3511. Severance Damages
The [name of condemnor] has taken only a part of [name of property owner]'s property. [Name of property owner] claims that [his/her/its] remaining property has lost value as a result of the taking. This loss in value is called "severance damages" and must be included in determining just compensation.
Severance damages are the damages to [name of property owner]'s remaining property caused by the taking, or by the construction and use of the [name of condemnor]'s proposed project, or by both.
Severance damages are determined as follows:
1. Determine the fair market value of the remaining property on [date of valuation] by subtracting the fair market value of the part taken from the fair market value of the entire property;
2. Determine the fair market value of the remaining property after the [name of condemnor]'s proposed project is completed; and
3. Subtract the fair market value of the remaining property after the [name of condemnor]'s proposed project is completed from the fair market value of the remaining property on [date of valuation].
Directions for Use
Read CACI No. 3512, Severance Damages—Offset for Benefits, if benefits are at issue.
Sources and Authority
Code of Civil Procedure section 1263.410 provides: (a) Where the property acquired is part of a larger parcel, in addition to the compensation awarded pursuant to Article 4 (commencing with Section 1263.310) for the part taken, compensation shall be awarded for the injury, if any, to the remainder.
(b) Compensation for injury to the remainder is the amount of the damage to the remainder reduced by the amount of the benefit to the remainder. If the amount of the benefit to the remainder equals or exceeds the amount of the damage to the remainder, no compensation shall be awarded under this article. If the amount of the benefit to the remainder exceeds the amount of damage to the remainder, such excess shall be deducted from the compensation provided in Section 1263.510, if any, but shall not be deducted from the compensation required to be awarded for the property taken or from the other compensation required by this chapter.
Code of Civil Procedure section 1263.420 provides: Damage to the remainder is the damage, if any, caused to the remainder by either or both of the following:
(a) The severance of the remainder from the part taken.
(b) The construction and use of the project for which the property is taken in the manner proposed by the plaintiff whether or not the damage is caused by a portion of the project located on the part taken.
Code of Civil Procedure section 1263.430 provides: "Benefit to the remainder is the benefit, if any, caused by the construction and use of the project for which the property is taken in the manner proposed by the plaintiff whether or not the benefit is caused by a portion of the project located on the part taken."
"When property acquired by eminent domain is part of a larger parcel, compensation must be awarded for the injury, if any, to the remainder. Such compensation is commonly called severance damages. When the property taken is but part of a single legal parcel, the property owner need only demonstrate injury to the portion that remains to recover severance damages." (City of San Diego v. Neumann (1993) 6 Cal.4th 738, 741 [25 Cal.Rptr.2d 480, 863 P.2d 725], internal citations omitted.)
"Severance damages must be based upon real physical disturbance of a property right and a decrease in market value of the property rather than upon remote possibilities which are highly speculative and conjectural." (County Sanitation Dist. No. 8 of Los Angeles County v. Watson Land Co. (1993) 17 Cal.App.4th 1268, 1282 [22 Cal.Rptr.2d 117], internal citation omitted.)
The court determines as a matter of law what constitutes the "larger parcel" for which severance damages may be obtained: "The Legislature has framed the question of whether property should be viewed as an integrated whole in terms of whether the land remaining after the taking forms part of a 'larger parcel'." (City of San Diego, supra, 6 Cal.4th at p. 745, internal citations omitted.)
"As we said in Pierpont Inn, 'Where the property taken constitutes only a part of a larger parcel, the owner is entitled to recover, inter alia, the difference in the fair market value of his property in its "before" condition and the fair market value of the remaining portion thereof after the construction of the improvement on the portion taken. Items such as view, access to beach property, freedom from noise, etc. are unquestionably matters which a willing buyer in the open market would consider in determining the price he would pay for any given piece of real property.' Severance damages are not limited to special and direct damages, but can be based on any factor, resulting from the project, that causes a decline in the fair market value of the property." (Los Angeles County Metropolitan Transportation Authority v. Continental Development Corp. (1997) 16 Cal.4th 694, 712 [66 Cal.Rptr.2d 630, 941 P.2d 809], internal citations omitted.)
"We hold that in determining a landowner's entitlement to severance damages, the fact finder henceforth shall consider competent evidence relevant to any conditions caused by the project that affect the remainder property's fair market value, insofar as such evidence is neither conjectural nor speculative." (Los Angeles County Metropolitan Transportation Authority, supra, 16 Cal.4th at p. 718.)
"In determining severance damage, the jury must assume 'the most serious damage' which will be caused to the remainder by the taking of the easement and construction of the property. The value of the remainder after the condemnation has occurred is referred to as the 'after' value of the property. The diminution in fair market value is determined by comparing the before and after values. This is the amount of the severance damage." (San Diego Gas & Electric Co. v. Daley (1988) 205 Cal.App.3d 1334, 1345 [253 Cal.Rptr. 144], internal citations omitted, disapproved on other grounds in Los Angeles County Metropolitan Transportation Authority, supra, 16 Cal.4th at p. 720.)
"[S]everance damages are not limited to specific direct damages but can be based on any indirect factors that cause a decline in the market value of the property. California decisions have indicated the following are compensable as direct damages under section 1263.410: (1) mpairment of view, (2) restriction of access, (3) increased noise, (4) invasion of privacy, (5) unsightliness of the project, (6) lack of maintenance of the easement and (7) nuisances in general such as trespassers and safety risks. Several courts have recognized that the condemnee should be compensated for any characteristic of the project which causes 'an adverse impact on the fair market value of the remainder.' " (San Diego Gas & Electric Co., supra, 205 Cal.App.3d at p. 1345.)
"When 'the property acquired [by eminent domain] is part of a larger parcel,' in addition to compensation for the property actually taken, the property owner must be compensated for the injury, if any, to the land that he retains. Once it is determined that the owner is entitled to severance damages, they, too, normally are measured by comparing the fair market value of the remainder before and after the taking." (City of San Diego, supra, 6 Cal.4th at p. 745, internal citations and footnote omitted.)
Secondary Sources
8 Witkin, Summary of California Law (9th ed. 1988) Constitutional Law, §§ 1022-1030
1 Condemnation Practice in California (Cont.Ed.Bar 2005) Ch. 5
4A Nichols on Eminent Domain, Ch. 14, Damages for Partial Takings, §§ 14.01-14.03 (Matthew Bender)
5 Nichols on Eminent Domain, Ch. 16, Consequential Damages as a Result of Proposed Use, §§ 16.01-16.05 (Matthew Bender)
20 California Forms of Pleading and Practice, Chapter 247, Eminent Domain (Matthew Bender)
(New September 2003)