N.C.P.I.—Civil 835.20A

NOTE WELL: Use this instruction only where an

easement is taken, the evidence relates to the fair

market value of the easement taken and there is no

evidence as to the value of the owner's property before

and after the taking. These proceedings involve only

private or local public condemnors pursuant to Chapter

40A of the North Carolina General Statutes.

The issue reads:

"What is the amount of just compensation the [plaintiff(s)]

[defendant(s)] [is] [are] entitled to recover from the [plaintiff]

[defendant] for the taking of the easement on the [plaintiff('s)(s')]

[defendant('s))s')] property?"

On this issue the burden of proof is on the [plaintiff(s)]

[defendant(s)]1. This means that the [plaintiff(s)] [defendant(s)] 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

[plaintiff('s)(s')] [defendant('s)(s')] property. It has taken an easement or

right-of-way over the [plaintiff('s)(s')] [defendant('s)(s')] property. Where

an easement is taken for (state purpose), the landowner does not give up

all the title to his land.2 The landowner retains a right to continue to use

his land in ways that do not interfere with (name condemnor's) free

exercise of the easement acquired.3 The measure of just compensation

to which the [plaintiff(s)] [defendant(s)] [is] [are] entitled is the fair

market value of the easement at the time of the taking.4

Fair market value for an easement is the amount which would be

agreed upon as a fair price for an easement 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 easement as of the time

of the taking- 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, you should,

in light of all the evidence, consider not only the use of the property at

the time of the taking,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 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.8 You should not consider purely imaginative or speculative

uses and values.

(The fair market value of the property taken does not include any

[increase] [decrease] in value before (state date of taking) caused by

[the proposed (state improvement or project) for which the property was

taken] [the reasonable likelihood that the property would be acquired for

(state proposed improvement or project)] [the condemnation proceeding

in which the property was taken].)9

(In determining the fair market value of the property, you may

consider any decrease in value before the date of the taking caused by

physical deterioration of the property within the reasonable control of the

landowner and by his unjustified neglect.)10

(If the [plaintiff(s)] [defendant(s)] [is] [are] allowed to remove

[timber] [a building] [(state other permanent improvement)] from the

property, the value of the [timber] [building] [(state other permanent

improvement)] shall not be included in the compensation you award.

However, the cost of the removal of the [timber] [building] [(state other

permanent improvement)] shall be added to the compensation.)11

Your verdict must not include any amount for interest.12 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(s)] [defendant(s)]

[has] [have] the burden of proof, if you find, by the greater weight of the

evidence, the fair market value of the easement at the time of the

taking- that is (state date of taking)- then you will answer this issue by

writing that amount in dollars and cents in the blank space provided.