Fill and Sign the Jury Taking Form

9.1 Eminent Domain General Instruction (Including Partial Taking Instructions) This action is brought by the United States in the exercise of the Federal Government's power of eminent domain. It is sometimes called a condemnation proceeding. The Government has the right and the power under the Constitution to take private property for public purposes. That power is essential to the independence and operation of the Government. Otherwise, any landowner could delay or even prevent public improvements, or could effectively force payment of a price exceeding the fair market value of the property taken. The Government’s exercise of the power of eminent domain is always subject, however, to the requirement of the Fifth Amendment to the Constitution that payment of "just compensation" shall be made to the owner for all estates or interests in property so taken. The term "just compensation" means the "fair market value" of the property on the date of taking. Because the landowner has declined to accept the Government’s opinion concerning the fair market value of the property, it is the landowner’s burden to prove, by a preponderance of the evidence, that the fair market value of the property was more than the Government has offered. Accordingly it will be your responsibility to determine, based upon a preponderance of all of the evidence submitted by both sides, what the fair market value of the property was on the date of taking. "Fair market value" means the price in cash, or its equivalent, that the property would have brought at the time of taking, considering its highest and most profitable use, if then offered for sale in the open market with a reasonable time allowed to find a purchaser. In other words, fair market value means the amount a willing buyer would have paid a willing seller in an arms-length transaction with both parties being fully informed concerning all of the advantages and disadvantages of the property, and with neither acting under any compulsion to buy or sell. In arriving at your decision concerning fair market value, you should take into account all factors that could fairly be suggested by the seller to increase the price paid, and all counter-arguments that the buyer could fairly make to reduce the price. On some occasions public knowledge of the fact that the Government plans to take certain property may either increase or decrease the fair market value of the property as of the time of the taking. So, in deciding upon the fair market value at the time of the taking 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 of a taking. [When, as in this case, the Government takes only a part of the owner's property [or a partial interest in his property] the method by which to determine the just compensation to be paid to the property owner is to compare the fair market value of the property before and after the taking; that is, to subtract the fair market value of what remains, after the taking, from the fair market value of the whole, immediately before the taking, the difference being the fair market value of the part that was taken.] [In making that calculation, however, you must consider "severance damages," if any, as well as "enhancement" in value, if any. Thus, when the property condemned constitutes only a part of an owner's interest, the owner is entitled to just compensation, not only for the fair market value of the interest actually taken, but also an amount equal to any reduction of the fair market value of the owner's interest in the land which was not taken, due to the severance or separation of the interest which was taken. Such additional compensation is commonly known as "severance damage."] [On the other hand, the Government contends that the portion of the Defendant's land that was not taken in this proceeding benefited through enhancement or increase in value because of the public improvement involved. Two types of benefits may result from a public improvement, namely, general benefits and special benefits. General benefits are those that result not only to the property of the Defendant landowner, but also to the property in the community generally. Special benefits are those that accrue specially to a particular parcel or parcels of land as distinguished from other property in general.] [You may not consider any increase in value because of general benefits, but you should consider any increase due to special benefits, that is the increase in value, if any, caused by the improvement, to that portion of the Defendant's land that was not taken by the Government in this proceeding.] [Accordingly, in determining the fair market value of what remains after the taking (to be deducted from the fair market value of the whole property before the taking, the difference being the measure of the Defendant's just compensation), you should keep in mind that the valuation after the taking should include and reflect severance damages, if any, or special benefits, if any, according to your determination from the evidence as to whether such damage or such benefits occurred and, if so, in what amounts.] The law requires, and the judgment to be entered by the Court upon your verdict will provide, payment of interest by the Government to compensate the landowner for any delay in payment caused by the Government, after the date of taking. So, you are not to consider any delay in payment in arriving at your verdict, and you are not to include in your verdict any interest or other compensation for the delay. VERDICT We, the Jury, find from a preponderance of the evidence that the fair market value of the subject property on the date of taking was $ ______________________________ . SO SAY WE ALL. ____________________________________ Foreperson DATED: __________________