The opinion
DISSENTING OPINION
STOUDER, P. J. I do not agree with the majority of the court. My disagreement concerns that aspect of the opinion which approves the exclusion of evidence relating to the similar sale. In my opinion, such exclusion constitutes reversible error.
The majority opinion concludes that the trial court properly excluded evidence of the other sale because it was the exercise of appropriate judicial discretion. The trial court excluded the comparison sale because the eomparison tract was “vacant,” apparently meaning unimproved or without buildings. If this was not a proper reason for excluding evidence of the other sale it does not appear to me that appropriate judicial discretion was exercised.
Appellee’s major argument in justification of the trial court’s action is stated as follows in his brief. “Thus, the basic rule in Illinois has been that improved and unimproved properties are not similar or comparable. Chicago, North Shore & M. R. Co. v. Chicago Title & Trust Co., 328 Ill 610, 160 NE 226 (1928); Sanitary Dist. of Chicago v. Boening, 267 Ill 118, 107 NE 810 (1915); Chicago & St. L. R. Co. v. Kline, 220 Ill 334, 77 NE 229 (1906).” An examination of the three cases cited does not support the contention that there is any such basic or general rule. Rather these cases are illustrative of the general rule that the nature and extent of improvements is a criteria to be considered in determining the similarity of two tracts of real estate. As applied to real estate, improved and unimproved are not terms of opposition but rather terms of degree. Improvements to real estate generally refer to conditions or structures which have been the result of artificial or man-made alterations of the premises. For example fences, ditches, wells or roadways would be considered improvements and yet the presence or absence of such items in tracts to be compared would not prevent the tracts from being considered similar.
Forest Preserve Dist. of Cook County v. Draper, 387 Ill 149, 56 NE2d 410 , Department of Public Works and Buildings v. Diggins, 374 Ill 11, 27 NE2d 826 , Forest Preserve Dist. of Cook County v. Kercher, 394 Ill 11, 66 NE2d 873 and Forest Preserve Dist. of Cook County v. The Alton R. Co., 391 Ill 230, 62 NE2d 701 , are all cases involving comparisons where one tract had buildings and the other did not. Such cases emphasize that where real estate is adaptable for similar uses, comparison sales may be appropriate for determining value, but such cases do not go so far as to say that adaptability for use is the only criteria for determining similarity. Thus, if the nature of the improvements is such that the properties are substantially dissimilar it would appear that their adaptability for the same use would not be such a consideration as to make the tracts similar for the purpose of comparison. If the unit valuation rule is to be continued it would appear to me to be of little aid in utilizing comparison sales where the value of buildings had to be deducted either from the comparison tract or the tract to be taken in order to arrive at some appropriate comparison. I, therefore, would reject the contention of the appellant that it is appropriate to use a vacant tract as a comparison by deducting the value of buildings on the tract taken.
The question remains in the instant case, whether the presence of buildings on the tract taken, constituted such an element of dissimilarity that the sale of the tract without the buildings was an improper comparison sale.
After the testimony of its first appraisal witness, appellant made an offer of proof outside the presence of the jury by way of the testimony of one Nederost. He testified that he purchased the 10-acre tract across the road from the subject property in May, 1966, for $15,000. He further testified that the tract was located on the same intersection as the subject property, indicating frontage on each of the roads, that the tract was gently rolling and was used for farming (as was the subject property). This evidence, together with the contract of sale and closing statement offered in support thereof, was refused by the court. This offer of proof must be considered in light of other evidence in the case particularly that introduced by appellee by way of cross-examination of appellant’s valuation witnesses. Appellee’s counsel attempted to elicit from such witnesses details concerning subdividing the subject property, including number of lots, the size thereof and the location of roads. It is true that neither the questions nor the testimony indicated that the present buildings on the subject property would be razed. It is clear, however, from the questions that the potential subdividing was not limited to the area unoccupied by buildings but concerned the tract as a whole. Accordingly, I believe that it is a reasonable inference from the evidence, that the highest and best use or greatest potential value in fact attached little value to the existing buildings. Furthermore, the buildings occupied only a small portion of the tract taken and accordingly the sale price of the tract across the highway was, in my opinion, a relevant factor in determining value of the tract taken since it included a substantial portion of similar property. This would not mean that the value of the tract taken would be fragmented or divided.
The majority opinion also suggests that the trial court might have considered that confusion would have occurred by the interjection of collateral issues into the case. This appears to me to be speculation, unsupported by the record and not an appropriate conclusion to be drawn from the record. This was the only sale of other real estate sought to be introduced. The number of appraisers was relatively few. In my opinion, rejection of the proffered evidence prevented the jury from considering facts which could have been highly beneficial in its determination of value. Consequently the exclusion thereof was prejudicial to appellant.