§101-29  Possession pending action;alternative procedure.  Where the plaintiff is the State or any county, thefollowing alternative procedure may be followed.  At any time after thecommencement of an action pursuant to this part, the State or any county mayfile a motion for an order of possession invoking this section and supported byan affidavit alleging, or by oral evidence prima facie showing:

(1)  The right of the State or county to maintain theaction;

(2)  The public use for which the real property soughtto be condemned is being taken; and

(3)  The sum of money estimated by the State or countyto be just compensation or damages for the taking of the real property.

Upon such motion and upon payment of suchestimated sum of money to the clerk of the court for the use of the personsentitled thereto, the court shall issue an order ex parte putting the State orcounty in possession of the real property sought to be condemned and permittingthe State or county to do such work thereon as may be required for the purposefor which the taking of the property is sought.  The order placing the State orcounty in possession shall become effective upon the expiration of ten daysafter service thereof; provided that for good cause shown within the ten days, thecourt may vacate or modify the order or postpone the effective date thereof foran additional period of time.  Service of the order shall be made personally onthose defendants who are in actual possession, and in other cases may be madeby depositing a copy thereof in a United States post office, postage prepaid,registered mail addressed to the defendants at their last known addresses, orto their attorneys of record. [L 1951, c 12, pt of §1(l); RL 1955, §8-27; HRS§101-29]

 

Cross References

 

  Service by certified mail, see §1-28.

 

Case Notes

 

  Entry of order of possession is not a bar to abandonment.  42H. 415.

  Section includes no provision for interlocutory appeal.  44H. 7, 352 P.2d 333.

  Paragraph (2) only requires a showing of ultimate public use. No showing of reasons for immediate occupation is required.  49 H. 494, 421P.2d 300.

  If no motion to vacate within ten days, condemning authorityhas absolute right to immediate possession.  49 H. 494, 421 P.2d 300.

  Leasing on a temporary basis after possession obtained underthis section.  49 H. 494, 500-03, 421 P.2d 300.

  Purpose of section.  54 H. 385, 507 P.2d 1084.