35.09 [1996 Revision] Illustrations(Eminent Domain(Part of Property Taken(Evidence of Damage to Remainder

Instruction No 1 35.09 [1996 Revision] IllustrationsCEminent DomainCPart of Property TakenCEvidence of Damage to Remainder Ajax Super Market, Inc., owned a four-acre tract of land adjacent to Highway 54. To enable it to widen the highway, the State condemned two acres of Ajax's land nearest the highway. The taking occurred on July 1, 1980. The two acres taken had been used as a parking lot. Defendant's store building is on the remaining two acres. The right of access was not disturbed. The State made no contention of special benefits. Commissioners were appointed and made their award of damages. The parties filed timely exceptions to the Commissioners' award and the case was tried to a jury. Defendant, Ajax Super Market, Inc., offered evidence of the value of the entire tract before the taking and of the value of the remainder after the taking. Defendant's witnesses took into account the severance damage to the two acres which remained after the taking because adequate parking was no longer available for super market purposes. Instruction No. 1 (Same as MAI 2.01) Note: In condemnation cases, the defendant is first in the order of proof and the references to plaintiff and defendant in MAI 2.01 will be reversed. See MAI 2.01 Notes on Use. Instruction No. 2 (See MAI 2.03 (1980 New)) As you remember, the court gave you a general instruction before the presentation of any evidence in this case. The court will not repeat that instruction at this time. However, that instruction and the additional instructions, to be given to you now, constitute the law of this case and each such instruction is equally binding upon you. You should consider each instruction in light of and in harmony with the other instructions, and you should apply the instructions as a whole to the evidence. The order in which the instructions are given is no indication of their relative importance. All of the instructions are in writing and will be available to you in the jury room. Instruction No. 3 (See MAI 2.02 (1980 Revision)) In returning your verdict you will form beliefs as to the facts. The court does not mean to assume as true any fact referred to in these instructions but leaves it to you to determine what the facts are. Instruction No. 4 (See MAI 3.02 (1981 Revision)) The burden is on defendant to cause you to believe that it has sustained damage and the amount thereof. In determining the amount of your verdict, you must consider only the evidence and the reasonable inferences derived from the evidence. If you do not believe certain evidence, then you cannot consider that evidence in arriving at the amount of your verdict. Instruction No. 5 (See MAI 2.04 (1981 Revision)) The verdict form included in these instructions contains directions for completion and will allow you to return the permissible verdict in this case. Nine or more of you must agree in order to return any verdict. A verdict must be signed by each juror who agrees to it. Instruction No. 6 (See MAI 9.02 (1965 New)) You must award defendant such sum as you believe was the difference between the fair market value of defendant's whole property immediately before the taking on July 1, 1980, and the value of defendant's remaining property immediately after such taking, which difference in value is the direct result of the taking and of the uses which plaintiff has the right to make of the property taken. Instruction No. 7 (See MAI 16.02 (1978 Revision)) The phrase "fair market value" as used in these instructions means the price which the property in question would bring when offered for sale by one willing but not obliged to sell it, and when bought by one willing or desirous to purchase it but who is not compelled to do so. In determining fair market value you should take into consideration all the uses to which the property may best be applied or for which it is best adapted, under existing conditions and under conditions to be reasonably expected in the near future. VERDICT A (See MAI 36.01 (1980 RevisionCModified)) We, the undersigned jurors, assess the damages of defendant at $ amount ). Note: All jurors who agree to the above findings must sign below. (stating the