In Part 1, we introduced the Illinois Supreme Court’s overall treatment of damages to the remainder. In this discussion, damages to the remainder will be considered in the context of utility easements. Upon application to and approval from the Illinois Commerce Commission (“ICC”), regulated public utilities in Illinois may resort to the courts to acquire property for utility facility construction projects through eminent domain. Typically, such projects require the acquisition of an easement from landowners so that a major utility facility such as an electric transmission line, water main, natural gas main, or pipeline can be constructed. If the utility can demonstrate to the ICC that it has made reasonable efforts to acquire the property interest it needs but has failed to negotiate an agreement with any particular landowner, the ICC may authorize the use of eminent domain in circuit court against that landowner.
Utility facilities that arguably have the greatest impact on the remaining portions of the parcels on which they are constructed are electric transmission lines. This is so because most other utility facilities (mains and pipelines) are buried; when properly installed and maintained, they are deep enough to avoid contact with general surface uses. The Illinois Supreme Court as well as lower courts have had opportunities to consider the proper elements of damage to land not taken in the context of electric transmission lines in agricultural settings. In proving damage to property remaining after an eminent domain taking, the Court has explained that the damage must be direct and proximate and not merely what someone may imagine or “feel.” A jury, the Court adds, has no right to take into consideration any damage which is merely speculative or which is remotely contingent.
Examples of improper elements of damage identified by the Court include the possibility that at some time a wire or other attachment may fall and cause damage, possible injury from fire or lightning, injury to crops from falling towers or tractors colliding with towers, or livestock or machinery being caught in the towers. Such damages are too speculative in the Court’s opinion. Similarly, the Court has found that temporary inconsequential interference with the use of property occasioned by the construction of a public improvement is not a proper element of damage to the remainder. Temporary inconsequential interference could include temporary easements necessary for the construction of the utility facilities.
On the other hand, the Court has found that if weeds or insects come from around the base of towers/poles, there has been a disturbance upon the land. In other words, if insects and weeds are disseminated, the whole field is affected. Additionally, if inconvenience results from requiring more time to perform field work, a right of the landowner has been invaded. Such circumstances, the Court has held, impact the free use of the remainder of a farm for the best purpose for which it is adapted, i.e. farming. In considering damages to the remainder, the Court has recognized the impact of transmission lines on farm land by acknowledging that crops throughout a field may be lost or diminished by the different methods of cultivation dictated by the presence of transmission lines.
Interestingly, in a 1930 case the Court held that the unsightliness of towers was not a proper element of damages to the remainder. In a case decided in 1977, however, the Court described unsightliness as a bona fide element of damage to the value of property in eminent domain suits. In so holding, the Court found that an electric transmission line may be considered aesthetically distasteful to potential buyers in a residential area. Noting the reference to a residential area, five years later the Second District Appellate Court concluded that unsightliness is a proper damage element only in a residential setting. In a 1984 case, the Third District Appellate Court declined to follow the Second District in this regard and held that unsightliness is a proper damage element when considering compensation for agricultural land.
How a landowner can determine the value of the damage to the land not taken will be addressed in the next installment.