­itigation ­his­tory of the Expressway pro­ject and evaluation of the interplay o­f the federal and State stat­utory man­dates are necessary.  First, the construction of the Expressway was deemed neces­sary for the public good by the Gener­

al As­sem­bly.  Further, in 
K­­­­ramer
, 121 Ill. App. 3d at 378, 459 N.E.2d at 1026, this court a­c­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­knowl­edged the b­ridge t­hrough the Con­ser­va­tion Area was a nec­es­sary link for con­­struc­tion of the Expressway.  Like­wise, the federal district court in 
Dole
­, 631 F. Supp. at 1121, noted the only feasi­ble crossing for the Express­

way across the Illi­nois River was t­hrough the Conservation Area. Thus, the l­egislature mandated the con­struction of the Expressway as nec­essary, while later litigation re­vealed the neces­sity of building t­he Expressway through the Conservation Area.

At the federal level, in 
Lewis
,
 561 F. Supp. at 954, the Department was enjoined from con­­struct­ing the Expressway through the Conservation Area.  After the in­junc­tion in 
Lew­is
, the De­part­ment undertook a number of studies and in-depth reviews of the effects of con­struction on the animal wild­life and habi­

tat.  Further, the De­partment worked with a number of govern­ment agen­cies, including the Board, Con­ser­va­tion, the United States Fish and Wild­life Ser­vice, and the Fed­eral High­way A­dmin­istra­tion in eval­uat­ing the impact of con­struc­tion on the Conser­vation Area.  Based on the addi­tion­al stud­ies, the De­part­ment devel­oped a new mitiga­tion action plan, which be­came the basis for the ap­

proval of the con­struction plan for the Expressway through the Conserva­tion Area.  See 
Dole
, 631 F. Supp. 1100. 

At the state level,	the Department was required to comply with the Code.  Ill. Rev. Stat. 1991, ch. 121, pars. 4-

501, 4-504, 4-509 (now 
605 ILCS 5­­/4-5­­­­­­­01, 4-504, 4-509 (West 1992)). Based on the stat­u­to­ry s­cheme gov­erning the Depart­ment's exer­cise of eminent do­main, the De­part­ment had no author­i­ty to con­demn prop­erty owned by Conservation.  Instead, the Depart­ment was re­quired to negotiate an agree­ment with Conservation to ac­

quire the right-of-way t­hrough the Conservation Area.  Ill. Rev. Stat. 1991, ch. 121, pars. 4-501, 4-504, 4-509 (now 
605 ILCS 5­­/4-

5­­­­­­­01, 4-504, 4-509 (West 1992)).  Pur­suant to section 4-504 of the Code, prop­er­ty owned by the State and devot­ed to a public use can­not be con­demned by the Department without con­sent of the state agen­cy with control and custody of that land.  Sec­tion 4-

509 of the Code empowers the De­partment to exer­cise its power of eminent domain to replace pub­lic lands acquired for highway pur­

poses.  Section 4-509 autho­rizes the De­partment to "acquire through the exercise of the right of eminent do­main, such ease­ments, rights, lands or other property as may be neces­sary to replace the public property being acquired."  Ill. Rev. Stat. 1991, ch. 121, par. 4-509 (now 605 ILCS 5/4-509 (West 1992)).  Thus, based on the state stat­u­tory scheme, the De­part­ment was re­­

quired to nego­tiate a replace­ment agreement with Conserva­tion and com­ply with all stat­uto­ry man­dates regarding wildlife habitat and endan­gered species.  

In reaching this agreement, Conservation a­­cted based on the rec­ommendation of the Board.  The expertise of the Board was signif­icant in that a num­ber of endan­gered spe­cies lived in the Conservation Area and had to be pro­tected to re­ceive fed­er­al fund­ing.  Upon receiving the necessary commitments from the De­

part­ment, the Board recommended Conservation approve con­struc­tion of the Expressway through the Conservation Area.  

Thereafter, the Depart­ment and Conservation entered into an in­ter­govern­mental agreement.  Such agreements are en­cour­

aged by the Intergovernmental Cooperation Act (see 5 ILCS 220/1 
et
 
seq
. (West 1996)), which provides any one or more public agen­

cies may con­tract with any one or more other public agencies to per­form any governmental service, activity or undertaking, which any of the public agencies is au­thorized by law to perform, pro­

vided the contract is autho­rized by the governing body of each party to the contract.  5 ILCS 220/5 (West ­1996). 

The pur­pose the intergovernmental agree­ment between the D­epartment and Conservation was twofold.  At the state lev­el, the agree­ment pro­vid­ed for com­pen­sation to Conservation for the land taken from the Conservation Area and outlined the commitments of the De­part­ment in re­placing land to secure habitat and en­dan­gered spe­cies protec­tion.  At the federal level, the agree­ment served to satis­fy federal mitigation re­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­qui­rements, a nec­es­sary step to fed­er­al fund­ing.  Thus, the Depart­ment, proceeding pursuant to the man­dates of the Code and against the back­drop of in­ter­gov­ern­

men­tal cooperation, acted with­in its au­thority to ac­quire a re­

stric­tive easement on defen­dant’s prop­er­ty.

As the Department was a­uthorized to con­demn the prop­

erty in question pursuant to the Code and it made a 
prima
 
facie
 case of necessi­ty, defen­dant must produce evidence of an abuse of discre­tion by the govern­ing body.  
Trustees of S­chools of Town­

ship 37 North, Range 11, Cook County, Illinois v. Sherman Heights C­orp.
, 20 Ill. 2d 357, 359, 169 N.E.2d 800, 802
 (1960).  The gen­

er­al rule where the right of eminent domain is granted is that neces­sity for its exercise is not a judi­cial ques­tion, and its exer­cise is not the proper subject for judi­cial in­ter­ference 
unless
 to pre­vent clear abuse of such pow­er.  
Lew­is
, 411 Ill. at 246, 
103 N.E.2d at 597.  The Supreme Court of Illi­nois, in 
Smith v. Claussen Park Drain­age & Levee Dis­trict
, 229 Ill. 155, 163-64, 82 N.E. 278, 281 (1907), stated in a condem­na­tion action "the court will not in­quire into the ex­tent to which the prop­erty is neces­sary for such [pub­lic] use un­less it appears that the quan­

ti­ty of proper­ty taken is grossly in excess of the a­mount neces­

sary for the use." 

Defendant’s final contention on appeal is the De­part­

ment exceeded its a­­uthority under section 4-509 of the Code as its au­thor­i­ty is limited to "replacement" of public lands ac

quired for high­way purposes, making it grossly exces­sive to im­

pose the restric­tive easement on defendant's property.	 In this case, the Department possessed no independent ex­per­tise to deter­

mine the impact of the Expressway on the habi­tat in ques­tion.  Therefore, it commissioned studies and en­gaged sever­al outside experts to satisfy federal man­dates.  At the state l­evel, the Department was required to nego­tiate an agree­ment w­ith Conserva­

tion.  Ill. Rev. Stat. 1991, ch. 121, pars. 4-504, 4-509 (now 
605 ILCS 5­­/4-504, 4-509 (West 1992)).  In reach­ing the agree­ment, the Depart­ment and Conservation, with the aid of sev­eral ex­perts, ana­lyzed and evalu­ated the re­placement land nec­es­sary for mitiga­

tion of the impacts c­aused by the c­­on­struc­tion of Expressway.  

The Department was required to take into ac­count the findings of the Board, which recommended the ac­qui­si­tion of re­

strictive e­asements such as the one on de­fen­dant’s property to Conservation. 
 The record in this case demon­strates that with­out the com­mit­ment by the Depart­ment to acquire restric­tive ease

ments, Con­ser­vation would not support the Expressway project.  As a re­sult, the Ex­pressway would not have been built, because the De­part­ment would not have satisfied the necessary re­quire­ments under section 4(f) of the Department of Transportation Act (see 49 U.S.C. §303(c) (1994)).  Since the De­part­ment was re­quired com­ply with these various man­dates, it cannot be said it commit­

ted a mani­fest abuse of dis­cre­tion.

 However, defendant argues that although the Department may enter into intergovernmental agreements, the agreements are l­imited in scope to that au­tho­rized by law.  De­fendant claims the Department was only authorized to "replace" the land acquired from the Conservation Area.  In support of its claim of abuse of discretion, de­fen­dant cites 
Coun­ty of St. Clair v. Faust
, 278 Ill. App. 3d 152, 662 N.E.2d 584 (1996), where the fifth district found an abuse of the eminent domain power by the condemning authority.  
The Army Corps of Engi­neers was re­quired to miti­gate the loss of 80 acres of wetlands acquired in connec­tion with air­port con­struc­tion.  
St. Clair County sought to condemn 200 acres of farm­land, while at the same time the Corps of Engineers re­

quired only 81.4 acres as nec­es­sary to replace the ac­quired wetlands.  
Defendant's reli­ance on 
Coun­ty of St. Clair
 is mis­

placed as 
all
 tes­ti­mony offered by the De­part­ment herein re­flects the need to ac­quire 
all
 of the vari­ous land in­ter­ests as spe­cifi­

cally out­lined in the agree­ment between the De­partment and Con­

servation.  In other words, no evidence contradicting the ne­ces­

sity of ac­quir­ing said pri­vate land in­ter­ests was present­ed by either the Department or the de­fen­dant.

Defendant asserts an excessive dispropor­tion be­tween the quantity of land acquired in the Conservation Area and that con­demned to replace it.  Evi­dence pre­sent­ed in this case estab­

lish­es the Conservation Area provides "habi­tat" for vari­ous wild­

life found in the State, some of which were on the endan­gered species list as pro­vided by the Board.  While the replacement of 35 acres with 400 acres in fee and sev­eral hundred additional acres of restric­tive ease­ments is math­e­mat­ically dis­proportion­

ate, it is not grossly ex­cessive when all the evidence presented demon­strates that amount of land is neces­sary to secure habitat and endangered species protection. 

The Supreme Court of Illinois has held the power of emi­nent do­main "is broad and plenary and it is only in the excep­

tional case where such authority and power have been manifestly abused that the courts will interfere."
  
Department of Public Works & Build­ings
, 61 Ill. 2d at 325, 335 N.E.2d at 447.  De­fen­

dant attempts to quantify the word "re­place" nar­row­ly, 
i.e.
, an acre taken must be replaced with an acre, re­gard­less of the qual­

ity or value of the acre being re­placed.  In accepting defen

dant's interpretation of the word "re­place," this court would be re­quired to disregard entirely or inquire into and sec­ond-guess the agency on the quan­ti­ty and qual­i­ty of replacement lands.  Given the Depart­ment’s exten­sive study and col­lab­oration with other state and federal agen­cies, and the absence of any contrary evi­dence pre­sented by de­fendant, it is not the prov­ince of this court quan­ti­fy or qual­i­fy the land in­terests deemed nec­es­sary to re­place the habi­tat in ques­tion.

We hold plaintiff established a 
prima
 
facie
 case of necessity by demonstrating (1) the necessity of the tak­ing, (2) its authority for such taking under sec­tions 4-501, 4-504, and 4-

509 of the Code, and (3) the prop­er exer­cise of dis­cre­tion with­in the lim­its of its au­thority.  De­fendant failed to carry its bur­

den to rebut plaintiff's 
prima
 
facie
 case.

Affirmed.

McCULLOUGH, J., concurs.

COOK, J., dissents.







































JUSTICE COOK, 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 ac­

quiring 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 add­

ed.)  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 sec­

tion 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 neces-

­sary by the legisla­ture, and therefore the 

lands which are the subject of those agree-

ments are hereby deter­mined 'necessary' land 

taken for 'public use.'"  

The circuit court denied the count seeking acquisition as a sce­

nic 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 consti­

tutional restrictions, is not a judicial question, and its exer­

cise 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 limita­

tions 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 sup­

port.  IDOC does not have the right to force IDOT to choose be­

tween 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 evalu­

ate 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.  Slip op. at 12.  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 find­

ing 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 al­

lowed 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 re­

turn 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) (impossi­

bility 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.

