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 benefited, if at all, by the construction of the improvement proposed by the plaintiff; and 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 such compensation or damages; but in no case shall the compensation or damages to be paid for the land sought to be condemned exceed its assessed value for the payment of taxes and twenty per cent (20%) additional, and in no case shall the compensation or damages, if any, to be paid on account of the severance of the portion sought to be condemned from an entire tract exceed ten per cent (10 %) of the assessed value for the payment of taxes of such remaining portion.

8 1554. The assessed value of land for the payment of taxes, as referred to in the preceding section, shall be determined by a reference to the returns made by the owner or claimant thereof for the two years next preceding the commencement of the proceeding for the condemnation of the land; and in case no returns shall have been so made by the owner or claimant of the land, then to the assessed value of the land as fixed by the assessor for the corresponding period. The average of such returns or amount as fixed by the assessor shall be considered the assessed value of the land for the purpose of computing compensation or damages to be paid by the plaintiff; and in case the land sought to be condemned shall be a part of an entire tract assessed as a whole, then the assessed value of the part taken shall be in the proportion of its value to the value of the entire tract.

§ 1555. For the purpose of assessing compensation and damages, the right thereto shall be deemed to have accrued at the date of the summons, and its actual value at that date shall be the measure of valuation of all property to be condemned and the basis of damage to property by reason of its severance from the portion not sought to be condemned, subject, however, to the provisions of section 1552.

§ 1556. If an order be made letting the plaintiff into possession, as provided for in section 1559, compensation and damages awarded shall draw lawful interest from the date of such order. No improvement put on the property subsequent to the date of the service of the summons shall be included in the assessment of compensation or damages. § 1557. The plaintiff must within two years after final judgment pay the amount assessed as compensation or damages; and upon failure so to do all rights which may have been obtained by such judgment shall be lost to the plaintiff; and if such payment shall be delayed more than thirty days after final judgment, then interest shall be added at the rate of seven per cent (7 %) per annum. Such payment shall be made to the clerk of the court rendering the judgment, who shall distribute the same in accordance with the order of the court. If the plaintiff shall fail to make such payment as aforesaid, the defendant shall be entitled to recover his costs of court, reasonable expenses and such damage as may have been sustained by him by reason of the bringing of the action.

§ 1558. When all payments required by the final judgment have been made, the court shall make a final order of condemnation, which must describe the property condemned and the purposes of such con

demnation, a certified copy of which must be filed and recorded in the office of the registrar of conveyances, and thereupon the property described shall vest in the plaintiff.

§ 1559. At any time after judgment has been rendered in the circuit court for or in favor of the plaintiff, or pending an appeal to the supreme court by either plaintiff or defendant; the plaintiff may be put into possession of the land sought to be condemned upon the payment into the court of the amount assessed as compensation or damages, subject, however, to the payment of such further compensation or damages as may be subsequently awarded. Upon the payment of the money assessed as compensation or damages as aforesaid, the court shall make an order putting plaintiff into possession of the property sought to be condemned with the right to use the same during pendency of and until the final conclusion of the litigation.

The defendant who is entitled to the money paid into the court as aforesaid shall have the right to demand and receive payment of the same at any time thereafter upon filing a receipt therefor to the satisfaction of all claims on the lands sought to be condemned. Upon such payment being made to the defendant the court shall make the final order of condemnation as provided for in section 1556.

§ 1560. Where not expressly provided in this chapter, the procedure

shall be the same as in other civil actions.

NOTE TO CHAPTER 99.

SS 1542-1543, 1545-1560 are S. L. 1896, act 45. § 1544 is S. L. 1898, act 62.
Special acts of eminent domain: Highways, see ch. 22.

Honolulu water works, ch. 41.

Land on Molokai, P. L., SS 1006-1020.

Land condemned by board of health, P. L., § 946.

CHAPTER 100.

LANDINGS.

§ 1561. The superintendent of public works is hereby directed to prepare a schedule of all landings in the Territory and to ascertain the title of the government to the same and the easements and rights of way therein, vested in the public by reason of dedication on the part of the owners of land upon which such landings are situated or by reason of use on the part of the public.

§ 1562. If in any case the owners of the land upon which the landing is situated shall deny the right of the public to use such landing, the said superintendent shall cause full inquiry and investigation to be made into the subject, and if, after such investigation, he shall be of the opinion that the public is entitled to an easement in such landing, he shall bring such matter before a court of competent jurisdiction to settle such question.

The method of procedure to be pursued in settling any such question shall be the same as that prescribed in chapter 113 for the quieting of titles, estates, and interests in real property.

§ 1563. As soon as the schedule of landings in which the rights of the public are not disputed is ready, the said superintendent shall publish such schedule in the English and Hawaiian languages; and shall, from time to time, publish the names of the landings, easements in which shall have been determined by the courts to be vested in the public.

§ 1564. No person shall be prevented from using any landing belong

ing to the government, or in which the public own an easement, or shall be obliged to pay anyone but the government for the use of such landing. But in case it is necessary to use hoisting apparatus in order to utilize such landing, and freight shall be hoisted by private parties, nothing in this chapter contained shall be construed to prevent such person so hoisting such freight from making reasonable charge for such-hoisting.

NOTE TO CHAPTER 100.

S$ 1561-1564 are S. L. 1892, ch. 44.

CHAPTER 101.

ESCHEAT OF LANDS.

§ 1565. In all cases where real property escheats by law to the government of Hawaii, the attorney-general of the Territory shall file an information in the supreme court, setting forth the facts upon which the claim of the government of Hawaii to such escheat is based.

The court thereupon shall cause summons to be issued as in other actions at law, which summons the attorney-general shall cause to be served upon any party in possession of the property, and shall also cause a copy thereof to be published for the space of three months in a newspaper of general circulation published in Honolulu. Upon the hearing of the matter, if the court shall find the facts averred in the information substantiated by proof and sufficient in law, it shall make and cause to be entered a decree declaring such property an escheat to the government of Hawaii.

§ 1566. In all actions provided for in section 1565, the following shall be conclusive presumptions of facts:

1. That the person who last owned the property has died intestate, if it be shown that such owner has been absent from the Hawaiian Islands and not been heard of for the space of fifteen years, and has neither in person nor through any agent thereto authorized in writing, nor through any tenant occupying the premises in question under a valid lease, had possession or exercised dominion over such premises during that time, and that no application for letters testamentary or of administration have been filed in any court within the Territory having jurisdiction of probate proceedings within said time.

2. That the person who last owned the property has left no kindred, if it be shown that no person claiming to be kin has made claim to such property within five years after the lapse of the fifteen years in this section before mentioned.

§ 1567. In such actions as are in this chapter provided for no person shall be allowed to defend against the government of Hawaii on the ground of being in possession of the property unless he shall prove that he is in possession under color of title, or has been in adverse possession thereof for a period not less than twenty years and that the government taxes upon said property have been paid by him during the last six years of said period.

§ 1568. If a decree be entered in favor of the government of Hawaii, the attorney-general shall cause the premises to be sold at public auction, and the proceeds of such sale, after deducting all costs and expenses, shall be deposited in the Hawaiian treasury and there abide the claim of any heir or other person thereto lawfully entitled: Provided, That no claim to such proceeds shall be allowed unless such claim be made within five years after such deposit.

§ 1569. Any person claiming the proceeds of sale of escheated property may present his petition to the supreme court in that behalf, notice whereof shall be given to the attorney-general, who may appear and defend on behalf of the government of Hawaii; and if said court render a judgment in favor of such person the treasurer shall pay such proceeds to such person, with interest not to exceed six per cent per annum.

NOTE TO CHAPTER 101.

1565-1569 are S. L. 1888, ch. 8.

[CHAPTER 102.]

[SS 1570-1587.]

CHAPTER 103.

ARBITRATION.

§ 1588. All controversies which might be the subject of a personal action at law, or of a suit in equity, may be submitted to the decision of one or more arbitrators, in the manner provided in this chapter.

§ 1589. The parties to any controversy may agree in writing to submit the same to the decision of one or more arbitrators, named in the agreement, or to be appointed in such manner as the parties shall agree upon, stipulating that the award of such arbitrators when rendered shall be entered up as a judgment of any court of record or district court of the Territory mentioned in such agreement.

§ 1590. The parties shall appear personally, or by attorney, before the district magistrate, or any justice of the court of record, agreed upon, and upon their acknowledging the execution of the written submission, and producing the same before such magistrate or justice, he shall cause the same to be entered as a rule of court; after which neither party shall have a right to revoke the submission, without the consent of the other.

§ 1591. All the matters submitted to the decision of the arbitrators shall be specified in the agreement of submission or in a written statement annexed thereto.

§ 1592. The parties may stipulate in the agreement of submission as to the time within which the award is to be made and reported to the court, and no award made after that time shall be held to bind the parties, unless by their mutual consent before the court.

§ 1593. The arbitrators shall give notice to the parties of the time and place appointed for hearing, and if either of the parties shall neglect to appear before the arbitrators, after due notice, the arbitrators may proceed to hear and determine the cause upon the evidence produced by the other party.

§ 1594. All the arbitrators must meet and hear the parties, but a majority of them may make the award, which shall be as valid as if signed by all of them, unless the concurrence of the whole be expressly required in the submission.

§ 1595. The award shall be delivered by one of the arbitrators to the district magistrate, or to the clerk of the court of record, by whom the submission was made a rule of court.

§ 1596. If there is no provision in the submission concerning the costs of the proceedings, the arbitrators may make such award respecting the costs as they shall judge reasonable, including a compensation for their own services; but the court may reduce the sum

charged for the compensation of the arbitrators if it shall appear to the court unreasonable.

§ 1597. Upon the coming in of the award either party may, after four days' notice to the other party, move the district magistrate, or any justice of the court of record, as the case may be, to cause the award to be entered up as a judgment of court; and unless the other party shall satisfy the justice that the award has not been made in accordance with the terms of the submission, or that it has been made by collusion or fraud, he shall cause the same to be entered up as a judgment of court; but if the opposing party sustains his objections to the satisfaction of the justice, he shall declare the award null and void.

§ 1598. After such award has been entered up as a judgment of court execution may be issued thereon as in other cases.

§ 1599. Any party deeming himself aggrieved by the decision of the justice before whom motion is made for judgment upon the award may take an appeal to the supreme court, in banco, upon filing written notice of his intention so to appeal within five days after the rendition of such decision.

NOTE TO CHAPTER 103.

? 1588-1599 are C. L., 925-936.

Cases in Hawaiian Reports: Merrill v. Lenehan, 4 Haw., 670; Thomas v. Lunalilo, 5 Haw., 39; Bankruptcy Johnson, 8 Haw., 732.

CHAPTER 104.

EXTRAORDINARY LEGAL REMEDIES.

I. WRIT OF MANDAMUS.

§ 1600. This is an order issuing in the name of the Government, by the supreme court in term or any justice thereof in vacation, or by a circuit judge, and addressed to an individual or corporation or court of inferior jurisdiction, directing him or it to perform some certain act belonging to the place, duty, or quality with which he or it is clothed. § 1601. The object of this order is to prevent a denial of justice, and it therefore issues in all cases where the law has assigned no specific relief by the ordinary means, or even where a party has other means of relief, if the slowness of ordinary legal forms is likely to produce such a delay that the public good and the administration of justice will suffer from it, and where justice and reason require that some mode should exist of redressing a wrong or an abuse of any nature whatever.

§ 1602. The order may be directed to individuals, whether holding offices or not; to corporations, and to judges of inferior tribunals.

§ 1603. It may be directed to a simple individual, as to the heir or other legal representative of a deceased public officer, or to such officer himself, if he be alive or has resigned or has been removed, to compel him to deliver to the successor of such officer the papers and other effects belonging to his office.

§ 1604. It may be directed to public officers to compel them to fulfill any of the duties attached to their office or which may be legally required of them.

§ 1605. It may be directed to all corporations established by lawI. To compel them to make elections and to perform the other duties required by their charter.