N.C.P.I.—Civil 835.15A

NOTE WELL: This instruction should be given only

when a temporary construction or drainage 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

temporary [construction] [drainage] easement on 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 temporary easement.

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

landowner’s property. It has taken a temporary easement or right-of-way

for (state purpose) across the property and the landowner will have the

land restored to [him] [her] after the temporary easement expires.2

Where a temporary 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 temporary easement acquired.3

The measure of just compensation where the easement is a

temporary [construction] [drainage] easement is the rental value of the

land actually occupied, for the period of time the land is occupied.4

The condemnor is also liable for the damages flowing from the use

of the temporary [construction] [drainage] easement. Such damages may

include:

[the cost of removal of the landowner’s improvements from the

easement that are paid by the landowner]

[the cost of constructing an alternate entrance to the property]

[the changes made in the area resulting from the use of the

easement that affect the value of the area in the easement or the value

of the remaining property of the landowner]

[the removal of trees, crops or improvements from the area in the

easement by the condemnor] [and]

[the length of the time the easement was used by the condemnor]

[and]

[state other additional elements of damages that are supported by

the evidence].

Such damages awarded by you may not include lost profits.5

Your verdict must not include any amount for interest.6 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 rental value

of the land actually occupied during the period of time the land is

occupied, together with any damages sustained by the property flowing

from the use of the temporary [construction] [drainage] easement, as I

have explained those elements to you, then you will answer this issue by

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

that the land actually occupied had no rental value and that there were

no damages flowing from the use of the temporary [construction]

[drainage] easement, then it would be your duty to answer this issue by

writing "zero" in the blank space provided.