N.C.P.I.—Civil 835.22A

NOTE WELL: Use this instruction only where an

easement is taken, the evidence relates to the

difference in the fair market value of the property

before and after the taking and there is no evidence as

to the value of the easement 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 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 for (state purpose) across 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 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 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.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 of 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 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.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.

(The fair market value of the property immediately before 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].)10

(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.)11

(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.)12

(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 property subject to the easement 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.)13

(Use if the condemnor14 introduces evidence of general or special

benefits for purposes of offset:15 You may also consider whether and the

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

Benefits can be either general or special.16 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.)17

Your verdict must not include any amount for interest.18 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 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 dollars and cents 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, 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.)19