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The Michigan Standard Jury Instructions

January 3, 2001

Standard Jury Instructions are intended to explain complicated legal concepts in language that can be understood by lay people that are sitting on juries. As such, these jury instructions provide an introduction to many of the concepts that are applicable in a condemnation case. 

M Civ JI 90.02 Power of Eminent Domain 

This case is one in eminent domain, which means the power of the government to take private property for a public purpose upon payment of just compensation to the owner of the property taken. Under the constitution and laws of this state, all private property, real and personal, and any interest therein, is held subject to this right of eminent domain. 

The right of eminent domain is exercised through proceedings commonly called a condemnation action. This is such an action

M Civ JI 90.03 Burden of Proof [Recommend No Instruction] 

The committee recommends that no instruction on general burden of proof be given in condemnation cases. There is strictly speaking no general burden of proof applicable to all issues in all condemnation proceedings. 

Neither party has the burden of proof on the issue of damages, except where benefits to the remainder are claimed by the government. 

If the government claims an offset for benefits under express statutory authority, it has the burden of proving the existence of such benefits. MCL 213.73(4). 

There may be other special issues where there is an express burden of proof, by statute or otherwise.

M Civ JI 90.04 Absence of Fault 

The property owners in this case are not in any way at fault, but are in the position of owning property which the condemning authority has determined to take for public use.

M Civ JI 90.05 Just Compensation-Definition 

Whenever private property is taken for a public purpose, the Constitution commands that the owner shall be paid just compensation. 

Just compensation is the amount of money which will put the person whose property has been taken in as good a position as the person would have been in had the taking not occurred. The owner must not be forced to sacrifice or suffer by receiving less than full and fair value for the property. Just compensation should enrich neither the individual at the expense of the public nor the public at the expense of the individual. 

The determination of value and just compensation in a condemnation case is not a matter of formula or artificial rules, but of sound judgment and discretion based upon a consideration of all of the evidence you have heard and seen in this case. 

In determining just compensation, you should not consider what the condemning authority has gained. The value of the property taken to the condemning authority and to its customers is not to be considered in any way.

M Civ JI 90.06 Market Value-Definition 

Your award must be based upon the market value of the property as of the date of taking. 

By “market value” we mean: 

the highest price estimated in terms of money that the property will bring if exposed for sale in the open market with a reasonable time allowed to find a purchaser buying with knowledge of all of the uses and purposes to which it is adapted and for which it is capable of being used
the amount which the property would bring if it were offered for sale by one who desired, but was not obliged, to sell, and was bought by one who was willing, but not obliged, to buy
what the property would bring in the hands of a prudent seller, at liberty to fix the time and conditions of sale
what the property would sell for on negotiations resulting in sale between an owner willing, but not obliged, to sell and a willing buyer not obliged to buy
what the property would be reasonably worth on the market for a cash price, allowing a reasonable time within which to effect a sale.

M Civ JI 90.07 Special Purpose Property 

There are certain kinds of properties for which the market value standard is, for one reason or another, inappropriate. These properties are referred to as “special purpose” properties. 

The adaptability of the property sought to be taken in eminent domain for a special purpose or use may be considered as an element of value. If the property possesses a special value to the owner which can be measured in money, the owner has a right to have that value considered in the estimate of compensation and damages. 

While market value is always the ultimate test, it occasionally happens that the property taken is of a class not commonly bought and sold, such as a church or a college or a cemetery or the fee of a public street, or some other piece of property which may have an actual value to the owner but which under ordinary conditions the owner would be unable to sell for an amount even approximating its real value. As market value presupposes a willing buyer, the usual test breaks down in such a case, and hence it is sometimes said that such property has no market value. In one sense this is true; but it is certain that for that reason it cannot be taken for nothing. From the necessity of the case the value must be arrived at from the opinions of well-informed persons, based upon the purposes for which the property is suitable. This is not taking the “value in use” to the owner as distinguished from the market value. What is done is merely to take into consideration the purposes for which the property is suitable as a means of ascertaining what reasonable purchasers would in all probability be willing to give for it, which in a general sense may be said to be the market value. 

If you determine that a property is, in fact, a “special purpose” property, you should consider that fact in determining the value of the property. 

The value of a “special purpose” property is to be determined by what a purchaser who desired to buy such a “special purpose” property, but did not have to have it, would be willing to give for it, and what a seller who had such a “special purpose” property and desired to sell it, but did not have to sell it, would be willing to take for it.

M Civ JI 90.08 Assessed Value 

The owners of certain parcels have introduced in evidence the assessed values placed on the property by the assessing authority for real estate taxes. The assessed values are not controlling, but you have a right to consider these assessments in connection with all other evidence in arriving at the market value of the property.

The law requires that assessments for real estate tax purposes be made at 50 percent of the true cash value.

M Civ JI 90.09 Highest and Best Use 

In deciding the market value of the subject property, you must base your decision on the highest and best use of the property.

By “highest and best use” we mean the most profitable and advantageous use the owner may make of the property even if the property is presently used for a different purpose or is vacant, so long as there is a market demand for such use.

M Civ JI 90.10 Possibility of Rezoning 

The Court has instructed you on the subject of highest and best use. One of the things that must be considered in deciding what the highest and best use of the property was at the time of taking is the zoning classification of the property at that time. However, if there was a reasonable possibility, absent the threat of this condemnation case, that the zoning classification would have been changed, you should consider this possibility in arriving at the value of the property on the date of taking. In order to affect the value of the property, the possibility of rezoning must be real enough to have caused a prudent prospective buyer to pay more for the property than he or she would otherwise pay.

M Civ JI 90.11 Refusal to Rezone 

You should ignore a refusal to rezone unless you believe that the request to rezone would also have been denied even in the absence of the condemnation and the planned public improvement. It is improper for one agency of government to artificially depress the value of property by unreasonably restrictive zoning so that another agency of government can obtain it by condemnation at a lower price.

M Civ JI 90.12 Partial Taking 

This case involves what is known as a “partial taking”; that is to say, the property being acquired by the condemning authority is part of a larger parcel under the control of the owner.

When only part of a larger parcel is taken, as is the case here, the owner is entitled to recover not only for the property taken, but also for any loss in the value to his or her remaining property.

The measure of compensation is the difference between (1) the market value of the entire parcel before the taking and (2) the market value of what is left of the parcel after the taking.

In valuing the property that is left after the taking, you should take into account various factors, which may include: (1) its reduced size, (2) its altered shape, (3) reduced access, (4) any change in utility or desirability of what is left after the taking, (5) the effect of the applicable zoning ordinances on the remaining property, and (6) the use which the condemning authority intends to make of the property it is acquiring and the effect of that use upon the owner’s remaining property.

Further, in valuing what is left after the taking, you must assume that the condemning authority will use its newly acquired property rights to the full extent allowed by the law.

M Civ JI 90.13 Date of Valuation 

In this case, the market value of the property both before and after the taking must be determined as of[applicable date] and not at any earlier or later date.

M Civ JI 90.14 Date of Valuation: Early Date of Taking 

The market value of the property is to be determined as of the date of taking which shall be decided by you.

In some situations, the government’s actions with respect to a particular property have an impact which deprives an owner of the practical benefits of ownership of the property. In such a case, you may find that the government’s actions constitute a “taking” of the property at a date earlier than the date legal title is transferred to the government. This does not mean that the government has actually seized or confiscated the property, but merely that the impact of the government’s actions on the property is such that the law treats the situation as though a taking has occurred.

The test to be applied in determining whether or not a taking has occurred is whether the actions of the government substantially contributed to and accelerated the decline in value of the property.

You should first determine whether or not such a taking in the legal sense occurred. Then you must determine the date that such taking occurred. Then you must determine the value of the property on that date.

M Civ JI 90.15 Effect of Proposed Public Improvement 

The process of determining the value on the date of taking may be complicated by the government’s actions leading up to the taking, if those actions have had an effect on the market value of the property. In such case, you must disregard any change in value resulting from such actions and grant compensation on the basis of what the market value of the property would be if such actions had not occurred. In other words, in arriving at market value you should disregard any conditions which may exist in this area resulting from the prospect of condemnation for this project and the other proceedings leading up to this condemnation case.

You should determine the value of the property as though this project had not been contemplated.

This does not mean that the announcement of the project acts to insulate the properties concerned from normal economic forces. The market may go up or down, the property may deteriorate or be improved, and you should recognize those factors. However, a change in value directly traceable to the prospect of this condemnation should not penalize either owners or the public. By the same token, you should disregard any increases in value which may have occurred by reason of the prospect of the completion of the project.

M Civ JI 90.16 Comparable Market Transactions 

The witnesses who have expressed opinions about market value have relied upon various market transactions to help them arrive at their opinions. These transactions are referred to as “comparables” and may include sales, offers to sell, offers to buy and rentals.

These witnesses have been permitted to testify as to the price and other terms and circumstances of these transactions which they consider to be comparable to the owner’s property as shedding light on the value of the owner’s property. Generally, the more similar one property is to another, the closer the price paid for the one may be expected to approach the value of the other. *(Thus, in weighing the opinion of a witness as to the value of the subject property based upon other market transactions, you may consider the following matters:

Was the transaction freely entered into in good faith?
If the transaction was on credit, how much should the price be discounted to reflect the amount which the property would have brought in cash?
How near is the date of the other transaction to the date of valuation in this case?
How near is the size and shape of the property to the size and shape of the owner’s property?
How similar are the physical features, including both improvements and natural features?
How similar is the use to which the other property is, or may be, put, to the use which is, or may be, made of the owner’s property?
How far is the other property from the owner’s property, and is the distance important?
How similar is the neighborhood of the other property to the neighborhood of the owner’s property?
Is the zoning classification the same on both properties?

You should also consider the extent to which the witness has taken into account whatever dissimilarities may exist. If you are not satisfied that the transactions being used as comparables are, in fact, comparable, then you may consider that fact in weighing [his / or / her] opinion.

You should bear in mind that comparable sales are not themselves direct evidence of value, but merely the basis on which the witnesses have formed their opinions of value.

You should apply these standards to all witnesses rendering an opinion of value.

M Civ JI 90.17 Easements 

The condemning authority is attempting to acquire through this condemnation proceeding certain limited rights in the owner’s lands. The rights being acquired are as follows: [Describe and define the rights being acquired.]. The owner will have and retain all the uses of his land not inconsistent with those easement rights.

M Civ JI 90.18 Total Taking 

The condemning authority has the right and duty to acquire and take the entire property whenever the acquisition of the part actually needed would destroy the practical value or utility of the remainder of the property. It is for you to determine whether or not the practical value or utility of the remainder is, in fact, being destroyed.

The burden of proof is on the owner to show by a preponderance of the evidence that the practical value or utility of the remainder of the property has been destroyed.

M Civ JI 90.19 Benefits 

You must disregard any testimony which indicates or implies that because of this taking the remaining property has in any way benefited. You may only consider testimony that bears on damages to the subject property.

M Civ JI 90.20 Compensation for Fixtures; Definition 

The market value of the property taken includes the value of its fixtures. An item is a fixture if it meets all three of the following criteria:

The item is attached or constructively attached to the land or to a building or structure attached to the land. 

"Constructively attached” means that an item is a fixture even though it is not physically attached if it is a part of something else that is physically attached, and when the item, if removed, either could not generally be used elsewhere or would leave the part remaining unfit for use.

The item is a necessary or useful part, considering the purpose for which the land, building, or structure is used.
The surrounding circumstances indicate that the owner intended to make the attachment or constructive attachment permanent.

Improvements made by a tenant are to be valued on the basis of their useful life without regard to the term of the lease.

M Civ JI 90.21 Fixtures: Election to Remove-Compensation 

In this case, the owner has elected to remove fixtures from the property. When the owner makes such an election, the market value of the property including the fixtures must be decreased by the value of the fixtures removed. The owner shall be awarded the cost of removing the fixtures, moving them to a new location, and reinstalling them at the new location.

M Civ JI 90.22 Effect of View 

During the course of this trial, you were taken to the subject property. In addition to the testimony which you have heard and the exhibits which you have seen here in the courtroom, you may also consider what you saw when you visited the property if you believe the things you saw would be helpful to you in reaching a decision.

M Civ JI 90.22A Valuation Witnesses 

Witnesses have testified as valuation experts to assist you in arriving at a conclusion as to the value of the property taken. In weighing the soundness of such opinions, you should consider the following:

the length and diversity of the witness’s experience
the professional attainments of the witness
whether the witness is regularly retained by diverse, responsible persons and thus has a widespread professional standing to maintain
the experience that the witness has had in dealing with the kind of property about which [he / or / she] has testified
whether the witness has accurately described the physical condition of the property, or as made inaccurate statements about its physical characteristics that may have been reflected in the valuation the witness placed on such property

The opinion of a valuation witness is to be weighed by you, but you must form your own intelligent opinion. In weighing the testimony of any witness as to value, you should consider whether [he / or / she] has accompanied [his / or / her] opinion with a frank and complete disclosure of facts and a logical explanation of [his / or / her] reasons that will enable you properly to determine the weight to be given to the opinion the witness has stated.

M Civ JI 90.23 Range of Testimony 

In reaching a verdict, you must keep within the range of the testimony submitted. You may accept the lowest figure submitted as to a particular item of damage, the highest figure submitted, or a figure somewhere between the highest and lowest. You may not go below the lowest figure or above the highest figure submitted.

In this case, the lowest valuation placed in evidence for the property is $________.____ and the highest valuation is $________.____. Any award between those two figures would be a proper jury verdict; any award which is not between those two figures would not be a valid jury verdict.

M Civ JI 90.24 Mechanics of Verdict 

When you retire to the jury room, your first duty is to elect a jury foreman. You may have all the various exhibits that have been admitted in evidence, and your notes, with you. You will also have a prepared Form of Jury Verdict which will contain a blank line in which you should insert the amount of just compensation as determined by you. I also want to emphasize that your verdict does not have to be unanimous. If any five of you agree on a verdict, that constitutes a legal jury verdict. The foreman must sign the verdict.

M Civ JI 90.30 Going Concern 

The defendant claims that condemnation of the property destroyed the business.

If you find that the defendant cannot relocate the business, the defendant is entitled to just compensation for the value of the business as a going concern. If you find that the business can be relocated, the defendant is not entitled to compensation for the value of the business as a going concern.

M Civ JI 90.31 Business Interruption

Just compensation includes damages caused by interruption of a business or avoiding interruption of the business.

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