Introductory Directions to the Court
Instructions
M Civ JI 90.01 Pretrial Instruction: Nature of Condemnation Action
M Civ JI 90.02 Power of Eminent Domain
M Civ JI 90.03 Burden of Proof [Recommend No Instruction]
M Civ JI 90.04 Absence of Fault
M Civ JI 90.05 Just Compensation—Definition
M Civ JI 90.06 Market Value—Definition
M Civ JI 90.07 Special Purpose Property
M Civ JI 90.08 Assessed Value
M Civ JI 90.09 Highest and Best Use
M Civ JI 90.10 Possibility of Rezoning
M Civ JI 90.11 Refusal to Rezone
M Civ JI 90.12 Partial Taking
M Civ JI 90.13 Date of Valuation
M Civ JI 90.14 Date of Valuation: Early Date of Taking
M Civ JI 90.15 Effect of Proposed Public Improvement
M Civ JI 90.16 Comparable Market Transactions
M Civ JI 90.17 Easements
M Civ JI 90.18 Total Taking
M Civ JI 90.19 Benefits
M Civ JI 90.20 Compensation for Fixtures; Definition
M Civ JI 90.21 Fixtures: Election to Remove—Compensation
M Civ JI 90.22 Effect of View
M Civ JI 90.22A Valuation Witnesses
M Civ JI 90.23 Range of Testimony
M Civ JI 90.24 Mechanics of Verdict
M Civ JI 90.30 Going Concern
M Civ JI 90.31 Business Interruption
The following are standard jury instructions for cases involving the taking of private property by government agencies or utility companies. The taking can occur either (1) through formal action instituted by the condemning authority (de jure) or (2) by extrajudicial conduct on the part of the condemning authority which is inimical to an owner’s property interests to such an extreme degree as to constitute a constitutional de facto taking giving rise to an inverse condemnation action. It should be noted at the outset that all eminent domain cases, except inverse condemnation cases, are commenced pursuant to a particular enabling statute which may have some bearing on the jury instructions to be given.
These standard instructions and any supplementary instructions should be preceded by the applicable standard instructions dealing with credibility (M Civ JI 4.01–4.12) and the usual cautionary instructions (M Civ JI 3.01–3.15).
These jury instructions do not purport to cover all situations which may occur in an eminent domain case. There are many issues which do not arise with sufficient frequency to warrant inclusion in a set of standard jury instructions, yet are important or even crucial in those few cases in which they do arise. In addition, eminent domain is a rapidly changing area in which new issues may arise which are not covered by these jury instructions. In either case it is appropriate for additional jury instructions to be given by the trial judge. Some of the issues which arise infrequently and are therefore not covered by these jury instructions are listed below with some important cases. This list does not purport to be exhaustive.
Cost to Cure:
In re Widening of Bagley Avenue, 248 Mich 1; 226 NW 688 (1929)
Detroit v Loula, 227 Mich 189; 198 NW 837 (1924)
Necessity:
Grand Rapids Board of Education v Baczewski, 340 Mich 265; 65 NW2d 810 (1954)
In re Huron-Clinton Metropolitan Authority’s Petition, 306 Mich 373; 10 NW2d 920 (1943)
Lansing v Jury Rowe Realty Co, 59 Mich App 316; 229 NW2d 432 (1975)
Leasehold Interest:
Pierson v H R Leonard Furniture Co, 268 Mich 507; 256 NW 529 (1934)
Frustration of Plans for Business Expansion—Loss of Potential Use:
State Highway Commission v Great Lakes Express Co, 50 Mich App 170; 213 NW2d 239 (1973)
Scope of the Parcel in Partial Taking Cases:
State Highway Commissioner v Snell, 8 Mich App 299; 154 NW2d 631 (1967)
Port Huron & S W R Co v Voorheis, 50 Mich 506; 15 NW 882 (1883)
In re Slum Clearance, 331 Mich 714; 50 NW2d 340 (1951)
Denial of Access:
Pearsall v Board of Supervisors, 74 Mich 558; 42 NW 77 (1889)
Violation of Restrictive Covenants:
Bales v State Highway Commission, 72 Mich App 50; 249 NW2d 158 (1976)
Johnstone v Detroit, GH & M R Co, 245 Mich 65; 22 NW 325 (1928)
Allen v Detroit, 167 Mich 464; 133 NW 317 (1911)
Vacation of an Alley:
Forster v Pontiac, 56 Mich App 415; 224 NW2d 325 (1974)
Diversion of Traffic:
State Highway Commissioner v Watt, 374 Mich 300; 132 NW2d 113 (1965)
State Highway Commissioner v Gulf Oil Corp, 377 Mich 309; 140 NW2d 500 (1966)
Special Adaptability of Property to Use for Which It Is Being Taken:
Allegan v Vonasek, 261 Mich 16; 245 NW 557 (1932)
Loss of Light, Air and View:
Gerson v Lansing, 250 Mich 587; 231 NW 125 (1930)
Noise:
Boyne City, G & A R Co v Anderson, 146 Mich 328; 109 NW 429 (1906)
Lost Rentals:
Muskegon v DeVries, 59 Mich App 415; 229 NW2d 479 (1975)
See 2 Michigan Municipal Law (ICLE 1980), ch 13, for further discussion and sources.
History
Amended September 1998. TOP
This is a case 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 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.
By your verdict, you will decide the disputed [issue / issues] of fact, which in this case [concerns / concern] *(the necessity for the project and) the just compensation to be paid to the [owner / owners] for the property taken.
There are three matters that make this case different from most trials:
†(First, this trial involves several parcels of property owned by several landowners named in the action. All of these parcels are being tried together, but each is separate from the other and each constitutes a separate trial as to each individual parcel and owner. The trials are consolidated for convenience and to save time and expense.)
†(Second, you, as jurors in this case, may make a personal inspection of the property involved in this action. The purpose of the view is to enable you, the jurors, to better understand the evidence and testimony concerning the property. You must not visit or view the property unless and until the Court directs you to do so.)
†(Third, because you will hear witnesses who will testify concerning values of property involving numerous mathematical computations, you will be permitted to take notes as the various witnesses testify. Pads and pencils will be provided for you.)
Note on Use
*The phrase in parentheses should be read to the jury only if necessity for the taking is an issue in the case.
The name of the appropriate condemning authority may be substituted for the term “government.”
†Each of the paragraphs in parentheses should be included in the instruction only if applicable.
This is a pretrial instruction which should be read after the jurors are sworn.
Comment
See US Const, Am V; Const 1963, art 10, § 2.
History
M Civ JI 90.01 was added February 1, 1981. TOP
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.
Note on Use
The name of the appropriate condemning authority may be substituted for the word “government.”
History
M Civ JI 90.02 was added February 1, 1981. TOP
Comment
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.
History
M Civ JI 90.03 was added February 1, 1981. TOP
The property owners in this case are not in any way at fault, but are in the position of owning property which the [name of condemning authority] has determined to take for public use.
History
M Civ JI 90.04 was added February 1, 1981. TOP
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 [name of condemning authority] has gained. The value of the property taken to the [name of condemning authority] and to its customers is not to be considered in any way.)
Note on Use
*The paragraph in parentheses should be used in public utility condemnation cases.
Comment
See State Highway Commissioner v Eilender, 362 Mich 697; 108 NW2d 755 (1961); In re Grand Haven Highway, 357 Mich 20; 97 NW2d 748 (1959); Fitzsimons & Galvin, Inc v Rogers, 243 Mich 649; 220 NW 881 (1928); Consumers Power Co v Allegan State Bank, 20 Mich App 720; 174 NW2d 578 (1969).
History
M Civ JI 90.05 was added February 1, 1981.
Amended October 1981. TOP
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.
Note on Use
If there is evidence that the property is a special purpose property, M Civ JI 90.07 should be used in addition to this instruction.
Comment
See Consumers Power Co v Allegan State Bank, 20 Mich App 720, 744–745; 174 NW2d 578, 591 (1969).
History
M Civ JI 90.06 was added February 1, 1981. TOP
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.
Comment
See In re Grand Haven Highway, 357 Mich 20; 97 NW2d 748 (1959).
History
M Civ JI 90.07 was added February 1, 1981. TOP
The owners of certain parcels have introduced in evidence the assessed values placed on the property by the [name of 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.
Note on Use
If the property owner has introduced evidence of the condemning authority’s assessed valuation of the property, this instruction should be given.
Comment
See In re Memorial Hall Site, 316 Mich 360; 25 NW2d 516 (1947); Detroit v Sherman, 68 Mich App 494; 242 NW2d 818 (1976); Muskegon v Berglund Food Stores, Inc, 50 Mich App 305; 213 NW2d 195 (1973).
History
M Civ JI 90.08 was added February 1, 1981. TOP
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.
Comment
See St Clair Shores v Conley, 350 Mich 458; 86 NW2d 271 (1957); In re Condemnation of Lands in Battle Creek, 341 Mich 412; 67 NW2d 49 (1954); In re Dillman, 255 Mich 152; 237 NW 552 (1931); In re Widening of Fulton Street, 248 Mich 13; 226 NW 690 (1929); Ecorse v Toledo, C S & D R Co, 213 Mich 445; 182 NW 138 (1921).
History
M Civ JI 90.09 was added February 1, 1981. TOP
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.
Comment
See State Highway Commissioner v Eilender, 362 Mich 697; 108 NW2d 755 (1961).
History
M Civ JI 90.10 was added February 1, 1981. TOP
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.
Comment
See Gordon v Warren Planning & Urban Renewal Commission, 388 Mich 82; 199 NW2d 465 (1972); Grand Trunk Western R Co v Detroit, 326 Mich 387; 40 NW2d 195 (1949).
History
M Civ JI 90.11 was added February 1, 1981. TOP
This case involves what is known as a “partial taking”; that is to say, the property being acquired by the [name of 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 [name of 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 [name of condemning authority] will use its newly acquired property rights to the full extent allowed by the law.
Note on Use
*The six factors listed in this paragraph are illustrative, not exclusive. But see MCL 213.70(2). If no evidence has been introduced on one or more of the factors, it should be deleted from the instruction.
An alternative test of compensation for a partial taking (i.e., value of the part taken plus damages to the remainder) may be appropriate in certain cases in lieu of this instruction. State Highway Commissioner v Flanders, 5 Mich App 572; 147 NW2d 441 (1967); State Highway Commissioner v Englebrecht, 2 Mich App 572; 140 NW2d 781 (1966). Michigan Dep’t of Transportation v Sherburn, 196 Mich App 301; 492 NW2d 517 (1992).
Comment
See State Highway Commissioner v Schultz, 370 Mich 78; 120 NW2d 733 (1963); State Highway Commissioner v Walma, 369 Mich 687; 120 NW2d 833 (1963); State Highway Commissioner v Sabo, 4 Mich App 291; 144 NW2d 798 (1966).
History
M Civ JI 90.12 was added February 1, 1981. TOP
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.
Note on Use
*The parenthetical phrase should be read to the jury in a partial taking case.
Comment
See State Highway Commission v Mobarak, 49 Mich App 115; 211 NW2d 539 (1973).
History
M Civ JI 90.13 was added February 1, 1981. TOP
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.
Comment
See In re Urban Renewal, Elmwood Park Project, 376 Mich 311; 136 NW2d 896 (1965); Heinrich v Detroit, 90 Mich App 692; 282 NW2d 448 (1979).
History
M Civ JI 90.14 was added February 1, 1981. TOP
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.
Note on Use
This instruction applies in total taking cases and to the before value only in a partial taking case.
In public utility condemnation cases, the word “condemnor’s” should be substituted for the word “government’s” in the first paragraph.
Comment
See United States v Miller, 317 US 369; 63 S Ct 276; 87 L Ed 336 (1943); In re Urban Renewal, Elmwood Park Project, 376 Mich 311; 136 NW2d 896 (1965); Heinrich v Detroit, 90 Mich App 692; 282 NW2d 448 (1979); Detroit Board of Education v Clarke, 89 Mich App 504; 280 NW2d 574 (1979); In re Medical Center Rehabilitation Project, 50 Mich App 164; 212 NW2d 780 (1973); Madison Realty Co v Detroit, 315 F Supp 367 (ED Mich, 1970).
History
M Civ JI 90.15 was added February 1, 1981. TOP
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.
Note on Use
*The list of matters that the jury may consider is illustrative, but not exclusive. If there is no evidence as to one or more of the matters, it should be deleted from this instruction.
Comment
See Western Michigan University Board of Trustees v Slavin, 381 Mich 23; 158 NW2d 884 (1968); In re Brewster Street Housing Site, 291 Mich 313; 289 NW 493 (1939); Commission of Conservation v Hane, 248 Mich 473; 227 NW 718 (1929); State Highway Commission v McGuire, 29 Mich App 32; 185 NW2d 187 (1970).
History
M Civ JI 90.16 was added February 1, 1981. TOP
The [name of 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 / her] land not inconsistent with those easement rights.
Note on Use
On measure of compensation, see M Civ JI 90.12 and the Note on Use thereunder.
Comment
See Cantieny v Friebe, 341 Mich 143; 67 NW2d 102 (1954); Hasselbring v Koepke, 263 Mich 466; 248 NW 869 (1933); Nicholls v Healy, 37 Mich App 348; 194 NW2d 727 (1971).
History
M Civ JI 90.17 was added February 1, 1981. TOP
The [name of 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.
Comment
See MCL 213.54(1); MCL 213.365; State Highway Commission v Mobarak, 49 Mich App 115; 211 NW2d 539 (1973).
History
M Civ JI 90.18 was added February 1, 1981. TOP
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.
Note on Use
This instruction should only be given if the benefits issue has been raised, inadvertently or otherwise, at trial.
The instruction should not be given if the applicable statute authorizes offset of benefit and the issue has been properly pleaded.
Comment
See Custer Twp v Dawson, 178 Mich 367; 144 NW 862 (1914); State Highway Commission v McLaughlin, 16 Mich App 22; 167 NW2d 468 (1969); State Highway Commissioner v Sabo, 4 Mich App 291; 144 NW2d 798 (1966).
History
M Civ JI 90.19 was added February 1, 1981. TOP
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.)
Note on Use
*The parenthetical paragraph in subsection 1 and the phrases in parentheses preceded by an asterisk should be used only when applicable.
†The final paragraph of this instruction should be used only if applicable.
Comment
Wayne County v Britton Trust, 454 Mich 608; 563 NW2d 674 (1997). Stocks of goods and ordinary movable office furniture are not fixtures. Britton.
For a discussion of just compensation for improvements made by a tenant, see Almota Farmers Elevator & Warehouse Co v United States, 409 US 470; 93 S Ct 791; 35 L Ed 2d 1 (1973).
History
M Civ JI 90.20 was added February 1, 1981.
Amended October 1998. TOP
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.
Note on Use
An owner may not recover moving expenses for the fixtures that have been duplicated by relocation benefits paid under federal, state, or local law. MCL 213.63a.
The condemning authority cannot be required to pay more to move a fixture than its value-in-place. In re Grand Haven Highway, 357 Mich 20; 97 NW2d 748 (1959).
Comment
A condemnee automatically receives value-in-place for fixtures without the necessity of an election. However, a condemnee may elect to remove fixtures and receive the value of the property as enhanced by the fixtures less the value-in-place of the fixtures that have or will be severed plus the cost of detaching, moving, and reattaching the fixtures in the new location. Wayne County v Britton Trust, 454 Mich 608; 563 NW2d 674 (1997).
History
M Civ JI 90.21 was added February 1, 1981.
Amended October 1998. TOP
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.
Note on Use
This instruction should be given in lieu of M Civ JI 3.12, since in a condemnation case the view encompasses the item to be valued.
Comment
See In re Grand Haven Highway, 357 Mich 20; 97 NW2d 748 (1959); In re Widening of Michigan Avenue, 299 Mich 544; 300 NW 877 (1941); In re Widening of Bagley Avenue, 248 Mich 1; 226 NW 688 (1929).
History
M Civ JI 90.22 was added February 1, 1981. TOP
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 has 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.
Comment
See In re Dillman, 256 Mich 654; 239 NW 883 (1932); George v Harrison Twp, 44 Mich App 357, 205 NW2d 254 (1973).
History
M Civ JI 90.22A was added October 1981. TOP
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.
Note on Use
The second paragraph of the instruction is appropriate only in a total taking case without the issues contemplated by M Civ JI 90.12 Partial Taking; 90.14 Date of Valuation: Early Date of Taking; 90.18 Total Taking (destruction of practical value or utility); 90.19 Benefits; 90.21 Compensable Business Property: Measure of Compensation, or other damage claims. Where those issues are involved, the second paragraph of the instruction may require modification.
Comment
See In re Grand Haven Highway, 357 Mich 20; 97 NW2d 748 (1959); In re Acquisition of Land for Civic Center, 335 Mich 528; 56 NW2d 375 (1953).
History
M Civ JI 90.23 was added February 1, 1981. TOP
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.
Note on Use
If two or more parcels are consolidated for trial, the jury should be instructed: “When any five of you agree on a verdict as to a parcel, that will be the verdict on that parcel. However, the same five members of the jury do not have to agree on all of the parcels.”
The uniform condemnation statute of 1980 (MCL 213.51 et seq.) does not specify a verdict form. The form of verdict for actions brought under this statute will depend on the nature of the particular case.
History
M Civ JI 90.24 was added February 1, 1981. TOP
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.
Comment
City of Detroit v King, 207 Mich App 169; 523 NW2d 644 (1994); Department of Transportation v Campbell, 175 Mich App 629; 438 NW2d 267 (1988); Detroit v Michael’s Prescriptions, 143 Mich App 808; 373 NW2d 219 (1985); Detroit v Whalings, Inc, 43 Mich App 1; 202 NW2d 816 (1972).
The Committee has found no Michigan appellate decisions that either permit or deny compensation for a partial taking of a going concern.
A defendant may not recover both going concern and business interruption damages because the theories are mutually exclusive. Detroit v Larned Associates, 199 Mich App 36; 501 NW2d 189 (1993).
History
M Civ JI 90.30 was added October 1998. TOP
Just compensation includes damages caused by interruption of a business or avoiding interruption of the business.
Note on Use
Additional instructions may be needed if there are issues about whether specific damages are compensable as business interruption damages. See Spiek v Department of Transportation, 456 Mich 331; 572 NW2d 201 (1998); State Highway Comm’r v Gulf Oil Corp, 377 Mich 309; 140 NW2d 500 (1966); Mackie v Watt, 374 Mich 300; 132 NW2d 113 (1965).
Lost profits are not compensable as business interruption damages. Detroit v Larned Associates, 199 Mich App 36; 501 NW2d 189 (1993).
A defendant may not recover both going concern and business interruption damages because the theories are mutually exclusive. Larned Associates.
Comment
In re Grand Haven Highway, 357 Mich 20; 97 NW2d 748 (1959); Grand Rapids & Indiana Railroad Co v Weiden, 70 Mich 390; 38 NW 294 (1888); Allison v Chandler, 11 Mich 542 (1863); Larned Associates; Detroit v Hamtramck Community Federal Credit Union, 146 Mich App 155; 379 NW2d 405 (1985).
History
M Civ JI 90.31 was added March 1999. TOP