§101-27  Defendant allowed damages upon
abandonment or dismissal of proceedings.  Whenever any proceedings
instituted under this part are abandoned or discontinued before reaching a
final judgment, or if, for any cause, the property concerned is not finally
taken for public use, a defendant who would have been entitled to compensation
or damages had the property been finally taken, shall be entitled, in such
proceedings, to recover from the plaintiff all such damage as may have been
sustained by the defendant by reason of the bringing of the proceedings and the
possession by the plaintiff of the property concerned if the possession has
been awarded including the defendant's costs of court, a reasonable amount to
cover attorney's fees paid by the defendant in connection therewith, and other
reasonable expenses; and the possession of the property concerned shall be
restored to the defendant entitled thereto.  Issues of fact arising in
connection with any claim for such damage shall be tried by the court without a
jury unless a trial by jury is demanded by either party, pursuant to the rules
of court, within ten days from the date of the entry of an order or judgment
allowing the discontinuance of the proceedings, or dismissing the proceedings
or denying the right of the plaintiff to take the property concerned for public
use.  In the event judgment is entered in favor of the defendant and against
the plaintiff, any moneys which have been paid, and any additional security
which has been furnished, by the plaintiff to the clerk of the court under
sections 101-28 and 101-29, shall be applied or enforced toward the
satisfaction of the judgment.  In the case of the State or a county, if the
moneys so paid to the clerk of the court are insufficient, then the balance of
such judgment shall be paid from any moneys available or appropriated for the
acquisition of the property concerned, or if that is insufficient then the same
shall 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 L
1951, c 12, §1(k); RL 1955, §8-25; HRS §101-27; am L 1973, c 30, §2; gen ch
1985]



 



Case Notes



 



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



  Partial abandonment.  42 H. 415, 627.  Abandonment by
amendment.  44 H. 557, 356 P.2d 386.  Abandonment may be any time before final
judgment.  42 H. 415.



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



  Manifests legislative intent to preclude recovery of
attorney'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 damages
under this section where the property at issue is not finally taken in the
context of a particular condemnation proceeding, irrespective of whether the
government attempts to take the land through subsequent condemnation
proceedings.  119 H. 352, 198 P.3d 615.



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