101-34 Issue as to use may be set for immediate trial. 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; am L 2006, c 94, 1; am L 2010, c 109, 1]


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.



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