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 [ 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.