California Civil Jury Instructions (CACI)
3512. Severance Damages - Offset for Benefits
The [name of condemnor] claims that the remainder of [name of property owner]'s property has received a benefit from the project as proposed.
You must determine the amount of benefit by determining any reasonably certain increase in the fair market value of the remaining property caused by the project.
[You must then subtract that amount from the severance damages. If the project's benefit to the remaining property is equal to or greater than the loss caused by the taking, then you must award zero severance damages. Any benefits to the remaining property should not be subtracted from the value of the property that [name of condemnor] has taken.]
Directions for Use
A special verdict form may be used to have the jury set forth separately the determination of severance damages and benefits. Use the bracketed paragraph if the judge will not be calculating the offset to severance damages for the benefit to the remaining property.
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 ompensation 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 1263.430 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."
Code of Civil Procedure section 1260.230 provides: As far as practicable, the trier of fact shall assess separately each of the following:
(a) Compensation for the property taken as required by Article 4 (commencing with Section 1263.310) of Chapter 9.
(b) Where the property acquired is part of a larger parcel:
(1) The amount of the damage, if any, to the remainder as required by Article 5 (commencing with Section 1263.410) of Chapter 9.
(2) The amount of the benefit, if any, to the remainder as required by Article 5 (commencing with Section 1263.410) of Chapter 9.
(c) Compensation for loss of goodwill, if any, as required by Article 6 (commencing with Section 1263.510) of Chapter 9.
8 Witkin, Summary of California Law (9th ed. 1988) Constitutional Law, §§ 1022-1030
1 Condemnation Practice in California (Cont.Ed.Bar 2005) §§ 5.33-5.40
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)