The first time the government tried to take the property, it screwed up: the ordinance authorizing the taking failed to state that the property was necessary, and failed to adequately describe the property to be taken. The trial court dismissed the case.
As we all know, in most cases that means the government just reboots and tries again. Which it did. It adopted another ordinance in which it attempted to cure the problems that led to the first dismissal. When negotations between the agency and the property owner could not be concluded successfully, the agency filed a second condemnation action.
The owner asserted res judicata, arguing that the two eminent domain actions were the same, and thus the agency could not get a second bite of the apple.
In Rock River Reclamation District v. Sanctuary Condominiums of Rock Cut, No. 2-13-0813 (Dec. 11, 2014), the Illinois Court of Appeals disagreed, holding that although there was a final judgment in an earlier case between the same parties, the subject matter of the two lawsuits was different.
Wait a minute, argued the property owner, what do you mean they were different? In both it was the Reclamation District trying to take my property, and in both it was the same cause of action: eminent domain. The court rejected the assertion, concluding that because the two takings were based on different ordinances, the causes of action were different:
The second condemnation action is based upon the 2011 Ordinance whereas the first condemnation action was based upon the 2010 Ordinance. The 2010 Ordinance provided for the construction of sanitary sewers in the Oak Crest Sanitary Sewer Area and provided for a special assessment to pay for the project. Plaintiff’s first condemnation action was dismissed after the trial court concluded that the 2010 Ordinance neither stated that a taking of defendant’s property was necessary nor described the portion of defendant’s property to be taken. In an attempt to cure these deficiencies, plaintiff enacted the 2011 Ordinance, which states that an easement across defendant’s property is necessary, incorporates a description of defendant’s property by reference, provides that plaintiff’s attempts to negotiate for the easement have been unsuccessful, and authorizes plaintiff to initiate condemnation proceedings to acquire the defendant’s property. In other words, the 2010 Ordinance’s deficiencies identified by the trial court in the first condemnation action were not at issue in the second condemnation action.
Slip op. at 25.
We've been down this path ourselves, in what was, we think, a more egregious case: in ours, the condemnor didn't lose or voluntarily dismiss its first attempt to take the property, and then try again. Instead, when it looked like its case was circling the drain and the trial judge was getting ready to rule against the condemnor, it simply filed a second eminent domain action to take nearly the same property it was already taking. But it didn't dismiss the first action.
In other words, the same entity (a county) had simultaneously pending two eminent domain lawsuits against the same property owner, trying to get very nearly the same property. We asserted the second eminent domain lawsuit was abated -- automatically suspended because the same cause of action was already pending in an earlier lawsuit -- but the Hawaii Supreme Court eventually rejected the argument.
The Illinois court's opinion also has a section relating to the compensation which the trial court awarded (slip op.35-38). The property owner asserted that compensation should have included the damage caused by the condemnor when it was digging up the land, and it wanted costs for relandscaping. The court held that the argument wasn't "cogent," because the property owner didn't make any legal analysis. We're not sure why, because we haven't seen the briefs. But because the compensation in this case was only $1,350, we're not going to bother looking.
We suspect the amount in controversy might have something to do with why the property owner's counsel didn't brief this issue too hard, also.