Akana v. Damon

OPINION OF THE COURT BY MAEUMOTO, J. Petitioner has appealed to the United States Court of Appeals for the Ninth Circuit from the judgment of this court denying her petition for a writ of mandamus. After she filed her notice of appeal, petitioner filed in this court, a motion for an order staying the trial of Civil No. 3234 in the court below until her right to participate therein should be determined on appeal. Lillian Tom Loo, Beatrice L. Luke and Kan Jung Luke, thereafter, filed in this court a motion to dismiss petitioner’s appeal. [548] Upon the filing of the notice of appeal to the court of appeals, the Federal rules of civil procedure apply to the instant case, and the authority of this court over the case is that of a United States district court under such rules, not the authority of the supreme court under the Hawaii rules. Petitioner’s motion is not for a stay of any further proceeding in the instant case in this court. It is a motion for an injunction directed to the court below pending appeal. Thus, rule 62 (c) of the Federal rules applies to the motion. Rule 62 (c) recognizes the power of the district court to preserve the status quo pending appeal and is an exception to the rule that perfection of appeal deprives the district court of jurisdiction to act further in the appealed case. The exercise of the authority under the rule rests within the sound discretion of the district court. The trial in the court below is set for July 16, 1958. It is for the purpose of determining the compensation payable for the property presently sought to be condemned. The property presently sought to be condemned is the interest of Lillian Tom Loo, Beatrice L. Luke and Kan Jung Luke, being a reversionary interest, or a fee simple interest subject to existing tenancies. Petitioner contends that she and the other defendants in Civil No. 3234 on whose behalf she prosecuted the petition for a writ of mandamus have “a right to have the value of their improvements which are a part of the land being condemned determined in the same trial and by the same jury as determines the value of the interest of said defendants Loo and Luke in the land condemned,” and such right will be rendered nugatory if the court below is not enjoined from proceeding with the trial of the condemnation case. In our opinion in the instant case reported on page [549] 415, ante, we did not discuss this contention because we deemed such discussion unnecessary in view of our holding that the interests of the petitioner and other tenants similarly situated were not sought to be taken in the condemnation case. Petitioner’s contention is based on the unit rule of valuation in condemnation, which forbids the separate valuation of the land and the improvements thereon. In United States v. City of New York, 165 F. (2d) 526, the court, per Judge Learned Hand, said of the unit rule as follows: “Although the ‘Unit Rule’ would seem to be in the shadowland between substance and procedure, and as to the last we look to the state law, we shall not try to assign any place to it, because we are not aware of any ascertainable difference upon the point between the state and the federal decisions. Indeed, we think that it is an undue simplification to extract from the books any ‘Unit Rule’ whatever, in the sense of general authoritative directions. What has happened, so far as we can see, is that, as different situations have arisen, the courts have dealt with them as the specific facts demanded. One of these situations has been when a parcel or plot of land has been improved, and when — as is substantially always the case — it is impossible to separate the improvements so as to transfer them independently. In such situations the only exchangeable property is the union of ‘site’ and improvements; and this, being indissoluble for purposes of transfer, must be valued as one. The argument runs that, because of this it is erroneous as a matter of law ever to add together a supposititious ‘site’ value and a supposititious improvement value. The argument, so put, is undoubtedly a highly important caution, when the attempt is made to appraise improved land by a process [550] of cumulation; but we question whether it has any further office than to keep before the tribunal the only relevant objective: the exchange value of the newly emerged unit. It is true, when an area has been subdivided into plots that the very fact that these have been made separately saleable, will ordinarily make it desirable to appraise the whole by separate valuations of each plot; but even that is not, so far as we can see, an inexorable condition. Be that as it may, it certainly does not follow, because ‘site’ and improvements have been inextricably welded, that it is never possible to come at their joint value by attributing one factor to ‘site’ and another to improvements. Value, especially when we are dealing with non-fungibles, is in application as impalpable a concept as can be, and we should be unwilling to circumscribe the approach to it to the opinions of experts. All that we can gather from the books is that the tribunal must be1 strictly on guard that it has to do with an indivisible object of transfer.” In that case, the court approved a separate valuation of the interests of the tenants “in the houses they had built on the plots, which they had reserved in their leases.” In this jurisdiction, whatever may have been the practice before the amendment of R.L.H. 1945, § 314, by Act 200 of the Session Laws of Hawaii 1947, after the effective date of the amendment, the unit rule applies where the land and improvements are owned by the same owners, but it does not apply where the owners of the land are different from the owners of the improvements. The pertinent provision of R.L.H. 1945, § 314, as amended, now incorporated in R.L.H. 1955, § 8-21, reads as follows: “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 sepa [551] rately owned, the value thereof shall be separately assessed.” (Emphasis supplied) Before the amendment, the provision in R.L.H. 1945, § 314, read as follows: “In fixing the compensation or damages to he paid for the condemnation of any property, the value of the property sought to be condemned and all improvements thereon, shall be separately assessed.” Harriet Bouslog (Bouslog & Symonds) for petitioner, for motion to stay and contra to motion to dismiss. John P. Russell, Special Deputy Attorney General, and Harold W. Nickelsen, Assistant Attorney General, for the Territory. [551] In view of R.L.H. 1955, § 8-21, we conclude that the petitioner and other tenants similarly situated are not entitled, as a matter of right, to have the value of their improvements determined in the same trial and by the same jury that determines the value of the reversionary interest of Lillian Tom Loo, Beatrice L. Luke and Kan Jung Luke. Furthermore, the condemner and the owners of the reversionary interest stand to be substantially prejudiced by the delay in trial, the condemner by the possibility that it might be burdened with the payment of interest during the period of delay on the amount of additional compensation that might be awarded to the owners of the reversion and the latter by loss of use of such additional compensation. It may be noted that the petitioner requests that the trial be stayed without the requirement of any bond in addition to the bond for costs on appeal. We, therefore, deny petitioner’s motion. The denial of the motion will not deprive the petitioner and other tenants similarly situated of their day in court for the determination of the value of their improvements, if the improvements should be taken. We, also, deny the motion of Lillian Tom Loo, Beatrice L. Luke and Kan Jung Luke to dismiss petitioner’s appeal. Dismissal of appeal is not one of the powers reserved to this court after the perfection of appeal. J. Garner Anthony (Robertson, Gastle & Anthony) and Chuck Man (Mau, Hong é Kanemoto) for Lillian Tom Loo, Beatrice L. Luke and Kan Jung Luke, for motion to dismiss and contra to motion to stay.