No. 3-07-0877

_________________________________________________________________ Filed July 8, 2008 IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT A.D., 2008 DEPARTMENT OF TRANSPORTATION, ) Appeal from the Circuit Court STATE OF ILLINOIS ) of the 10th Judicial Circuit, ) Peoria County, Illinois, Plaintiff-Appellee, ) ) v. ) ) LEROY W. ANDERSON, ) ) Defendant-Appellant, ) ) and ) No. 07-ED-2 ) SPEEDWAY SUPERAMERICA LLC, a ) Delaware limited liability ) company, as successor to Emro ) Marketing Company, a Delaware ) corporation; EDWARD T. ) O’CONNOR, III, Peoria County ) Treasurer; UNKNOWN OWNERS AND ) NONRECORD CLAIMANTS, ) Honorable ) Joe Vespa, Defendants-Appellees. ) Judge, Presiding.

_________________________________________________________________ JUSTICE LYTTON delivered the opinion of the court:

_________________________________________________________________ Plaintiff Illinois Department of Transportation (Department) fileda complaint for condemnation of a parcel of property ownedby defendant Speedway Superamerica LLC (Speedway ). Speedway and defendant Leroy Anderson, as an interested party, fileda traverse andmotion to dismiss, which the trial court deni ed. On appeal,2

Anderson contends that the trial court’s quick-take order must be reversedbecause the Department neglected to provide him with statutory letters of notice and failed to negotiate in good faith prior to filing its complaint. We affirm. In 1971, Anderson owned a parcel of land along Illinois Route 40 which Marathon Oil Company (now known as Speedway) wanted to purchase for use as a gas station. The parties entered into an option to purchase, contingent upon Speedway securing an access permit to Route 40 from the Department. The Department refusedto issue Speedwaya permit unless Speedway agreedto sell the State a 52-foot strip off the east end of the property for future widening of Route 40. As a resul t of Spee dway’s negotiations with the Dep artment, Speedway and Anderson entered into an "Option t o Purchase Amendment." The amendment statedthat Anderson agreed to conveyan additional 52 feet on the west side of the parcel in consideration for which Speedway would pay to Anderson the price of the 52-foot strip on the east side o f the parcel when the Department acquired the strip at a later date. Anderson subsequently conveyed the entire parcel, including the additional 52-foot strip at the west end, to Speedway by warrantydeed with no reservations. The option to purchase amendment was not incorporated in or attached to the deed. In 1993, the Department made plans to widen Route 40. At that time, Anderson recorded an affidavit with th e recorder of deeds3

office, which referenced the August 1971 option to purchase amendment and indicated that it was being filed to provide notice "of the interest claimed by [Anderson] in any proceeds." One yea r la ter, the Department began developing preliminary engineering plans for the project. The plans provided for the Department to acquire the entire Speedway parcel, not just the easterly52-foot portion. In 1997, the Departm ent ap praised the Speedwayparcel and made an offer of $352,500. The offer included acquisition of the store building. Speedway rejected the offer. In Ma rch 2004, the Department engineers completed the "prefinal" engineering plans for the project. The plans and plats showedthe Department needed to acquire the entire parcel from Speedway. In April of 2004, the Department appraiser Randy Neff viewedthe parcel and s ubm itted a written appraisal valuing the propertyat $643,000. Searle contacted Speedwa y and advised the company that the Department had completed its appraisal and would soon make an offer. Speedway closed the station in June 2004. Between April 2004 and May 2005, when the offer was finally submitted, there were numerous conversations and negotiations between the parties . De partment acquisition specialist Rhonda Searle testified that she negotiated with Speedway and kept a log of all contacts. Although she discussed Anderson’s interest with the Department’s title company, the Department was "not sure what Anderson’s interest was." Searle said she was instructed to obtain4

a quit claim deed from Anderson once the offer was accepted. The Department finally transmitted an offer to Spee dway for $643,000 on May 2, 2005. The offer provided for the acquisition of the Speedway parcel by dedication rather than fee simple title and showedthe highest and best use as a convenience store/gas station. The offer included a qu it cl aim deed from Anderson to the State. However, Searle did not transmit the offer or a quit claim deed to Anderson. In October of 2006, the Department reappraised the property. The revised report appraised the property at $379,000. The Department sent an o ffer to Speedway in the revised amount. The

new offer included acquisition of the station, but did not include

a quit claim deed from Anderson to the State. Unlike the 2005 offer, the offer and appraisal indicated that the highest and best use of the land was as a vacant lot. Speedway refused the offer, and the two parties failed to reach an agreement. The Department sent a letter to Anderson in January of the following year, reque stin g that Anderson sign an enclosed quit claimdeedto the State. The letter did not include a copy of the appraisal or statement of the basis of compensation. Anderson declined to execute the quit claim deed. In Apr il 2 007, the Department filed its complaint for condemnation a lon g with a motion for immediate vesting of title under the "quick-take" provisions of the Eminent Domain Act (Act)5

(735 ILCS 30/20-5-5, 25-7-103.1 (West 2006)). Anderson and Speedway both filed traverses and motions to dismiss. Anderson’s traverse was based on the Department’s failure to provide statutory letters pursuant to sections 10-5-15(c) and 10-5-15(d) of the Act (735 ILCS 30/10-5-15(c),(d) (West 200 6) ) and the Department’s failure to negotiate in good faith prior to filing its condemnation complaint. At the hearing on the quick-take andtraverse motions, the trial court heardargument on Anderson’s motion and indicated that he would deny the motion. At the close of the evidentiary hearing, the court set the matter over for closing arguments without ruling

on either the traverse issue of good faith negotiations or the issue of preliminary just compensation. On the date set for argument, the Department and Speedway indicated that they had reachedan agreement as to preliminary just compen sat ion in the amount of $500,000. An ord er was entered, over Anderson’s objection, denying both traverses and motions to dismiss andfixing preliminaryjust compensation in the amount of $500,000. Anderson filedan interlocutory appeal pursu ant to Supreme Court Rule 307(a)(7). 166 Ill. 2d R. 307(a)(7). ANALYSIS I. Anderson first argues that he is an "owner" within the meaning of the Act a nd that the Department’s failure to provide him with6

the statutorily required letters is fatal to the Department’s condemnation complaint. U nder section 10-5-15 of the Act, the condemnor must fi rs t contact and advise the "property ow ner " of the proposed land acquisition and then send a letter "to the owner of the property" at least 60 days before filing a condemnation complaint informing the owner of any appraisal and the basis of compensation. 735 ILCS 30/10-5-15(c),(d) (West 2006). The term "owner" is not defined in the Act. In general, ownership is described as "the collection of rights allowing one to use and enjoy property, including the right to convey it to others." B lack ’s Law Dictionary 1131 (7th ed. 1999). Under common law, ownership is not restricted to mere title. However, there are certain minimum elements that must be present for a person to be considered an owner of property. Mason

v. Rosewell , 107 Ill. App. 3d943 (1982). An owner can include one who has control or occupation o f the land although not being the recordtitleholder, but that person must possess the rights to control and enjoy the property. Wheaton College v. Department of Revenue , 155 Ill. A pp. 3d 945 (1987). The primary elements of ownership are the rights of possession, use and enjoyment, the right to change or improve the property, and the right to alienate the property. Wheaton College , 155 Ill. App. 3d 945. Anderson argues that he is an "owner" based on the 1971 option7

to purchase amendment and the affidavit he reco rde d in 1993. Neither of these documents gives him an ownership interest in the property. First, the option to purchase amendment concerned an agreement between Anderson and Speedway th at, in the event the Department acquiredthe eastern 52-foot port ion of the property, Speedway wouldremit the compensation it might receive from the State for that portion of the property to Anderson. That agreement was not recorded. Two months later, in October 1971, Anderson conveyed the entire parcel of property to Speedway by warranty deed. The warrantydeed d oes no t reference or incorporate the amendment to the option. The deed do es not c ontain a reservation of any ownership or other interest in Anderson. Thus, Anderson ca nno t assert ownership of the 52-foot section. In re Marriage of Kendra , 351 Ill. App. 3d 826 (2004) (execution of warranty deed, without reservations, extinguishes all ownership rights in real property); see also Brown v. Lober , 75 Ill. 2d 547 (1979). Second, the affidavit fi led in 1993 merely recited that Anderson had an interest in the proceeds of the sale. It did not state that Anderson held an ownership intere st in the eastern portion of the parcel. Thus, the affidavit does not give Anderson an ownership interest in the property. Moreover, Anderson is not an owner under common law. Regardless of actual title, Anderson does not possess, use o r8

otherwise control the property. See Wheaton College , 155 Ill. App. 3d945. All that he possesses is a potential interest in any condemnation proceeds that might be received by Speedway. Anderson conveyed the entire parcel of real property, including t he e astern portion, to Speedway by warranty deed. Consequently, he is not an o wner of the property for purposes of the Act, andthe Department was not requiredto negotiate with him prior to filing its complaint. II. Nex t, Anderson argues that even if he is not an owner, h e still has stand ing, as a "party interested" in the equity of the property, to assert that the Dep art ment breached its common law duty to negotiate in good faith. Anderson bases his argument o n section 10-5-10(a) of the Act, which provides that a condemnation complaint may be filed when, among other things, the compensation to be paid for the property "cannot be agreed upon by the parties interested." 735 ILCS 30/10-5-10(a) (West 2006). An interlocutory appeal from an order denying a traverse and motion to dismiss is authorized by Supreme Court Rule 307(a)(7) (166 Ill. 2d R. 307(a)(7)) and is limited to the thre e issues delineatedin subsection 20-5-10(b) of the Act. Department of Transportation v. 151 I nte rstate Road Corp. , 209 Ill. 2d 471 (2004); Southwestern Illinois Development Authority v. Vollman , 235 Ill. App. 3d 32 (1992). Those three issues are (1) whether the9

plaintiff has the authority to exercise the rig ht of eminent domain, (2) whether the property sought by plaintiff is subject to exercise of the right of eminent domain, and(3) whether the right of eminent domain is being properly exercised in the proceedings. 735 I LCS 30/20-5-10(b) (West 2006). Good faith negotiations ar e part of the larger issue of the propriety of exercising eminent domain power. Department of Transportation v. Hunziker , 342 Ill. App. 3d 588 (2003). Thus, an attempt to reach an agreement with a propertyowner is a condition precedent to the exercise of the right of eminent domain. 151 Interstate Road Corp. , 20 9 Ill . 2d 471. For a party to have standing, the party must suffer some injuryin fact to a legally cognizable interest and must have sustained, or be in immediate danger of sustaining, a direct injury

as a result of the complained-of conduct. Brockett ex rel. Brockett v. Davis , 325 Ill. App. 3d 727 (2001). That a party may suffer in some abstract way will not suffice; there must be a direct injury to his property or rights. Brockett , 325 Ill. App. 3d at 730-31. In this case, Anderson attempts to raise a challenge to the thirdissue under section 20-5-10(b), claiming that the Department failedto properly exercise its right of eminent domain because it did not negotiate with Speedway in good faith. However, Anderson lacks any basis to challenge the propriety of the negotiations10

between the Department and the land owner concerning the amount of compensation for property in which he has no claim of ownership. See 151 Interstate Road Corp. , 209 Ill. 2d 471. According to the statute, the State is only required to conduct good faith negotiations with the "owner of the property." 735 ILCS 30/10-5- 15, 20-5-10(b) (West 2006). As we have previously determined, Anderson does not have an ownership interest in any portion of the real estate at issue. Thus, Speedway was the only party with whom the Department was required to negotiate before filing an eminent domain complaint. The Department didnegotiate with Speedway, and the parties were unable to reach an agreement. In effect, Anderson is attemptin g to assert the arguments raisedby Speedway in its traverse and motion to dismiss. Speedway has not appealed from the trial court’s ruling, and Anderson does not have a legally cognizable right to pre-filing negotiations. Accordingly, Anderson lacks standing to challenge or seek review of the propriety of the ne goti ations between the Department and Speedway prior to the eminent domain action. III. Anderson also claims that his status as an "interested party" in the property precluded the trial court from entering an order for preliminary just compensation based only on the agreement between the Department and Speedway. Quick-take is a proceeding within an eminent domain11

proceeding, whereby title and possession to property is placed in the State prior to a final determination of just compensation. Department of P ublic Works and Buildings v. Dust , 19 Ill. 2d 217 (1960). It is a means to prevent delays to public projects and to protect the ri ghts of a land owner, by allowing the issue of compensation to be litigated at a later date. 151 Interstate Road Corp. , 209 Ill. 2d at 478-79. Before a trial c ourt may enter an order awarding title and preliminary compensation, there must be a finding in a quick-take hearing that the plaintiff has the right to take the subject property by eminent domain. Dust , 19 Ill. 2d at 219; 735 ILCS 30/20-5-10(b). Interlocutory appeals from quick-take hearings are limited to the three issues listed in section 20-5- 10(b). Vollman , 235 Ill. App. 3d at 36. All other issues, including compensation, are subject to appeal only at the conclusion of the eminent domain proceeding. Voll man , 235 Ill. App. 3d at 36. Anderson’s interest is limitedto a contractual percentage of the amount of final compensation to be paid by the Depa rtmen t to Speedway, the property owner. Based on the option to purchase amendment, Anderson pos sesses an interest in the proceeds that migh t be paid to Speedway and the potential value of the 52-foo t parcel of real estate described in the amendment. Where, as here,

an interested party merel y has a stake in a portion of the condemnation proceeds, that party’s right s to those proceeds12

attaches only after the amount of just compensa tio n has been determinedby the court. See Vollman , 235 Ill. App. 3d 32. In this case, the issue of just compensation has yet to be determined, and Anderson may not seek review of the issue of the propriety of the amount of the preliminary just compensation in an interlocutory appeal. CONCLUSION The judgm ent of the circuit court of Peoria County is affirmed. Affirmed. CARTER, J., and MCDADE, PJ., concurring.