5th Cir. Pattern Jury Instr. (Civil) 13.3

This action is brought by the United States under

the federal government’s power of eminent domain. This

term refers to the government’s right and power to take

private property for public purposes. A lawsuit brought

under eminent domain is sometimes called a condemnation proceeding.

The power to take private property for public

purposes is essential to the government’s independence

and its operations. If the government did not have that

ability, any landowner could delay or even prevent public improvements, or could force the government to pay

a price higher than the fair market value of the property taken. But the government’s eminent domain

power is subject to the requirement that the property

owner be paid “just compensation.” That term means

the fair market value of the property on the date of the

taking. It is your task to decide, based on a preponderance of all the evidence submitted, what the fair market value of the property was on the date of the taking.

“Fair market value” means the amount a willing

buyer would have paid a willing seller in an arms-length transaction, when both sides are fully informed

about all the advantages and disadvantages of the property, and neither side is acting under any compulsion to

buy or sell. Fair market value must be determined at

the time of the taking, considering the property’s highest and most profitable use, if then offered for sale in

the open market, with a reasonable time allowed to find

a buyer. The burden is on the property owner to prove,

by a preponderance of the evidence, the fair market

value of the property on the date of the taking.

The highest and most profitable use of the property

is the use for which it was actually and potentially suitable and adaptable. It is not necessarily what the owner

was using the property for at the time of the taking.

13.3MISCELLANEOUS FEDERAL CLAIMS

333

In some situations, knowledge of the fact that the

government plans to take property will cause an

increase or decrease in the property’s fair market value.

In deciding the fair market value, you should not

consider the fact that the government had plans to take

the land. Instead, you should fix the fair market value

on the date of the taking, without regard to any threat

or possibility of a taking.

The judgment I will enter on your verdict will

provide for the government to pay interest to compensate the landowner, Defendant [name], for any delay in

payment caused by the government after the date of

taking. You may not consider any delay in payment

and may not include any interest or other compensation for delay in your verdict.

(For cases in which the taking involves only

part of the property or a partial interest in the

property):

When, as in this case, the government takes only

[part of the owner’s property] [a partial interest in the

property], the owner is entitled to both the value of the

interest actually taken and to an additional amount

equal to any decrease in the fair market value of the

owner’s interest in the land that was not taken.

You must determine the fair market value of the

property [property interest] that was actually taken.

This may be determined by subtracting the fair market

value of the property that remains after the taking from

the fair market value of the whole property immediately

before the taking. The difference is the fair market

value of the part that was taken.

You must consider whether there was a decrease or

increase in the fair market value of the owner’s interest

in the land as a result of the severance or separation of

the interest that was taken. The landowner, Defendant