Case Law

The following arguments are based on the assumption that the Village of Homer Glen passes the proposed legislation, and their engineering staff and consultants reviews and concludes similarly, and are written as if such legislation has already been passed.

Department of Public Works & Buildings v. Ells

Link. The Illinois Supreme court opinion that eminent domain does not authorize the condemnation of land already devoted to a public use. The village of Homer Glen has has legislated the land alongside The proposed highway project is already serving a public use.

The proposition that a general grant of the power of eminent domain does not authorize the condemnation of property already devoted to a public use is well established. It was applied in Illinois Central Railroad Co. v. Chicago,  Burlington and Northern Railroad Co. 122 Ill. 473, where one railroad sought to condemn the property of another in City of Moline v. Greene, 252 Ill. 475, where the city sought to condemn the property of a public library board for street purposes, and in City of Edwardsville v. County of Madison, 251 Ill. 265, where the city sought to condemn, for street purposes, a strip of land through the county poor farm. See also, 1 Nichols, Eminent Domain, 3rd ed., sec. 2.2(1).

As an alternate action, the village of Homer Glen could legislate that the required action to protect their legislated public use is to use eminent domain powers to take one inch of land alongside the entire existing right of way, thereby blocking the county from using their power of eminent domain to take land from residents.

Illinois Highway Code

Illinois Highway code specifically only grants the authority for the state to utilize eminent domain to take land already devoted to a public use by a municipality only when they have entered into an agreement. And the Village of Homer Glen which already has a legislated public use does not agree, therefore, the power of eminent domain is not granted to the county (605 ILCS 5/4-509).

whenever it is necessary as an incident to the …reconstruction, …, widening, … or improvement of an existing State highway (including … through or into a municipality upon a … existing street) that property already devoted to a public use be acquired, and the Department and the public agency having jurisdiction over such property have entered into an agreement concerning the acquisition of such property, the Department is authorized to purchase, or to acquire through the exercise of the right of eminent domain

Further, that specific right of eminent domain over land already devoted to a public use is granted and enumerated only to state highways by Illinois state law, and even then, only when the public jurisdiction agrees. That right is not enumerated and thereby not granted at all for county roads (605 ILCS 5/Art. 5 Div. 8 heading)


The majority opinion of the Supreme court states it has a:

longstanding policy of deference to legislative judgments as to what public needs justify the use of the takings power.

And in this case, the legislative body of the Village of Homer Glen which encompasses, surrounds, and includes nearly all of the road and land proposed to be taken has legislated the judgement that the public use of this land is as a Rural Heritage corridor, even if that includes substandard right-of-way widths, and has legislated that any taking would constitute public harm rather than public use.

The supreme court cites a ruling noting that the court will not substitute their judgments for those of the elected legislatures and expert agencies.

See Lingle v. Chevron U. S. A. Inc., 544 U. S. (2005) (slip op., at 14-15) (noting that this formula “would empower–and might often require–courts to substitute their predictive judgments for those of elected legislatures and expert agencies”)

We’re not asking them to. The Village of Homer Glen Elected Legislature, their staff road district and the Township expert agencies judge differently than the county. (in fact the county actually doesn’t claim to need the road. they just need the funding, and taking land is a prerequisite for their funding)

The supreme court also notes that the plan being unquestionable was a condition of “public purpose”

Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment.

In our case, the plan is not unquestionable. A municipality and their expert staff are formally denying that it serves a public purpose, therefore the issue of whether the takings satisfy the requirement are open to challenge

City of Des Plaines v. Metropolitan Sanitary District

A counter example and why it does not apply as precedent. This example is a higher jurisdiction unit (a sanitation district – in this case spanning multiple municipalities) taking from a lesser jurisdiction – a City. This roughly parallels the county and a village relationship in our case. Per the court opinion:

The statute clearly authorized the taking of the property in question in the City of Des Plaines. To find that the condemnation power of the district is subject to the restrictions of local municipal zoning ordinances would be to relegate the authority of the district to that of a private land owner, and would thereby frustrate the purpose of the statute. 

This would not apply to our case since the county is not granted specific authority to utilize eminent domain in this case as shown in Illinois Highway Code section above. Further, a zoning ordinance reflects a general intent, the Village is not claiming a general intent but rather a specific declaration of public use of the right of way being maintained. contesting the county’s claim of public use.

Gaylord v Sanitary district

The Illinois Supreme court has ruled:

“[t]he public must be to some extent entitled to use or enjoy the property, not as a mere favor or by permission of the owner, but by right.”

Gaylord v. Sanitary district, 204 Ill. at 584

In the case of this road project, the public presently is able to enjoy the Parker-Hadley Rural Heritage Corridor as of right. The “narrow treelined roads, the lines of sight being naturally limited by vertical and horizontal gradients, the abundance of old growth trees adjacent to road, as well as the countryside character of large lots, local rural community, historic sites, and small farms present in this region” all provide both “abstract benefit in it’s scenic beauty and historic tradition as well as economic benefit to the entire community“. Widening the roads by definition is revoking the public’s right to enjoy the Rural Heritage Corridor

Township Transfer Methodology

Per Section (605 ILCS 5/2-205) Of the Illinois Highway code, a Township Road is defined as:

Sec. 2-205. Township road-any highway that is part of the township and district road system described in Section 2-103 and which, under the provisions of this Code, is under the immediate jurisdiction of a road district comprised of a single township in a county having township organization.

Since County Route 1 goes beyond a single township, it may not be made into a township road… UNLESS the two townships encompassing this road are aggregated into a single township road district:

as per (605 ILCS 5/6-108) Sec. 6-108. Any two or more townships in any county under township organization may be consolidated into a consolidated township road district for all purposes relating to the construction, repair, maintenance and supervision of roads in the manner hereinafter provided.

Even so, the township could be in the exact same position, as the township also has power to eminent domain (605 ILCS 5/6-801), Further, the county can still force the township to do it’s bidding, not just for roads, but bike paths, sidewalks, etc.

Sec. 5-801. Any county, in its name, may acquire the fee simple title, or such lesser interest as may be desired, to any lands, rights or other property necessary for the construction, maintenance or operation of any county highway, township road, district road, shared-use path for nonvehicular public travel, sidewalk, or bike path within the county or necessary for the locating, relocating, widening, altering, extending or straightening thereof, by purchase or gift or, if the compensation or damages cannot be agreed upon, by the exercise of the right of eminent domain under the eminent domain laws of this State.

(605 ILCS 5/5-801)

Additional Noteworthy Links

The Dept. of Transp. v. Callender Constr. Co.

Section 303 US Stance on Lands, Wildlife and Historic Sites

City of Chi. v. Eychaner