Similarly, Drybread v. City of St. Louis, 634 S.W.2d 519 (Mo. Ct. App. 1982) does not support Chicago's position. In that case, the Missouri Court of Appeals noted the existence of the California Supreme Court case -- Greater Westchester Homeowners Association v. City of Los Angeles, 26 Cal. 3d 86, 160 Cal. Rptr. 738, 603 P.2d 1329 (1979), cert. denied, 449 U.S. 820 (1980) -- which had held a nuisance remedy to be available. But the Missouri court declared that it did not need to decide whether the nuisance cause of action was available because, by operation of Missouri law, an action to recover for a permanent nuisance automatically was converted into a taking action. 634 S. W.2d at 520.

The final out-of-state case cited by Chicago on this point is equally unavailing. In Long v. City of Charlotte, 306 N. C. 187, 293 S.E.2d 101 (1982), the court noted that nuisance and trespass provided inadequate protection to the victim, and that nuisance and taking were very similar. 293 S.E.2d at 108-109. Here, by contrast, we have seen that nuisance is a valuable and vital tool under the law of many jurisdictions, including Illinois.

In contrast to the cases cited by Chicago, the discussion above shows that Illinois courts have recognized the existence of nuisance actions against municipalities and numerous state supreme court decisions in other jurisdictions have explicitly recognized nuisance actions against airport proprietors for noise injury (See pages 34-37, supra).

IV. Plaintiffs Are Entitled To Just Compensation For Chicago's Taking And Damaging Of Property.

At pages 51-53 of its brief; Chicago argues that the school districts have no causes of action for taking and damaging of property because non-home rule units of local government have no rights guaranteed by the Illinois Constitution, and are not entitled to compensation under Article I, Section 15 of the Illinois Constitution. The argument is founded on some basic false assumptions, and a mischaracterization of authority.

Cases cited by Chicago hold that all political subdivisions of the State, whatever the character of the municipal corporation involved, including cities, counties and school districts, are subject to the will of the State legislature, and the legislature can dispose of the property of one of its political subdivisions at will, without providing just compensation. People v.. Camargo Community Consolidated School District, 313 Ill.321, 145 N.E. 154, 155 (1924). The fact that the case singled out by Chicago involved a school district is immaterial. Chicago just as easily could have cited a subsequent Illinois Supreme Court decision -- People v. City of Chicago, 414 Ill.600, 111 N.E.2d 626, 638 (1953) -- stating the precise same rule to negate a claim asserted against the State by Chicago.

But this is not an action by school districts against the State of Illinois; it is an action against another municipal government. The school districts do not derive their existence from Chicago; and unlike the legislature, Chicago has no plenary power over the school districts of DuPage County.

On this issue, the distinction that Chicago repeatedly attempts to draw between home-rule units of government and other municipal governments is misleading. Chicago does not have power over school districts coextensive with the State. Notwithstanding Chicago's home rule status, it is well established that Chicago has no extraterritorial powers, including powers in eminent domain, excepting those powers which are expressly granted by the legislature, and those powers are strictly limited within the legislative grant. Commercial National Bank v. City of Chicago, 89 Ill. 2d 45, 432 N.E.2d 227, 242-43 (1982); City of Carbondale v. Van Natta, 61 Ill. 2d 483, 338 N.E.2d 19, 23 (1975). Chicago's power to take property for airport purposes from other units of government, as well as from individuals or other private entities, is conditioned upon payment of just compensation. 65 ILCS 5/11-102-4 (1992). [FN 32]

[FN 32] While putting forth an erroneous rule of law, the City seeks to preserve itself from the effect of the erroneous rule by suggesting that as a home rule unit of government it derives its powers directly from the home rule provisions of the Illinois Constitution, and therefore is protected from an uncompensated taking. See Chicago's brief, page 53. The argument that the home rule provisions of the 1970 Illinois Constitution bestow upon the home rule municipality constitutional protections against the State, not otherwise existing for other units of government, has been raised in the courts, and has been thoroughly rejected. See People v. Valentine, 50 ill. App. 3d 447, 365 N.E.2d 1082, 1085-86 (5th Dist. 1977). See also Village of Arlington Heights v. Regional Transportation Authority, 653 F. 2d 1149, 1152 (7th Cir. 1981). Ultimately, the erroneous rule proposed would fall with equal force on the City, and the end result -- that local governments could take and damage property of neighboring local governments, without providing compensation -- obviously would be absolute chaos.

In any event, there are material differences between the ultimate impact of a local zoning ordinance, on property held by a regional transportation authority, and the actual taking and damaging of property held by independent school districts for the ultimate benefit of constituencies wholly outside of the municipality which is taking and damaging the property. Unlike the zoning restriction in the Evanston case, in this case Chicago's action exacts a deprivation of the resources of neighboring municipal governments, the Plaintiff School Districts, the cost of which ultimately must be borne by a separate population served by the districts. For that reason, the rule is more properly expressed in Drainage District No. 1 in Sand Prairie Township v. Village of Green Valley, 69Ill. App. 3d 330, 387 N.E.2d 422, (3d Dist. 1979):

Municipalities may take the property of private citizens through their power of eminent domain, by purchase, by contract, and by adverse possession. In the instant case Green Valley has attempted to take the property of the Drainage District by pumping effluent contrary to the natural flow of drainage to a sewage treatment plant located in the Drainage District and thereby use the drainage ditch owned by the Drainage District to discharge effluent into the Mackinaw River. The discharge may well cause flooding and would require the cleaning of the drainage ditch at substantial cost to the landowners in the district. This is the taking of a valuable right without just compensation and without due process of law.

In contrast to the very strained analogy that Chicago attempts to draw between the instant case and the RTA's challenge to a municipal zoning ordinance, the close analogy existing between the Drainage District case and the instant case is self-evident, and confirms that Chicago's taking and damaging, without just compensation, of school district property in neighboring DuPage County, not only is beyond both Chicago's home-rule powers and its legislative grant of authority, but also is precluded by the taking and damaging section of the Illinois Constitution. Therefore, as in the Drainage District case, the school districts are entitled to recovery.

Chicago's home rule exception is a red herring. If Chicago were correct in its argument that municipal entities have no rights in inverse condemnation, that rule would fall heavily upon Chicago as well; and in fact, Chicago would not have been entitled to recovery for a taking of its school property in County of Cook v. City of Chicago, 84 Ill. App. 2d 301, 228 N.E.2d 183 (1967) (discussed infra at page 76). See also Highline School District No. 401, King County v. Port of Seattle, 87 Wash. 2d 6, 548 P.2d 1085 (1976).

V. The School Districts Are Entitled To Recovery Under The Taking Count.

At pages 52-56 of its brief -- under the heading: "The Taking Claim is Deficient On Its Face" -- Chicago makes two arguments which have been rejected by both federal and state courts applying the takings doctrine to aircraft noise. Chicago argues that an overflight over the schools does not constitute the requisite physical invasion. (Chicago's brief, page 54). Further, Chicago claims that the school districts have failed to present any facts "showing that aircraft fly below the navigable airspace" (Chicago's brief, page 56). Both of these arguments are spurious. The school districts are entitled to recovery under the taking count; overwhelming authority confirms that the amount of that recovery is the cost to cure the injury, with no setoff for alleged benefits.

A. There Is a Physical Invasion, and the Navigable Airspace Argument Is No Defense.

For a complete discussion of why these arguments are without merit see the discussion of the Batten and Thornburg doctrines as well as the discussion of the navigable airspace defense at pages 23-34, supra. It is sufficient to summarize at this point that Causby and Griggs both involved cases where the aircraft did not physically touch the ground (although the noise energy waves which caused the injury did). Yet both involved a taking -- not a damaging -- and the courts concluded that the flights over the victim's land constituted the requisite physical entry.

As the Supreme Court in Causby stated:

It [the overflights] would not be a case of incidental damages arising from a legalized nuisance such as was involved in Richards v. Washington Terminal Co. 233 U.S. 546. In that case, property owners whose lands adjoined a railroad line were denied recovery for damages resulting from the noise, vibrations, smoke, and the like, incidental to the operations of trains. In the supposed case, the line of flight is over the land. And the land is appropriated as directly and completely as if it were used for the runways themselves.

The Causby court rejected the argument that because there was no structure actually placed on the victim's land, there was no physical invasion, and therefore no taking:

The landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land. [citation omitted] The fact that he does not occupy it in a physical sense -- by the erection of buildings and the like -- is not material.... We think that the landowner, as an incident to his ownership, has a claim to it, and that invasions of it are in the same category as invasions of the surface.

In this case, as in Portsmouth v. United States, supra, the damages were not merely consequential. They were the product of a direct invasion of the respondent's domain.

Clearly, the Supreme Court in Causby found that the overflights constituted a sufficient invasion to constitute a taking. And in Batten v. United States, 306 F.2d 580 (10th Cir. 1962), cert. denied, 371 U.S. 955 (1963), the court repeatedly emphasized that overflights constituted the requisite physical invasion for a taking.

In Causby the Supreme Court held that the continuous invasions of the airspace superadjacent [above] to the property was "in the same category as invasions of the surface" and that the damages were not "merely consequential" but "the product of a direct invasion of the respondent's domain"...

In Causby, Griggs, and a number of other lower court decisions there were regular flights over the property. Absent such physical invasion recovery has been uniformly denied.

Clearly, the noise injury in this case constitutes a taking, even if one uses the overflight requirement of Causby and Batten -- as opposed to the more logical approach of Thornburg, supra -- based on a state constitution that did not have a damaging provision. Much of the damage caused by the aircraft operations in this case comes from direct overflights. Therefore this case satisfies the physical invasion requirements of Causby and Batten, and should equally satisfy any physical invasion requirements under the Illinois Constitution. [FN 33]

[FN 33] None of the eases cited by Chicago at page 54 of its brief contradict the point that overflights satisfy the physical invasion requirement.

Chicago appears to argue that invasion of the airspace above the victim's property so as to deprive the victim of the use and enjoyment of the land -- though sufficient to meet the physical invasion requirements of Causby and Batten for the federal constitution -- are inadequate for the Illinois Constitution. Under Chicago's interpretation, an Illinois constitutional taking would not occur from the noise of aircraft overflights until the aircraft's wheels physically touched the school districts' grounds. Such a preposterous result offers far less protection than the federal constitution, and would be wholly inconsistent with the intent of the Illinois Constitution.

Chicago's arguments as to navigable airspace are equally without merit (Chicago's brief, pages 54-57). Again, Griggs, Thornburg, and a host of other cases have rejected Chicago's argument that the declaration of navigable airspace insulates the proprietor from liability for a taking. See discussion at pages 29-34, supra. Griggs found the flights to be a taking even though expressly within the navigable airspace. Thornburg and Branning held that there could be a taking even with the aircraft above 500 feet.

The case discussed at length by Chicago at pages 55-56 of its brief, Illinois Central Railroad v. Trustees of Schools, 212 Ill.. 406, 72 N.E. 39 (1904) is simply inapposite. That case is distinguishable because it dealt with injury caused by lateral train traffic over adjacent property. As pointed out by the Supreme Court in Causby, aircraft fights over the land are viewed differently -- from a federal constitutional takings perspective -- than injury caused by travel over adjoining land. See discussion of Causby at pages 29-32, supra, in which the Supreme Court distinguished a taking by an aircraft overflight from a train passage over adjoining property, the latter of which was not compensable. [FN 34]

[FN 34] Interestingly, Illinois Central Railroad observes that where there was direct evidence of smoke, soot and noise being transmitted from an adjacent rail line onto the victims land, Illinois cases have provided recovery (citing Chicago, Milwaukee and St. Paul Railway Co. v. Darke, 148 Ill. 226, 35 N.E. 750 (1893); and Chicago North Shore Street Railway v. Payne, 192 Ill. 239, 61 N.E. 467 (1901).

B. School Districts Are Entitled to Recovery of the Cost to Cure the Noise Injury, with No Setoff of Alleged Benefits.

The fact that the injury is a taking disposes of every one of Chicago's arguments for setoff of economic benefits, because the law is settled beyond question that an economic benefit can never offset a claim for a taking of property without just compensation. County Board of School Trustees of Ogle County v. Elliott, 14 Ill.. 2d 440, 152 N.E.2d 873, 876 (1958); Kane v. City of Chicago, 392 Ill.172, 64 N.E.2d 506, 508 (1945) ("The rule has long been settled that if property is actually "taken" for a public use, ... the constitution requires that it shall be paid for in money regardless of benefits or advantages accruing to other property of the same owner...."); Department of Public Works v. Barton, 371 Ill. 11, 19 N.E.2d 935, 936-37 (1939).

Moreover, throughout its arguments for setoff of benefits against the injury, Chicago completely ignores the well recognized concept of "special use" property. The school district properties are special use properties, used by the school districts for the performance of an essential governmental function, and the fulfillment of a statutory mandate. See Nichols, The Law of Eminent Domain, s. 12C.01(4)(d), and infra. Where such property is either taken or damaged by another municipal government, it is recognized universally that the proper measure of damages is not based on the market value of the property, i.e., the traditional "highest and best use" analysis. Rather, the proper measure of damages is, according to the circumstances, either the cost of a substitute facility (without any setoff for depreciation of the taken property), or the cost to cure the injury.

Inapplicability of the market value approach to compensation for a taking or damaging of public school property is demonstrated in County of Cook v. City of Chicago, 84 Ill. App. 2d 301, 228 N.E.2d 183 (1967). In that case, the County condemned Chicago public school property for a highway. The appellate court specifically rejected any measure of damages based on market value, as well as any consideration of depreciation of the property taken. Rather, the measure of damages was found to be the cost of creating a substitute facility. County of Cook v. City of Chicago, supra, 288 N.E.2d at 187. See also City of Chicago v. Farwell, 286 Ill. 415, 121 N.E. 795 (1919) (stating that the market value approach does not apply to property dedicated to a special use, such as a church, college, cemetery, clubhouse or terminal of a railroad); and City of Chicago v. George F. Harding Collection, 70 Ill. App. 2d 254, 217 N.E.2d 381 (1st Dist. 1965) (the cost of a substitute facility is the proper measure of damages for taking a museum).

Illinois does not stand alone on this issue. Virtually without exception, in all jurisdictions addressing the question, the remedy in inverse condemnation for public school property is not based on market value, but on the cost of replacement or cure. See Highline School District No.401, King County v. Port of Seattle, 87 Wash. 2d 6, 548 P.2d 1085, 1090 (1976) (specifically holding that the proper measure of damages in an inverse condemnation case brought by a school district against a municipal airport proprietor is either the cost of providing necessary replacement facilities or the cost of modifications needed to continue the obligatory use); Board of Education of Louisville v. Commonwealth of Kentucky, Dept. of Highways, 528 S.W.2d 657 (Ky. 1975) (specifically affirming the cost of soundproofing and air conditioning as the correct measure of damages for noise injury to public school property); City of Tulsa v. Mingo School Dist. No.16, 559 P.2d 487 (Okl. App. 1977) (same); State of New Jersey V. Board of Education of City of Elizabeth, 116 N.J. Super. 305, 282 A.2d 71 (1971) (same); Commonwealth of Kentucky, Department of Highways v. City of Winchester, 431 S.W.2d 707 (Ky. 1968) (damages equal the cost of substitute facility, without setoff for depreciation); City of Wichita v. Unified School District No. 259, 201 Kan. 110, 439 P.2d 162 (1968) (same); State of Texas v. Waco Independent School District, 364 S.W.2d 263 (Texas Civ. App. 1963) (same); and Reorganized School District No.2 v. Missouri Pacific Railroad Co., 508 S.W.2d 153 (Mo. App. 1973) (finding that cost of substitute facility is the proper measure of damages, expressly declining to reach question of setoff for depreciation).

The application of cost of replacement or cure in inverse condemnation of public school property, without any setoff for depreciation, is uniform throughout jurisdictions. Seeming departures from this rule appear to have arisen only in the case of private institutions, which are not operating pursuant to a statutory mandate.

The taking of public school property, considered among other special use properties, presents the strongest possible rationale for application of the cost of replacement or cure. It is not an exception to a rule of market value damages; rather, it is grounded on the more fundamental constitutional requirement that the injured party be placed in the same monetary position that it would be in absent the taking -- the same principle upon which the market value measure of damages is grounded. Because the Plaintiff School Districts have a statutory obligation to provide high-quality education, they must obtain a cure for the noise interference by soundproofing. Therefore, any damages less than the full cost of cure would not put the school districts in the same monetary position.

These two settled principles -- that there can be no set-off of benefits against a taking, and that the measure of loss for a special use property is determined by assessing the cost to cure, rather than by doing a highest and best use analysis -- negate the two arguments made by Chicago's witness Roddewig against the Affidavit of Mary Linberger:

Q. I take it your basic disagreement with Miss Linberger's affidavit is that she, in your opinion, fails to take into account the offset by O'Hare's positive contribution to the market demand for and to the value of that school property, which is set forth in paragraph 53 of your affidavit?

A. That was only a part of what I say in paragraph 53. I also say in the clause preceding that that she doesn't sufficiently consider all the factors that influence the market value of the school property.

Q. Which would be the ones that you set forth in your affidavit?

A. Yes.

Q. Those would be the economic benefits of being near O'Hare, isn't that right?

A. The economic benefit of being near O'Hare, and also that she doesn't take into account the highest and best use of the property as affected by the proximity to O'Hare.

Q. Again, assuming that the highest and best use of the property is for a school, then your main complaint with her is she doesn't take into account the positive economic benefits of O'Hare, isn't that right?

A. That's correct.

Roddewig, a lawyer who doubles as an appraisal expert, admits his theory has never been adopted before.

Q. So would it be an accurate statement, Mr. Roddewig, that you are not aware of any airport or metropolitan area of the country having a commercial airport where the concept of the economic benefit of the airport was used to set off, used as a set off against the economic damage due to noise?

MR. OSSYRA: My same objection.

THE WITNESS: I haven't looked for any information specifically on that point. So I am not aware of any such situations at the present time.

BY MR. KARAGANIS:

Q. Are you aware of any inverse, a condemnation or eminent domain lawsuit, where such a theory has been accepted as a measure of damage?

MR. OSSYRA: Same objection.

MR. OSSYYA: You can answer.

THE WITNESS: I don't know of any specific litigation involving that situation as you stated it.

The overwhelming court recognition of the cost to cure as the proper remedy in inverse condemnation for public school property demonstrates that Plaintiffs' witness Mary Linberger is absolutely correct in her analysis, and defendant's witness Richard Roddewig is flat wrong in his market value approach, and his claimed setoffs for economic benefits.