N.C.P.I.—Civil 835.14

NOTE WELL: This instruction should only be given

when an easement 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 issue reads:

"What is the amount of just compensation the landowner is

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

easement on the landowner’s property?"

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

that the [plaintiff] [defendant] must prove, by the greater weight of the

evidence, the amount of just compensation owed by the [plaintiff]

[defendant] for the taking of the easement.

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

landowner’s property. It has taken an easement or right-of-way for (state

purpose) across the landowner’s property.2 Where an easement is taken

for (state purpose), the landowner does not give up all the title to the

land. The landowner retains a right to continue to use the land in ways

that do not interfere with (state name of condemnor's) free exercise of

the easement acquired.3

The measure of just compensation where an easement is taken is

the difference between the fair market value of the property immediately

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

after the taking - that is, immediately after it was made subject to the

easement.4

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 of the easement, and the fair market value

of the property immediately after it was made subject to the easement -

that is (state date of taking) - 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 immediately after it was made subject to the

easement, 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

immediately after it was made subject to the easement, you should

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

project.8 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 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 property subject to the easement

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 easement 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 benefit for purposes of offset, this

instruction should be followed by N.C.P.I. 835.14A.