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 ofplayground 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. *Page 594
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 andplayground 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:
"1. That the plaintiff herein be and it is hereby awarded the possession of all the real property described in the petition on file herein with the right to do such work thereon as may be required for the purpose for which the taking of said real property is sought, to-wit: for park and playground purposes within the District of Honolulu, City and County of Honolulu, Territory of *Page 595 Hawaii. (Emphasis added.)
"2. * * *.
"3. That the sum of $2,064.00 which has been paid to the Clerk of the above-entitled Court in this cause shall be held by the Chief Clerk of this Court pending the further order or orders of the Court with reference thereto."
On July 14, 1947 the attorney for plaintiff authorized the chief clerk of the circuit court, by letter, as follows:
"The City and County of Honolulu will forthwith file a motion for an order of possession in Law No. 17093. The just compensation or damages for the taking of the land involved in this condemnation proceeding has been estimated by the plaintiff to be in the sum of $2,064.00. Will you please set aside this amount, for the purpose of paying such persons as are entitled to the same by reason of the taking of this property by the plaintiff, out of the balance of the funds deposited with you by the City for this and several other suits auhtorized [sic] to be instituted under Resolution No. 132."
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 *Page 596 public road into a public park and playground and proposedschool 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 thesaid 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, *Page 597 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 entitled to compensation." *Page 598
Said assignment of error does not specifically raise the question of variance but we think that the question of variance is sufficiently related to the alleged error to justify its consideration in passing upon the question of whether the court erred in denying the plaintiff in error compensation.
It is a well-settled 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 cannot be raised for the first time on appeal.
However, the above rule 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. (4 C.J.S., Appeal and Error § 282, p. 548, et seq.)
In the resolution authorizing condemnation of the land belonging to Tam See, in the petition filed by the City and County seeking to condemn the same, and in the order placing the plaintiff in possession of said land, the public use and purpose for which condemnation was authorized and sought were "for park and playground purposes."
At the trial plaintiff's witnesses who testified as to the values, benefits and damages based their opinions on the assumption that the land belonging to the plaintiff in error was being condemned "for a public roadway." The court in its written decision said that it was being condemned "for a public road into a public park and playground and proposed school premises." In the judgment the public use was stated to be "as set forth in the said written decision." However, in the final order of condemnation the land was condemned "for the public *Page 599 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."
We think that the variance between the use and purpose recited in the resolution authorizing the condemnation, which was followed in the petition and order placing plaintiff in possession, but abandoned in the proof as well as in the decision, judgment, and final order of condemnation, constitutes such a variance as comes under the exception to the general rule and may be raised in the appellate court and considered under assignment of error number 1, which complains of the failure of the court to find that the plaintiff in error was entitled to compensation for the taking of her land. Both reasons for permitting the objection to be made for the first time on appeal, referred to in the authority cited, are present. The petitioner could not amend the pleading to conform to the proof by alleging that the use and purpose for which the land was being condemned were for use as a public road. That would not be within the terms of the resolution of the board of supervisors authorizing condemnation. Also the judgment and final order of condemnation are based on facts proved and found but not averred.
We conclude that it was reversible error for the court to base its decision, judgment, and final order of condemnation upon facts found but not averred.
The judgment and final order of condemnation are reversed and the cause remanded for further proceedings not inconsistent with this opinion.
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