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

Where the plaintiff is not the State or a county, the court may, upon motion of any defendant and good cause shown therefor, require the deposit with the clerk of the court, of such additional amount of money, or of a surety bond approved by the court in such additional amount, as the court deems necessary to reasonably secure the defendant in the collection of the final award which may be made thereafter, taking into consideration the adequacy of the initial estimate, the financial responsibility of the plaintiff and other pertinent circumstances. [L 1937, c 184, pt of 5; RL 1945, 319, pt of subs 1; am L 1947, c 200, pt of 1(d); am L 1951, c 12, pt of 1(l); RL 1955, 8-26; HRS 101-28]

 

Case Notes

 

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

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

 

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