AMI 2002 Damages—Partial Taking by Sovereign

Use this instruction when (1) the condemning authority is the sovereign, and (2) the condemning authority has taken only a portion of a larger tract of land owned by the landowner.

If the condemning authority is an entity other than the sovereign, such as a railroad, a telephone company, or an electric company, then do not use this instruction. Use AMI 2003 instead.

This instruction is based on Pope v. Overton, 2011 Ark. 11, 376 S.W.3d 400; Arkansas State Highway Commission v. Littlefield, 247 Ark. 686, 447 S.W.2d 146 (1969); and Property Owners Improvement District No. 247 v. Williford, 40 Ark. App. 172, 843 S.W.2d 862 (1992).

The Arkansas Supreme Court has recognized three “formulas for measuring just compensation in partial-taking cases: (1) the value of the part taken; (2) the value of the part taken plus the damages to the remainder; [and] (3) the before- and after-value rule.” See Ark. State Highway Comm'n v. Frisby, 329 Ark. 506, 508, 951 S.W.2d 305, 306 (1997); Ark. State Highway Comm'n v. Barker, 326 Ark. 403, 405, 931 S.W.2d 138, 140 (1996); Young v. Ark. State Highway Comm'n, 242 Ark. 812, 814, 415 S.W.2d 575, 577 (1967). The court uses the third formula when the condemning authority is the sovereign. See Barker, 326 Ark. at 407, 931 S.W.2d at 141; Young, 242 Ark. at 814–15, 415 S.W.2d at 577; see also Ark. State Highway Comm'n v. Jones, 256 Ark. 40, 41, 505 S.W.2d 210, 211 (1974). The court uses the second formula when the condemning authority is an entity other than the sovereign. See Pope, 2011 Ark. 11, at 4–5, 376 S.W.3d at 404–05; Williford, 40 Ark. App. at 178, 843 S.W.2d at 866. The court in Young acknowledged that “[t]he distinction between the second and third formulas is narrow.” 242 Ark. at 814, 415 S.W.2d at 577.

In Pope, the court stated that when the sovereign exercises its right to take a portion of a tract of land, the proper measurement of just compensation is the difference in the fair market value of the entire tract immediately before the taking and the fair market value immediately after the taking. 2011 Ark. 11, at 4, 376 S.W.3d at 404. Hence, any special benefit resulting from the public use of the land taken by the sovereign, which increases the value of the land not taken, will offset the amount the sovereign will have to pay. This is proper because the owner of the land has received just compensation, although partly by the increase in value of the land he or she has left. See Williford, 40 Ark. App. 172, at 177, 843 S.W.2d at 865.

“[W]here a public use for which a portion of a landowner's land is taken so enhances the value of the remainder as to make it of greater value than the whole before the taking, the owner has received just compensation for his property in benefits; … the benefits which will be considered must be those which are local, peculiar, and special to the owner, i.e., benefits not enjoyed by the general public.” See Ark. State Highway Comm'n v. Davis, 245 Ark. 813, 819, 434 S.W.2d 605, 608 (1968).

The condemning authority has the burden of proving enhancement in value by reason of the improvements. See Greene Cnty. v. Hicks, 249 Ark. 69, 71, 458 S.W.2d 152, 153 (1970).