Department of Transportation's Refusal to Pay Landowners for Land Already Encumbered by a Right of Way Access Road

In Department of Transportation v. Lawler, 113 Ill. App. 3d 105, 68 Ill. Dec. 692, 446 N.E.2d 863 (1983), the court addressed a situation where the Illinois Department of Transportation (IDOT) refused to make any payment to landowners for land already encumbered by a right of way access road. The court held that there should be payment made for the value of the land encumbered by the easement but acknowledged that the common law allowed only nominal damages for this land. The court declined to reverse the "nominal damages" common law rule. Indeed, the court specifically affirmed the "nominal damages" rule for property with existing right-of-way access roads, and IDOT is correct in asserting that the instruction could have been given. It was an accurate statement of the current law. Therefore, this court should reverse if, as a result of the court failing to provide the instruction, IDOT suffered prejudice.