and the remainder in the total just compensation and in response to some some comments at the motion in limine hearing by opposing counsel of which one of the council argued the law is very clear with respect to damages to the remainder it must be expert testimony not only person's testimony he went on to say number one with respect to those damages the case law is very clear it doesn't matter if it's been disclosed said just there hast to be expert testimony the testimony has to come from a qualified expert and they said the case actually says that this is the jones case now you can give citation but quite frankly the jones case doesn't say anything remotely like that generally the department of transportation of vs harbor sites of the land owner owner can testify as to the value of its land that we have a couple of things going on here one where again we have some answers to the tories where they simply had no information or opinion as to the value in two sat there were initially there was some they were deposed in the landowners didn't it was early on in the case and we supplement it as we're required to do under the rules and they got a whole supplementation and the sound bite where they're saying well yeah it doesn't matter about the disclosure you got the disclosure there's no dispute about that but are we got it is what they said but but they argue it doesn't matter landowners can't testify as finding that when the lower court said that the landowner couldn't testify to value and damage to the remainder because he wasn't a real estate valuation expert there is no law anywhere in the state of illinois that i know of that says a landowner cannot so if they disagree with one of the one of the court's problems the court said well what i want to thank them in and want to say that the the land is worth a million dollars or a billion i think it might even said it said a million or a  activity in the temporary easement cost damages to the major he never said that in fact i have a transcript here and what he says is he was asked this question it's your opinion that activity in temporary construction materials causes damage to the remainder property is true and he said answer well it causes damage isn't within the temporary easement and then he's asked it also causes or is a contributor to the cause of the damage to remainder crack and he said this answer since it's temporary no i believe the damages are really caused by the permanent decent because that's an ongoing factor that any buyer knowledgeable far would have to be concerned about the temporaries mcdo know that's a relatively short term imposition of a burden on the property now were the core set that bar him because he said i hold it down i heard him say even debate that issue is to could there ever be a situation where activity in the temporary easement like bulldozing trees down would cause the damage to the remainder but that's not the force the real issue there were some other questions and i'm prepared to answer him about where they got it here whether or not he had provided materials material seventy two thirteen requests one thing you will not iraq or tories that were were to read that they were submitted in and they said what we asked for any comparable sales actually what they asked for was any and all comparable sales and they got damages to the remainder and what his opinion was which he was very clear on and then be there saying well they didn't disclose something well number one if there's a discovery dispute you don't start getting in the middle of the  personal contact and try to resolve your differences well it is a late in the weeds until that the trial started and then said we were going to say they didn't give assign any even the judge kind of picked up on that ok now in fact if the only department of transportation night dive condemns property by taking in these men they don't seek the right to have more in season but that is exactly what play it point is we argued plaintiff should have been allowed to introduce evidence that mortgaging the easement would damage the remainder of the property and we argued it was in a brief use of discretion not to allow market sales evidence because there is not even their own expert he made it said there is no market day he goes on to say that on may fourteenth in the morning during his day and he said certainly and it and i said yes it would affect the property differently depending on what was allowed in the east he said yes now he said i would agree with you that it does affect the value on this property rights that are given up in the east and i ask him is that why so important where you look easement language should make a determination in your mind as to what actually is being given up and he said yes now why is that it for nobody but this pipeline company that i've ever seen ever asked in any kind of nation proceeding to be able to more which the east and our argument is in our experts were going to and they said well special buying special you number one yes they have to prove if we have any willing buyer and any willing seller we have a company in fact we have a company where they bought an  the time that you have after some of any family did you speak a little bit about what things could be contested at this hearing we know from the record and what happened that this was supposed to be about the value yes of these men and  your client wanted to contest whether or not there was a necessity determination whether or not there was a public benefit yes and whether or not to think it was still in good standing to traverse a ship right more like a trial than anything else we argued we need to discover we need discovery to this challenge because they change this project they change the project by making it a different project they reduced  anything reduce the size but they changed word of the product was coming from originally was coming from candidate then it was going to come from north dakota and it was going to pump an entirely different  they're really not that the law is that the i c c only reviews what's before that it does not review whether or not the project has changed whether or well a given example at the un at the second i c c you probably may recall they stopped the project and then they restarted it two or three years later in this court ruled on that but we wanted to that we didn't get to challenge because when they came back for their second bite at the apple the only thing was whether they'd get good faith in the negotiations i was being planned out we won we tried to challenge at the i c c we weren't allowed to plan and the location that's correct where as we get to the imminent domain it's a different picture and actually the land owner is for the first time for sure facing possible loss of property rights and that in good faith negotiations all those states we should have been allotted to to see how did you come up with this proposal my name is john space i represent the next session pipeline company and i have represented on accession pipeline company since about two years ago when these complaints were filed shortly after the commission issued its certificate and for two years  i have endured the kind of tortured analysis that we just heard here in oral argument the twisting of the law twisting of the facts i think that this court is is certainly in a decisions to go about this project these livingston county cases that we're hear about today are in fact part of a bigger picture the part of the southern access extension pipeline and in this case and these consolidated cases  months i think that this court is going to see a pattern and it's a pattern that we've endured for several years now pattern by defense counsel pattern by his expert and a pattern that involves a fundamental disregard for proper procedure in the appellate court in some ways completely inadequate record maybe by design and i'll get into that it's a pattern that involves reckless disclosures of damages designed not to put landowners in the position that they were before the takings as this court suggested in the kochi mill decision but to create windfalls hundreds of thousands of dollars of damages in these particular cases for what was three point six acres of an easement area that's the permanent easement area a complete disregard for controlling precedent figure to even acknowledge this court's decision and wesco camilla failure to acknowledge that the owners in court in the forest preserve district of du page county case had already rejected that the notion that we needed an appraisal to negotiate in good faith this is not even cited by the defendants in these cases even after they were the trial court there's a pattern here of a willingness to contradict sworn testimony sensually say anything to achieve the purposes of windfall damages efforts to mislead the trial court a pattern of scurrilous counter attacks that you'll see in the reply brief that was filed in this case so when it suggested that there is controlling law that hasn't been cited there are scurrilous counterattacks calling me calling my client liars that type of thing i counted twelve different times in the reply brief bribes accused of lying or misrepresenting facts these taxes very had were rejected by three trial courts along with in the fourth district and they properly rejected these tactics the circuit court in livingston county correctly decided these cases as a matter of law it certainly did not abuse its discretion and in fact it's pretty clear that there is no good faith basis for this appeal i'd like to touch briefly on three issues and the first is the issue that the court landed on with counsel and that is the traverse and this starts the the the accusations here quote from their reply brief and bridge misrepresents the law that's me when it falsely claims that kochi mill allowed for the resolution of a traverse and motion to dismiss the impact of their participation is that they cannot simply really litigate issues already decided in this case not only at the commission but by this fourth district their findings in their certificate does the defendant have an opportunity to then really raise it again with another do you know who review their position is yes our position is absolutely not they asked the circuit court of livingston county to sit in review of decisions of issues already decided by this appellate court so our position is this when the traverse was filed in this case and i urge the court to look at traverse that was filed it is seven conclusory paragraphs this is filed july twenty fifth two thousand and fourteen et that point in time they've done years years of evidence and ben exchange that the commission cross examinations had occurred at the commission and they filed seven conclusory statements they challenge that the pipeline project was quote not necessary or convenient they challenge that with no citation to anything there is not a public purpose this does not constitute public convenience in the ceci not a common carrier all of those issues have been decided finally by this court in its decision in what we call interveners war on october twenty fifth two thousand and ten my position is there is not even a good faith basis to make those arguments already made by the four district court i would submit to this of the court at the time they filed this appeal it was even worse this court had decided interveners won it had decided all of the public use issues all of the necessity issues it had decided interveners to and said that there was overwhelming support for the decision the commission's decision to grant eminent domain authority and this very core had affirmed and acknowledged the authority to condemn in the troyer decision as a condition preceding to allowing immediate access so it's our position that the law does not allow for the related geisha it's our position that there's no good faith basis to plead this notion that they can simply read litigate even if there was there is not a single fact after years of evidence being exchanged there's no law that was ever provided to the court in this traverse motion to dismiss and on top of all that this court has already struck in similar arguments similar efforts to related gate in the attorney turner's cases in for dash fifteen days a year zero three four six this court is already after the decision in interveners three decided to strike what are really cut and paste arguments for the most part from the mclean county attorney poorest cases in mclean county for whether we negotiate in good faith with these landowners that in the race the my position is that the rebuttable presumption is indeed if they had evidence if they did establish that for example the commission act i think it becomes more problematic and in these particular cases when the same issues i group just spoke so this was a review of an administrative ruling however the issues that were being decided i guess i'm just wondering at the domain proceeding we have a situation where the landowner is truly facing losing you know a portion of their land for this easemen and it just doesn't seem fair that they would not be able to litigate these things i mean and i think really that's what we hands set is that they can litigate these things because now they're their rights are not at issue their property rights are truly at issue where is there not at the commission level the lindh case of course decided before the  public use that certain properties needed to be acquired to develop those plans did not preempt the court from inquiring into the same subject matter even though the property owners have fully participated before the commission that's the holding in the right but the holding in lynn also has to be read with the law that says that void of all decisions by the commission are not challenged so the size of the in here we what we find ourselves here is a circumstance where the circuit court's decisions and livingston in mclean into witt county would have been in review of this  opportunity robot that would be confined to what was presented a commission commission could abused its discretion for example on evidence that was never presented to the commission so that that's the best the rebuttable presumption i'd like to if there are other questions i'd like to move on the the landowners in this case the court properly primed pointed out a couple of the bases why landowners were not a lot of testify in these cases we took depositions the landowners for different landowners asked them about their opinions of value the first one said you they would be speculating the next one said they had no idea of value and that's one said they had quote no estimate of value the other one said they didn't know value and a week later they were disclosed to have five hundred seventy five thousand dollars worth of damages of its less than a month after that they were disclosed to be tested to be relying on the hydrostatic testing program that was in a contractor safety would submit to the court there was no abuse of discretion in barring those landowners because they were never showed to be qualified to testify about two pertinent issues the first one what is the contributory value of the eastman to the whole and what is the remainder value in the before and the after i also like to touch just briefly on the appraiser mccann and a couple of things the this business of comparable easements counsel told us here mccance disclosed in november saying that the basis of my opinion is comparable used with sales in may counsel tells the trial court he relied on easement sales as a basis for his opinion but when i asked mccann under oath on may fifteenth he sa this kind of duplicitous playing with the facts is is simply has no place in in these proceedings how can you submitted offer a proof after the man says under oath i never relied on the eastman sales two weeks later smith an offer proof signed by counsel saying they proof fair market value the same thing is true of these capital sales and actually one of those troubling things about these cases is comparable sales but can has opinions that were that were disclosed nov twenty eighth two thousand and fourteen four hundred fifty thousand dollars in damages in november of two thousand and fourteen and as the court says they don't a seven thousand page file on us on february twenty fourth of two thousand and fifteen i sent it to our k lottery and said provide us with your comparable sales why did they do that site already assman discovering they didn't give us anything counsel says of the trial court quote there was absolutely no obligation to tell the defendant how he needs to prove his case on may fourteenth the night before he was that testified at trial the expert says i first told counsel about it by comparable sales and on may fifteenth the next day they can't identify one they cannot identify a single comparable sale and then what happens the seven thousand page file that they dumped on us it's not even part of the appe maybe that's by design but what's undisputed here is they never identified a single comparable sale and i'm going to leave the court with this for the only reason that we stayed in our brief rest that you affirm the trial but maybe they can answer that question for us how could mccann have a pain it's in november of two thousand and fourteen that the boy or rights types in and signs how can have those opinions four hundred fifty thousand dollars of damages for three point six acres of a permanent easement that goes across farm a four hundred fifty thousand dollars and it's not until six months later that he identifies as comparable sales he claims to have identified them and even when he's asked by the trial judge even after we object and the burden under rule two thirteen shifts to the proponent of the in the i c c proceed so the issue about rebuttable presumption is the landowner in the eminent domain as have the ability there may be a presumption been thinking about it since he asked that he threw me off is that still the way it should be it's an interesting question i don't know the answer to that but that is currently the law they have the ability to rebut it now we could argue about what with a republic they would prefer but number one whether there's been a good faith offer made they would rebut whether or not there has been any of course you don't have to give the court has already said did a real law that you don't have to give an appraisal but you've got to give something to show the basis of the offer and that's the key to getting into the corner in livingston county is you have to do all of these things counsel you heard the reference comparable ok that's less what it says in the record that's different than a two thirteen nap and i'm very familiar with all these you well it's not their job to educate me but it's also not my job to the disclosures as comparable we submitted in the seven thousand pages of writing comparable sales some in and down in the paris illinois area and there in it what they didn't do though is your love their only expert chip is in the record we review them but i didn't understand it well then you my friends all you need to do is notice him up for deposition and ask him because if your honor probably but what is it what isn't in the record is first before we get into that comparable sales we've got to start back at two thirty pm and it's if they want to say that you didn't actually ask you didn't waiting waiting till the day of trial or argue about a discovery dispute they had an obligation first to follow motion and we talked about that or you can lay in the weeds but they're very highly sk