N.C.P.I.—Civil 835.22

NOTE WELL: Use this instruction only where there has

been a partial taking, the evidence relates to the

difference in fair market value before and after the

taking and there is no evidence as to the value of the

property taken. 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 [plaintiff(s)] [defendant(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

[plaintiff('s)(s')] [defendant('s)(s')] property.

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

[plaintiff('s)(s')] [defendant('s)(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-acre) tract. The measure of just compensation to which the

[plaintiff(s)] [defendant(s)] [is] [are] entitled 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

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 of 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 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.

(The fair market value of the property immediately prior to the time

of the taking 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].)8

(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.)9

(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.)10

(In determining the fair market value of the remaining property

immediately after the time of the taking, you must take into account any

decreases in value to the remaining property after (state date of taking)

caused by (state proposed project) (including any work performed or to

be performed under an agreement between the parties). Any such

decreases in value shall reflect the time that will pass before the damage

caused by the improvement or project will be actually realized.)11

(Use if the condemnor12 introduces evidence of general or special

benefits for purposes of offset:13 You may also consider whether and the

extent to which the remainder has benefited from (state project).

Benefits can be either general or special.14 General benefits are those

which arise from the fulfillment of the public object which justified the

taking. They are those benefits arising to the vicinity which result from

the enjoyment of the facilities provided by the new public work and from

the increased general prosperity resulting from such enjoyment. Special

benefits are increases in the value of the remaining land which are

peculiar to the owner's property and not shared in common with other

landowners in the vicinity. They arise from the relationship of the land in

question to the public improvement, and may result from physical

changes in the land, from proximity to the new project, or in various other

ways. Remote, uncertain or speculative benefits are not to be

considered. The value of any such benefit shall reflect the time that will

pass before the benefit caused by the improvement or project will be

actually realized.)15

Your verdict must not include any amount for interest.16 Such

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

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 difference in the fair market value of the entire tract

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

the remainder of the tract immediately after the date of the taking, then

you will answer this issue by writing that amount in dollars and cents in

the blank space provided. (However, if you find that the value of the

remainder immediately after the taking is the same as, or greater than,

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.)17