§101-34  Issue as to use may be set for
immediate trial.  [L 2004, c 202, §11 amendment repealed June 30,
2010.  L 2006, c 94, §1.]  If the defendant, in the defendant's answer or
in return to the order to show cause, issued under section 101-28, denies that
the use for which the property sought to be condemned is a public use, or a
superior public use within the meaning of section 101-7, the issue, upon the
motion of any party, may be set for immediate trial, without a jury and without
regard to position on the calendar.  Notwithstanding any provision of section
641-1, an interlocutory appeal shall lie from the decision on the issue as of
right, and the appeal shall be given precedence in the intermediate appellate
court.  Failure of the defendant to raise the issue within ten days after
service of an order granting immediate possession shall be deemed an admission
that the use is a public use or a superior public use, as the case may be. [L
1951, c 12, pt of §1(l); RL 1955, §8-32; HRS §101-34; am L 1973, c 30, §4; gen
ch 1985; am L 2004, c 202, §11]



 



Note



 



  L 2004, c 202, §82 provides:



  "SECTION 82.  Appeals pending in the supreme court as of
the effective date of this Act [July 1, 2006] may be transferred to the
intermediate appellate court or retained at the supreme court as the chief
justice, 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 of
public use.  44 H. 7, 352 P.2d 333.  Appeal under section.  46 H. 279, 378 P.2d
882.



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



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



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



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



  Cited:  39 H. 545, 547.