§101-28  Possession pending action;immediate occupation by plaintiff.  At any time after the service ofsummons the court may, upon motion of the plaintiff and upon notice to thedefendant, issue an order putting the plaintiff in possession of the land soughtto be condemned and permitting the plaintiff to do such work thereon as may berequired for the purpose for which the taking of the land is sought.  Themotion shall contain a statement of the reasons for requiring an immediateoccupation of the land sought to be condemned and a statement of the sum ofmoney estimated by the plaintiff to be just compensation or damages for thetaking of the land.  Upon the filing of the motion the court shall issue anorder directed to the defendants and returnable not more than twenty days fromthe date of the filing of the motion, requiring the defendants to appear andshow cause why the motion should not be granted.  The court may require proofby affidavit or otherwise of the right of the plaintiff to maintain the actionand of the facts set forth in the motion and shall grant or deny the motion asthe public interest and the rights of the parties may require.

Where the plaintiff is not the State or acounty, the court may, upon motion of any defendant and good cause showntherefor, require the deposit with the clerk of the court, of such additionalamount of money, or of a surety bond approved by the court in such additionalamount, as the court deems necessary to reasonably secure the defendant in thecollection of the final award which may be made thereafter, taking intoconsideration the adequacy of the initial estimate, the financialresponsibility of the plaintiff and other pertinent circumstances. [L 1937, c184, pt of §5; RL 1945, §319, pt of subs 1; am L 1947, c 200, pt of §1(d); am L1951, c 12, pt of §1(l); RL 1955, §8-26; HRS §101-28]

 

Case Notes

 

  Filing of motion for order of possession will not berestrained as defendants may be heard on order itself to protect their rights. 39 H. 53.

  Section is generally available to condemnors while §101-29 isrestricted to use by the State or a county.  49 H. 494, 421 P.2d 300.