dissenting.
I do not agree that evidence of a property owner’s transactions and activities, prior to the date of a Chapter 136 condemnation, is admissible to determine the amount of just compensation. I would award the plaintiffs a new trial.
The damages in a Chapter 136 condemnation proceeding are to be determined as of the date of the taking. N.C.G.S. § 136-112 (1993). The taking occurs on the date Department of Transportation (DOT) files a civil action and declaration of taking. N.C.G.S. § 136-103 (1997).
Where only a part of a tract [of land] is taken, the measure of damages . . . shall be the difference between the fair market value of the entire tract immediately prior to said taking and the fair market value of the remainder immediately after said taking with consideration being given to any special or general benefits resulting from the utilization of the part taken for highway purposes.
N.C.G.S. § 136-112(1). If the entire tract of land is taken, the measure of damages “shall be the fair market value of the property at the time of taking.” N.C.G.S. § 136-112(2). The fair market value of the property is to be determined “on the basis of conditions existing at the time of the taking,” City of Charlotte v. Recreation Comm’n, 278 N.C. 26, 33, 178 S.E.2d 601, 606 (1971), and evidence of actions taken by either DOT or the property owners in anticipation of the condemnation is not admissible. North Carolina State Highway Comm’n v. Hettiger, 271 N.C. 152, 156, 155 S.E.2d 469, 472-73 (1967); Templeton v. State Highway Comm’n, 254 N.C. 337, 339, 118 S.E.2d 918, 920-21 (1961) (only evidence relevant to the fair market value on the date of the taking is admissible); James A. Webster, Jr., Webster’s Real Estate Law in North Carolina § 19-1, at 805 (Patrick K. Hetrick & James B. McLaughlin, Jr., eds., 4th ed. 1994) (property owner free to exercise normal rights incidental to ownership prior to actual declaration of taking).
In this case the evidence relating to the Colemans’ purchase and subsequent transfer of an adjoining tract of land and the motives of the Colemans in making renovations to the house were inadmissible. Although it may tend to show (as DOT argues) that the Colemans engaged in some conduct for the sole purpose of increasing their damages in this condemnation proceeding, the evidence is not rele*347vant to the determination of the fair market value of the property on the date of the taking.1 It follows that the trial court also erred in instructing the jury to consider this evidence in assessing the damages. For the same reasons the instructions regarding the property owners’ obligation to “minimize the damages” was error.
. I do not address, as it is not presented in this appeal, whether evidence of a property owner’s transactions after receiving written notice of a public condemnor’s “intent to institute an action to condemn property,” filed pursuant to N.C. Gen. Stat. § 40A-40 (1984), and before the filing of the complaint and declaration of taking, as is required under section 40A-41, would be admissible. I do note that the condemnation procedure for DOT (N.C.G.S. § 136-103) does not require any written notice of condemnation prior to the filing of the declaration of taking. See James A. Webster, Jr., Webster’s Real Estate Law in North Carolina § 19-3, at 818 (referring to a Chapter 136 condemnation as a “quick take” condemnation).