§101-34  Issue as to use may be set forimmediate trial.  [L 2004, c 202, §11 amendment repealed June 30,2010.  L 2006, c 94, §1.]  If the defendant, in the defendant's answer orin return to the order to show cause, issued under section 101-28, denies thatthe use for which the property sought to be condemned is a public use, or asuperior public use within the meaning of section 101-7, the issue, upon themotion of any party, may be set for immediate trial, without a jury and withoutregard to position on the calendar.  Notwithstanding any provision of section641-1, an interlocutory appeal shall lie from the decision on the issue as ofright, and the appeal shall be given precedence in the intermediate appellatecourt.  Failure of the defendant to raise the issue within ten days afterservice of an order granting immediate possession shall be deemed an admissionthat the use is a public use or a superior public use, as the case may be. [L1951, c 12, pt of §1(l); RL 1955, §8-32; HRS §101-34; am L 1973, c 30, §4; gench 1985; am L 2004, c 202, §11]

 

Note

 

  L 2004, c 202, §82 provides:

  "SECTION 82.  Appeals pending in the supreme court as ofthe effective date of this Act [July 1, 2006] may be transferred to theintermediate appellate court or retained at the supreme court as the chiefjustice, in the chief justice's sole discretion, directs."

 

Revision Note

 

  Section "641-1" substituted for "641-2".

 

Case Notes

 

  Interlocutory appeal is a matter of right on the issue ofpublic use.  44 H. 7, 352 P.2d 333.  Appeal under section.  46 H. 279, 378 P.2d882.

  Trial should be held under this section with respect to issueof public use, rather than decide constitutionality of a statute by summaryjudgment.  65 H. 465, 653 P.2d 781.

  Provides constitutional, adequate remedy to raise issue ofpublic use in eminent domain proceedings under chapter 516.  72 H. 466, 822P.2d 955.

  Supreme court has jurisdiction under this section to hearappeal from order granting partial summary judgment in matter involving exerciseof power of eminent domain.  79 H. 64, 898 P.2d 576.

  Pursuant to this section, the trustee defendants wereentitled as of right to an interlocutory appeal of the circuit court's adversedecision regarding public use.  100 H. 182, 58 P.3d 1229.

  Cited:  39 H. 545, 547.