§101-23 - Damages assessed, how.
§101-23 Damages assessed, how. In fixing the compensation or damages to be paid for the condemnation of any property, the value of the property sought to be condemned with all improvements thereon shall be assessed, and if any of the improvements are separately owned, the value thereof shall be separately assessed. If the property sought to be condemned constitutes only a portion of a larger tract, the damages which will accrue to the portion not sought to be condemned by reason of its severance from the portion sought to be condemned, and the construction of the improvements in the manner proposed by the plaintiff shall also be assessed, and also how much the portion not sought to be condemned will be specifically benefited, if at all, by the construction of the improvement proposed by the plaintiff. If the benefit shall be equal to the amount of compensation assessed for the property taken, and for damages by reason of its severance from another portion of the same tract, then the owner shall be allowed no compensation, but if the benefits shall be less than the amount so assessed as damages or compensation, then the former shall be deducted from the latter and the remainder shall be the amount awarded as compensation or damages. In case of the exercise of the power of eminent domain by the city and county of Honolulu in furtherance of any governmental power under section 46-74.2 and the improvement ordinance of the city, the amount of damages or compensation assessed, or awarded, or agreed upon in any compromise approved by motion of the city council shall in no case be construed as limiting or affecting the power of the city council to distribute any portion of the cost upon any property found to be benefited thereby proportioned as provided by law in the exercise of their judgment whether under an improvement district or frontage improvement created before or after the acquisition of any such land. If condemnation is for the purpose of widening or realigning any existing highway or other public road, the owner of the property condemned shall be entitled to full compensation for the property actually taken and special benefits shall be considered only insofar as the value of the benefits shall not exceed the damages which will accrue to the portion not sought to be condemned by reason of its severance from the portion sought to be condemned and the construction of the improvements in the manner proposed by the plaintiff. That is, if the special benefits shall be equal to the severance damages, then the owner of the parcel shall be allowed no compensation except the value of the portion taken, but if the special benefits shall be less than the severance damages, then the former shall be deducted from the latter and the remainder shall be the only damages allowed in addition to the value of the land taken. [L 1896, c 45, §13; am L 1919, c 63, §2; RL 1925, §821; RL 1935, §63; RL 1945, §314; am L 1947, c 200, §1(c); am L 1953, c 269, §1; RL 1955, §8-21; HRS §101-23; am L 1990, c 34, §9]
Case Notes
Payment operates as consideration as well as damages. 126 F.2d 4.
Adequacy of expert witness' qualifications is matter of discretion of the trial court. 54 H. 385, 507 P.2d 1084.
Whether a taking is for a realignment is a matter of law. 55 H. 190, 516 P.2d 1250.
Valuation.
Rental value of lands in vicinity generally inadmissible. 74 F.2d 596. Cost of filling to level of highway irrelevant. 31 H. 184. No compensation for business losses, leases. 72 F. Supp. 903.
Capitalization of rental value is evidence of market value. 132 F.2d 699. Rental value is evidence of market value. 91 F.2d 85. Market value may include adaptability of land for subdivision purposes. 43 H. 195.
Landowner is generally held to be qualified to give landowner's opinion as to value of landowner's land. 45 H. 144, 363 P.2d 979.
Admissibility of comparable sales and leases. 48 H. 101, 395 P.2d 932; 48 H. 444, 404 P.2d 373. Other sales to condemnor. 49 H. 640, 426 P.2d 324.
Trial court's determination of admissibility of comparable sales will not be upset unless it is a clear abuse of discretion. 54 H. 167, 504 P.2d 1223.
Enhancement of value resulting from proposed public improvement project not allowed. 43 H. 167; 48 H. 101, 395 P.2d 932.
Evidence may show reasonable use land may be put to in the future. 298 U.S. 342.
Evidence as to valuation; expert testimony. 48 H. 444, 404 P.2d 373. Evidence of expenditures to prepare land for construction is admissible to show enhancement of value. 50 H. 195, 436 P.2d 3.
Partial taking for highway purposes; methods of valuation discussed. 45 H. 144, 363 P.2d 979; 48 H. 101, 395 P.2d 932.
In highway widening case, where there is no issue as to severance damages, evidence as to special benefits is inadmissible. 48 H. 101, 395 P.2d 932. Special benefits defined and distinguished from general benefits. 46 H. 83, 375 P.2d 6. Special benefits may be offset against total damages. Id.
Before and after rule. 34 H. 859, criticized 45 H. 144, 363 P.2d 979. Applicability of the "Unit Rule". 42 H. 547.
If taking does not affect value of remaining property, evidence as to its value is inadmissible. 122 F. 581. Just compensation equals value of part taken plus damages to remainder. 34 H. 859. Determination of just compensation discussed. 42 H. 199.
Land cannot be valued alone without buildings. 182 F.2d 172. Improvements have only such value as they add to land. 48 H. 444, 404 P.2d 373.
Evidence of cost of development of land for its best use is admissible to show diminution of market value. 53 H. 582, 499 P.2d 663.
Anticipated profits, when admissible to show enhancement of value of land. 54 H. 385, 507 P.2d 1084.
Development expenses, admissible to show enhancement of value of land. 54 H. 385, 507 P.2d 1084.
Opponent's expert appraisers, when use permitted. 54 H. 385, 507 P.2d 1084.
Test used in determining whether parcel to be condemned is part of a larger tract of land is that there must be unity of title, physical unity, and unity of use. 54 H. 523, 511 P.2d 163.
Reasonable possibility of rezoning to higher use as result of partial taking may constitute special benefit. 55 H. 190, 516 P.2d 1250.
The "before and after" valuation is prejudicial when used as a format by jury to determine special benefits. 55 H. 190, 516 P.2d 1250. "Before and after" method admissible as supportive evidence of expert's valuation of special benefits. 55 H. 212, 517 P.2d 24.
Valuation of property subject to several, independently held interests; allocation of compensation among the various interests. 55 H. 226, 517 P.2d 7.
In absence of evidence, value of land encumbered with roadway easement is nominal. 55 H. 305, 517 P.2d 779.
Subdividability and potential use are factors to be considered in determining fair market value. 60 H. 393, 591 P.2d 1049.
Admissibility of evidence of probable future uses of land; evidence as to compensation; admissibility; discretion of trial court; while an individual owner is qualified to state opinion of the value of owner's land, an officer of a corporate owner is not qualified unless officer is an expert. 63 H. 322, 628 P.2d 192.
County general plan map indicating possible redesignation of subject land, even though not adopted, was a document likely to be considered by informed sellers and buyers and thus admissible; no error in admitting evidence of development concept and plan for property adjoining condemned land; where paucity of comparable sales, allowance of discussion of transaction occurring several years after subject property's condemnation not necessarily an abuse of discretion. 64 H. 168, 637 P.2d 1131.
Juries.
Value of land sought to be taken by U.S. in the exercise of eminent domain is triable by jury. 122 F. 581. Verdict of jury--review, substantial evidence test. 45 H. 144, 363 P.2d 979. Damage verdict must stand unless so excessive as to have been brought about by passion or prejudice or is shocking to the conscience. 45 H. 144, 363 P.2d 979; 50 H. 195, 436 P.2d 3.
Damages.
Generally, 1 U.S.D.C. Haw. 222. To adjacent land. 31 H. 787, aff. 61 F.2d 896. To crops. 33 H. 379. To lessee. 33 H. 647. For fishing rights. 91 F.2d 93. For easement. 39 H. 514.
Interest.
30 H. 1; 40 H. 429.
Lessees.
Lessee of land partly condemned under eminent domain entitled to have rent reduced proportionately. 6 H. 653. On lessee's rights under a condemnation clause of a lease; access rights. 44 H. 343, 354 P.2d 981.
Cited.
38 H. 592, 596.