October 22, 2020
Michael W. Ryan
Ryan and Ryan
Certain Illinois Statutes Provide A Precondemnation Right To Enter Private Property
Many times a government body or public utility armed with the power of eminent domain may seek to investigate a certain property to determine if that property is suitable for a certain proposed use, and whether all or a portion of the property should be condemned. In certain instances, these prospective condemnors have the right to enter upon private property without the owner’s consent in Illinois to conduct surveys prior to instituting any formal eminent domain lawsuit to acquire or condemn the property pursuant to the Illinois Eminent Domain Act. This right to a precondemnation entry onto private property exists under certain Illinois statutes. Some examples of these Illinois statutes include, 605 ILCS 5/4-503 (Illinois Highway Code), 605 ILCS 5/5-803 (Illinois Highway Code), 605 ILCS 10/11 (Toll Highway Act), and 220 ILCS 5/8-510 (Public Utilities Act). Under Illinois law, the scope of such permission granted to any prospective condemnor must be strictly construed to protect the property rights of Illinois landowners. These statutes require advance notice to the landowner and provide that the prospective condemnor is responsible for all damages
occasioned by the entry onto the private property.
The Line Between A Permissible Precondemnation Entry And A Constitutionally Compensable Taking Depends On The Specific Facts Of Each Case
Generally, the precondemnation entry onto private property by a prospective condemnor for surveying purposes does not constitute a taking under the Illinois Constitution, which provides that private property shall not be taken or damaged for public use without the payment of just compensation. Any precondemnation entry must be temporary, minimally intrusive, and cause only incidental damage to the private property. The prospective condemnor may not substantially interfere with the landowner’s use and enjoyment of the property. A taking in the constitutional sense is not allowed to occur under the guise of a preliminary survey of the property. Any precondemnation right to enter a property does not include the right to make permanent use or occupation of the property or to cause more than minimal or incidental damage to the property. The line between a permissible preliminary entry and a constitutionally compensable taking or damaging of property depends on the specific facts of each case. One Illinois reported case has stated that precondemnation soil borings and geologic studies are not allowed even if authorized by statute. Kane County. v. Elmhurst Nat’l Bank, 443 N.E.2d 1149 (2nd Dist. 1982).
Typically, prospective condemnors, before seeking to enter onto private property, will try and seek an agreement with the landowner known as a “right of entry” agreement. This is a contractual agreement that sets forth the type of surveys or testing that can be done by the prospective condemnor and also provides certain protections for the landowner. Once an eminent domain suit is filed, the condemnor no longer needs to rely on pre-condemnation entry statutes. Instead, the condemnor can seek permission from the court. Such a request may be allowed in an eminent domain lawsuit under Supreme Court Rule 214, which permits access to the condemned property for the purpose of conducting surface or subsurface inspections, surveying, taking photographs, performing tests, or taking samples. Any request for access to property pursuant to Supreme Court Rule 214 must also be relevant to the eminent domain case.
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Any landowner subject to a potential condemnation should consult an attorney at Ryan and Ryan to ensure their property rights are protected.