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AMI 2003 Damages—Partial Taking by Entity Other than Sovereign

Arkansas Supreme Court Committee On Jury Instructions-Civil

Ark. Model Jury Instr., Civil AMI 2003
Arkansas Model Jury Instructions-Civil
November 2021 Update
Arkansas Supreme Court Committee On Jury Instructions-Civil
Chapter 20. Eminent Domain
AMI 2003 Damages—Partial Taking by Entity Other than Sovereign
In arriving at the amount of just compensation to which (the property owner) in this case is entitled, you determine the fair market value of the portion of the property taken [plus any damage to the remaining property]. You are not to consider any benefits that (the property owner's) remaining property may receive as a result of the taking.
[In this case, (the property owner) claims that [his/her/its] remaining property has lost value as a result of the taking. This loss in value is called “severance damages” and must be included in determining just compensation if the fair market value of the remaining property is reduced by the taking. The severance damages to which (the property owner) is entitled is the diminution or lowering of the fair market value, if any, of the property not taken that has been caused by the taking of the part taken. The amount of severance damages is the difference between the fair market value of the remaining property before the taking and the fair market value of the remaining property after the taking.]
NOTE ON USE
Use this instruction when (1) the condemning authority is an entity other than the sovereign, such as a railroad, a telephone company, or an electric company, 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 the sovereign, then do not use this instruction. Use AMI 2002 instead.
Use the bracketed clause in the first paragraph and the final bracketed paragraph when the property owner claims his remaining property has lost value as a result of the taking.
COMMENT
This instruction is based on Pope v. Overton, 2011 Ark. 11, 376 S.W.3d 400 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.
When the condemning authority is the sovereign, the compensation owed by the sovereign is offset by any special benefit resulting from the public use of the land taken. See Pope, 2011 Ark. 11, at 4–5, 376 S.W.3d at 404. However, when the condemning authority is an entity other than the sovereign, full compensation must be paid “irrespective of any benefit from any improvement proposed by [the condemning authority].” Williford, 40 Ark. App. at 177, 843 S.W.2d at 866.
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