N.C.P.I.—Civil 835.12

NOTE WELL: This instruction should only be given

when less than the entire tract is taken and the

condemnor is the Department of Transportation

exercising its right of eminent domain pursuant to

Chapter 136 of the General Statutes or a municipality

acquiring rights-of-way for the state highway system

pursuant to N.C. Gen. Stat. § 136-66.3(c) and N.C.

Gen. Stat. § 40A-3(b)(1).

The (state number) issue reads:

"What is the amount of just compensation the landowner is entitled

to recover from the [plaintiff] [defendant] for the taking of the

landowner’s property?"

On this issue the burden of proof is on the landowner.1 This means

that the landowner must prove, by the greater weight of the evidence,

the amount of just compensation owed by the [plaintiff] [defendant] for

the taking of the landowner’s property.

In this case, the [plaintiff] [defendant] has not taken all of the

landowner’s property. It has taken (state size of property taken, e.g.,

five acres) out of a (state size of entire tract, e.g., 15 acres) tract.

The measure of just compensation where a part of a tract is taken

is the difference between the fair market value of the entire tract

immediately before the taking and the fair market value of the remainder

of the tract immediately after the taking.2

Fair market value is the amount which would be agreed upon as a

fair price by an owner who wishes to sell, but is not compelled to do so,

and a buyer who wishes to buy, but is not compelled to do so.

You must find the fair market value of the property immediately

before the time of the taking and the fair market value of the remainder

immediately after the taking - that is (state date of taking) - and not as

of the present day or any other time.3 In arriving at the fair market value

of the property immediately before the taking, you should, in light of all

the evidence, consider not only the use of the property at that time,4 but

also all the uses to which it was then reasonably adaptable, including

what you find to be the highest and best use or uses.5 Likewise, in

arriving at the fair market value of the remainder immediately after the

taking you should, in light of all the evidence, consider not only the use

of the property at that time, but also all of the uses to which it was then

reasonably adaptable, including what you find to be the highest and best

use or uses.

Further, in arriving at the fair market value of the remainder

immediately after the taking, you should consider the property as it [was]

[will be] at the conclusion of the project.6 You should consider these

factors in the same way in which they would be considered by a willing

buyer and a willing seller in arriving at a fair price.7 You should not

consider purely imaginative or speculative uses and values.

Your verdict must not include any amount for interest.8 Any interest

as the law allows will be added by the court to your verdict.

I instruct you that your verdict on this issue must be based upon

the evidence and the rules of law I have given you. You are not required

to accept the amount suggested by the parties or their attorneys.

Finally, as to this issue on which the landowner has the burden of

proof, if you find, by the greater weight of the evidence, the difference in

the fair market value of the entire tract immediately before the date of

taking and the fair market value of the remainder of the tract

immediately after the taking, then you will answer this issue by writing

that amount in the blank space provided. However, if you find that the

value of the remainder immediately after the taking is the same as the

value of the entire tract immediately before the date of the taking, then

it would be your duty to answer this issue by writing "zero" in the blank

space provided.

NOTE WELL: If the condemnor introduces evidence of

general or special benefits for purposes of offset, this

instruction should be followed by N.C.P.I. 835.12A.