No. 2--01--1438

__________________________________________________________________

	IN THE 

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

__________________________________________________________________

MCI WORLDCOM COMMUNICATIONS, INC.,	) 	Appeal from the Circuit

                    			)	Court of Lake County.

	Plaintiff-Appellant,		)	

							)

v.							)    No. 00--ED--30	 			

							)

METRA COMMUTER RAIL DIVISION OF 	)	

THE REGIONAL TRANSPORTATION		)	

AUTHORITY, CMC HEARTLAND PARTNERS,	)

and UNKNOWN OWNERS, 			)	Honorable

							)	Henry C. Tonigan III,

	Defendants/-Appellees.		)	Judge, Presiding.

__________________________________________________________________

	JUSTICE BOWMAN delivered the opinion of the court:

	Plaintiff, MCI WorldCom Communications, Inc. (WorldCom),

appeals the judgment of the circuit court of Lake County in favor

of defendants, METRA Commuter Rail Division of the Regional

Transportation Authority (METRA) and CMC Heartland Partners (CMC),

denying its petition seeking to condemn METRA-owned property. 

WorldCom challenges the court’s findings and its interpretation of

the Telephone Company Act (Act) (220 ILCS 65/4 (West 2000)).  

	On December 22, 2000, WorldCom filed its complaint seeking to

acquire a permanent easement for the construction, operation, and

maintenance of an underground fiber optics telecommunications line

under a railroad crossing (crossing parcel) intersecting with

Osterman Avenue in Deerfield.  On January 31, 2001, defendants

filed a traverse and moved to dismiss the complaint.  After an evidentiary hearing, the court granted the traverse and dismissed 

the complaint. 

	The following facts were established at the hearing.  The

crossing parcel was originally owned by the Chicago Milwaukee & St.

Paul Railway Company (Milwaukee Road).  After Milwaukee Road went

bankrupt and its residual assets were transferred to CMC Real

Estate Corporation, the Regional Transportation Authority (RTA)

condemned a portion of Milwaukee Road’s assets, including the

crossing parcel.  CMC Real Estate and the RTA entered into two

agreements regarding the crossing parcel.  In the stipulation

agreement, the RTA acquired the crossing parcel and simultaneously

deeded the property to METRA.  The second agreement, titled the

"Fiber Optics Agreement," granted CMC Real Estate the right to

receive two-thirds of the income received by METRA for fiber optic

easements.  The "Fiber Optics Agreement" further provided that CMC

Real Estate would act as METRA’s agent in negotiating the fiber

optics easement.  In 1989, CMC Real Estate transferred its interest

in the "Fiber Optics Agreement" to the Chicago Milwaukee

Corporation, and Chicago Milwaukee Corporation, in turn,

transferred its interest to CMC.    

	The acquisition of the easement under the crossing parcel was

part of a project to connect the WorldCom network with an Ameritech

facility in Deerfield.  WorldCom claims that the easement is

necessary to complete the project.  The dispute arose when Donald

Wheeler, WorldCom’s senior real estate and permit manager, informed 

Jim Konstantelous of CMC that WorldCom intended to acquire the

easement under the crossing parcel.  After WorldCom made a final offer of $20,000 and CMC demanded no less than $100,000, the

negotiations broke off.  Subsequently, WorldCom brought suit to

condemn the crossing parcel.             

	After the hearing, the court determined that METRA owns the

crossing parcel in fee simple and that METRA’s status as a

governmental entity prohibits WorldCom from exercising its power of

eminent domain.  WorldCom now appeals, asserting that (1) the Act

grants WorldCom the power to condemn METRA property, (2) the court

erred by finding that METRA owneds the property in fee simple, and

(3) METRA’s actions amount to a violation of the Federal

Telecommunications Act of 1996 (FTA) (47 U.S.C. §253 (2000)).  For

the following reasons, we affirm the judgment of the court.

	As a preliminary matter, when a traverse is filed, the

plaintiff has the burden to make a prima facie case demonstrating its authority to condemn property.  Lake County Forest Preserve District v. First National Bank of Waukegan, 154 Ill. App. 3d 45, 51 (1987).  Defendants’ traverse was properly granted and

WorldCom’s action appropriately dismissed if WorldCom failed to

establish its right to condemn.  Lake County Forest Preserve District, 154 Ill. App. 3d at 49.  Our standard of review for a ruling on a traverse is whether the court’s order wais against the

manifest weight of the evidence.  City of Naperville v. Old Second National Bank of Aurora, 327 Ill. App. 3d 734, 739 (2002).  The court’s order is against the manifest weight of the evidence only

if the opposite conclusion is clearly evident.  City of Naperville, 327 Ill. App. 3d at 739.    

	First, WorldCom challenges the court’s interpretation of

section 4 of the Act as restricting its right of condemnation to

private entities.  METRA, as a division of the RTA, is "a unit of

local government, body politic, political subdivision and municipal

corporation."  Regional Transportation Authority Act (70 ILCS

3615/1.04 (West 2000)); see also Smith v. Northeast Illinois Regional Commuter R. R. Corp., 210 Ill. App. 3d 223, 228 (1991).  WorldCom argues that section 4 grants it the right to condemn

railroad property without regard to the railroad company’s status

as a public entity.  We hold otherwise.

	A corporation or department of the government can only exercise the

power of eminent domain only when it has been specifically

conferred by legislative enactment, and the law conferring the

authority must be strictly construed to protect property owners.  Forest Preserve District v. Estes, 222 Ill. App. 3d 167, 175 (1991).  " '[A] general grant of the power of eminent domain does

not authorize the condemnation of property already devoted to a

public use,' and 'where the legislature had intended to confer the

power to condemn property already devoted to a public use, it has

done so explicitly.' "  Medical Center Comm'n v. Powell, 124 Ill. App. 2d 123, 131 (1970), quoting Department of Public Works & Buildings v. Ells, 23 Ill. 2d 619, 620-21 (1962).  Such a legislative grant of eminent domain power can be exercised only in

the manner authorized by statute.  Village of Cary v. Trout Valley Ass’n, 282 Ill. App. 3d 165, 169 (1996). 

	Our review of section 4 is de novo.  Davis v. Toshiba Machine Co., America, 186 Ill. 2d 181, 183 (1999).  We first attempt to give effect to the legislative intent by looking at the plain

language of the statute.  Davis, 186 Ill. 2d at 185.  If the plain language is clear, the court need not delve into the rules of

statutory construction.  Davis, 186 Ill. 2d at 185.  Moreover,  " '[w]here the language of a statute is clear and unambiguous, a

court must give it effect as written, without "reading into it

exceptions, limitations or conditions that the legislature did not

express." ' [Citation.]"  Davis, 186 Ill. 2d at 184-85.  "It is not within the province of an administrative agency or court to take

from or enlarge the meaning of a statute by reading into it

language which will, in the opinion of either, correct any supposed

omissions or defects."  American Steel Foundries v. Gordon, 404 Ill. 174, 180-81 (1949).

	Section 4 grants every telecommunications carrier the right to

condemn private property.  220 ILCS 65/4 (West 2000).  Section 4

states, in pertinent part:     

	"Every telecommunications carrier as defined in the Telecommunications Municipal Infrastructure Maintenance Fee

Act may, when it shall be necessary for the construction,

maintenance, alteration or extension of its telecommunications

system, or any part thereof, enter upon, take or damage

private property in the manner provided for in, and the compensation therefor shall be ascertained and made in

conformity to the provisions of the Telegraph Act ***."

(Emphasis added.) 220 ILCS 65/4 (West 2000).

Section 4 further adds that "[n]o telecommunications carrier shall

exercise the power to condemn private property until it has first  substantially complied with such rules with respect to the property

sought to be condemned."  (Emphasis added.)  220 ILCS 65/4 (West

2000).  The language of section 4 clearly limits telecommunications carriers’ power to exercise eminent domain to private property.

	The controversy here arises from the following additional

language contained within section 4: "the telecommunications

carrier shall not have the right to condemn any portion of the

right-of-way of any railroad company except as much thereof as is

necessary to cross the same."  220 ILCS 65/4 (West 2000).  WorldCom

argues that this language grants it the power to condemn the

property of any railroad without regard to its status as a public

or private entity.

	WorldCom mistakenly assumes that this phrase replaces the

previously cited passages as the operative language granting the

power of eminent domain when the property owner is a railroad. 

However, the passage WorldCom relies upon is not an expression of

a grant of power. Rather, the passage acts as a limit upon the

power of telecommunications carriers to exercise eminent domain

over the private property of railroad companies.  Section 4 begins

by listing the powers granted to telecommunications carriers,

including the power to condemn private property.  Section 4 then 

defines and limits those powers.  The passage cited by WorldCom

includes the limiting language, "shall not have the right to

condemn," and resides with the other limiting conditions in the

statute.  It would have been a simple matter for the legislature to

include explicit language at the beginning of section 4 granting

carriers the power to condemn any type of railroad property.  Section 4 contains no such language.  We will not subvert the clear

intention of the legislature to limit the power of eminent domain

to private property by expanding and twisting the statute’s

language to create a result clearly contrary to section 4's

purpose.  Accordingly, we find that section 4 does not allow a

telecommunications carrier to condemn the property of a railroad

company that is a public entity.

	Next, WorldCom contends that METRA holds only an easement

granting it a right-of-way to operate trains over the crossing

parcel.  It asserts that the RTA acquired only a right-of-way as a

result of the 1987 condemnation of CMC Real Estate’s property,

leaving CMC Real Estate with a residual interest in the crossing

parcel.  Hence, WorldCom maintains that CMC Real Estate, a private

entity, is the owner of the subsurface of the crossing parcel, and

that interest is subject to condemnation under section 4 of the

Act.  Contrary to WorldCom’s position, the court held:

"As to the issue of ownership, the Court has had an

opportunity to review not only [the RTA’s] condemnation

complaint, but also the final judgment order and the other

evidence submitted.  It’s the Court’s opinion that the RTA in

the proceeding did acquire fee simple title to the property.”

We agree with the decision of the court on this matter.  

	There are three principal documents that the parties rely upon

to determine the interest METRA acquired and CMC Real Estate

retained in the RTA’s condemnation proceeding, namely, the RTA’s

complaint, the stipulation agreement, and the final judgment order. 

WorldCom supports its position mainly by citing in the complaint a description in the complaint of the property being sought by the RTA.  WorldCom quotes a passage stating in part that the real property being

acquired includes "that certain right of way occupied, whether by

lease, easement, fee, or any other interest."  If this was the only

statement relating to the description of the interest obtained by

the RTA, we might conclude that WorldCom’s position is correct. 

However, after examining the complaint, the stipulation agreement,

and the final judgment order, we find that METRA clearly owns the crossing parcel in fee simple.

	Irrespective of the reference in the complaint to "that

certain right of way," we believe that the breadth of the interest the RTA sought to acquire was the whole of Milwaukee Road’s

interest in fee simple.  The final judgment order in the matter

between the RTA and CMC Real Estate states: 

"[A]side from the exceptions and reservations provided in the

Stipulation, all right, title and interest of CMC [Real

Estate], Chicago Milwaukee Corporation, and all Unknown Owners

in the Acquired Property is hereby vested in the RTA as set

forth in the Stipulation."

The stipulation agreement states that the RTA acquired and

simultaneously transferred to METRA all of the right, title, and

interest of CMC Real Estate in the property.  The stipulation

agreement goes on to specifically list the property that has not

been acquired by the RTA.  Thus, CMC Real Estate retained

miscellaneous personal property, air rights, and the right to

receive a portion of the fiber optics revenues.  Accordingly, we find conclude that the RTA received an interest in fee simple subject

only to these few exceptions.  

	We also note that, contrary to WorldCom’s claim of collusion

between METRA and CMC, the "Fiber Optics Agreement" granting CMC a

share of the revenue from the sale of the right to lay fiber optic

cable appears to be nothing more than an ordinary revenue sharing

agreement. CMC does not have the right to grant a

telecommunications carrier permission to lay fiber optic cable. 

METRA alone possesses this right.  WorldCom has presented no

evidence to support its claim that this arrangement is a form of

collusion to prevent it from laying fiber optic cable under the

crossing parcel. 

	Last, WorldCom maintains that the court erred by failing to

find that METRA’s actions violated the FTA.  The FTA provides that

"[n]o State or local statute or regulation, or other State or local

legal requirement, may prohibit or have the effect of prohibiting

the ability of any entity to provide any interstate or intrastate

telecommunications service."  47 U.S.C. §253 (a) (2000).  WorldCom relies on Bell Atlantic-Maryland, Inc. v. Prince George’s County, Maryland, 49 F. Supp. 2d 805 (1999), to support its argument that METRA violated the FTA by allegedly refusing to charge a fair and

reasonable fee for access to its property.  We believe that

WorldCom’s argument is flawed because it addresses the wrong issue.

	The court’s order granting the traverse states: 

"As to the issue of the Federal Telecommunications Act of

1996, the plaintiff failed to establish that the defendants

engaged in any anti-competitive activities and thus, the provisions of the Federal Telecommunications Acts of 1996 do

not bar the defendants from contesting the plaintiff’s right

to acquire the subject property by eminent domain."

The court found that WorldCom did not satisfy its burden to

establish the value of the interest in the crossing parcel it hoped

to acquire.  Resultantly, the court had no frame of reference from

which to judge if the price asked for by CMC was unreasonable. 

Thus, the FTA provisions prohibiting government bodies from

exacting an unreasonable fee from a telecommunications carrier were

never implicated.  

	WorldCom’s brief argues only that the FTA prohibits METRA from

exacting an unreasonable fee from the telecommunications carrier. 

Under Supreme Court Rule 341(e)(7) (188 Ill. 2d R. 341(e)(7)),

points not argued in an appellant’s brief are waived and will not

be considered on appeal.  Sylvester v. Chicago Park District, 179 Ill. 2d 500, 507 (1997).  WorldCom has failed to address the

court’s finding that it did not meet its burden to introduce

competent evidence of value as to the property it seeks to take. 

See Lake County Forest Preserve District v. Kerrigan, 58 Ill. App. 3d 249, 252 (1978).  We find that WorldCom has waived its

contention that METRA has violated the FTA by failing to address

this fundamental issue in its brief.   

	For the aforementioned reasons, we affirm the judgment of the circuit court of Lake County.   

	Affirmed.

	HUTCHINSON, P.J., and KAPALA, J., concur.