WPI 150.06 Measure of Compensation—Partial Taking

WPI 150.06 and 150.07 (Measure of Compensation—Partial Taking—Benefits) are to be used in the alternative depending upon whether special benefits are claimed. The instruction's second paragraph addresses the alternative methods of valuation (see further discussion in the Comment.)

Use this instruction when only part of the property is being acquired, no benefits are being offset, and market value is the measure of compensation. For partial takings cases when a benefit to the remaining property are claimed, also use WPI 150.10 (Factors—Partial Taking). See Comment to WPI 150.08 (Fair Market Value—Definition). On rights of access, light, view and air, see WPI 151.02 (Access, Light, View and Air—Measure of Compensation).

Use the bracketed material regarding measure of just compensation in the second paragraph as needed based on the value evidence actually presented. The bracketed words and sentence in the second paragraph are included to allow for an instruction when all parties present value evidence based only on the before and after approach, when the parties present value evidence based on both the before and after approach and the severance damage approach, and/or when all parties present value evidence based only on the severance damage approach. Use the appropriate bracketed phrase(s) regarding the property and/or property rights throughout this instruction.

Use the date of trial to measure fair market value if possession and use of the property has not been granted to petitioner prior to trial. If an order has previously been entered granting immediate possession and use of the property to petitioner prior to the date of trial or the date of value is otherwise not in dispute, insert the relevant date.

This instruction applies only to permanent damages. For cases involving temporary damages, use WPI 150.06.02 (Just Compensation—Temporary Occupancy). See the discussion regarding temporary versus permanent damages in the Comment below.

This instruction is based on Armstrong v. City of Seattle, 180 Wash. 39, 38 P.2d 377, 97 A.L.R. 826 (1934); State v. Kelley, 108 Wash. 245, 182 P. 942 (1919); State v. Paul Bunyan Rifle and Sportsman's Club, Inc., 132 Wn.App. 85, 130 P.3d 414 (2006), and State v. Hobart, 5 Wn.App. 469, 487 P.2d 635 (1971). See also RCW 8.04.110; RCW 8.08.050; RCW 8.12.140; State v. McDonald, 98 Wn.2d 521, 525–26, 656 P.2d 1043 (1983); City of SeaTac v. Cassan, 93 Wn.App. 357, 361, 967 P.2d 1274 (1998).

Valuation in partial takings cases. Two basic approaches exist for determining just compensation in partial takings cases. Under the “before and after rule,” just compensation is the value of the entire parcel before the taking less the value of the remainder after the taking. Under the “severance damage rule,” just compensation is the value of the part taken plus the severance damages resulting to the remainder. See generally Sackman, Nichols, The Law on Eminent Domain § 14.02[1]-[3] (rev. 3d ed.); Stoebuck, 17 Washington Practice: Real Estate §§ 9.22 and 9.23 (2d ed.).

The two approaches are distinct, although appellate opinions do not always clearly distinguish between them. Sackman, Nichols, The Law on Eminent Domain § 14.02[1][a]; e.g., State v. McDonald, 98 Wn.2d 521, 525–26, 531, 656 P.2d 1043 (1983) (primarily discussing the before and after rule, but also stating the severance damages rule as if it is a restatement of the before and after rule); Central Puget Sound Regional Transit Authority v. Heirs and Devisees of Eastey, 135 Wn.App. 446, 456–59, 144 P.3d 322 (2006), and State v. Paul Bunyan Rifle and Sportsman's Club, Inc., 132 Wn.App. 85, 93–94, 130 P.3d 414 (2006). The before and after rule is “generally the simplest and perhaps the most widely used approach.” Sackman, Nichols, The Law on Eminent Domain § 14.02[2].

Comparing “before” and “after” values. This instruction notes that the valuation in the “before” situation is to avoid consideration of the impact of the project on value, but also states that the valuation in the “after” situation is to consider the impact of the acquisition. The use of the term “project” is intentional in that the law requires that no diminution in value caused by any aspect of the project is to be considered in the “before” situation. Similarly, the use of the term “acquisition” with respect to the consideration of value in the “after” situation is also intentional because the law limits the consideration of negative impacts to those impacts caused solely by the acquisition and use of the acquired property, rather than consideration of all impacts that might be caused by the entire project. See Central Puget Sound Regional Transit Authority v. Heirs and Devisees of Eastey, 135 Wn.App. 446, 456–59, 144 P.3d 322 (2006).

Single larger parcel analysis. Damages to remaining property may be recovered only if the condemned property and the remaining property are determined to be part of a single “larger parcel” of land for eminent domain purposes; an owner may not recover for damage to separate and independent tracts of land. State v. McDonald, 98 Wn.2d 521, 525–26, 656 P.2d 1043 (1983); State v. Wandermere Co., 89 Wn.App. 369, 377, 949 P.2d 392 (1997). The “larger parcel” analysis depends on three factors (unity of ownership, unity of use, and contiguity) and represents a jury question if reasonable minds could differ as to the outcome. State v. McDonald, 98 Wn.2d at 526; State v. Wandermere, 89 Wn.App. at 377.

The physical separation of individual properties is not necessarily fatal to establishing a larger parcel. Physically separated properties may still constitute a “larger parcel” under this test, depending on an analysis of unity of use and other factors, including “the distance between the parcels, the extent of adaptation of the parcels to the use to which they are put, and the availability of alternative parcels.” State v. McDonald, 98 Wn.2d at 526–27. See Doolittle v. City of Everett, 114 Wn.2d 88, 786 P.2d 253 (1990), for a summary of the law. See generally, Washington Real Property Deskbook § 74.7[4] (4th ed.).

Offsetting benefits. For a discussion of offsetting benefits under the severance damages rule, see the Comment to WPI 150.07 (Measure of Compensation—Partial Taking—Benefits).

Date of valuation. See discussion on date of valuation in the Comment to WPI 150.05 (Measure of Compensation—Total Taking).

Separate interests. See discussion of separate interests in the Comment to WPI 150.05 (Measure of Compensation—Total Taking).

Impact of project. See the discussion of project impact in the Comment to WPI 150.05 (Measure of Compensation—Total Taking).

Temporary versus permanent damages. Washington cases have drawn a distinction between permanent and temporary injuries. This instruction applies only to permanent injuries. The instruction on temporary damages is WPI 150.06.02 (Just Compensation—Temporary Occupancy).

Noncompensable damages. When damages resulting to the remainder of the property are not compensable as a matter of law, some modification of language may be required to exclude these from the “before and after” measure of compensation. See State v. Fox, 53 Wn.2d 216, 332 P.2d 943 (1958); Wilson v. Oregon-Washington R. & Navigation Co., 71 Wash. 102, 127 P. 847 (1912). This usually can be accomplished by instructions to disregard this element of damages rather than reframing the “measure of compensation” instruction.