the issue that we've brought before the court today is not really the first time it has been here we've provided somewhat of a historical travelogue through the development of eminent domain law both in this state as well as the united states but the earliest decision that i think addresses virtually the same issue is the done leave a decision from back and eight hundred seventy eight in that case this court held that even if the value of a property doubled during the pendency of the eminent domain case just compensation was still satisfied and that delay between the date of valuation and the date that the property owner was actually paid does not offend the constitution the second case took place in one thousand nine hundred i believe that was argued in this rick perry room that is the far well decision city of chicago versus farwell facts very similar to the ones that you have before it with a completely different result this friday let me interrupt you i called you up by name but hundred eighteen has facts that i think are remarkably similar to the ones that are before the court with a different result in the farwell decision the defendant in that case insisted that the property should be valued at a later point in time because the case had taken three or four years to proceed they put on evidence in that case through an offer of proof that the value had significantly increased during the course of that case the supreme court seated in this room reached a decision that no he would use the valu inception of the case and the fact that the case took some period of time to complete the trial did not offend the just compensation clause and just compensation was satisfied the third decision that i think is also directly on point is the blue island decision also of the illinois supreme court that one addressed the same issue the property owner was insisting that because the case had taken three or four years to proceed that the value of the property had increased that just compensation would be offended if the valuation was not done at a later date than the date of filing in that case the supreme court in that case looked to the defendant's activities and said because you the defendant in this case participated in the delay and you were partially cause of the court opinion is that the kirby case dictates that these decisions i've just reciting are wrong that the illinois supreme court for over one hundred years was demanding that just compensation be provided through a set of rules that violates the constitution that's the holding of the appellate court i don't believe that that is the only interpretation of the kirby decision and i don't think that that's what the supreme court he believe that they're holding in kirby is far narrower than the interpretation that was provided by the a the amendment to the statute is a legislative proclamation as i think you indicated in your decisions related to starry decisis the legislature has the ability to act  proactively in the future the amendment to the statute narrows the period of time that you can have a constitutional problem but if you accept the proposition that property must be valued at the time that the property owner is paid the new statute also offense the constitution as did the old statute if you're accepting the proposition that property must be valued when the property owner is paid even the new statute does not provide that both of these statutes provided a point of valuation far in advance of the date that the property owner is paid and that the difficulty that you have is would that be an appropriate way to look at it rather than those the royals who let me take that a piece at a time i don't think that in a proceeding such is eminent domain but i believe the court has always heiress that the right to a speedy trial once enunciated by this court is a myth i don't think an appellate court can take a proclamation from this court that says you have a right to a speedy trial in a duty to file a speedy trial demand if you wish to address delay i don't think that the court is you know appropriate position asserting that that right is a myth i think the right does exist secondly  simple continuance of a proceeding on one occasion which i think is the example that you've provided your honor if i do i don't believe that a single continuance should constitute a waiver of a constitutional right but i don't think that that was what was at issue in blue island and i don't think that's what was at issue in this case in this case you had nearly an eight year gap where the right to proceed and the need to proceed on an expedited basis was ignored you had a plaintiff in this proceeding that knew very well that this court had repeatedly asserted that it is only wrongful delay by the government wrongful delayed by the government that constitutes grounds for a dismissal and grounds for a complaint by the property owner and the property owner who doesn't submit a demand for a speedy trial demand and participates themselves in delay has no constitutional violation that they can raise with the court so you've got a plane if that is working and relying upon a system that this court defined the framework if you will that the state of illinois has to find acknowledging that you have established the date of filing is the date of taking and you've got a defendant that has vote virtually ignored that framework as it relates to the speedy trial demand as it relates to asserting their rights and their demand before the court and waits until four weeks before the jury trial is to start to say when we're done with a jury trial i kind of like you judge to re evaluate the just compensation with today's value that's the situation that you had i think the blue island decision applies to that and i think that the suggestion that the defendant should do something to the trial court alert the trial court and the  they are somehow or other suffering and injury over eight years or seven years they've got some responsibility to report that to the court and at least bring it to the attention of the court until fall prior to four weeks before the trial only framework that has been defined if you will is part constitutional part legislative and very much the working of this court illinois provides for a jury trial the federal system does not and why provides that the time of taking equals the date of filing you've got dozens of decisions dating all the way back to farwell that is clearly i'm out see it i know the appellate court took issue with our advocacy on that i don't understand where they can find a case that says in illinois the date of taking is the date of pain and we've provided doesn't swear the date of taking in illinois is defined as the time that the cases filed real property taxes this court h that it's unconstitutional to charge property taxes to a property owner as a lien against their property after the date of taking and that has always been viewed as the date that the case is file that law doesn't exist in the federal system wrongful the lay by the government under the system that this court has devised constitutes grounds for dismissal of the case it forces the government to pay for attorney's fees and cost it forces the government to refile the petition with a new valuation date if they seek to  much may it please the court time assistant attorney general richard haas eric counsel for the intervention or people of the state of illinois and the relation of the attorney general we were granted leave to intervene in the appellate court when a woman thousand no doz was sent out but in that court there had been a claim of the unconstitutionality of section seven dash one two one argument except for present purposes that the for constitutional purposes the dative taking is that snapshot in time when there is an irrevocable commitment by the government to pay for the property to take possession of it they can't back out and the land owner is entitled to that compensation and can no longer regain the property so we're presenting arguments based upon that primus which is different from our cohen's here but nonetheless we urge the same result for two reasons one the inviter invited their doctrine applies this isn't a normal forfeiture situation where somebody forgot to make an objection in the trial court and later argue is reversible error on appeal this is a situation where the appellants are now complaining of a reversible error because the circuit court did something they specifically asked it to do they told it it had to instruct the jury to value the property based upon section seven dash want twenty one and then they turned around and said the reason that the judgment constitutes reversible error and is unconstitutional is that the jury followed what they asked the trial court to do and value to probably based upon that the date that the case was filed so our position is that it's really not appropriate or proper for the appellate court to say this is just a overture that the that we can disregard there's a fundamental qualitative distinction in the law between those types of situations a simple forfeiture and invited error and we urge the court i mean compelling facts there was no evidence that the property had increased in value during the course of the case they didn't ask the court to have the jury instructed to evaluate at a different time all of this is before the jury trial they told the judge specifically that the only thing it could do was to instruct the jury to value the property in accordance with the statute that they now want to appeal have you no contest the constitutionality of and the judge did sell and then of course after the trial they turned around and said oh we have evidence that it increased in value it violates our constitutional rights for you not to conduct some post trial hearing that which you consider evidence that the jury never heard and you just change the jury's verdict because it isn't good enough i think the cases that this court has issued in the decisions it's handed down on the invited era doctrine provide a basis for the court to avoid addressing the constitutional issue and it's important to remember that courts should not strike down statutes unless there's no other possible reasonable basis to decide the case and here there is one turning to the merits and i understand that this is an important issue but this case may not be the vehicle to address it in light of the invited error principle and that is that the appellate court declared this court's holding in the blue island case t town trustees of township those schools of township thirty seven vs first national bank of blue island no longer good law well it's good law and it's good policy the policy is that somebody can't sort of sleep on a claim that they should be entitled to an increase in the value of property during the course of a proceeding and then wake up like rip and winkle at the twelfth hour and say aha you know we've let this case sort of you know go along on a normal course but now we want to be paid a higher value because the property of has gone up during the mean time they have all the economic upside from that type of situation and no economic downside and that creates perverse incentives and it fails to meet the constitutional balance that is just compensation which is that compensation be just both to the landowner and to the public and the position that they advocate that the appellate court has adopted puts a heavy thumb on the scale in favor of landowners that gives them every incentive to prolong a case as much as possible with no economic downside for doing so and all the expense borne by the public in the event that the property goes up in value just like in a criminal case a speedy trial is something that if the defendant wants their right to a speedy trial protected in their right not to be held in custody unduly they invoke their right to a speedy trial exists under the constitution you don't need a statutory implementation of it although there is one bikeways here the incentive should be placed upon the landowner to make this selection between either being able to claim that they're entitled to an increase in value of the property during the course of the proceeding but then having the case proceed as quickly as possible to minimize any avoidable consequences of addition expense to the public who has to pay for war they can as blue one says they can waive that right they can waive that right to an increase in value and let the case proceed as long as it may take backs the fork in the road what they can't do is have it both ways they can't let the case proceed under some normal time trajectory or track and then at the eleventh hour say aha but oh by the way we want to higher value and then speculate as they're doing in this case but maybe the question justice thomas to mr day's argument the other measures to try and protect the public interest in this in this type of situation would not be sufficient how do you answer what  unconstitutional if you accept that argument but it may i finish the the answering the question oh ok are the i wasn't sure if that was rebuttal time the the answer is that there's essentially treating the perfect is the enemy of the good and even kirby doesn't say that it doesn't say that you have to have eight you know a perfect evaluation to say you have to have a constitutionally plactic old data valuation and so unless  difference between the data evaluation and the date of the taking there's no constitutional problem i think the constitution sort of recognizes this that you can't you know it doesn't for serial trials because every time there's a payment then there might have been that twenty four or forty eight hour period when it's some miniscule change in value has to be a material difference and i don't think that there's any basis to claim that in the eight day period between when the jury tendered its verdict and the and the payment was made there was any change in value on front and we do reject it in our position is that the other jurisdictions in cases that say that you can like the new annoys statute that's not applicable to this case that says that the court has discretion either under constitutional compulsion under statutory authority to reset the valuation date they never set it for a date after the trial but it's constitutionally permissible to have it be the commencement of the trial even though the payment may not be for several weeks thereafter and in this case the war in life provides that the judge has authority set a prompt payment date which essentially closes the window and when they're going to occur we're not talking about you know gold futures contracts or something of the stock market that are going up and down you know wildly you know overnight on a regular basis we're talking about land values that in less at sutter's creek an eight hundred forty eight there isn't some massive overnight change in value over time so that that de minimus you know increment of time is of not a is not a constitutional significance and so our position then is that blue island coming back to that proposition represents a constitutionally permissible way for the state to put the landowner at the election to basically have it one way or the other but not both they can say we're reserving our right we're putting the public on notice that if the value this probably goes up during this case we want that increase in value and as a constitutional matter under the  argument here the court would have to accommodate it but they can only get that if they say your honor we want to speedy trial we want this case to be expedited and i don't believe there's any weight to the argument that that the three part test of the williamson county case which is that state of nation procedures be reasonable which we think will while it is an adequate which we think it provides and certainly the certainly test is not failed simply because we don't have some one size fits all timetable for every case that has to be followed in a condemnation proceeding thank you runners thank you also for the happily should be trot retried with the data valuation of december twentieth two thousand and seven to reflect the actual date of taking in this case which is the date that the government deposited the just compensation proceeds awarded by the jury the primary issue before the court today is whether the application of the eminent domain valuation statute in place in two thousand and seven which required that condemned property be valued based upon the date of filing of the complaint provides just compensation under the fifth amendment to the united states constitution the us supreme court has determined in kirby that the evaluation date that does not reflect the value of the property on the date it is taken it deprives just compensation of property owners if there's a material increase in the value of the property between the data filing and the date of payment during a substantial delay between those periods then there's been a deprivation of just compensation and that's what occurred in this case the first issue that i'd like to address from the forest preserves argument is what the date of taking is in illinois  the law is clear that the under the fifth amendment the just compensation requires payment of the value of the condemned property on the date it's taken and the united states supreme court has reached the conclusion that a taking occurs upon payment and this  supported by lots and lots of evidence including illinois common law which teaches that the taking of private property only occurs upon payment the cases that the forest preserve has relied on in this case relate to liens that are recorded  suburban bank in which the court held that the deed of taking is the date of payment you know there's there's no rights are taken upon filing the government cannot go in and possess the property upon filing the  owner does not have a right to compensation upon filing those rights do not transfer until payment is made and it's clear under illinois law and and us supreme court law that the taking occurs upon payment the fact that counsel argues for a data valuation in a data filing a state of taken is belied by the fact that interest is not due on unjust compensation proceeds dating back to the data  filing if that were if their argument were true then when a jury sets a verdict based upon a one nine hundred ninety nine data value then the owner would be entitled to interest up through the date of payment that does not occur in illinois and that's because the date of taking is the date of payment now the next question is whether the illinois valuation framework deprives owners of just compensation when there's been a significant delay between the data filing and the date of payment and we believe that it does the mere fact that the values significantly increased between or over the eight year period this litigation was pending and the owners have been deprived of the value on the date of taking and forced to accept the jury's verdict based upon the date of filing in one nine hundred ninety nine is a violation of the constitution and here the property owner sought relief in the trial court months before the trial began making the court aware of the constitutional question at and the constitutional violation that would occur in this case if the owners were forced to accept in one nine hundred ninety nine valuation when their property was not taken until two sept two thousand and seven the force amendment applies to illinois concerning issues of just compensation through the fourteenth amendment and requires not only due process but also that the results of the process process yield just compensation that substan court will allow instances to occur we're just compensation is not provided by those alternative systems i don't think the united states supreme court requires that the exact kerby procedure be be provided in all states they merely require that just compensation be paid based upon the value of the property when it's taken and to the extent a system set up by a state complies with that requirement then it then it is you know it survives constitutional challenge the only eminent domain x does not provide any alternative mechanism for assessing just compensation other than what section seven dash one twenty one provides which is that properties are to be valued based upon the date of filing and as a result the valuation framework specified in the eminent domain act is unconstitutional as applied in this case even if this court determines the few owner has been deprived of just compensation in the case based upon a curvy the plaintiff and the state have suggested that the defendants forfeited their constitutional rights in this case and this is simply not true the main argument presented by the forest preserve is that under blue island in which they assert the defendant was required to request a speedy trial prior to asserting their constitutional rights  hundred two and and the fact that the speedy trial demand from blue island was not incorporated into the act as evidence that it was rejected by the general assembly however the record is also clear that the owners here did not simply stand the the unconstitutional nature of the existing statute and allowed for a system that can comply with the kirby process and allow the courts to set compensation based upon the date of taking orders close as they can filing up to the date of trial there could be an instance i suppose if the government is is it takes a long time to decide whether to abandon a case after a trial that even if the data value set on the trial date you know if the government takes a year to decide whether to abandon where you may have an increase in value under that scenario but i think that is such a an unlikely scenario that the legislature has really cured the defect that we're that we're claiming of this or we referenced the fact that the existing statute would not result in a constitutional outcome unless an alternative process was allowed to occur and the process that we suggested was similar to that that was provided in kirby where where there would be a trial based upon the ninety nine valuation but then a post trial proceeding to determine whether there had been a an increase in value and then allow for some modification now we did not specify how that modification should could occur and the trial court was had every opportunity to allow there to be any subsequent jury trial now we realize that that is not the most efficient means of solving this problem but the reason for that is specified by justice thomas earlier is that there was a concern over the rightness of this issue that under williamson county there would you know we would be forced to go through with the existing system and be denied our constitutional rights to just stop and sation before the claim would be right to challenge the constitutionality of the statute and additionally the the procedural  difficulty of not having any knowledge of when the when the you just compensation proceeds is set in the initial trial would be deposited by the government we didn't know if it would be deposited and we didn't know if it would be months and months or even a year before it was deposited so there really wasn't an opportunity to go into the court and say here's the data value that you need to use in this case because we know that's when the taking is going to occur getting back to the blue island issue i would also like to know for the court that department of public works first is about the state has recognized an exception to the speedy trial demand that was specified in blue island and that was understood under circumstances where the owner would be prejudiced and put to a strategic disadvantage in proving economic loss and i think that's true here as as involved the owner here if they were to demand a speedy trial early in the case you know first would not know what that really means whether that means we need to try the case in six months one year two years regardless what that would have meant is that the owner would have had to forfeit their right to challenge or contest the other ownership planes that were being made early in the case and to forfeit the right to to direct the litigation as it saw fit because there were other ownership interests who who would have liked to choose the attorney or would have liked to choose the experts or choose the case strategy and if we were to forego all of those claims we may not even be standing here today because there may have been someone else who decided how to how to proceed in this case and then finally the owner would have necessarily been required to forfeit their traverse rights we traverse this claim and one of those issues is here today before you and with and that process took a year and a half to two years to complete you know if a speedy trial were required we would need to forfeit our traverse rights and i just i don't think that that's what's intended by the speedy trial request  finally as the post court referenced this simple fault or mere complicity in delay versus willful an unjustified delay tactics tactics cannot justify the deprivation of an owner's fifth amendment rights  blue island seems to allow dismissal only when there's a delay that can be laid one hundred percent of the feet of the government and such a punitive sanction must be reserved only for conduct that rises to this willful and intentional conduct which is not presented here as a constitutional matter a trial court should not be empowered to deprive an owner of just compensation which could amount to ten million dollars or more for simple complicity in delay when such conduct would not warrant any sort of sanction under the code of civil procedure finally i'd like to i'd like to address the invited error issues raised by the state counsel for the state indicates that we directed the court the defendants who directed the court to use the one nine hundred ninety nine data value but that's only half of the story the record is clear that several months before the trial we raised the constitutional question proposed an alternative system to avoid the constitutional problem only upon denial of that request both before and after the trial did the owners acquiesce to the one nine hundred ninety nine valuation that's required by the statute that we're now challenging so this isn't a situation similar to the slope of the swope case which the state has cited to where the counsel for the defendant in that case requested a particular procedure that ultimately deprived the client of due process and then went on to challenge that we said we sought an alternative remedy were denied and then simply acquiesced to the existing remedy that was that was required by the court so we have not invited this area the analogous situation would be if the court had actually granted our kerby motion and allowed for an alternative procedure to set just compensation and and then only then being disappointed in the result seeking to appeal that procedure that would be the invited error and that has not happened here but mr wagner the way it played out in the trial if i understand your argument it is the jury instruction of the ultimate he went to the jurors struck him on that day to value compensation was really you're saying if i just want to make sure i understand your argument was decided based on this motion you filed for months before trial absolutely we had filed the motion that there was argument made prior to trial and a ruling denying the kirby motion which then set and set the ball rolling toward the required one thousand nine hundred nine data evaluation it would have been futile  to propose a nother jury instruction selecting a different date for the reasons of ripeness that we've discussed earlier but also because our prior request had been denied if there are further questions on the kirby issue i'd like to move on to the to the traverse claim if i may well but before i do that i'd like to talk about the data valuation on remained in the event this court does uphold the were selected we take issue with that in illinois property is taken upon payment and and the force reserve paid for this property in two thousand and seven they've chosen not to take possession of the property but but just because they've chosen that does not mean that they do not have the right to possession the right to possession has has been conveyed by the payment and that the payment secures in the government the right to possess and and their choice not to exercise that right does not undermine the fact that it holds the right to possession and the force preserves argument under vehement domain act provides they say famine to mean act claiming that it or excuse me that the taking only occurs upon possession but but the portion of the eminent domain act they cite two is the quick take article and the quick take article does not apply to this case this is not a quick take proceeding in quick takes the the government gets vested with title upon payment of a preliminary amount of just compensation but because there's been no actual payment of just compensation as determined by a jury there has to be an alternative system  set in place which is possession to determine when when the taking has occurred that is not the case here all of the cases we've said in our briefs indicate the taking takes place upon payment and the government here has paid now getting to the issue of prejudice been and that is the quick take article that's discussing the government's rights under the context of a quick take proceeding we had you know it was there well no it is absolutely not analogous because an alternative rule had to be devised for quick take proceedings because just no no payment of just compensation is made before possession there's just a preliminary assessment of what just compensation may be typically based upon the government's valuation and therefore because no payment of just compensation is made then there has to be an alternative scenario to determine when the taking occurs and that is possession that's a separate separate procedure than what we're in here today here we're  be a straight taking where the the government does not get vested with title until they pay the just compensation awarded by the jury and they did that in this case and and they have chosen not to take possession but they could at any time i'm there's nothing stops them to they've been vested with the right of possession and we could not stop them if they wanted to come on the property therefore they got these rights but they're quick to order would give them that right exactly no was no quick take order in  case this is not a quick take case moving on to the issue of prejudice the plaintiff is not unduly prejudice here and really it's the owner who would be prejudiced by current data value  that values of property have have declined and that that procedure then shifts the burden of that economic decline wholly on the defendants and erases any of that burden from the government mr w decision that done leave the decision in the blue island decision incorporate those terms they do not relate to tax liens they are defining the date of taking for illinois eminent domain and the farwell supreme court called that an issue that is no longer subject to debate debate or discussion the date of taking in illinois is the date of filing two there was a suggestion that there was suburban bank case which was also supreme court decision that i argued on behalf of the forest preserve district there was a suggestion by counsel that this court held that the date of payment is the date of taking that is incorrect that does not appear anywhere in that supreme court opinion in fact what the supreme court discussed in that opinion is that we have repeatedly said that the date of taking is the date that the cases filed in in somewhat contradictory fashion we have also said that the case really isn't final until the payment occurs at the end of the case recognizing this the date of taking definition is a judicially defined theory it is a public policy statement it is a decision that each and every state in this country has made and made differently so the proposition that the constitution of the united states requires payment and the date of taking is meaningless because every jurisdiction in this country has to find the date of taking differently and the suggestion that illinois has recognized that the data taking must equate to the date of valuation is to suggest that the decisions of this this body and the legislation of this state that mandates that property is valued on the date that the case is filed are in direct and deliberate there of that law and there were four supreme court decisions that we cited that specifically indicate that the states are within their power in defining their just compensation framework those decisions include the hucker decision which was all los angeles statute that with virtually identical to illinois in the supreme court said that said it was fine the second decision was the mcgovern decision where the supreme court said this states under the fourteenth amendment can define their just compensation framework and unless it denies all just compensation it does not offend the fourteenth amendment and the next decision in that particular trilogy was the brown decision where the supreme court of the united states made a comparison between idaho which had a statute virtually identical the state of illinois and they said that's fine and the argument was you have to do it the same way that minnesota did it which uses the date of payment as the date of taking the supreme court said they use a different definition for the date of taking but the ultimate example of why the united states supreme court has always tolerated the bodies defining their own time of taking is actually the decision that was repeatedly cited in this particular case that is the danforth decision because if you read the danforth decision of the united states supreme court what they said is everybody defines the date of taking differently and for purposes of federal cases we declare that is our view that the date of taking will be the date of payment unless it's not that's what the supreme court said in the end for if you don't have a statute that defines the data taking differently it's our view that the data taking is the end it's at the point of payment every judicial body in this country has defined the time of taking differently they all agree that they're going to try to evaluate just compensation at the time of taking and once you make that theoretical judicial decision all of the rest of the decisions regarding fairness and how you deal with risk and delay and speedy trials and forfeiture of rights all of those decisions flow from the court defining the date of taking there are no decisions until this decision in the state of illinois that hold that the time of taking is the time of payment every decision that defines the time of taking in this state that we follow through the course of this eleven year history of this case specifies that the time of taking for illinois law is the day that the complaint is filed thank you thank you may please the court i have three observations arguments i'd like to make in response to the apple lee's presentation here first with respect to the rightness issue the argument that they could not have perfected a kirby type valuation claim before the trial was conducted i know that we address that and that was the issue the justice thomas raised in pages seventy eight of our reply brief and essentially reiterate the proposition that the discrepancy has to be material a couple of days delay is not one that rises to that level opposing counsel indicated that they could not have known however whether there might have been several years they said months or years of delay before the district tendered payment and therefore it was impossible for them to know what the taking date would be and i think that's inconsistent with the statute the court has the power to set a short payment tender date that's all within the kirby materiality limitation in virtually all cases they have the ability to demand that the court set a short date for tender or abandonment they didn't need to do that if there were a situation like the one they described where they'd ask for an immediate deadline for tender or abandonment in the circuit court said no if this if the statute gave the circuit court that authority then we'd have a situation like the amount case that they cite the chittenden case but that's not this case where the tender was made eight days after the trial and it's not as if there was something that was beyond their power that they tried everything they could to make sure that they were that the payment was made promptly after the trial for my case is fundamentally distinguishable is not this case and it doesn't excuse them for failing to do something before the trial to try to preserve whatever rights they would have had leaving aside the speedy trial thing second they suggested that they properly acted to preserve their rights before the trial that this is not invited error situation i addressed this specifically on page six of their brief their assertion is false they specifically told the court before he ruled on their pretrial motion for a kirby hearing that it must instruct the jury to value the property in accordance with section seven dash one twenty one they said that before the judge denied their motion ruled on it they said it or her argument all of this was before the decision was made on their motion for a kirby hearing so the argument was that they that they agreed to this manner of proceeding in instructing the jury in accordance with that statute happened only after the motion was denied is factually false and they can't fault the circuit court for denying that motion in any event because they didn't present any evidence that the value of the property heading creased what was the circuit court supposed to do this was a jury trial case can you imagine in a criminal case where somebody says judge we're going to have a trial i'm not going to testify but if the judge finds me guilty i want you to hear further evidence after that trial maybe i'll testify i want you to revisit the issue of guilt or not guilt that's what they were asking the court to do in this case they may have been confused about the remedy and in kirby but it wasn't a reasonable conclusion the jury trial right is not something where you have a rehearsal or a you know a temporary stop on the way to determine just a just compensation it's we're just compensation is determined they told the judge to instruct the jury in a specific manner now they're saying that that's the grounds for reversible error based upon some of the earlier principles have been established in just compensation all wrongful delay by the government then abandonment that type of thing but it also articulated the rules that we are advocating applies here which is the election by the land early on in the case to either choose a speedy trial and claim that they have a right to increased value or not and the there is no prior argument in this case so i think it's forfeited that the eminent domain act impliedly repealed that principle the rule generally so it's forfeited but in any event the rule is that statutes are not presumed to repeal the common law the opposite so that argument has no merit and finally it's the blue island aspect that they're challenging is not a is not a statutory one it's a principle of constitutional adjudication in the state that the statue wouldn't be deemed to overrule because it addresses the waiver of the constitutional right to just compensation in the situation that you have here again we're looking at a situation where the court is being asked to order one of its prior decisions that represents fundamentally sound policy that protects the public's right not to pay excessive compensation while providing