NO. 5-99-0567

	IN THE

	APPELLATE COURT OF ILLINOIS

	FIFTH DISTRICT

________________________________________________________________________

THE DEPARTMENT OF TRANSPORTATION,	)  Appeal from the 

								)  Circuit Court of

     Plaintiff-Appellant and Cross-Appellee,		)  St. Clair County.

								)

v.								)  No. 94-ED-20

								)

DRURY DISPLAYS, INC.,				)

								)

     Defendant-Appellee and Cross-Appellant,		)

								)

and								)

								)

NATIONAL ADVERTISING COMPANY,		)  Honorable

								)  James M. Radcliffe III,

     Defendant-Appellee.					)  Judge, presiding.

________________________________________________________________________

	JUSTICE WELCH delivered the opinion of the court:

	This case involves the extent of a taking in condemnation and the nature of

compensation.  The ultimate issue on appeal is whether the plaintiff, the Illinois Department

of Transportation (the Department), an agency of the State, took the defendants' outdoor

advertising signs in addition to the defendants' leasehold interests, to be used in a road

construction project.  The Department argues that it only condemned the defendants'

leasehold interests.  The defendants argue that their signs were also taken.  A St. Clair

County jury awarded defendant Drury Displays, Inc. (Drury), damages of $80,730 and

defendant National Advertising Company (National) damages of $146,640.  On March 17,

1999, the circuit court entered judgments on the verdicts.  The Department appeals from the

judgments, and Drury cross-appeals.  For the following reasons, we affirm the judgments

and deny the cross-appeal.

	BACKGROUND

	On July 13, 1994, CSX Transportation, Inc. (CSX), a railroad and the landowner, in

exchange for $49,180, executed a quitclaim deed conveying approximately 4.2 of its 60

acres to the Department for highway construction.  The Department acquired the property

as a part of a project to construct two new right-hand exit lanes off westbound Interstate

55/70/64 onto the Illinois end of the Martin Luther King Bridge.  On the subject property,

Drury had leased space for a single billboard, and National had leased space for two

billboards.1  On August 31, 1994, the Department filed its complaint seeking to condemn Drury's and National's leasehold interests in the property.  CSX was named but later was

dismissed as a party. 

	The April 17, 1991, lease between CSX2 and Drury allowed Drury to erect and maintain a sign on the property.  The November 15, 1990, and November 15, 1993, leases

between CSX and National permitted National to erect and maintain signs on the property.

All the leases were terminable by either party upon 60 days' written notice.

	According to the Drury lease, Drury was to pay CSX $19,000 per year or 25% of its

gross advertising revenue, whichever was greater.  The lease provided that any billboard

erected on the property by Drury would remain Drury's property upon the termination of the

lease.  The lease also provided that if Drury failed or refused to remove its billboard within

30 days after the termination of the agreement, then the billboard would become CSX's or

CSX could remove the billboard and bill Drury for the costs of the removal.  Neither party

could assign the lease without the written approval of the other.

	According to the November 15, 1993, National lease, National was to pay CSX

$8,400 per year or 25% of its gross advertising revenue, whichever was greater.  The

remaining terms were virtually identical to the Drury lease.

	According to the November 15, 1990, National lease, National was to pay CSX

$8,000 per year or 25% of its gross advertising revenue, whichever was greater.  The

remaining terms were similar to the Drury lease, except that CSX could assign its interest

without National's consent.  However, National could not assign its interest without CSX's

consent.

	We pause to note that the Department did not exercise any rights it might have

possessed, as a successor in interest to CSX, against Drury or National.  Instead, in the

circuit court it filed a condemnation complaint to terminate the defendants' interests.  Given

this turn of events, we point out that the rights between condemnor and condemnee are

different from the rights between landlord and tenant.

	At the trial, evidence placed all three billboards quite close to the interstate roadway,

making them highly visible prior to the construction of the new ramp.  Traffic counts were

very high and may have exceeded 120,000 cars per day.   These outdoor advertising

structures could not be disassembled and removed without damaging the integrity of the

structures, and such structures could not be economically relocated.

	Although there were 60-day-termination provisions in the leases, railroads rarely

exercised such provisions, according to the testimony.  Exercising such provisions would

stop the income stream from the tenant billboard company on the land that the railroad had

rented because it was not being used.  The short-term nature of the termination provision,

common in the outdoor-advertising industry, permitted railroads to lease without board-of-

director approval.

	The provision in each lease permitting the billboard to remain the property of the

billboard company and permitting its removal by the billboard company upon the

termination of the lease was present so that the railroad-lessor would not terminate the lease,

acquire the billboard, and thereby become a competitor in the outdoor-advertising industry.

	Neither Drury nor National possessed deeds for the real property, acquired title

insurance, or paid real property taxes for the billboards.  On the other hand, these billboards

were made of steel, were attached to the real property in approximately 20 feet of concrete,

and would last "forever" if regularly maintained.  Billboards, in general, are custom-built in

conformance with building and safety codes and in consideration of site location and wind-

load.

	The following text summarizes the testimony given by the expert witnesses at the

trial.  We omit, here, any discussion of the experts' qualifications, because the subject is not

at issue.  We do, however, summarily address the qualifications of the Department's expert

witness who was precluded from testifying by the circuit court, but we do so in the

unpublished portion of this opinion.

	Dwain Stoops, a real estate appraiser and valuation consultant, testified on behalf of

the Department.  Stoops testified that he appraised the three leasehold interests at issue in

this case but that he did not value the advertising businesses being conducted on the leased

premises.  In his opinion, billboards are personal property and are best characterized as trade fixtures, not leasehold improvements.  Thus, he concluded that the billboards contributed

no value to the underlying land and were worth nothing as real estate in a condemnation

action or in terms of the leasehold value.

	In valuing the defendants' leasehold interests, Stoops examined the three leases,

among other things, to determine if the leasehold interests had any "bonus value."  Bonus

value is merely the difference, if any, between the market rent and the actual rent.  For

example, if a tenant's actual rent was lower than the market rent for the space being rented,

then the tenant would have bonus value in his interest and would be entitled to the monetary

difference.  In a similar vein, bonus value could also extend to a landlord who was receiving

actual rent from a tenant that was higher than the market rent.

	Stoops considered the three traditional methods of valuation–cost, income, and

comparable sales–but was unable to fully apply them in this situation.  It appears that in his

valuation Stoops considered the leasehold interests but not the improvements.  He concluded

that there was no bonus value.

	Stoops acknowledged, though, that the defendants had a right to sell their leasehold

interests as improved, that such sales occurred in the outdoor-advertising industry, and that

such property interests had a market value based on income and income multipliers in the

industry.  Stoops admitted that he was aware of no situation in which a railroad had refused

to approve the assignment of a billboard property lease from one owner to another and that

it was very rare for a railroad to exercise the 60-day-termination provision.

	Linda Truitt testified on behalf of Drury.  Truitt characterized and appraised Drury's

interest as a leasehold improved with outdoor advertising by using the three traditional

methods of valuation–cost, income, and comparable sales.  Truitt testified that the fair

market value of a leasehold interest improved with an outdoor advertising structure is tied

to its income-producing potential within the industry.

	The cost method of valuation measures the cost to replace property interests, less

depreciation.  Using this method, Truitt valued Drury's interests at $74,225.  However, Truitt

testified that this method was the least appropriate method of valuation because it did not

take into account the value added by the location.

	The income method of valuation is based on the property's income-producing

potential.  This method, in summary, divides the property's net income by a capitalization

rate (a return on and of capital) as determined by market data.  The quotient is used as an

income valuation.  Using this method, Truitt valued Drury's interests at $135,000.

	The comparable-sales method of valuation requires a review of prices actually paid

in the marketplace for similar properties, an extraction of the gross-income multiplier

reflected in those sales, and an application of an appropriate gross-income multiplier to the

property being appraised.  The gross-income multiplier of a similar property is calculated

merely by dividing the sale price by the annual gross income produced by the advertising

structure.  Using this method, Truitt valued Drury's interests at $142,000.

	Truitt characterized Drury's interests in this case as real property, and using these

three valuation methods, she concluded that the fair market value of Drury's leasehold

interest as improved by an outdoor advertising structure was $140,000.

	R.J. Ruppert testified on behalf of National.  He characterized National's billboard

property as a real estate capital improvement, with its value being separate from the business

value of its owner.  Ruppert valued National's interests at $210,000 under the cost  method,

at $208,000 under the income method, and at $211,000 to $214,000 under the comparable-

sales method.  Using these three valuation methods and placing the most weight on how the

marketplace values billboard property interests, Ruppert concluded that the fair market value

of National's interests was $210,000.

	We turn now to the applicable standards of review and to the issues presented on appeal.

	DISCUSSION

	The Department presents three separate issues on appeal.  The first issue is whether

the circuit court erred in denying the Department's motion for judgment in the amount of $0

notwithstanding the verdict.  The second issue is whether the circuit court erred under

several enumerated grounds, entitling the Department to a new trial.  The third issue is

whether the circuit court erred in denying the Department's motion for a new trial where the

verdicts were against the manifest weight of the evidence. 

	The Department first argues that the circuit court erred in denying the Department's

motion for judgment notwithstanding the verdict.  We disagree.  A judgment

notwithstanding the verdict is appropriate only in those cases where all of the evidence,

when viewed in the light most favorable to the opponent, so overwhelmingly favors the

movant that no contrary verdict based on that evidence could ever stand.  Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 511 (1967).  We review de novo the trial court's decision to deny a motion for judgment notwithstanding the verdict, applying the same standard used

by the circuit  court.  Hernandez v. Schittek, 305 Ill. App. 3d 925, 930 (1999).

	The Department contends that the defendants' only compensable property interest

under the condemnation statute (735 ILCS 5/7-101 (West 2000)) is the leasehold interest. 

Moreover, it claims that it did not even condemn the billboards, because they are personal

property.3  The Department reasons that, because the experts agree the leases had no bonus value, no compensation is due.  National and Drury contend that the evidence showed that

outdoor advertising structures are bought and sold in the industry marketplace for more than

simply the bonus value of the lease.  We believe that the Department's interpretation

overlooks the plain language of the statute. 

	Our resolution of this matter is based upon language added by a 1993 amendment to

the compensation section of the Eminent Domain Act (Pub. Act 87-1205, effective July 1,

1993 (1992 Ill. Laws 3569) (amending 735 ILCS 5/7-101 (West 1992)).  It appears that this

language has not yet been construed by an Illinois court, making this a case of first

impression.  After the amendment, the statute read as follows, with the new language

italicized:

		"§7-101.  Compensation–Jury.  Private property shall not be taken or damaged

for public use without just compensation, and in all cases in which compensation is

not made by the state in its corporate capacity, or a political subdivision of the state,

or municipality in its respective corporate capacity, such compensation shall be

ascertained by a jury, as hereinafter prescribed.  Where compensation is so made by

the state, a political subdivision of the state, or municipality, any party upon

application may have a trial by jury to ascertain the just compensation to be paid. 

Such [a] demand on the part of the state, a political subdivision of the state, or

municipality[] shall be filed with the complaint for condemnation of the state, a

political subdivision of the state, or municipality.  Where the state, a political

subdivision of the state, or municipality is plaintiff, a defendant desirous of a trial by

jury must file a demand therefor on or before the return date of the summons served

on him or her or fixed in the publication in case of defendants served by publication. 

In the event no party in the condemnation action demands a trial by jury as provided

for by this Section, then the trial shall be before the court without a jury.  The right to just compensation as provided in this Article applies to the owner or owners of any

lawfully erected off-premises outdoor advertising sign that is compelled to be altered

or removed under this Article or any other statute[] or under any ordinance or

regulation of any municipality or other unit of local government[] and also applies

to the owner or owners of the property on which that sign is erected."  (Emphasis added.)  735 ILCS 5/7-101 (West Supp. 1993).

	The plain meaning of the language used by the legislature is the best indication of

legislative intent.  Weatherman v. Gary-Wheaton Bank of Fox Valley, N.A., 186 Ill. 2d 472, 486 (1999).  When the language is clear, the court should not look to extrinsic aids for

construction.  Bogseth v. Emanuel, 166 Ill. 2d 507, 513 (1995).  When a statute is amended, it is presumed that the legislature intended to change the law as it formerly existed.  Scribner v. Sachs, 18 Ill. 2d 400, 411 (1960).  

	Looking at the plain language of the statute, we think the first part of the pertinent

sentence might be rephrased colloquially as: Billboard owners have a right to just

compensation for any condemned sign.  We believe that meaning is unmistakably clear.  We

reject the Department's interpretation that "just compensation" means only bonus value.  Just

compensation is the fair market value of the property at its highest and best use on the date

the complaint is filed.  County of St. Clair v. Wilson, 284 Ill. App. 3d 79, 82 (1996).  Fair market value is the amount of money a willing buyer under ordinary circumstances would

pay to a willing owner in a voluntary sale when neither party is under any obligation to buy

or sell.  See 735 ILCS 5/7-121 (West 2000); Wilson, 284 Ill. App. 3d at 82.  Had the legislature intended just compensation to mean only bonus value, it could have used the

words "bonus value" in the statute.

	The Department also contends, without the benefit of citation to legislative history

or to the record, that the statutory language applies only to local authorities wielding their police powers to regulate billboards out of existence.  We believe that the Department's

interpretation overlooks the disjunctive clauses of the statute.  "The right to just

compensation as provided in this Article applies to the owner *** of any lawfully erected

off-premises outdoor advertising sign that is compelled to be *** removed under this Article

or any other statute[] or under any ordinance or regulation of any municipality or other unit of local government ***."  (Emphasis added.)  735 ILCS 5/7-101 (West Supp. 1993). 

Under the Department's interpretation of the statute, the right to compensation for billboard

owners "in this Article" is read out of existence.  Under our reading of the statute, the

owners of billboards that are condemned "under this Article"–the condemnation statute–are

entitled to just compensation.  It appears to us that if the legislature only wanted to

compensate billboard owners who had their signs zoned out of existence under the police

power of a municipality, as the Department contends, then our legislature erred in placing

this new language in the condemnation statute and by using the language "in this Article" and "under this Article."  In this same vein, if the legislature intended to compensate

billboard owners who are forced to remove their signs under regulatory authority, then it

likely intended to compensate billboard owners who had their signs condemned.

	Consequently, given the 1993 statutory amendment, when viewing the evidence in

the light most favorable to National and Drury, we conclude that the evidence does not so

overwhelmingly favor the Department that no contrary verdict could ever stand.  We

conclude that the circuit court did not err in denying the Department's motion for judgment

notwithstanding the verdict.

	[nNonpublishable MAERmaterial under Supreme Court Rule 23 (166 Ill. 2d R. 23) remsovecoved here.]

	[The preceding text is nonpublishable under Supreme Court Rule 23.]

	For the foregoing reasons, the judgment of the circuit court of St. Clair County is affirmed.

	Affirmed.

	GOLDENHERSH and KUEHN, JJ., concur.

                                     	NO. 5-99-0567

	IN THE

	APPELLATE COURT OF ILLINOIS

	FIFTH DISTRICT

___________________________________________________________________________________

THE DEPARTMENT OF TRANSPORTATION,	)  Appeal from the 

								)  Circuit Court of

     Plaintiff-Appellant and Cross-Appellee,		)  St. Clair County.

								)

v.								)  No. 94-ED-20

								)

DRURY DISPLAYS, INC.,				)

								)

     Defendant-Appellee and Cross-Appellant,		)

								)

and								)

								)

NATIONAL ADVERTISING COMPANY,		)  Honorable

								)  James M. Radcliffe III,

     Defendant-Appellee.					)  Judge, presiding.

___________________________________________________________________________________

Opinion Filed:	February 7, 2002

___________________________________________________________________________________

Justices:	Honorable Thomas M. Welch, J.

	Honorable Richard P. Goldenhersh, J., and

	Honorable Clyde L. Kuehn, J.,

	Concur

___________________________________________________________________________________

Attorneys	Robert E. Becker, Kevin T. Hoerner, Becker, Paulson & Hoerner, P.C., 5111 West

for	Main Street, Belleville, IL 62226

Appellant	

___________________________________________________________________________________

Attorneys	Thomas B. Weaver, Cynthia A. Sciuto, Armstrong Teasdale LLP, One Metropolitan

for	Square, Suite 2600, St. Louis, MO 63102-2740 (for Drury Displays, Inc.)

Appellees	

	Caroline L. Hermeling, Kathryn M. Koch, Husch & Eppenberger, LLC, 100 North

	Broadway, Suite 1300, St. Louis, MO 63102 (for National Advertising Company)

	Harry J. Sterling, Harry J. Sterling, P.C., #6 Canty Lane, Fairview Heights, IL

	62208 (for Mid-America Advertising, Inc. -- Amicus Curiae brief filed in support of appellees' position)

___________________________________________________________________________________