N.C.P.I.—Civil 835.13

NOTE WELL: This instruction should only be given

when less than the entire tract is taken and the taking

is pursuant to the Transportation Corridor Official Map

Act (Map Act) (codified as amended at N.C. Gen. Stat.

§§136-44.50 to 44.54 (2015)).

Typically, Map Act cases are filed as inverse

condemnation actions. For this reason, it is presumed

that the plaintiff is the property owner.1

The (state number) issue reads:

"What is the amount of just compensation the plaintiff is entitled to

recover from the defendant for the taking of the plaintiff’s property

rights?"

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

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

amount of just compensation owed by the defendant for the taking of the

plaintiff’s property rights.2

In this case, the defendant has not taken all of the plaintiff’s

property rights. It has restricted the plaintiff’s rights to improve, develop

and subdivide the plaintiff’s property for an indefinite time.

The measure of just compensation where some but not all property

rights are taken is the difference between the fair market value of the

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

property subject to the defendant’s restrictions on its use immediately

after the taking.3

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 taking4) - and not as

of the present day or any other time.5 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,6 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.7 Likewise, in

arriving at the fair market value of the property subject to the

defendant’s restrictions on its use 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 property subject

to the defendant’s restrictions on its use immediately after the taking,

you should consider the property as it [was] [will be] at the conclusion of

the project,8 as well as the benefit the property owner will receive as a

result of any reduction in the ad valorem tax on the property subject to

the defendant’s restrictions on its use.

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.9 You should not consider purely imaginative or speculative uses

and values.

Your verdict must not include any amount for interest.10 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 plaintiff has the burden of

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

the fair market value of the property immediately before the date of

taking and the fair market value of the property subject to the

defendant’s restrictions on its use 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 property subject to the

defendant’s restrictions on its use immediately after the taking is the

same as, or greater than, the value of the property 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. 835.13A.