This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






County of Hennepin,





H. William Lurton, et al.,

Respondents Below,


Barbara J. Lefky,



Filed April 10, 2001


Kalitowski, Judge


Hennepin County District Court

File No. CD2485


Amy Klobuchar, Hennepin County Attorney, Lisa A. Berg, Robert A. Burck, Assistant County Attorneys, A2000 Government Center, Minneapolis, MN 55487 (for respondent)


Bradley J. Gunn, Leonard, Street & Deinard, 150 South Fifth Street, Suite 2300, Minneapolis, MN 55402 (for appellant)


            Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Poritsky, Judge.*

U N P U B L I S H E D   O P I N I O N


On appeal from the denial of her motion for a new trial in this eminent domain proceeding, appellant-landowner Barbara J. Lefky challenges the district court’s refusal to instruct the jury that general benefits to the remaining property should not be included in the jury’s compensation award.  We affirm.



District courts have broad latitude in selecting the language of jury instructions provided that the entire charge fairly and adequately states the applicable law.  Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986).  Appellate courts will not reverse a district court’s jury instructions unless the court abused its discretion.  Id.  A new trial is warranted only when the jury instructions, considered as a whole, do not fairly and correctly state the applicable law, cause a miscarriage of justice, or result in substantial prejudice.  H Window Co. v. Cascade Wood Prods., Inc., 596 N.W.2d 271, 277 (Minn. App. 1999), review denied  (Minn. Aug. 17, 1999).

            Under Minn. Const. art. 1, § 13, property owners are entitled to just compensation for property taken, destroyed, or damaged for public use.  Where only a part of a tract of land is taken, the landowner is entitled to damages for loss to the part remaining as well as to the part actually taken.  State by Lord v. Hayden Miller Co., 263 Minn. 29, 29 116 N.W.2d 535, 536 (1962).  In such a case, the measure of damages is ordinarily the difference between the market value of the entire tract prior to the taking and the market value of the remainder after the taking, “excluding from consideration general benefitsand deducting from the difference special benefits.”  Id.

            Here, the district court instructed the jury pursuant to CIVJIG 52.40 and 52.65 but did not instruct the jury concerning general benefits and their exclusion from the just compensation calculation.  Appellant contends she is entitled to a new trial because the district court denied her request for an instruction on general benefits.  We disagree.

            At trial, respondent neither argued nor presented any evidence that the road’s improved condition increased the value of appellant’s property.  Respondent merely presented evidence on direct examination regarding the poor condition of the road prior to the reconstruction and its improved condition after the project.  The testimony neither directly nor indirectly suggested the road improvements affected the value of appellant’s property.  

            In addition, the experts for both sides who testified regarding appraisals of appellant’s property were examined and cross-examined in detail, and neither expert referred to the general improvement of the road in arriving at estimates of the value of appellant’s property after the reconstruction.  Rather, appellant’s case was based on her argument that her property had decreased in value because of increased traffic on the improved road.  While respondent disputed those allegations, it introduced no evidence connecting any “general benefits” to an increase in the value of appellant’s property. 

We agree with appellant that it was not appropriate for the jury to consider general benefits to appellant’s remaining property in determining the property’s fair-market value.  But on the facts here, we conclude the district court’s failure to give the general benefits instruction was not reversible error.  An instruction must be read as a whole, keeping in mind the evidence in the case, to determine what constitutes error.  Stall v. Christensen, 277 Minn. 71, 75, 151 N.W.2d 764, 766 (1967).  Here, the more specific instruction on general benefits was not necessary to enable the jury to properly determine the damages to appellant’s remaining property because no evidence was presented that would make the concept of general benefits applicable.  See Sandhofer v. Abbott-Northwestern Hosp., 283 N.W.2d 362, 367 (Minn. 1979) (stating preference for “general charges * * * to avoid overemphasis of one side of the case and jury confusion”).  The jury was charged to determine the “just compensation for the part taken as well as for severance damages for the part that is left.”  4 Minnesota Practice, CIVJIG 52.65 (Supp. 2000) (emphasis added).

The jury was presented evidence on damages, not benefits, to appellant’s property and, as instructed, determined the amount of those damages.  The jury’s award fell within the range of damage estimates given by the experts.  We conclude that appellant was given a fair and proper determination of just compensation and that the district court’s failure to give the general benefits instruction did not prejudice appellant so as to warrant a new trial.


*  Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.