N.C.P.I.—Civil 840.31

The (state number) issue reads:

"What amount of compensation is the respondent entitled to

recover from the petitioner for the cartway established for the petitioner's

benefit?"

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

that the respondent must prove, by the greater weight of the evidence,

the amount of compensation1 owed by the petitioner for the cartway

established for the petitioner's benefit.

In this case, the petitioner has not taken all of the respondent's

property. The petitioner has obtained an easement or right-of-way for

(name purpose) across the respondent's property. Where a cartway is

laid off for (name purpose), the landowner does not give up all title to his

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

that do not interfere with the petitioner's free exercise of the cartway

acquired.

The measure of compensation where a cartway is laid off for the

benefit of a petitioner is the difference between the fair market value of

the property immediately before the cartway is established and the fair

market value of the property immediately after the cartway is

established.

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 establishment of the cartway, and the fair market

value of the property immediately after the establishment of the cartway-

that is (give date)- and not as of any other time. In arriving at the value

of the property immediately before the establishment of the cartway, you

should, in light of all the evidence, consider not only the use of the

property at that time, 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. Likewise, in arriving at the fair market value of the property

immediately after the establishment of the cartway, 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 the

establishment of the cartway, you should consider the property as it

[was] [will be] once the petitioner finishes using the cartway for (name

purpose).)

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. You should not consider purely imaginative or speculative uses

and values.

Finally, as to the (state number) issue on which the respondent has

the burden of proof, if you find, by the greater weight of the evidence,

the difference in the fair market value of the property immediately before

the date of the establishment of the cartway and the fair market value of

the property immediately after the establishment of the cartway, then

you will answer this (state number) issue by writing that amount in the

blank space provided.2