City of Honolulu v. Chun

OPINION OF THE COURT BY ABE, J. The appellants, hereinafter referred to as the “Chuns,” are owners of property located at the corner of Prospect and Emerson Streets in the City and County of Honolulu. The property runs along the hillside of Punchbowl and slopes toward Prospect Street. Prior to April 30, 1969, the Chuns had received approval of their plan for the construction of an apartment on the subject property. [288] On April 30, 1969, the appellee, hereinafter referred to as the “City and County,” notified the Chuns that the City and County had authorized acquisition of a portion of their property for a proposed street widening project. A moss rock retaining wall which provided lateral support for the Chun’s property was located on the two parcels that the City and County was authorized to acquire. Sometime after the notice of April 30,1969, but before the date of summons of the condemnation action now before this court, the Chuns, on advice of their structural engineer, caused a new concrete retaining wall to be built on the setback line indicated by the proposed street widening project. The uncontradicted testimony in a jury-waived trial reveals that the new wall would have been necessary if the old moss rock wall were removed, and economies were realized in constructing the wall at the same time as the apartment was being built since men and equipment were on the site and the weight of the partially constructed building would entail less technological difficulties than would have been encountered if the completed building were on the same land. The trial court awarded the Chuns $36,386.00 for the land and $5,800.00 for the old wall. The trial court further found “ft}hat on September 24, 1970, the dated [¿¿c] of summons, the defendant sustained no severance damages as a result of the condemnation of said parcels 1 & 2 including the new concrete retaining wall and other improvements claimed by the defendants.” The only question before this court is whether the trial court properly denied the Chuns severance damages for the new concrete retaining wall. We hold that it did. We do not believe that anything was damaged or taken except the land actually taken and an old moss rock wall. The law in this jurisdiction is that in a condemnation action the date of summons establishes the point in time at which the compensation for property taken or [289] damaged due to partial taking is to be computed. HRS § 101-24 provides: “For the purpose of assessing compensation and damages, the right thereto shall be deemed to have accrued at the date of summons, and except as provided in section 46-6, 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 sought to be condemned, subject, however, to section 101-23.” (Emphasis added.) HRS § 46-6 pertaining to county ordinances to require a subdivider to provide park and playground facilities has no application in this case. HRS § 101-23 covers valuation methods and is not germane to our present discussion of fixing the time at which these methods should apply. In construing the same language in RLH 1935 § 64 this court in Honolulu v. Lord, 36 Haw. 348, 354 (1943), held that: “To say that the defendant’s right to compensation and damages shall be deemed to have ‘accrued’ at the date of the summons is equivalent to saying that his property shall be deemed to have been taken at that time.” The language in the statute must also mean that severance damages are sustained at the date of summons. At the date of summons in this case, the new concrete wall had already been built. The new concrete wall was not taken; lateral support for the Chun’s remaining land was not taken since the new wall provided such support, nor do we perceive any severance damage to the land or improvement thereon not condemned. The cases cited in the Chuns’ brief for the proposition that building of a wall is compensable where the wall [290] is necessary to restore the condemnees’ remaining property to its previously available use are distinguishable from the case now before us. The Chuns built the wall before the commencement of the condemnation action. In each of the cases cited by the Chuns, the wall was built after the condemnor had commenced condemnation proceedings. Arthur S. K. Fong for defendants-appellants. Wesley Fong, Deputy Corporation Counsel (Paul Devens, Corporation Counsel, and Winston H. Jensen, Deputy Corporation Counsel, on the brief), for plaintiffappellee. It is true that construction of the wall before the date of summons lessens the cost of condemnation to the City and County. However, the law is too clear, and we cannot support Chuns’ contention that a taking had occurred before the date of service of summons. “The mere passage of legislation authorizing acquisition of property by eminent domain is ordinarily not sufficient in and of itself to constitute a taking.” 2 Nichols on Eminent Domain § 6.13. Nor is taking or damaging of property accomplished by negotiating to purchase it. Eckoff v. Forest Preserve Dist,, 377 Ill. 208, 36 N.E. 2d 245 (1941). We deem the Chuns’ argument with respect to estoppel without merit. The judgment and orders appealed from are affirmed.