§101-27  Defendant allowed damages uponabandonment or dismissal of proceedings.  Whenever any proceedingsinstituted under this part are abandoned or discontinued before reaching afinal judgment, or if, for any cause, the property concerned is not finallytaken for public use, a defendant who would have been entitled to compensationor damages had the property been finally taken, shall be entitled, in suchproceedings, to recover from the plaintiff all such damage as may have beensustained by the defendant by reason of the bringing of the proceedings and thepossession by the plaintiff of the property concerned if the possession hasbeen awarded including the defendant's costs of court, a reasonable amount tocover attorney's fees paid by the defendant in connection therewith, and otherreasonable expenses; and the possession of the property concerned shall berestored to the defendant entitled thereto.  Issues of fact arising inconnection with any claim for such damage shall be tried by the court without ajury unless a trial by jury is demanded by either party, pursuant to the rulesof court, within ten days from the date of the entry of an order or judgmentallowing the discontinuance of the proceedings, or dismissing the proceedingsor denying the right of the plaintiff to take the property concerned for publicuse.  In the event judgment is entered in favor of the defendant and againstthe plaintiff, any moneys which have been paid, and any additional securitywhich has been furnished, by the plaintiff to the clerk of the court undersections 101-28 and 101-29, shall be applied or enforced toward thesatisfaction of the judgment.  In the case of the State or a county, if themoneys so paid to the clerk of the court are insufficient, then the balance ofsuch judgment shall be paid from any moneys available or appropriated for theacquisition of the property concerned, or if that is insufficient then the sameshall be paid from the general fund of the State or county, as the case may be.[L 1929, c 230, §1; RL 1935, §67; am L 1937, c 184, §4; RL 1945, §318; am L1951, c 12, §1(k); RL 1955, §8-25; HRS §101-27; am L 1973, c 30, §2; gen ch1985]

 

Case Notes

 

  Section only applies to relief in eminent domain proceedingsand does not authorize a collateral suit for damages or an independent suit forinjunction and declaratory relief.  49 H. 365, 418 P.2d 482.  Section does notapply when there is an abandonment of the original public use.  Id.

  Partial abandonment.  42 H. 415, 627.  Abandonment byamendment.  44 H. 557, 356 P.2d 386.  Abandonment may be any time before finaljudgment.  42 H. 415.

  "Final judgment" means judgment entered after anappeal.  50 H. 237, 437 P.2d 321.

  Manifests legislative intent to preclude recovery ofattorney's fees and litigation costs where the property is condemned.  53 H.582, 499 P.2d 663.

  A landowner in a condemnation action is entitled to damagesunder this section where the property at issue is not finally taken in thecontext of a particular condemnation proceeding, irrespective of whether thegovernment attempts to take the land through subsequent condemnationproceedings.  119 H. 352, 198 P.3d 615.

  Cited:  39 H. 67; 44 H. 10, 13, 352 P.2d 320.