AMI 2001 Nature of Action—Burden of Proof

This instruction may be used at the time the Court is advising the jury of the nature of the case and/or in the final jury instructions.

This instruction may be modified to include a statement describing the law under which the condemning authority is authorized to acquire title to the property and the purpose of the acquisition.

This instruction may also be modified to include a description of the amount of property being taken by the condemning authority, the amount of any property remaining after the taking, the date of the taking, and whether the case involves a temporary construction easement.

See AMI 202 for an instruction regarding preponderance of the evidence and burden of proof.

This instruction is modeled in part after O'Malley, Grenig and Lee, Federal Jury Practice and Instructions §§ 154:1, :10, :20 (6th ed.), and it is based on Burton v. Ward, 218 Ark. 253, 255–56, 236 S.W.2d 65, 66 (1951) (holding that the statutory proceeding to condemn land is a special proceeding directed solely to the object of determining the compensation to be paid the owner of the property proposed to be taken, and the only issue to be tried is the value of the property to be taken).

The property owner has the burden of proving fair market value. See Ark. State Highway Comm'n v. S. Dev. Corp., 250 Ark. 1016, 1020, 469 S.W.2d 102, 105 (1971); Ark. State Highway Comm'n v. Hambuchen, 243 Ark. 832, 833, 422 S.W.2d 688, 689 (1968); Prop. Owners Improvement Dist. No. 247 v. Williford, 40 Ark. App. 172, 180–81, 843 S.W.2d 862, 867–68 (1992).

In condemnation proceedings brought by the Arkansas Highway Commission, the court shall award costs, expenses and reasonable attorney's fees to the property owner if the compensation awarded exceeds the monies deposited in the court by 20% or more. Ark. Code Ann. § 27-67-317(b).