City of Honolulu v. See, 2721.
| Decision Date | 08 July 1950 |
| Docket Number | No. 2721.,2721. |
| Parties | THE CITY AND COUNTY OF HONOLULU v. TAM SEE. |
| Court | Hawaii Supreme Court |
OPINION TEXT STARTS HEREERROR TO CIRCUIT COURT FIRST CIRCUIT, HON. A. M. CRISTY, JUDGE.
Syllabus by the Court
In a proceeding in eminent domain, authorized by resolution of the board of supervisors of the City and County of Honolulu, the allegation of the public use and purpose to which the land sought to be condemned is to be put must conform to the use and purpose stated in the resolution.
The general rule that an objection on the ground of variance must ordinarily be properly raised in the trial court so that the objection may be obviated by an amendment, and can not be raised for the first time on appeal, is subject to a well-settled exception, the exception being that the general rule has no application where the objection could not have been obviated in the court below by amendment of the pleadings, or when the judgment is based upon facts found or proved but not averred.
S. Okumura, Deputy City and County Attorney ( W. D. Godbold, City and County Attorney, with him on the brief), for plaintiff-defendant in error.
A. K. Trask (also on the briefs) for defendant-plaintiff in error.
This is a proceeding in eminent domain. On April 25, 1943 the board of supervisors of the City and County of Honolulu, by resolution number 132, authorized the condemnation of ten parcels of land, including the parcel sought to be condemned. The public use and purpose for which said land was to be acquired are stated in said resolution as follows:
“That for public use and purpose, to-wit, the providing of playground and park area in Manoa Valley, City and County of Honolulu, Territory of Hawaii, proceedings in eminent domain, as provided by law, be instituted for the acquisition of” the ten parcels of land, including parcel 10. (Emphasis added.)
On August 10, 1943 the City and County of Honolulu, a municipal corporation, filed its petition against Tam See (widow) and American Finance, Limited, an Hawaiian corporation, seeking to condemn parcel 10 of the land described in resolution number 132. In the petition it is alleged, inter alia, that “plaintiff has been and now is desirous of purchasing, acquiring, condemning and holding the hereinafter described piece, parcel or strip of land, together with all the right, title, interest and estate of the defendants above named therein and thereto, for a public use and purpose; to-wit, for park and playground purposes * * *.” (Emphasis added.)
The petitioner's allegation of the public use and purpose to which the land sought to be condemned is to be put is in compliance with the mandatory provision of section 310 of the Revised Laws of Hawaii 1945, which provides, among other things, that the petition must contain a statement of the use to which the land sought to be condemned is to be put and whether the same includes the whole or only a part of an entire tract or parcel.
On July 15, 1947 the plaintiff moved the court for an order putting plaintiff in possession. This motion was supported by the affidavit of J. E. Lyons, superintendent of public parks and recreation, in which he states that “the public use for which the parcel of land described in the petition heretofore filed in this cause is sought to be taken by these proceedings is for park and playground purposes * * *.” (Emphasis added.)
On the same day the court entered an order which, omitting formal parts and parts immaterial to the question of use, is in words and figures as follows:
“The ‘Motion for an Order Putting Plaintiff in Possession’ made and filed in the above-entitled cause on behalf of the Plaintiff, having come on regularly to be heard before the undersigned Judge of the above-entitled Court, said Motion having been supported by an affidavit alleging (a) the right of the plaintiff to maintain the above-entitled action, (b) the public use for which the real property sought to be condemned is being taken, and (c) the sum of money estimated by the plaintiff to be just compensation or damages for the taking of such real property, said sum being $2,064.00, and it appearing to the Court that said sum has been paid to the Clerk of the above entitled Court for the use of the persons entitled thereto, and the Court being fully advised in the premises.
“NOW, THEREFORE, It is hereby Ordered, Adjudged and Decreed:
“2. * * *.
On July 14, 1947 the attorney for plaintiff authorized the chief clerk of the circuit court, by letter, as follows:
On April 5, 1948 American Finance, Limited disclaimed any interest in the land herein sought to be condemned.
On April 6, 1948 the attorney for the plaintiff authorized the clerk of the circuit court to dispose of the deposit as follows:
“In view of the oral decision rendered today, April 6, 1948, in Law No. 17093, we hereby request that the sum of $2,064.00 now on deposit on the account of Law No. 17093 be transferred to the account entitled, ‘Manoa Park, Parcel 8, Law No. 17218’.”
The findings and conclusion set forth by the court in its written decision are, in substance:
1. That the public use and necessity, to-wit, for a public road into a public park and playground and proposed school premises require the condemnation of the land described in the said petition, and that the said land is necessary for the said public use;
2. That all preliminary steps required by law have been taken and exist in order to entitle the plaintiff to maintain these proceedings and to condemn the said land and premises for the said public use;
3. That the defendant Tam See is the legal owner in fee simple of the property sought to be condemned;
4. That the land sought to be condemned comprises only a portion of a larger rectangular tract of land which was, on the date of summons herein, likewise owned by said defendant Tam See; that the taking of said parcel of land would leave on either side of the same, two rectangular tracts of land suitable for subdivision into lots of 5,000 square feet or more, consistent with the applicable subdivision rules; that the value of such remaining two rectangular tracts, left after the taking of the land described in the petition for such public roadway, far exceeds the value of the entire tract before the taking; that the construction of such a public roadway upon the parcel of land sought to be condemned, and for which public use and purpose the taking is necessary, without any cost to the defendant Tam See, or to the property remaining after the taking, would substantially benefit the two remaining rectangular tracts of land and that the value of such benefit far exceeds the value of the said parcel of land sought to be condemned herein by the plaintiff;
5. That the defendant Tam See, under the applicable provisions of section 314 of the Revised Laws of Hawaii 1945, as amended by Act 200, Session Laws of Hawaii 1947, is not entitled to any award, or other compensation, for the taking under the proceedings herein of the parcel of land described in said petition.
On May 13, 1948 judgment was entered by which it was ordered, adjudged and decreed, in substance: (1) that the public use and necessity as set forth in the said written decision require the condemnation of the land described in the petition; and that the said land and all improvements thereon, be and they are hereby condemned for the aforesaid public use and purpose; (2) that the defendant Tam See is not entitled to any award, or other compensation, for the taking herein of the parcel of land described in said petition; (3) that the clerk may enter and file herein a final order of condemnation investing in the City and County of Honolulu the fee simple title to the parcel of land described in the said petition.
The final order of condemnation reads in part as follows:
“That the parcel of land described in the petition on file herein and all improvements located thereon be and the same are hereby condemned for the public use of the City and County of Honolulu, to-wit, for the construction of a public road in Manoa within the District of Honolulu, City and County of Honolulu, Territory of Hawaii.”
The case is now before this court upon a writ of error sued out by the defendant Tam See.
Of the eight assignments of error only assignments 1, 2 and 8 have been argued. All other assigned errors may be considered waived.
Of the assignments of error not waived only number 1, which follows, need be considered.
“The trial court erred in refusing and failing to hold that the defendant, plaintiff-in-error, who was owner of parcel 10 of the land sought to be condemned, was...
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