author: Mr. JUSTICE GUILD

text:
    Alfred B. Bederman et al., Petitioners, v. The Pollution Control Board et al., Respondents.
    (No. 72-74;
    Second District
    September 12, 1974.
    Jenner & Block, of Chicago (Leah S. Hamilton, of counsel), for petitioners.
    William J. Scott, Attorney General, of Chicago (Richard W. Cosby and Kenneth J. Gumbiner, Assistant Attorneys General, and Richard P. Glovka, of counsel), for respondents.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

This is a petition by Alfred B. Bederman and Heniiet Bederman, his wife, to review an order of the Pollution Control Board entered on February 17, 1972, as it pertains to them. This case and Kaeding v. Pollution Control Bd. (1974), 22 Ill.App.3d 36, 316 N.E.2d 788, and North Shore Sanitary District v. Pollution Control Bd. (1974), 22 Ill.App.3d 28, 316 N.E.2d 782, are closely allied, and attention is directed to those two respective cases. The same record and exhibits have been furnished this court for the three separate actions.

On September 10, 1971, Richard P. Glovka filed a citizens complaint before the Pollution Control Board naming Alfred B. Bederman, Thomas P. Kaeding and the North Shore Sanitary District (hereinafter referred to as the sanitary district), among others, for alleged violations of the sewer-ban order of the Pollution Control Board entered March 31, 1971, prohibiting any sewer connections to existing sewer facilities.

After lengthy hearings, the Pollution Control Board found and ordered on February 17, 1972, that “Bederman shall cease and desist the connection of any sewer connection to the Lake Bluff sewer system and shall disconnect any connection heretofore made.” The order further provided a similar cease-and-desist order as to Kaeding. The North Shore Sanitary District was fined the sum of $5000 for violations of the March 31, 1971, sewer-ban order.

That part of the record before us, as it applies to the Bedermans, discloses the following: Mr. and Mrs. Bederman bought their property on May 7, 1970, from Nilles (also a respondent in the Glovka complaint as to other property) for $40,000; the property being known as Lot 3 in Forest Cove Addition to the Village of Lake Bluff. The evidence discloses that Nilles had spent $5000 on each of the 10 lots in Forest Cove Addition for the cost of the sanitary-sewer system. As yet, Bedermans have not built their home. On May 4, 1971, the Bedermans wrote to the Village of Lake Bluff (hereinafter referred to as Lake Bluff) asking whether they could build on the lot in question, and whether a building permit could be issued. Lake Bluff in turn wrote the Sanitary District inquiring as to whether the permit might be issued, and on May 17, 1971, the Bedermans were informed that the sewer ban prohibited connection to the proposed home, and suggested, as they did to Kaeding, that the Bedermans apply for a variance from the Pollution Control Board, which they did on July 2, 1971. Their petition for variance was set for hearing on August 20, 1971. However, on August 1, 1971, the Bedermans made an informal application for a building permit and on August 2, 1971, Lake Bluff wrote the sanitary district and on August 4, 1971, the sanitary district replied: “Please be advised that we are of the opinion that the permit previously issued by the State of Illinois for the construction of sewers in Forest Cove Subdivision carried with it the right to connect with the sewer so constructed.” It is to be noted at this point that the Illinois Sanitary Water Board had issued a permit to the Bedermans’ predecessor in title, Nilles, on December 14, 1966, pursuant to which sanitary sewers were constructed, stubbed into each lot and connected to the Lake Bluff sewer system in 1967. The Bedermans were then informed by Lake Bluff that a permit would be issued and they would be entitled to connect. On August 24, 1971, Lake Bluff issued a permit to the Bedermans allowing the sewer connection. In the meantime, on August 5, 1971, the Pollution Control Board denied the Bedermans’ petition for variance, although the same had been set for hearing on August 20, 1971. Bedermans did not receive a copy of the August 5, 1971, order denying their application for variance until August 11, 1971. On August 10, 1971, they had filed their motion to withdraw their petition for variance, and on August 31, 1971, the motion for withdrawal of the petition for variance was denied by the Pollution Control Board.

It is to be expressly noted that neither the Bedermans nor, in fact, any of the other parties named in Glovka’s complaint before the Pollution Control Board were party to the March 31, 1971, order of the Pollution Control Board, with the exception of the Sanitary District.

In their petition the Bedermans have raised five issues: (1) that the sewer-ban order was not applicable to them; (2) that previously issued State permits authorizing sewer extensions were not superseded by the March 31, 1971, order of the Pollution Control Board; (3) that they have a vested right to connect to the sewer system; (4) that the Pollution Control Board’s denial of the Bedermans’ right to connect is the taking of private property without just compensation in violation of the Illinois and United States Constitutions, and (5) that the Pollution Control Board’s prohibition imposed an arbitrary and unreasonable hardship on the Bedermans.

The Pollution Control Board in its opinion of February 17, 1972, recognized some of these issues and stated:

"Several legal issues emerge from the proliferation of documents filed: First, whether the sewer ban order operated against those who had previously received authority from the State or the District for the construction of sewers, or who stood in their position as successors in interest * * * whether the acts of individual respondents pursuant to the authorizations (of the Village of Lake Bluff and the Sanitary District) violated either the order of the Act, and in this respect, whether parties to the present proceeding who are not parties to the March 31 proceeding resulting in the sewer ban Order, can, nevertheless, be found liable for aiding, abetting or being accessory to its violation * * *.”

The Pollution Control Board went on to find:

“The conduct of the Village of Lake Bluff in our judgment represents a flagrant effort to circumvent the clear language of the sewer ban order. However, its absence as a party to the original proceeding unfortunately shields it from the imposition of penalties and ■ any cease and desist order.” (Emphasis added.)

The Board considered that both the Bedermans and Kaeding were subject to a cease-and-desist order, while the Village of Lake Bluff was not.

Apparently upon the basis that both the Bedermans and Kaeding had filed petitions for a variance, the Pollution Control Board found that while they, unlike Lake Bluff, were not party to the March 31, 1971, order, but inasmuch as each of them had filed a petition for a variance with the Pollution Control Board, such action gave the Pollution Control Board jurisdiction to enter a cease-and desist-order against Bedermans and Kaeding, but not against Lake Bluff. With this we do not agree.

Both the Bedermans and Kaeding were originally advised by Lake Bluff that they were prohibited from hooking onto the existing sewer, and it was suggested that they file a petition for a variance with the Pollution Control Board. It was subsequently ascertained that the predecessors in title had authorization from the State (in the case of Bederman, from the Illinois Sanitary Water Board; and in the case of Kaeding, from the Illinois Department of Health) to hook onto the existing sewers. As a result of this, it is obvious that both the Bedermans and Kaeding believed that their efforts to obtain variances from the Pollution Control Board were not necessary. Either the pre-existing permits or authorizations were good or they were not. The application for a variance, not based on the preexisting permits, should not prejudice or give the Pollution Control Board the right to enter a cease-and-desist order, a right which it has recognized that it does not have in the situation as to Lake Bluff, pointed out above.

The Pollution Control Board in its February 17,1972, order nonetheless found:

“With respect to respondents Kaeding and Bederman, who acted in defiance of our variation denials after having sought our assistance in obtaining permits. We direct them to disconnect any tie-ins they have made and to cease and desist any future tie-in or connection to the Lake Bluff sewer system without proper authority.”

Further, the Pollution Control Board found as to other individual respondents that

“We are not disposed on the facts of this case to invoke a doctrine of accessory liability in view of their absence as parties to the original sewer ban proceeding and the absence of an affirmative showing of bad faith on their part.”

We believe that this case is governed by our decision in Wachta v. Pollution Control Bd. (1972), 8 Ill.App.3d 436, 289 N.E.2d 484. While the facts in Wachta are somewhat different, the principles enunciated therein apply to the case before us. It is true that perhaps more money was spent by the petitioners in that case in acquiring or improving their property than in the case before us. However, the Bedermans had paid $40,000 for the lot in question, and their predecessor in title, Nilles, in developing this particular subdivision, had spent approximately $5000 in setting up the sewer as to this lot, his cost being included in the purchase price. Neither the courts nor administrative bodies may set up a dollar figure as to what constitutes financial hardship. The hardship may be just as real to the property owner who pays $8500 for the lot as it is in the case of the party who pays $40,000 for his lot, or the subdivider who spends thousands of dollars developing his property, installing sewers upon State authorization, and then finds that a new State agency has attempted to revoke authorization of the prior proper State agency which has granted the authorization.

As in Wachta, we find that the Pollution Control Board in the case before us is estopped from withdrawing the prior sewer-connection permission granted to petitioners by the Sanitary Water Board. No useful purpose could be served in citing once again the cases relied upon in Wachta v. Pollution Control Bd., which we adopt herein. Reference is made to that case as to the authority cited therein.

We therefore find that the Pollution Control Board was estopped from entering tire cease-and-desist order as to the Bedermans. Hickey v. Illinois Central R.R. Co. (1966), 35 Ill.2d 427, 447, 449, 220 N.E.2d 415.

In view of our finding, we do not deem it ncessary to consider the other allegations of the petitioners herein. We therefore reverse the order of the Pollution Control Board ordering petitioners to cease and desist any connection to the existing sewer.

Reversed.

T. MORAN, P. J., and RECHENMACHER, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Thomas P. Kaeding, Petitioner, v. The Pollution Control Board et al., Respondents.
    (No. 72-77;
    Second District
    September 12, 1974.
    Warren A. Browning, of Waukegan, for petitioner.
    William J. Scott, Attorney General, of Chicago (Richard W. Cosby, and Kenneth J. Gumbiner, Assistant Attorneys General, and Richard P. Glovka, of counsel), for respondents.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

The above case arises as a result of the order of the Pollution Control Board entered on February 17,1972, as it pertains to Thomas P. Kaeding. The same record and exhibits have been furnished this court in this case, North Shore Sanitary District v. Pollution Control Bd. (1974), 22 Ill.App.3d 28, 316 N.E.2d 782, and Bederman v. Pollution Control Bd. (1974), 22 Ill.App.3d 31, 316 N.E.2d 785. For this reason attention is also directed to those two respective cases.

On September 10, 1971, Richard P. Glovka filed a citizen’s complaint before the Pollution Control Board (PCB) naming Alfred B. Bederman, Kaeding and the North Shore Sanitary District, among others, for alleged violations of the sewer-ban order of the PCB entered March 31, 1971. This order prohibited any sewer connections to existing sewer facilities.

After lengthy hearings, on February 17, 1972, the PCB found that Kaeding and Bederman “acted in defiance of our variation denials after having sought our assistance in obtaining permits,” and directed them "to disconnect any tie-ons they have made and to cease and desist any future tie-in in connection to the Lake Bluff Sewer system without proper authority.”

In the month of February, 1971, Kaeding inquired of the village of Lake Bluff and the sanitary district whether he could connect to a sewer stub into property known as Lot 4 in Margaret Kennedy’s Subdivision which Kaeding was contemplating purchasing. The manager of the sanitary district advised him that the sewer was available to this lot. On March 16, 1971, Kaeding and his wife entered into a contract to buy the lot in question and paid $850 down on a total price of $8500. The deed, however, was not issued until April, the following month.

In April, Kaeding inquired of the village for a construction permit and was advised of the March 31, 1971, order of the PCB, and that there had been a reversal of his right to tap onto the sewer. The Village suggested he apply for a variance, which he did on May 5, 1971. On May 14, 1971, both Kaeding and Bederman were told by the village that the permits could not be issued. On May 17, 1971, the district wrote to Kaeding and advised him that the March 31, 1971, order of the PCB applied. On June 7, 1971, the village wrote the district with reference to both Kaeding and Bederman and inquired of the district as to “what permits can be issued and which may not,” observing that permits had been issued to “Nilles” and the “Industrial Centre”, who had also been named as respondents in the Glovka complaint.

On June 21, 1971, Kaeding again wrote to the village stating that he would use a holding tank if the village would issue the permit. On July 13, 1971, Kaeding, apparently having been advised that permits could be issued, again wrote to the village and asked if he could get a permit. On that date the village wrote to the sanitary district and asked if Kaeding could tap in, observing that the State had approved this sewer on October 19, 1956. On July 27, 1971, the sanitary district wrote to the village and advised the village that the permit previously issued by the State was not affected by the March 31, 1971, PCB ban and that the sewer stub into Kaeding’s lot carried with it the right to connect. On July 29, 1971, the village issued a building permit to Kaeding. About August 1, 1971, Kaeding started the construction of his residence, and the sewer was connected August 6, 1971. Although Kaeding did not, in fact, know what had happened to his petition for variance previously filed with the PCB, it had been denied without a hearing by the PCB on July 26, 1971. Kaeding completed construction of his house for the sum of $23,500 making a total investment by him in the premises of $31,500, including the lot. It was 90% completed at the time of the hearing on Glovka’s complaint, and he is now occupying the house.

The PCB found that none of the defendants, including Kaeding, had violated the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 11 PA, par. 1001 et seq.). However, as indicated, the PCB entered the cease- and-desist order and directed him to disconnect his sewer in its order of February 17, 1972. Reference is made to Bederman v. Pollution Control Bd. (1974), 22 Ill.App.3d 31, 316 N.E.2d 785, for the findings of the PCB in this order.

. It is again to be noted that, with the exception of the sanitary district, neither Kaeding, Bederman nor any of the parties named in Glovka’s complaint before the PCB were party to the March 31, 1971, order of the PCB. -

In his petition for review, Kaeding has raised four issues: the first being as alleged in the Bederman case, that is, his right to tie in to the preexisting sewer was vested in his predecessor in title and could not be constitutionally taken away from him. In view of our findings herein, it is not necessary to rule upon this issue.

The second contention of Kaeding is that the PCB is estopped from ordering him to disconnect his sewer. The Sanitary Water Board, the predecessor to the PCB, had approved the connection to this sewer on October 19, 1956. As we indicated in Bederman, this issue was passed upon by this court in Wachta v. Pollution Control Bd. (1972), 8 Ill.App.3d 436, 289 N.E.2d 484. The doctrine of estoppel does not ordinarily apply to public bodies. Where, however, a party has relied upon the acts, or in this case the permit of the State, under equitable principles as enunciated in Hickey v. Illinois Central R.R. Co. (1966), 35 Ill.2d 427, 447, 220 N.E.2d 415, we find that the PCB, on behalf of the State,, is in fact estopped from refusing to recognize the permit- to hook onto the existing sewer as authorized by the Illinois Department of Public Health. We further adopt our findings in Bederman v. Pollution Control Bd. (1974), 22 IlI.App.3d 31, 316 N.E.2d 785.

The third contention of Kaeding is that the PCB did not have the power to enter an order upon him to cease and desist, and that the proper procedure requires that the State’s Attorney bring such a proceeding. The Supreme Court of Illinois in City of Waukegan v. Pollution Control Bd. (1974), 57 Ill.2d 170, 311 N.E.2d 146, has held, however, that the legislature has conferred upon the IHinois PoUution Control Board those powers that are reasonably necessary to accomplish the legislative purpose of the administrative agency; specifically the imposition of monetary “penalties” for violation of the Environmental Protection Act, and necessarily the power to order compliance with the Act. For this reason, we find no merit to the contention that the State’s Attorney must bring the action to enforce the provisions of the Act.

Kaeding’s last contention is that his petition for variance was irrelevant and immaterial to these proceedings. With this we agree, and reference is made to our reasoning in Bederman v. Pollution Control Bd. (1974), 22 Ill.App.3d 31, 316 N.E.2d 785.

We therefore reverse the order of the Pollution Control Board ordering Kaeding to cease and desist any connection to the existing sewer.

Reversed.

T. MORAN, P. J., and SEIDENFELD, J., concur.


text:
    Savannah Gardens, Inc., Plaintiff-Appellant, v. Paul D. Granoff, M.D. et al., Defendants-Appellees.
    (No. 73-106;
    Second District
    September 13, 1974.
    Redman, Shearer, O’Brien & Blood, of St. Charles, for appellant.
    Dreyer, Foote & Streit, of Aurora, for appellees.


author: Mr. PRESIDING JUSTICE THOMAS J. MORAN Mr. JUSTICE SEIDENFELD

text:
    The City of DeKalb, Plaintiff-Appellant, v. Theodore Anderson et al., Defendants-Appellees.
    (No. 73-137;
    Second District
    September 13, 1974.
    Reid, Ochsenschlager, Murphy & Hupp, of Aurora (John Lamont, of counsel), for appellant.
    Theodore L. Anderson, pro se.

   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

Plaintiff appeals from an order which vacated a former order denying defendants’ post-trial motion. The plaintiff contends that because the appealed order was entered more than 30 days after the denial of defendants’ post-trial motion, the circuit court was without jurisdiction. Defendants counter that because the plaintiffs post-trial motion seeking a new trial is still pending, this appeal should be dismissed for lack of a final, appealable order. While several contentions are raised, we find it necessary to resolve only the question of whether or not the trial court retained jurisdiction to enter the order appealed.

This litigation was commenced when plaintiff filed a petition to condemn certain real property owned in joint tenancy by the defendants. On July 10, 1972, the court entered judgment on the jury’s verdict which awarded $45,000 as just compensation for the taking of defendants’ property. Plaintiff and defendants filed post-trial motions on August 9, 1972. That same day, plaintiff sought and received authorization and direction from the court to deposit with the DeKalb County treasurer, for the benefit of the defendants, the amount of the judgment plus any interest and costs. On September 21, 1972, the court denied defendants’ post-trial motion. Twenty-seven days later, defendants moved to vacate this order or in the alternative to be afforded relief under Supreme Court Rule 304.

On November 22, 1972, pursuant to Supreme Court Rule 303(e), defendants filed a petition for leave to appeal wherein they informed this court that plaintiff’s post-trial motion was still pending in the trial court and that although they believed the September 21, 1972, order was not appealable, they were unsure of the law. The uncertainty, the petition stated, was due to the fact that the order which denied their post-trial motion, did not deny plaintiff’s post-trial motion; that it was a determination affecting fewer than all of the parties or claims; and that the trial court’s order did not include an express finding “that there was no just reason for delaying enforcement or appeal” as provided under Supreme Court Rule 304(a). Upon these facts and out of concern for protecting their right of appeal, defendants’ requested this court to either grant them leave to appeal or hold the petition in abeyance until final disposition of plaintiff’s pending motion in the trial court as suggested in Ariola v. Nigro, 13 Ill.2d 200 (1958).

Plaintiff filed objections to defendants’ petition but gave no indication that it had waived or abandoned its post-trial motion or that it had deposited the condemnation award with the DeKalb County treasurer. Aside from matters not relevant here, plaintiffs only objection to defendants being allowed to appeal was that the “time for filing the Notice of Appeal expired on November 20, 1972, and this Court has no more jurisdiction to proceed in the matter.” This objection was determined to be without foundation. Based, therefore, on the uncontradicted assertion that plaintiffs post-trial motion was pending at the time of defendants’ attempted appeal, we, for lack of a final appealable order, denied defendants’ petition for leave to appeal. Subsequent to our action, the trial court, on March 13, 1973, allowed defendants’ motion to vacate and it.is from this order that plaintiff now appeals.

Plaintiff contends that its own post-trial motion was abandoned in open court at the September 21 hearing on defendants’ post-trial motion. This assertion, however, is substantiated by neither the order of the 21st nor by the record; it is apparent only in plaintiff’s brief.

Plaintiff, relying upon County of Cook v. Malysa, 39 Ill.2d 376 (1968), argues that by depositing the condemnation award with the county treasurer it expressly waived any claimed error in the proceedings, that its pending post-trial motion thus became moot, and the September 21, 1972 order was rendered final and appealable.

Malysa holds that by depositing the condemnation award with the county treasurer for the benefit of the condemnee, the condemnor waived any right to attack the award because of claimed errors in the condemnation proceeding and the question of condemnor’s right to appeal upon such grounds became moot. It does not hold that payment of the award terminates either the jurisdiction of the trial court or the rights of the other parties. Under plaintiff’s interpretation of Malysa, if only its post-trial motion were pending at the time it deposited the condemnation award, the act of payment, rather than the order disposing of the motion, would terminate the trial court’s jurisdiction and set the time for the other party to appeal. We find nothing in Malysa to support such construction. When the plaintiff deposited the condemnation award, it waived only its rights to attack the judgment. The jurisdiction of the trial court and the rights of the other parties were not affected thereby.

Generally, for a period of 30 days after entering a final order, a trial court, for good cause (People v. McCloskey, 2 Ill.App.3d 892, 898 (1971) or sua sponte (Darling v. Reinert, 132 Ill.App.2d 192, 194 (1971)), may vacate that order. If a post-trial motion is filed within the 30 days, the trial court retains jurisdiction to alter the order. (Ill. Rev. Stat. 1971, ch. 110, §50(5), §68.1(3), §68.3(1).) A court loses jurisdiction when 30 days pass without a post-trial motion being filed (Fox v. Department of Revenue, 34 Ill.2d 358, 360-62 (1966); Brockmeyer v. Duncan, 18 Ill.2d 502, 505 (1960); Aarrow Ambulance v. Davis, 16 Ill.App.3d 318, 320 (1974)), when a notice of appeal is filed within 30 days (City of Chicago v. Myers, 37 Ill.2d 470, 472 (1967); Hokin v. Hokin, 102 Ill.App.2d 205, 217 (1968); Loehde v. Loyola University, 11 Ill.App.3d 827 (1973)), when a notice of appeal is filed by the only party who has a post-trial motion pending (Corwin v. Rheims, 390 Ill. 205, 214 (1945); Smith v. Glowacki, 122 Ill.App.2d 336, 340 (1970)).

A second post-trial motion filed beyond the 30 days by the same party, attacking the same judgment, neither extends the time for the filing of appeal nor continues the jurisdiction of the trial court. Deckard v. Joiner, 44 Ill.2d 412 (1970), cert. denied, 400 U.S. 941; In re Estate of Schwarz, 63 Ill.App.2d 456 (1965), app. denied.

The above cases are distinguishable from the instant case in that here, each party had timely filed a post-trial motion attacking the final order of July 10. Under such circumstances, we are of the opinion that until the last timely filed post-trial motion has been passed upon, the court retains complete jurisdiction over the final order under attack to rectify any errors that may have been brought to its attention. Total jurisdiction is essential since the action taken may affect aU parties involved. This also seems to be in accord with section 68.1(6) (Ill. Rev. Stat. 1973, ch. 110, § 68.1(6)) which states that the court must rule upon all relief sought in all post-trial motions. Here, because of the pendency of plaintiff’s post-trial motion, the trial court’s jurisdiction continued permitting it to enter the order of March 13, 1972, which in effect reinstated defendants’ post-trial motion. Since plaintiff’s notice of appeal was not filed until March 30 (after the reinstatement of defendants’ post-trial motion), the doctrine of abandonment is not applicable to plaintiff’s pending post-trial motion.

We therefore hold that, until there has been a disposition of the pending post-trial motions, the trial court retains jurisdiction and the time for filing a notice of appeal is “within 30 days after the entry of the order disposing of the motion[s].” Supreme Court Rule 303(a); Conley v. Rust, 12 Ill.App.3d 26, 28 (1973).

We conclude that the appeal herein is premature and must therefore be dismissed.

Appeal dismissed.

RECHENMACHER, J., concurs.

Mr. JUSTICE SEIDENFELD

dissenting:

In my view the court below erroneously considered defendants’ successive post-trial motion filed after 30 days of the July 10, 1972, judgment order, and therefore the circuit court acted without authority in vacating its September 21, 1972, order denying defendants’ original post-trial motion.

The majority opinion agrees that a successive post-trial motion filed beyond the 30 days does not continue the jurisdiction of the trial court (see Deckard v. Joiner (1970), 44 Ill.2d 412; In re Estate of Schwarz (1965), 63 Ill.App.2d 456; Weaver v. Bolton (1965), 61 Ill.App.2d 98). But it apparently assumes that defendants may properly file or reinstate post-trial motions after 30 days from the July 10 judgment which could otherwise not be considered, due to the fortuitous circumstance that another party has a timely post-trial motion pending. Section 68.1(3) of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 68.1(3)), however, provides that post-trial motions must be filed within 30 days after entry of judgment or within any further time the court may allow within the 30 days or extensions thereof. There is no exception evident to this rule of procedure that because one party has timely filed his post-trial motion, others need not do so. (Pruitt v. Motor Cargo, Inc. (1961), 30 Ill.App.2d 222; Rosenberg v. Stern (1898), 77 Ill.App. 248, affd, 177 Ill. 437.) When the lower court granted defendants’ motion to vacate filed after 30 days of the July 10 judgment, it acted without authority. Cf. Williams v. Deasel (1974), 19 Ill.App.3d 353, 355.

Since defendants’ October 18, 1972, motion to vacate was not filed in apt time, the appeal is not premature. I agree that the payment of the condemnation award did not for procedural purposes dispose of the City’s post-trial motion. Now that the City has appealed, however, its appeal constitutes a formal abandonment of its post-trial motion (Corwin v. Rheims (1945), 390 Ill. 205, 214; Smith v. Glowacki (1970), 122 Ill. App.2d 336, 340; Vogel v. Melish (1962), 37 Ill.App.2d 471, 473) and introduces finality into the proceedings in the cause below. Because the only order below appealed from, tire order of March 13, 1973, allowing defendants’ motion to vacate, was entered without authority, the judgment of July 10 should be affirmed.

Defendants are not thereby unreasonably precluded from exercising their right to appeal. Defendants sought to preserve their right to appeal by filing a petition under section 303(e) on November 22, 1972, but indicated both in their petition and in their briefs filed in the present appeal that they did not believe there was an appealable order due to the pendency of the City’s post-trial motion. In effect, we so ruled by denying their petition. The responsibility is on the party seeking to perfect an appeal to submit a record on appeal that reveals finality in the circuit court proceedings. Had defendants wished to appeal, they needed only to have had the court below dispose of the City’s post-trial motion as of record for want of prosecution, mootness or any other appropriate reason. Further, defendants had the right to file a cross-appeal within the time provided by rule from the date of the service on them of the City’s notice of appeal. (Ill. Rev. Stat. 1973, ch. 110A, par. 303(a).) Defendants chose not to avail themselves of either route of appeal, but instead persisted in an untimely post-trial motion.

       Supreme Court Rule 304 (Ill. Rev. Stat. 1971, eh. 110A, § 304) permits an appeal from a judgment that does not dispose of an entire proceeding only in instances where the trial court makes an express written finding that there is no reason for delaying enforcement or appeal.

       Supreme Court Rule 303(e) (Ill. Rev. Stat. 1971, ch. 110A, § 303(e)) grants additional 30 days from the expiration of the initial 30 days allowed for the filing of a notice of appeal. The granting of a later appeal is discretionary with the reviewing court upon a showing of a reasonable excuse for failure to file, a timely notice in the first instance.

       Section 1.11 of the Construction of Statutes Act (Ill. Rev. Stat. 1971, ch. 131, § 1.11) states, “The time within which any act provided by law is to be done shall be computed by excluding the first day and including the last, unless the last day is Saturday or Sunday or is a holiday e * The 30th day after the entry of the September 21, 1972, order (which disposed of defendants' post-trial motion) fell on Saturday, October 21. Accordingly, we exclude that day, Sunday (October 22) and Monday (October 23, Veterans’ Day). Therefore defendants’ notice of appeal was required to be filed no later than Tuesday, October 24, 1972, per Supreme Court Rule 303(a) (Ill. Rev. Stat. 1971, ch. 110A, § 303(a).) Granting an additional thirty days after the expiration of the original 30 days (per Supreme Court Rule 303(e), the 30th day of the extension period fell on Wednesday, November 23, 1972. Defendants’ petition, therefore, was filed a day early.


author: Mr. JUSTICE KUNCE

text:
    The People ex rel. Margaret E. Thompson, Plaintiff-Appellant, v. County Board of School Trustees of Du Page County et al., Defendants-Appellees.
    (No. 73-376;
    Second District
    September 13, 1974.
    Margaret E. Thompson, pro se.

    John J. Bowman, State’s Attorney, of Wheaton (James F. Campion, Assistant State’s Attorney, and John Demling and Thomas Eckhardt, of counsel), for appellees.
   Mr. JUSTICE KUNCE

delivered the opinion, of the court:

The Du Page County Board of School Trustees ordered annexation of territory to School District 57 and detachment from District 53 upon the joint petition of the districts. The plaintiffs pro se petition sought to set aside this order on administrative review contending that District 53 was involved in a boundary dispute and that there were unissued bonds of the district at the time the petition was filed. Over the objection of plaintiff, the trial court granted the motion of Westmont Community Unit School District 201 for substitution as a party defendant as successor to former School District 57. District 201 conceded that the Board of Trustees’ order should be vacated for the reasons alleged in plaintiff’s petition for review, and the trial court accordingly set aside the Board’s order. Plaintiff contends that District 201 was invalidly organized and, therefore, was improperly substituted as a party for District 57 and that additionally the trial court should have gone into the irregularities of the formation of the consolidated community unit1 district.

The trial court granted the precise relief requested by the plaintiff in her verified petition. It vacated and held for naught the Board’s order of annexation. The defendants admitted the error of the Board’s order as being untimely entered. This removed all dispute from the litigation between the plaintiff and the defendants. The issue raised by plaintiff after the matter was on review in the circuit court of the validity of the organization of District 201 was not germane to the question of the legality of the Board’s annexing order. This issue was in effect a collateral attack on the organization of the district and could not be raised in an administrative review proceeding. The only proper method of attacking the validity of the organization of a school district or its board is by quo warranto proceedings. (Schrodt v. Holsen, 299 Ill. 247, 132 N.E. 424.) There was no error in vacating the order of the Board of School Trustees.

Accordingly, the judgment of the circuit court of Du Page County is affirmed.

Judgment affirmed.

ALLOY and STOUDER, JJ., concur.


author: Mr. JUSTICE RECHENMACHER

text:
    The Department of Transportation, Plaintiff-Appellant, v. Western National Bank of Cicero, as Trustee, et al., Defendants-Appellees.
    (No. 73-6;
    Second District
    September 16, 1974.

      William J. Scott, Attorney General, of Springfield, and Frank M. Daly, of Waukegan, for appellant.
    Morrison & Nemanich, of Waukegan, for appellees.
   Mr. JUSTICE RECHENMACHER

delivered the opinion of the court:

This appeal arises out of an eminent domain proceeding whereby the State of Illinois, Department of Transportation, seeks to acquire land for the reconstruction of an existing freeway.

The jury found that the value of the land taken was $80,000. No issue is involved as to the just compensation for the land taken. The jmy further found that the damage to the remainder not taken was $127,000. It is admitted that there is some damage to the remainder, because the taking would disrupt part of the sewer and water mains and roads servicing the property not taken. The engineer for the Department testified that the cost for such reconstruction would be $32,792.10. The engineer for the property owners testified that such cost would be $45,643. However, as indicated above, the jury brought in a verdict of $127,000 for the damage to the remainder. It is obvious that the jury based its award, in part, upon the loss of access to the property not taken. The basic question is whether, under the facts presented herein, the property owners are entitled to damages to the remainder for loss of access.

A brief statement of the facts will help to outline the issues developed at the trial. For several years prior to 1957 the defendant, Murphy, and members of his family, owned and operated a gas station and trailer park at the intersection of Route 43 (then known as Telegraph Road) and Route 120 (also known as Belvidere Road). The property at that time had direct access to both Route 43 and Route 120 from this intersection.

In 1957 the Department of Transportation of the State of Illinois (hereinafter referred to as the “State”) began acquiring property to improve Route 120 and make it a freeway. In so doing, it became necessary to alter the intersection of then Telegraph Road (Route 43) and Route 120 and for this purpose the State acquired the lots at the southeastern corner of the Murphy property. (This was the northwestern comer of the intersection.) The State acquired this land after negotiations with Mr. Francis Murphy by a document entitled “Dedication of Right-of-Way for a Freeway” which document was properly executed by Murphy and the other members of the Murphy family who were the co-owners for the consideration, as recited therein, of $125,000. The deed of dedication, after legally describing the land to be dedicated, concluded:

“And the grantors, further as part of this dedication, on behalf of himself, his heirs, executors, administrators and assigns, does hereby release, quit claim and extinguish any and all rights or easement of access and crossing under which the tract of land herein conveyed and dedicated might otherwise be servient to abutting lands of the grantor.
Notice to vacate premises herein shall not be given by the Department of Public Works and Buildings to the grantors herein prior to April 1, 1958.”

After the land described in the above quoted document had been acquired the State constructed a frontage road running south from Washington Street (an east-west street several blocks north of the property, just inside Route 43), along the east edge of the property, then curving alongside the southern edge of the trailer park running in a westerly direction parallel to and north of Route 120. At the point where the frontage road turned west an access was constructed from the frontage road onto Route 120. While the State contended this was an illegal or “bootleg” entrance, not built by the State, Murphy testified it was built and maintained by tire State. It is undisputed in any event, that the State put up and maintained “Stop” signs at this entrance from Route 120. At a point some three blocks west of the access point above described another access road was provided from Route 120, which the States does not deny was constructed and maintained by the State, including "Stop” signs. Following the 1958 purchase of some of the property by the State Murphy acquired additional land to the north and west and certain streets were laid out and were connected with the frontage road. Some of these later were vacated.

In 1971 the State determined that it was necessary to again widen and improve Route 120 and accordingly this condemnation , action was begun in 1972 to acquire additional land of the defendant for said improvements. The taking of such land and the widening of the highway as planned required the elimination of the access point nearest the intersection of Route 120 and Route 43 and this is what poses the question of damage to the remainder of the property not taken.

At the trial, Murphy testified that in late 1957 he negotiated with the State for the purchase of the lots acquired by the State in the first transaction in 1958. He could not recall the exact date of such negotiations nor the name of the person who represented the State, but testified that he had an attorney representing him in the negotiations. However, the attorney only handled “the money situation and some dram shop suits that were against us.” Murphy testified that he had nothing in writing from the State but that one of the right-of-way representatives of the State — whose name he did not recall — told him that a “by-pass road” would be built for an exit to and from Washington Street and that as to Route 120 “we would always have a good access entrance” and “that such access would be at two points, approximately where the access was at the time located and another access some two or three blocks west.”

On cross-examination Mr. Murphy said he talked with “one or two” negotiators, one in about July or August of 1957, the other possibly a month later, but he did not recall the names of either of them. He acknowledged signing the deed of dedication in January of 1958 and said he “went over the legal part and discussed- it” with his lawyer before he and the other co-owners signed it. Mr. Murphy testified there never was any other person present when he negotiated with the State Highway Department representative.

Following Murphy’s testimony the trial judge, after argument by counsel, ruled that the language of the dedication of the right-of-way respecting relinquishment of access is “uncertain” and that uncertainty and the actual physical layout of the streets, private, public or otherwise from the Muiphy property to the frontage road “all must militate against the State.” Accordingly, the judge ruled at that point that the question of loss of access might be submitted to the jury as part of the damages to the remainder.

Upon the State’s counsel suggesting that he would proceed to put Mr. Murphy on the stand to ask him about the dedication and the money he received for it, defense counsel objected in the following language:

“I want to say now, your honor, that I would object to any mention of the price paid to Mr. Murphy in 1957 because if that is mentioned quite clearly what we are going to have to do is try the 1957 case too, to show that he was justly compensated in 1957, which is impossible.”

After some further discussion the trial court sustained the objection. The court subsequently ruled the dedication deed should not be discussed in the presence of or shown to the jury.

The State contends it was error for the trial court to allow the jury to consider the evidence of damage to the remainder by reason of loss of one point of access to Route 120, while excluding from the jury’s consideration the deed of dedication and the consideration paid for it by the State in 1958.

It is well settled that the language of a deed is not subject to construction unless such language is ambiguous or unclear. If the language of a deed is clear, definite and certain, then its intent is to be gathered from within the four corners of the instrument itself without recourse to extrinsic evidence or any of the rúles of construction necessarily employed to resolve the meaning of an ambiguous document. Reading the deed of dedication in evidence here it seems to us that so far as the instrument itself is concerned it is clear, definite and certain and thus affords no room for construction as to its intent. (Patton v. Vining (1958), 14 Ill.2d 11; Corbridge v. Westminster Presbyterian Church & Society (1958), 18 Ill.App.2d 245.) What the trial court was evidently referring to when he remarked that the language of the deed was uncertain was that the conduct of the parties subsequent to the deed was inconsistent with the deed, thus rendering the intent of the parties uncertain.

It is true that the State, subsequent to the deed did construct, or allow the existence of, two access points from the frontage road onto Route 120 and Murphy, for his part, evidently laid out his property with reference to these access points as if they were established rights-of-way, all of this being inconsistent with Murphy’s relinquishment of access. But, a careful reading of the deed of dedication discloses that what was given up in the deed was not any particular access over the servient land but the right of access. The State was not required to close or forbid access from Murphy’s property to Route 120 but Murphy did agree that he no longer could assert the right of access which a dominant estate has over the servient estate. Mere failure of an authority, municipal or state, to object to a continued use inconsistent with a dedication does not in itself establish a right to the continued use. (City of Quincy v. Sturhahn (1960), 18 Ill.2d 604.) Moreover, we are dealing here with the State of Illinois and any agreement whereby the State would surrender its right to control rights of access on heavily traveled highways such as freeways would be against public policy. (Village of Lake Bluff v. Dalitsch (1953), 415 Ill. 476. See also 26 C.J.S. Dedication § 31, at 457 (1956).) It is not to be presumed that the State of Illinois relinquished its right to control access onto Route 120, based merely on the fact that the State continued to allow access when it was within its power to deny such access. (City of Quincy v. Sturhahn, supra.) The general rule is that agreements made or negotiated prior to the execution of a deed are merged in the deed and the burden is on the party asserting a separate agreement to establish that such separate agreement was outside the deed. (Stromsen v. Stromsen (1947), 397 Ill. 260.) The conversation testified to by Murphy between Murphy and the State representative was some months before the deed of dedication was signed. Since the State could not, without violating its highest duty to provide safe highway conditions, agree to give up indefinitely control over access to a heavily traveled highway, we must assume that the agreement as to access was not intended as a perpetual grant. That the State subsequently permitted access onto Route 120 despite the relinquishment clause does not establish a vested right in Murphy to such access. The building of the frontage road was normal policy and it served other persons in the community as well as Murphy. It was not evidence of an obligation to Murphy, but was a normal traffic control for heavily traveled highway conditions. The State admitted building only one access point to Route 120, contending that the one nearest the intersection with Route 43 was not authorized, but in any event, whether it existed by design or only by sufferance, the mere physical existence of the access does not establish that the State gave up the right to deny access when and if its existence became incompatible with the needs of the State in designing an adequate and safe highway. Except for the dedication instrument the physical fact of the existence of the access point would suggest a right in Murphy, inherent in the ownership of the abutting dominant land, to have the access continue or to be compensated for its loss, but without a clear showing that the deed was not intended to apply to this particular access it seems to us that the language of the deed, plus the logic of the State’s rights and duties as the sovereign to provide safe highways, militates against the contention of Murphy that he had acquired a vested right to the maintenance of this particular access.

We are not dealing here with a promise made and not kept. If the State made the promises indicated by Mr. Murphy’s testimony, it kept them— it built the frontage road and allowed or constructed two access points— this in addition to the $125,000 paid to Murphy. But, the State reserved the right at the same time to close off the access point if and when proper highway construction required it for the safety of the general public. We think the trial judge was in error in holding that the State must respond in damages under these circumstances, thus treating certain language of the dedication deed as a nullity.

While it is our opinion, therefore, that the submission of the question of damages to the remainder, based on loss of access, was not proper in the present state of the record, another point raised by the State and assigned as error should be clarified at this time to avoid further error, in the event of a new trial.

Expert witnesses testified on behalf of Murphy that while the present highest and best use of the property was for a trailer camp, there was a potential use in the fairly near future as a commercial site which, provided proper zoning could be obtained, would then probably be the highest and best use of the property. There was no evidence as to reasonable expectation of such zoning in the near future. To the assumption that the highest and best use might change in the foreseeable future — within 2 to 5 years — was added the assumption that zoning for such commercial use would be granted, and to this was added the further assumption that the zoning authorities might be reluctant to provide commercial zoning for a site which must be approached through a residential street, as would be true of the presently contemplated route from Route 120 to the trailer park.

We think these considerations are too speculative to provide a proper basis for calculation of damages to the remainder by the jury. It is true, of course, that several Illinois cases have held that it is proper to base value upon the highest and best use permitted, “not only under existing limitations but also under other zoning limitations — where there is a reasonable probability of the granting of such zoning in the near future” (Lombard Park District v. Chicago Title & Trust Co. (1968), 103 Ill.App.2d 1, 7), but in those cases the defendant’s witnesses testified as to the present potential highest and best use of the land if zoning laws permitted a change to such use. In the case before us it was agreed by witnesses for both sides that at present the highest and best use of the land was for a trailer park. The possibility that this highest and best use would become commercial was based on the trends in other communities and surrounding developments. Whether the “march of progress” is so inexorable and certain we do not know. A saturation point might very well be reached for commercial sites before the value of this particular site as a trailer park declines. If the present highest and best use was for a commercial site this case would fall into the category of Lombard Park District, supra, and Department of Public Works & Buildings v. Rogers (1968), (aff’d, 39 Ill.2d 109) but it goes a step further than those cases reach and in our opinion becomes speculative. This evidence, we believe, should not have been considered by the jury in connection with the damages to the remainder. (City of Chicago v. Lord (1917), 276 Ill. 571.) Moreover, under section 4 — 210 of the Illinois Highway Code (Ill. Rev. Stat. 1971, ch. 121, par. 4 — 210) tire State clearly has the right to determine whether egress or ingress shall be allowed at a particular point onto a freeway. Even if we were to adopt Murphy’s theory that he acquired, by oral agreement, some vested, permanent right in the maintenance of an access onto Route 120 for the uses of his trailer park, it is obvious that this is not the same as an access for the use of a commercial site. The latter would be much more dangerous and could not be said to be within the contemplation of the original agreement, whatever that portended for the existing site. (Department of Public Worlds v. Finks (1956), 10 Ill.2d 20.) In our opinion it cannot reasonably be implied that anyone would buy the land in question as a commercial site on the expectation of being able to maintain this particular point of access, amounting in reality to a direct access onto the freeway from such commercial site. The consideration of damage to the remainder as a commercial site by reason of the loss of the particular access in question was, therefore in our opinion, prejudicial to the State and should not have been allowed.

For the reasons we have discussed there must be a new trial.

Reversed and remanded for a new trial.

GUILD and SEIDENFELD, JJ., concur.


author: Mr. PRESIDING JUSTICE SMITH

text:
    The Department of Public Works and Buildings, n/k/a The Department of Transportation, Petitioner-Appellant, v. Lawrence Keller, Jr., et al., Defendants-Appellees—(J. C. Bremer, Defendant.)
    (No. 12408;
    Fourth District
    September 5, 1974.

      Rehearing denied October 10, 1974.

      William J. Scott, Attorney General, of Springfield (Roy Frazier and Denis A. McGrady, Sr., Assistant Attorneys General, of counsel), for appellant.
    G. R. Schwarz, of Schwarz and Self, of Jerseyville, and Jack E. Horsley and Richard F. Record, Jr., of Craig & Craig, of Mattoon, for appellees.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

The circuit court of Jersey County dismissed the petition of the Department of Public Works and Buildings (now Department of Transportation) in an eminent domain proceedings to condemn approximately 21.32 acres of land under the provisions of the Illinois Highway Code (Ill. Rev. Stat. 1967, ch. 121, par. 4 — 201.15). In general terms this statute provides for the acquisition of the fee simple title or a lesser interest in property in order to “provide for the preservation of the natural beauty of areas through which State highways are constructed, s The defendants filed their traverse stating in substance that the State was without authority to acquire this particular piece of land for the simple reason that there had been an operating rock quarry on it for more than 50 years, that natural beauty of the area had thus been eroded and there was no natural beauty to preserve.

The Kellers are the owners of the tract and the defendant Bremer is the tenant. The rock quarry is now in operation and had been for close to a half century or longer. Evidence was taken and the trial court held that this particular statute was not available under the facts in this case for the reason that the authorization legislatively given was to preserve and did not authorize a restoration of the area. This case seems to be one of first impression in Illinois. It may well be asked whether under the circumstances in this case can it be said that a statute authorizing preservation likewise by necessary implication implies the right to restore all or any part of the area to its natural condition.

The area in question is FA Route 155 extending a distance of 15 miles from Alton, Illinois to Grafton, Illinois, with high bluffs on the right side of such highway and the Mississippi River on the left side. The tract here involved is the western end or edge of this 15-mile area. The testimony of the State landscape architect stated in substance that the area in question was regarded as a scenic route and in cooperation with the Federal Government under the Federal Highway Beautification Act of 1965 was intended to make a continuous scenic route between Alton and Grafton. In addition, the specific parcel of land with which we are now concerned would permit the general public to reach the top of the bluff and there observe the confluence of the Mississippi and Illinois Rivers by construetion of a roadway. In connection with this project, the State has acquired an antique shop in the area close to Els ah, Illinois, and a portion of a resort area known as “Chautauqua” as well as some frontage property owned by Principia College, all in this 15-mile area. In response to a question inquiring “just what is the natural beauty of a rock quarry, the witness responded, “Number one, the formation of the rock are still there, and in that particular area it was allowed to remain in that vertical cut and I imagine it’s anywhere from 110 to around 200 feet, so you do see complete rock out-cropping.” He conceded however that this occurrence had been developed by the very quarrying of the rock on the tract in question, but that any other areas of the 15-mile road segment the same type of view as to the rocks was visible all along the road and in its natural state, and that the rock condition exposed as a result of the quarrying is the only segment that is not in its natural state. The witness likewise stated that the existing natural beauty of the location would necessarily be disturbed by establishing a road through the naturally beautiful area to the site providing a view of the junction of the two rivers.

The defendant, Lawrence Keller, testified as to his ownership, his lease with the defendant Bremer providing for the payment of $3,000 per year for the removal of 30,000 tons of rock annually, plus $.10 per ton for any excess, and that the limestone is a good grade with a high magnesium content used for paving of secondary roads and in fact was used for a highway between Alton and Grafton, as well as other roads.

The trial court held that the statute in question was a preservation statute and not a restoration statute, and that had the legislature intended that there was to be any restoration of the area it would have provided in the statute for such restoration.

It is readily conceded that under recent developments of the law, if the public desires to preserve scenic features of privately-owned lands, the power of eminent domain is available to satisfy that desire. (29A C.J.S. Eminent Domain § 63 (1965). In the decision of the United States Supreme Court in Berman v. Parker, 348 U. S. 26, 99 L.Ed. 27, 75 S. Ct. 98, Justice Douglas spealdng for the entire court said: “The concept of the public welfare is broad and inclusive * s. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled.” 348 U.S. at 33, 99 L.Ed. at 38.

In 1965, Congress enacted the Highway Beautification Act. (23 U.S.C. § 319), where it is provided for Federal funding of projects in connection with the “highway right-of-way and for acquisition of interests in and improvement of strips of land necessary for the restoration, preservation, and enhancement of scenic beauty adjacent to such highways * 8 8Following such enactment, the Illinois General Assembly amended the Highway Code to include among the general powers given the Department of Transportation the additional authority “[t]o provide for the preservation of the natural beauty of areas through which State highways are constructed, and to acquire the fee simple title, or such lesser interest as may be desired, including scenic easements, to any land, rights or other property necessary therefor.” (Ill. Rev. Stat. 1965, ch. 121, par. 4 — 201.15.) It seems quite clear that the problem for this court is to determine whether or not the language just quoted is sufficient to authorize the acquisition of a parcel where it is apparent from the facts that a degree of change will be necessary. We think it is clear in Illinois that where a traverse is filed as here, the burden falls upon the petitioner to establish a specific grant of the power to acquire property by eminent domain and that such grant is to be strictly construed. (Department of Public Works & Buildings v. Ells, 23 Ill.2d 619, 179 N.E.2d 679; Department of Public & Buildings v. Ryan, 357 Ill. 150, 191 N.E. 259; Department of Public Works & Buildings v. Neace, 13 Ill.App.3d 982, 301 N.E.2d 509.) If we turn to the dictionary, we find that restoration refers to the act of restoring a person or thing to its former place of condition. Preservation on the other hand implies a purpose to keep intact or unimpaired or to maintain an existing condition. Each is mutually contradictory of the other. In New Jersey, the state is authorized to acquire property for the restoration, preservation and enhancement of scenic beauty. In construing this statute which is of course broader than our own, the court in Wes Outdoor Advertising Co. v. Goldberg, 55 N.J. 347, 262 A.2d 199, used the following language; “The Act contemplates that there is a certain basic beauty in natural terrain and vegetation unspoiled by the hands of man, which it proposes to recapture or maintain.”

Once again turning to the dictionary, we find that the word “natural” means untouched by man or by the influences of civilization; wild; untutored. Natural condition of the land is used to indicate that the condition of the land has not been changed by any act of a human being. (Restatement of Torts § 363(b) (1965) and § 840 (1939).) Natural condition of land in which it is entitled to lateral sport means a condition which is in no way the result of human activity including soil which has not been cultivated, graded or otherwise disturbed. (Olson v. Mullen, 244 Minn. 31, 68 N.W.2d 640.) The word “natural” is the opposite of the word “artificial”. (California Casualty Indemnity Exchange v. Industrial Acci dent Commission, 13 Cal.2d 529, 90 P.2d 289.) A bank which has been created by quarrying operations of the previous owner and which, since abandonment of the quarry, surrounded a reservoir was an artificial bank and not a natural bank. (Schaffer v. Claremont Country Club, 168 Cal.App.2d 351, 336 P.2d 254.) When a condition on land is created by the action of man, the condition is artificial and not natural for purposes of the application of the attractive nuisance doctrine. Clarke v. Edging, 20 Ariz.App. 267, 512 P.2d 30.

In the light of these decisions, the testimony of Mr. Keller becomes important. He testified that here had been quarried about 15% of the total rock present on the tract.

Question: “And the rock that does exist there is natural formation?”
Answer: “I guess you’d call it natural rock. The good Lord put it there.”
Question: “* * * Is there some area that has not been quarried at all?”
Answer: “No, it is in its natural state — overburden.”
Question: “What part has never been quarried,”
Answer: ‘1 would guess we’ve quarried about 15% of it.”

It is only this 15% that is artificial or a hole in the ground created by the action of man. All of the remainder is in its natural state with nothing added to or taken from. The Department has concluded that its natural beauty has not been eroded by the quarrying.

Defendant’s brief only asserts and the trial court adopted the.theory that the statute under construction is a preservation statute and not a restoration statute, and that the testimony indicates that the State intends to do some restoration. We find it difficult to believe that this is a proper conclusion from the facts in this case. It is stipulated that this quarry has been in existence and in operation for 50 years. The testimony is that a lease providing for a payment of $3^000 per year for 30,000 tons and the excess at the rate of $.10 per ton was the operating agreement for more than 14 years. Thus, it would require 450,000 tons of limestone and rock to restore the quarried area to its original natural state. Presumably some rock was quarried during the 35-year period that the plaintiff knew before this property was acquired by him. We think that the State would be hard put even if there was a restoration provision in the statute to restore this property to its natural status. The testimony is clear that nothing was hauled in, but only the rock and liméstone hauled out. What is there now, the “Good Lord” put there. The scenic area with which we deal is 15 miles long and it seems a strange construction of this statute to hold that since the hand of man has touched this property, it cannot be acquired by the State so that its natural beauty can be preserved. Such a construction of the present statute would mean that such acquisition could only be acquired where it is virgin territory, untouched in any manner by the hand of man. Such a narrow construction of the statute would mean that if some enterprising fisherman, hunter or traveler had erected an old-fashioned three-holer for his convenience and comfort, it would contaminate the entire 15-mile strip, because it had been touched by the hand of man. Such a thought engenders the maximum reduxit ad absurdum.

It is further urged that you cannot condemn a going business within the terms of this statute. We would agree that if we were here considering the acquisition by the State of a factory erected and operating on this tract, such acquisition could scarcely be said to be within the spirit or contemplation of the statute. On the other hand, however, there may be areas where the natural state is undisturbed, but where an operating business may be that of grazing cattle, sheep or goats and the acquisition of a scenic area would require the termination of such an enterprise and put the owner out of business. We have already indicated that as quarrying has been continued, the unrestrained force of the elements has operated. In each instance, the public interests and purposes must be weighed as against the rights of an individual. To hold as the Department requests is not an open sesame to the Department of Transportation to acquire all of the land which can be seen by the traveling citizen even with a naked eye, a conclusion that the Michigan court condemned in Central Advertising Co. v. Michigan State Highway Commission, 383 Mich. 1, 172 N.W.2d 432. In our judgment, the State here presents a prima facie case for its right to condemn. It has therefore maintained its burden of proof. City of Evanston v. Piotrowicz, 20 Ill.2d 512, 170 N.E.2d-569; Board of Education v. City of Chicago, 402 Ill. 291, 83 N.E.2d 714; Board of Trustees v. Lange, 28 Ill.2d 229, 190 N.E.2d 789.

We do not believe it to be an answer to a petition filed under this statute to say that there are other statutes under which the Department can acquire this property. It is to be noted that our statute includes easements. The testimony shows that that was the original purpose but that it was finally concluded to acquire this property in fee simple absolute. It is also urged that there is no evidence that there is any natural beauty to a gravel pit. Perhaps this may be so, but the evidence is conclusive that the vast majority even of this small area does have natural beauty and the Department as well as the Federal Government has so concluded. It is not an abuse of discretion under the evidence here to make such a conclusion. We cannot say that the over-all plan and purpose is arbitrary or that, the preservation of the view from this bluff is not beneficial to the public welfare and interest.

Accordingly, the judgment of the trial court is reversed and the cause remanded with directions to proceed in a manner not inconsistent herewith.

Reversed and remanded.

TRAPP and SIMKINS, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Don M. Maryan, Defendant-Appellant.
    (No. 73-226;
    Second District
    September 17, 1974.

      George Pease, Public Defender, of Waukegan (Michael J. Boyd, Assistant Public Defender, of counsel), for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan (James W. Jerz and Edward Morris, both of Model District State’s Attorneys Office, of counsel), for the People.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Arthur Lee Jarrett, Defendant-Appellant.
    (No. 73-59;
    Second District
    August 19, 1974.

      Rehearing denied October 9,1974.

      Ralph Ruebner, of State Appellate Defender’s Office, of Elgin, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford (James W. Jerz, of Model District State’s Attorneys Office, of counsel), for the People.
   Mr. JUSTICE RECHENMACHER

delivered the opinion of the court:

Arthur Lee Jarrett was convicted of burglary and theft and was sentenced to not less than 1 nor more than 5 years in the penitentiary.

The facts, in brief, are as follows: Following a burglary at T. M. Peters Firestone Corporation store in Rockford, Illinois, on October 17,1971, the defendant was arrested with others and charged with having burglarized the store and having removed several portable television sets.

It appears from the record that immediately preceding the start of the trial the following colloquy took place in open court:

“MR. WADE: (State’s Attorney) The second motion, we have provided a list of witnesses and all police reports ruled upon by Judge O’Sullivan. We have furnished a Motion for Discovery on the Defendant for disclosure to us, and he has disclosed to us orally.
MR. BEU: (Defense Counsel) I think, as far as I know, everything has been complied with.”

At the trial the defendant used an alibi as a defense and in rebuttal of the alibi testimony, the State introduced the testimony of two police officers who claimed to have seen the defendant elsewhere than where the alibi witnesses placed him at about the time of the crime. Defendant’s counsel objected to the testimony of the two officers because he had not been given any notice of the State’s intention to call such witnesses. He was overruled and the police officers testified, over strenuous objection and motion for mistrial by defendant’s counsel.

On this appeal defendant contends that inasmuch as the record indicates that the defense gave the State the information necessary to comply with the statute regarding notice of the defense of alibi and the alibi witnesses proposed to be used that the State cannot introduce rebuttal witnesses without having given the defense similar notice. The defendant further contends the court was in error in aHowing the rebuttal witnesses to testify and in overruling the defendant’s motion for a mistrial on the basis of the prejudicial testimony of the rebuttal witnesses, introduced without previous notice.

The defendant concedes that the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 114 — 14) requires that the defense give the State notice of an alibi defense and of the witnesses to be used in such defense, and section 114 — 9 of the Criminal Code states that with regard to reciprocity of discovery such reciprocity shaU not extend to rebuttal witnesses, but the defense contends that by reason of such lack of reciprocity, the said statute is unconstitutional. Since this statute exempted the State from giving the same notice to the defense regarding rebuttal witnesses which the defense was required to give to the State as to its alibi witnesses, the defense contends it was prejudiced by this statute in the conduct of the defense.

While our supreme court considered and rejected a similar argument assaiHng these same sections of the Code of Criminal Procedure as being in violation of due process in the case of People v. Holiday (1970), 47 Ill.2d 300, that case was decided before the United States Supreme Court decision in Wardius v. Oregon (1973), 412 U.S. 470, 37 L.Ed.2d 82, 93 S.Ct. 2208. In the Holiday case, the IHinois Supreme Court adverted to the decision of the United States Supreme Comt in Williams v. Florida (1970), 399 U.S. 78, 26 L.Ed.2d 446, 90 S.Ct. 1893, which held the Florida notice-of-alibi statute did not contravene due process by excluding certain preferred testimony of the defendant since, the court noted, discovery of alibi witnesses and rebuttal witnesses was fuHy reciprocal under the Florida statute. A footnote suggested the court’s holding might be different where the statute in question did not provide such reciprocity. The IHinois Supreme Court in Holiday held there was substantial reciprocity under the IHinois statute and that it was within the United States Supreme Court’s holding in Williams. (It should be noted, however, that in Holiday our Supreme Court in upholding the Illinois statute’s exclusion of rebuttal witnesses from its purview did comment, at page 304: “Provision for discovery of alibi-rebuttal witnesses would act to further implement the concept of a trial as a search for tire truth, and we commend the matter as an appropriate subject for consideration by the General Assembly.”)

In the Wardius case the Oregon statute was not reciprocal as to the State’s witnesses and the rebuttal witnesses, and following its suggestion in the footnote in the Williams case, the Supreme Comt held (412 U.S. ,470, 472), “[T]he Due Process Clause of the Fourteenth Amendment forbids enforcement of alibi rules unless reciprocal discovery rights are given to criminal defendants. Since the Oregon statute did not provide for reciprocal discovery, it was error for the court below to enforce it against petitioner, and his conviction must be reversed.”

In the case before us it was contended by the State in oral argument that the same result need not necessarily follow in this case because there is no real evidence that the Illinois statute governing alibi rules actually prejudiced the defendant since the record does not clearly indicate that the defendant, pursuant to such rules, did comply with its mandate in furnishing the required information in advance as to alibi witnesses. However, in view of the statement of the State’s Attorney that “he [defendant] has disclosed to us orally”; the immediately following uncontradicted remark of the defense counsel, “I think, as far as I know, everything has been complied with”, and the State’s failure to object to the introduction of alibi witnesses, we may assume that the State was given the information required in advance. Therefore, it is reasonable to assume that the introduction of surprise rebuttal witnesses may have worked to the prejudice of the defendant.

Pursuant to leave from the court to cite additional authority, the defendant has filed with the court the recent opinion of this court in People v. Manley (1974), 19 Ill.App.3d 365, and the opinion of the Fourth District in the case of People v. Cline (1974), 19 Ill.App.3d 446. In the Manley case, Seidenfeld, J., speaking for this court approved of the broad principle of reciprocal discovery, stating at page 371: “However, the requirement that a list of intended witnesses must be furnished applies in its terms [referring to the terms of Supreme Court Rule 412(a) (i)] to all witnesses without reference to the time a party intends to call them whether in chief or in rebuttal.”

Originally, in People v. Cline (1972), 8 Ill.App.3d 917, the Fourth District upheld the constitutionality of the Illinois alibi statute in affirming the trial court’s ruling excluding the testimony of a witness for failure to comply with the statute. On petition for writ of certiorari to the United States Supreme Court, that Court granted certiorari to review the judgment and entered the following order:

“The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the Appellate Court of Illinois, Fourth District, for further consideration in light of Wardius v. Oregon, 412 U.S. 470 (1973). Mr. Justice Douglas would grant certiorari and set the case for oral argument.”

Thereupon, the Fourth District Appellate Court, interpreting the facts of the Cline case in the light of Wardius, supra, held that section 114 — 14 of the Code of Criminal Procedure (Ill. Rev. Stat. 1969, ch. 38, par. 114— 14) is unconstitutional, reversed its original opinion and granted Cline a new trial.

We do not agree that section 114 — 14 of the Code of Criminal Procedure is unconstitutional. As interpreted by this court in People o. Manley, supra, the requirement in Rule 412(a) (i) that the State must produce a list of intended witnesses applies in its terms to all witnesses without reference to the time a party intends to call them, whether in chief or rebuttal. The court goes on to say:

“It is obvious, however, as a practical matter, that the relevancy of the testimony of the rebuttal witness and of his statement may not be known until the State is informed of the direction of defendant’s case after response by the defendant to the State’s discovery request. Nonetheless, once the intent is formed to call a witness or to utilize his statement, the identity of the relevant witness and his statement should fall within the prosecutor’s continuing obligation of disclosure under Supreme Court Rule 415(b) (Ill. Rev. Stat. 1971, ch. 110A, par. 415(b)). If the intention to call the witness is formed at trial rather than before trial, the court should exercise its discretion to extend to the defense every reasonable safeguard to preclude surprise in the conduct of the trial. See People v. Porter, 13 Ill.App.3d 893, 899.” (19 Ill.App.3d at 371.)

In Wardius v. Oregon, supra, the Supreme Court of the United States held:

“* * * that the Due Process Clause of the Fourteenth Amendment forbids enforcement of alibi rules unless reciprocal discovery rights are given to criminal defendants.” (412 U.S. 470, 472.)

Because the Oregon statute as it was written did not provide for reciprocal discovery the Wardius case held the Oregon statute to be unconstitutional. The Illinois statute, the Illinois Supreme Court rules and the case law of this State make discovery available to the State as well as to the defendant in all instances. Both Cline and Wardius are factually distinguishable from this case inasmuch as they both deal with the exclusion of alibi witnesses. Here the alibi witnesses were allowed to testify. We feel that the issue here is whether the State should have been required to disclose information concerning the witnesses it intended to call to rebut the alibi before these witnesses were allowed to testify. In People v. Manley, supra, we held that discovery of rebuttal witnesses was provided under the general requirement that once the intention to call any witness was formed there was a continuing duty of disclosure. Because of the failure of the State to inform the defense of the names of the rebuttal witnesses as soon as the intent to call each of them was determined and because of the denial to the defendant of the right to interview the alibi witnesses before they were aUowed to testify, we feel there was a denial of proper reciprocal discovery and that defendant was prejudiced thereby and therefore we have no alternative but to reverse and remand this case for a new trial. Because of our ruling on this point, we do not, in this opinion, reach the other issues raised by defendant’s appeal.

Judgment reversed and case remanded for a new trial.

Reversed and remanded.

GUILD and SEIDENFELD, JJ., concur.


author: Mr. JUSTICE CLYDESDALE

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Henry King, Defendant-Appellant.
    (No. 12087;
    Fourth District
    September 5, 1974.

      Rehearing denied October 8, 1974.

      John F. McNichols, J. Daniel Stewart, and Thomas Nelson, all of State Appellate Defender’s Office, of Springfield, for appellant.
    Richard J. Doyle, State’s Attorney, of Danville (Frederick Underhill, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE CLYDESDALE

delivered the opinion of the court:

Henry King was indicted for the attempted murder and aggravated battery of Roy McGrown; the unlawful use of a weapon; and reckless conduct toward and aggravated battery of Toni McGrown. A Vermilion County jury subsequently found defendant guilty of the aggravated battery of Roy McGrown, guilty of the unlawful use of a weapon, and guilty of reckless conduct toward Toni McGrown, but not guilty of the other offenses. The trial judge entered judgment on the jury verdicts and sentenced the defendant to the penitentiary for a period of not less than 2 years nor more than 5 years for the offense of aggravated battery only. Defendant here appeals from the aggravated battery conviction.

The defendant urges upon appeal that he was not proved guilty beyond a reasonable doubt and that the trial court erred in permitting the State to use out-of-court statements of the defendant in an attempt to impeach him without first holding a hearing to determine the voluntariness of the statements.

In the view we take of the case, it is unnecessary to set out the evidence in complete detail. The alleged crimes took place in the early morning hours of July 3, 1971, in a Danville, Illinois, tavern known as the After Hours Club. The defendant, with some friends, was seated in one booth of the tavern while the victims, Roy McGrown and his sister, Toni McGrown, with some friends, were seated in another booth. Due to a parking lot incident earlier in the evening, bad blood had developed between the defendant and Roy McGrown.

After an encounter in the tavern, shooting broke out between the defendant and Roy McGrown. As a result thereof, Roy McGrown, Toni McGrown and the defendant suffered gunshot wounds requiring the hospitalization of all three.

As is customary in a scenario of this type, there were many conflicting stories told by the witnesses. The jury, however, chose to believe the testimony of the McGrowns and the evidence adduced from various other prosecution witnesses to the shoot-out. Basically this proof was to the effect that the defendant was the aggressor and that he fired the first shot. Defendant testified that it was McGrown who shot first. The defendant’s version was substantiated by an employee of the tavern who was admittedly a close friend of the defendant but was not substantiated by anyone who was in the booth with him.

Upon this state of the record, we conclude that the evidence was sufficient to prove the defendant’s guilt beyond a reasonable doubt. Since it is for the trier of fact, having the opportunity to observe the witnesses to determine their credibility and resolve conflicts in the testimony, this court will not substitute its judgment for that of the trier of fact. People v. Davis, 71 Ill.App.2d 300, 218 N.E.2d 850; People v. Everett, 14 Ill.App.3d 421, 302 N.E.2d 723.

The defendant next urges that the trial court erred in permitting the State to use his out-of-court statements in an attempt to impeach him without first holding a hearing to determine the voluntariness of the statements.

The State first laid the foundation for the impeachment of the defendant during cross-examination of the defendant. The defendant stated that he was interviewed by the police at the hospital on July 8 while he was doped up, had tubes in his nose and while he was dazed and sleepy.

Defendant admitted stating to the police officer, “I don’t know who shot me,” and “I don’t recall [who was in the booth where he was standing].” Defense counsel objected to the questioning on the ground that the defendant was under sedation at the time the statements were given. The trial court overruled the objection and defendant was then confronted with prior statements such as, “I never saw anyone with a gun”; “No, I didn’t [have a gun]”; “No, I don’t [know if Roy McGrown had a gun],” and “I don’t know [Roy McGrown by name],” etc. Defendant also stated that he signed the statement only so he could get some sleep, and that he was tired, hurting and sleepy.

The State later produced one Larry Vaugh, the officer who interviewed the defendant at the hospital, in rebuttal. Vaugh testified that he and Officer Oliver advised defendant of his rights, read the defendant the requisite custodial form, and defendant signed it. He further stated that the defendant was coherent, was sitting in his bed, was smoking a cigarette at the time of the interview, and responded to normal conversation. Upon conclusion of the interview, the defendant signed each page of the statement. The State then attempted to introduce the impeaching statement into evidence. Defense counsel objected on the basis that the Miranda warnings had not been complied with because it was not expressed to the defendant that he had a right to stop answering questions any time he wished. A further objection went to the voluntariness of the statement because of defendant’s questionable physical and mental condition at the time of making the statement.

The court overruled the objections stating the evidence of prior inconsistent statements are admissible for impeachment purposes. The court further stated that this was not a confession but simply a tender of proof of prior inconsistent statements for which the foundation was sufficiently established. Therefore, the court held that any objections regarding voluntariness or the Miranda warnings were not well taken.

Defense counsel then asked if the court was ruling as a matter of law that the defendant made the statement voluntarily and in full possession of his faculties. The court replied that he was not passing upon that question, and the objection would be overruled merely because the statement had sufficient probative value on the impeachment question and should be admitted. Three questions taken from defendant’s statement were then admitted into evidence over defendant’s objection and request for a mistrial.

Defendant’s prior inconsistent statements did not constitute a confession and, for that matter, may not have even constituted incriminating admissions. Nevertheless, we believe the defendant’s statements clearly fall within the purview of the Hiller, Tate, and Lefler line of cases.

In People v. Hiller, 2 Ill.2d 323, 118 N.E.2d 11, the State did not attempt to introduce the defendant’s statement to the police in its case-in-chief but did use it for impeachment purposes during cross-examination of the defendant. Defendant contended the statement was forced and not voluntary. Nevertheless, the trial court, over objection of counsel for the defendant, admitted certain passages from the statement in evidence without inquiring into its voluntary or involuntary, nature. The supreme court in reversing said:

“If defendant’s testimony is true, and there is no denial of it, his statement was not made freely and voluntarily but was obtained by force and the answers put down were not those that he wished to give. With the record in this state, the statement, or confession, of the defendant was not competent for any purpose unless and until its voluntary nature was established. It was, therefore, error for the court to permit tire prosecution to cross-examine from the statement and thereby achieve indirectly what it could not do directly”. 2 Ill.2d at 327.

In People v. Tate, 30 Ill.2d 400, 197 N.E.2d 26, the supreme court reasserted the principle that the voluntary character of an out-of-court statement must be established before it may be used even for impeachment purposes. The court made reference to its earlier decisions in People v. Adams, 1 Ill.2d 446, 115 N.E.2d 774, and to the Hiller case.

In People v. Lefler, 38 Ill.2d 216, 230 N.E.2d 827, defendant was charged with the murder of his child. Before trial, defendant moved for a. hearing on the voluntariness of oral statements made to the police at a funeral home on the day after the death of his child and to a polygraph operator the next day. The trial court denied the request for a hearing on the grounds that the statements were mostly exculpatory and at most constituted admission and not confessions. In reversing, the supreme court said:

“While the statements of the defendant were not in the strict sense • of the word confessions to the crime of murder, it is apparent that they were not entirely exculpatory and that bis admissions that he squeezed the child to keep her from crying were incriminating. The authorities in this State appear to be conflicting on the question of whether a preliminary hearing is required to determine the voluntary nature of an admission, as distinguished from a confession. For example, in People v. Speice, 23 Ill.2d 40, 46, and People u. Stanton, 16 Ill.2d 459, 467, it was held that where a statement is a mere admission no preliminary hearing is required. However, in People v. Hiller, 2 Ill.2d 323, where the prosecution attempted to impeach the defendant by reading from a statement he had given, the court held that there should be no distinction between an incriminating statement and a confession and that an incriminating admission should not be admitted in evidence over objection without a preliminary hearing to determine whether it was voluntary. In our later decisions, without citing or referring to the line of cases represented by Speice and Stanton, we held, relying upon the Hiller case, that the voluntary character of any out-of-court statement must first be established before the statement may be used, even for impeachment purposes. (People v. Newman, 30 Ill.2d 419, 424; People v. Tate, 30 Ill.2d 400, 405.) Our adoption of this rule finds support in the decision of the U.S. Supreme Court in Miranda v. State of Arizona, 384 U.S. 436, 476, 16 L.Ed.2d 694, 725, 86 S.Ct. 1602, 1629. We believe that the rule enunciated in these recent decisions of our court and the U.S. Supreme Court, is the proper one and we adhere to it in this case. We must, therefore, hold that the Mai court erred in denying the defendant’s request for a hearing to determine the voluntary nature of his admissions.” (Emphasis added.) 38 Ill.2d at 220.

The United States Supreme Court has apparently set at rest, at least insofar as the necessity of giving the Miranda warnings are concerned, the fact that no distinction should be drawn between inculpatory and exculpatory statements. In Miranda, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602, the court said:

“The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner; it does not distinguish degrees of incrimination. Similarly, for precisely the same reason, no distinction may be drawn between inculpatory statements and statements alleged to be merely ‘exculpatory.’ If a statement made were in fact truly exculpatory it would, of course, never be used by the prosecution. In fact, statements merely intended to be exculpatory by the defendant are often used to impeach his testimony at Mai or to demonstrate untruths in the statement given under interrogation and thus to prove guilt by implication. These statements are incriminating in any meaningful sense of the word and may not be used without the full warnings and effective waiver required for any other statement.” 384 U.S. at 476-477.

We hold likewise that when the voluntary nature of an out-of-court statement is put into question, no distinction should be drawn between inculpatory and exculpatory statements. The court must, out of the presence of the jury, make a finding on this matter.

The State contends, however, that the defendant’s statement was not the product of custodial investigation and, therefore, no question of voluntariness need be considered. We do not consider this to be the law in Illinois. A clear distinction must be drawn between the need to inform the defendant of the Miranda warnings and the need to determine the voluntary and involuntary nature of a defendant’s out-of-court statement. Under Miranda, the warnings must be given provided the defendant is undergoing custodial interrogation. We hold, however, that, whether or not a defendant is in custody is of no importance when defendant is confronted with a statement, either in the State’s case-in-chief or on impeachment, which he claims to be involuntary. When the voluntary nature of the statement is properly raised, the court must, outside the presence of the jury, make a preliminary finding that the statement is or is not voluntary. An out-of-court statement made by the defendant while not in custody can be as damaging, or more so, than one made while in custody. A statement involuntarily made can in no way be held to be the statement of the person allegedly making the same. Although most cases on this subject are concerned with statements made while in custody, we see no reason for limiting the application of the rule. The strong and unequivocal language in the Hiller, Tate and Lefler cases substantiate tins view. In the language of the Hiller case:

“To hold otherwise would destroy the guarantees of due process of law which protect an accused from the use of confessions, statements or admissions obtained by force, coercion or violence.” 2 Ill.2d at 328.

The cases cited by the State are clearly distinguishable and do not support the argument advanced by it. In the case of People v. Richards, 120 Ill.App.2d 313, 256 N.E.2d 475, and in the case of People v. Fischetti, 47 Ill.2d 92, 264 N.E.2d 191, the issue raised was the sufficiency and necessity of Miranda warnings. In each case, the court held that the defendants were not in custody and the defendants did not make claim that the statements were involuntarily made. In People v. Tyner, 49 Ill.2d 207, 274 N.E.2d 20, the defendant was clearly in custody when the statements were made but the court simply held that the statements were voluntary.

The State also contends that the statements made by the defendant, even if not properly admissible as evidence in the State’s case-in-chief may, nevertheless, be used to impeach the defendant on cross-examination. In support of its argument, it cites Harris v. New York, 401 U.S. 222, 28 L.Ed.2d 1, 91 S.Ct. 643.

In the Harris case, the prosecution conceded that the statements allegedly made by the defendant were inadmissible in its case-in-chief due to insufficient Miranda warnings. The prosecution nevertheless used the same statements in an effort to impeach the defendant. The Supreme Court held this to be proper and said:

“The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.” (401 U.S. at 226.)

Although seemingly in point, the Harris case is clearly distinguishable from the case here. In the Harris case, the court particularly noted that the defendant made no claim that the statements made to the police were coerced or involuntary. Here, the defendant King raises this very point.

We hold, therefore, that the court erred in permitting the use of defendant’s statement for impeachment purposes. The trial court failed to hold a hearing outside the presence of the jury to determine the voluntary nature of the defendant’s statement as it was required to do. Where the evidence in the case on the merits is conflicting, the use of this statement and the questions asked of the defendant in laying the groundwork for its use, we cannot say that it was harmless error or failed to have an adverse impact on the verdict of the jury. For this reason, we must reverse and remand the case for a new trial.

Reversed and remanded.

SMITH, P. J., and CRAVEN, J., concur.