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Jury Instructions

The Eminent Domain/Condemnation Process

In preparing an eminent domain case, it is critical to understand the likely jury instructions that will be used by the jury to evaluate the valuation issues at trial. The following are the Tennessee Pattern Jury Instructions, Civil (9th Edition) (2009):

T.P.I.-CIVIL 11.01 Power of Eminent Domain

The constitution and laws of this state provide that all private property may be taken under the right of eminent domain. The right of eminent domain allows the state or authorized agencies to file a condemnation action to take property for public use provided the owner is paid just compensation.

The taking authority, ________, is authorized by law to sue the right of eminent domain to take this landowner’s property for the purpose of ______. You may not consider the taking of the property, or the need for the property, or the wisdom of locating the public use on the landowner’s property. As jurors, your only duty is to determine the just compensation to be paid to the landowner[s].

T.P.I.-CIVIL 11.02 Burden of Proof

The landowner has the burden of proving by a preponderance of the evidence the fair cash market value of the property taken [and the incidental damages, if any, to the landowner’s remaining property].

[The taking authority has the burden of proving by a preponderance of the evidence the special benefits, if any, to the landowner’s remaining property.]

T.P.I.-CIVIL 11.03 Measure of Damages-Property Taken

The measure of damages is the fair cash market value of the land and improvements on _________, the date of taking. Fair cash market value means the amount of money that a willing buyer would pay for the property and that a willing seller would accept, when the owner is not compelled to buy and the landowner is not compelled to sell. In determining fair cash market value, you must consider all of the property’s legitimate potential uses.

It is the fair cash market value at the time of the taking that must be determined and not what the property may be worth at some time in the future. You may, however, consider future value if, on the date of the taking, the probability of the future value had an effect upon its present value. The market value must be determined without regard to any increase or decrease in value because of the announcement or construction of the public improvement for which the property was taken.

The taking authority is not required to replace the property or to reconstruct improvements on the property. The taking authority must pay the landowner[s] the cash market value of the property that has been taken. In other words, the landowner is not entitled to the replacement value of the property and you may not award a verdict based on replacement value.

T.P.I.-CIVIL 11.04 Partial Taking-Incidental Damages

If the value of the landowner’s remaining property has been or probably will be decreased by the construction of the improvements for which the property was taken, the landowner is entitled to additional damages called “incidental damages.” Incidental damages are measured by the difference in the remaining property’s fair cash market value, immediately before and immediately after the taking.

You should consider the following factors in determining the incidental damages, if any, to the remaining property:

1. The loss of its use for any lawful purpose; 2. Any unsightliness of the property or inconvenience in its use; 3. Any impairment to the owner’s access to the property or between the property and nearby streets and highways; and 4. Any other consideration that could reduce the fair cash market value of the remaining property.

T.P.I.-CIVIL 11.05 Special Benefits

Special benefits are advantages to the remaining property after the taking that are:

1. Reasonably certain to result to it from the construction of the public improvement as planned or proposed by the taking authority; and 2. Peculiar to the remaining property, as opposed to general benefits that result from advantages that will benefit the whole community or neighborhood.

If as a result of the public improvement you find any special benefits to the landowner’s remaining property, then you should deduct the value of those benefits from the amount of incidental damages. Special benefits may be used only to reduce any incidental damages that you find. Special benefits cannot be used to reduce the just compensation due the landowner for the property taken. The landowner is entitled to receive the fair cash market value of the property taken without deduction.

T.P.I.-CIVIL 11.06 Moving Expenses

The landowner is also entitled to the reasonable expense of removing furniture, household belongings, fixtures, equipment, machinery or stock in trade, if the removal was made necessary by the taking of the landowner’s property rights. Expenses that may be recovered include the cost of:

1. Any necessary disconnections, dismantling, and disassembling; 2. Loading and moving to another location not more than fifty miles from the previous location; and 3. Reassembling, reconnecting and installing at the new location.

T.P.I.-CIVIL 11.07 Leasehold Value

In this case you must apportion between the landowner and the lessee the fair cash market value of the property taken [and the amount of incidental damages, if any]. The lessee is the one renting or leasing the property.

To determine the portion of the damages to be recovered by the lessee, you should subtract the rents due under the lease from the market value of the lease. The lessee is entitled to the difference. [The lessee is also entitled to the amount of incidental damages that fairly applies to the leasehold].

After determining the lessee’s portion of the damages, subtract that amount from the [fair cash market value of the property] [together with the incidental damages, if any,] to determine the landowner’s portion.

The total amount that must be paid for the property by the taking authority cannot be increased because of the existence of the lease at the time of the taking, nor can the total amount exceed the total value of the property [plus incidental damages, if any].

T.P.I.-CIVIL 11.08 Leasehold Interest-Right of Lessee to Improvements

You must also determine whether the improvements to the property are permanent and belong to the owners of the land or whether the improvements are temporary and removable from the property by the lessee.

The lessee’s right to remove improvements that were erected at the lessee’s expense depends upon the intention of the parties. As a general rule, a lessee is entitled to receive compensation for fixtures, structures and other improvements installed or erected by the lessee upon the property if the lessee has a right to remove such improvements prior to or upon the expiration of the lease. Improvements that are so attached to the land that their removal would cause serious injury to the property are generally considered to be a part of the land.

When the intention of the parties is not shown by expressed words, you may consider all of the facts and circumstances that might show what the parties intended at the time the improvement was placed on the land. If the parties intended that the items could be removed at the pleasure of the lessee, then the improvement is not part of the land.

If you find that the lessee has established by a preponderance of the evidence a right to remove the improvements that were erected at the lessee’s expense, then the lessee is entitled to recover damages for the taking of the improvements.

If you find that the lessee did not have the right to remove the improvements erected at the lessee’s expense, then the improvements are a part of the land and the value of the improvements belong to the landowner.

T.P.I.-CIVIL 11.09 Diversion of Traffic

The landowner is not entitled to compensation because traffic flow has been diverted or rerouted from the roadway that adjoins the landowner’s property.

T.P.I.-CIVIL 11.10 Inconvenience of Traffic Regulation

You may not consider as an element of damages the inconvenience, if any, to a landowner resulting from the construction of a highway [center divider strip] [traffic island] [crossover] [_____]. Inconvenience is not compensable and you should not consider inconvenience in assessing damages, if any, to the remaining property.

T.P.I.-CIVIL 11.11 Loss of Business

You must not include in your verdict any sum for loss of business or inconvenience to business, if any.

T.P.I.-CIVIL 11.12 Loss or Impairment of Access-No Other Property Taken

The landowner has the right to go to and from the landowner’s property, by using (name of road or street). This is called the right of access and is part of the value of the property. The right of access is the access that is reasonably required for the landowner’s property, considering all of the uses and purposes for which the property is adaptable and available. The landowner is entitled to compensation for a loss or serious impairment of the right of access.

The amount of compensation is measured by the difference, if any, in the fair cash market value of the landowner’s property, valued immediately before and immediately after the loss or serious impairment of access. In determining the value of the access taken, you may consider whether the property has other access and whether access is created in the course of construction.

T.P.I.-CIVIL 11.13 Right of Access Extends to Next Intersecting Streets

A landowner’s right of access extends along the street on which the property is located to the next intersecting street[s]. Obstructing the street within this right of access may be a loss or serious impairment of the landowner’s right of access.

T.P.I.-CIVIL 11.15 Opinion of Valuation Witnesses

You must determine the fair cash market value of the subject property [and the incidental damages, if any,] [and special benefits, if any,] only from the opinions of the witnesses who have testified.

You may not find the market value of the property [or incidental damages] [or special benefits] if any, to be less than or more than that testified to by any witness.

While owners and valuation witnesses may express opinions on the issue of value, those opinions are worth no more than the reasons and factual data upon which they are based. The evidence you have heard concerning the reasons for their opinions of value, and all other evidence concerning the subject property [and other properties], is to be considered only for the limited purpose of enabling you to understand and weigh the opinions of the witnesses regarding the market value [and incidental damages] [and special benefits], if any.

You should determine the weight that should be given to each opinion, and resolve conflicts in the testimony of different opinion witnesses. You should consider:

  • The education, qualifications, and experience of the witness[es];
  • The credibility of the witness[es];
  • The facts relied upon by the witness[es] to support the opinion; and
  • The reasoning used by the witness[es] to arrive at the opinion.
T.P.I.-CIVIL 11.16 Comparable Sales

To assist you in determining the fair cash market value of the property [and incidental damages, if any], you may consider the testimony of witnesses based upon sales or contracts to sell [the property or] other properties that witnesses consider comparable to the property. Generally, the more similar the properties, the closer their values.

In evaluating testimony concerning comparable sales you should consider the following:

  • Was the sale or contract to sell testified about made freely and in good faith;
  • How close in time are the date of valuation of this property to the date of the sale of the property being compared;
  • How similar are the sizes of the properties;
  • How similar are the physical features of the properties, including both improvements and natural features;
  • How similar are the uses that are or may be made of the properties;
  • How similar are the neighborhoods; and

Have property adjustments been made for any dissimilarities between the properties.

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