concurring.
I agree and concur with the well-reasoned majority opinion and write only to state additional reasons in support of the Court’s decision. !
Plaintiffs bought the subject property after it had been rezoned R-10. As they did not own the property at the time it was rezoned, they were not damaged by the zoning. Plaintiffs contend, however, that they were legally obligated to purchase the property after they notified the owner of the land that they intended to exercise their option. This occurred on 29 April 1985, three days after plaintiffs’ agreement with Red Roof Inns expired and twenty-seven days after plaintiffs knew of the recommendation of the Durham Planning and Zoning Commission to rezone the property to R-10. On 6 May 1985, the Durham City Council so rezoned the property. It was not until 26 June 1985 that plaintiffs acquired title to the subject property then zoned R-10.
It is true that upon acceptance of an option to purchase the option becomes a binding contract to purchase the property. However, such contract is not subject to specific performance unless it is otherwise a proper subject for equitable relief. Kidd v. Early, 289 N.C. 343, 40 S.E.2d 367 (1976). Whether specific performance will be granted is determined on a case by case basis according to the equities as disclosed by a just consideration of all the circumstances of the particular case. Byrd v. Freeman, 252 N.C. 724, 114 S.E.2d 715 (1960).1
*375When the subject matter of an executory contract is destroyed without fault of the party seeking to be excused from performance, impossibility of performance is recognized in this jurisdiction as grounds for rescission. Brenner v. School House, Ltd., 302 N.C. 207, 274 S.E.2d 206 (1980); Sechrest v. Forest Furniture Co., 246 N.C. 216, 141 S.E.2d 292 (1965); Sale v. Highway Comm., 242 N.C. 612, 89 S.E.2d 290 (1955).
In Black on Rescission and Cancellation, sec. 213, it is stated: “The true rule appears to be that rescission or cancellation may properly be ordered where that which was undertaken to be performed in the future was so essential a part of the bargain that the failure of it must be considered as destroying or vitiating the entire consideration of the contract, or so indispensable a part of what the parties intended that the contract would not have been made with that condition omitted.”
Jenkins v. Myers, 209 N.C. 312, 318, 183 S.E. 529, 533 (1936).
Obviously, it would not have been equitable to require plaintiffs to purchase this property when all the parties intended to buy and sell the property for use as a motel. This intent of the parties was set forth in both of the contracts between the parties. At the time of the sale, the property could not be used for the intended purpose.
This situation is analogous to the cases denying specific performance when the loss of the intended use of the property by fire occurs before the contract of sale is consummated. See Sale v. Highway Comm., 242 N.C. 612, 89 S.E.2d 290 (1955); Poole v. Scott, 228 N.C. 464, 46 S.E.2d 145 (1948). In the case at bar, utilization of the property as a motel site was the principal and most material and substantial inducement for plaintiffs to enter into the contract to purchase the subject property. That use was destroyed before the contract was executed. Here, plaintiffs would not be equitably required to purchase the property.
However, knowing all this, plaintiffs proceeded to buy the property, being fully aware that it could not be used for motel purposes. Plaintiffs’ contract with Red Roof Inns had required that the property be zoned for use as a motel. Plaintiffs exercised their option under the written contracts of the parties for the purchase and sale of a tract of land zoned for use as a motel; however, *376they accepted instead a tract of land zoned for residential purposes and not usable as a motel. If plaintiffs had an equitable interest, it was in the tract of land usable for motel purposes as demonstrated in the written contracts of the parties. In this transaction, plaintiffs did not acquire such a tract. They suffered no compensable damages by reason of the rezoning.
Further, plaintiffs failed to offer any evidence of damages under the applicable rule for damages in this case. Here, the proper relief for a successful plaintiff is to have the ordinance declared unconstitutional as applied to the subject property together with damages for the temporary taking of the property by the city during the time that the property was unconstitutionally subjected to the ordinance.
The evidence in this case as to the value of the property before and after it was rezoned for residential use was competent only to prove that the ordinance was unconstitutional as applied to the subject property. It was not competent to prove the damages resulting from the temporary taking of the property. This is true because the plaintiffs did not lose, nor did the city acquire, title to the property as a result of the rezoning.
Where property is taken as the result of governmental action for a temporary period of time, rather than permanently, the measure of compensation is not the fair market value of the property, but what the property is fairly worth during the time for which it is held or encumbered: in other words, the fair rental value of the property for the period it was held or encumbered. 27 Am. Jur. 2d Eminent Domain § 351 (1966); 29A C.J.S. Eminent Domain § 142 (1965); see 7 A.L.R. 2d 1299 (1949).
Plaintiffs failed to produce any evidence of damages under the appropriate rule for the measurement of damages in this case. Having failed to do so, plaintiffs’ action for damages was subject to dismissal.
. Contrary to the dissent of Chief Justice Exum, I do not concede that plaintiffs were obligated by contract to purchase the property at the time it was rezoned. As set forth in this concurring opinion, the contract could not be specifically enforced against plaintiffs. Nor do I agree with the dissenter that plaintiffs were the “beneficial” owners of the property at the time of the rezoning. A beneficial owner of real property is either an owner entitled to the rents and profits or usufruct of the property, or the cestui que trust wherein the property is the trust corpus. Persons for whom a trustee holds title to property are the beneficial owners of property. Black’s Law Dictionary 142 (rev. 5th ed. 1979). Such is not the status of an optionee.