That appeal was docketed number 2721 in this court and on July 8, 1950, this court reversed said decision and judgment and remanded the cause for further proceeding. City and County v. Tam See, 38 Haw. 592. Shortly thereafter followed a period during which plaintiff, as defendant's attorney, sought to arrive at a settlement in Law No. 17093 and conferred on divers and numerous occasions with Nathaniel Felzer, Esq., then a deputy city and county attorney in charge of the case, and others.
At the hearing it appeared that the parcel would be used for road purposes as an entrance to the park; the judge held plaintiff in error, who was the owner of parcel 10 of the land sought to be condemned, was entitled to no compensation because the benefits of a public road to the adjoining lands of petitioner offset the value of the parcel taken. On the writ of error ( City and County v. Tam See, 38 Haw. 592) this court reversed the order of condemnation on the ground that the resolution of the board of supervisors authorizing the condemnation was for "park and playground purposes" and that the judgment and final order of condemnation were not based on the facts alleged in the petition and in the resolution of the board of supervisors but on the ground that the land was to be taken for a "public highway," and thus the judge in declaring the public use and purpose to be a "public road" went beyond the scope of the pleadings and the jurisdiction of the trial court. The court also stated: "* * * 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.
Countless published decisions of this court indicate that, absent waiver, juries have regularly determined fair market value in eminent domain proceedings and that this court, at least implicitly, has recognized this practice. A non-exhaustive survey of the case law prior to the effective date of article I, section 13 has produced the following cases documenting trials either by jury or "jury-waived:" City and County of Honolulu v. Caetano, 30 Haw. 1 (1927) (jury-waived); City and County of Honolulu v. Ward, 31 Haw. 184 (1929) (jury trial); In re Ward, 31 Haw. 781 (1931); City and County of Honolulu v. Board of Water Supply, City and County of Honolulu, 36 Haw. 348 (1943) (jury trial); City and County of Honolulu v. Tam See, 38 Haw. 592, 600 (1950) (jury-waived); Territory v. Ala Moana Gardens, Ltd., 39 Haw. 514 (1952) (jury trial); City and County of Honolulu v. Barros, 40 Haw. 615 (1954) (jury-waived); Territory v. McGillivray, 41 Haw. 191 (1955) (jury-waived); Territory v. Bishop Trust Co., 41 Haw. 358 (1956) (jury trial); City and County of Honolulu v. Collins, 42 Haw. 199 (1957) (jury-waived); Hawaii Hous. Auth. v. Rodrigues, 43 Haw. 195 (1959) (jury-waived). See also Akana v. Damon, 42 Haw. 547 (1958) (holding that tenants were not entitled to have the value of their improvements determined by the same jury that determines the compensation due the holders of the fee-simple interest).
It requires that the property owner be paid damages and that the property be returned to him if it is not finally taken for public use. The cases relied on by plaintiffs do not lead to any different conclusion. City and County v. Tam See, 38 Haw. 592 and 40 Haw. 429, were concerned with the exercise by the County of its limited power of eminent domain, the filing of a series of condemnation actions affecting the same property and a variance between the resolution authorizing the condemnation and the final order of condemnation. Here, there is no question that the legislature had the power and did authorize the eminent domain proceedings instituted and carried to conclusion.
See Lindeman v. Raynor, 43 Haw. 299, 301, construing H.R.C.P., Rule 46; Guardianship of Matsuoka, 45 Haw. 83, 88, 363 P.2d 964, 967; Bank of Hawaii v. Char, 40 Haw. 463, 467; Bank of Hawaii v. Char, 43 Haw. 17, 21, aff'd, 287 F.2d 51 (9th Cir.); Guardianship of Ward, 39 Haw. 39, 46; Fraga v. Portuguese Mut. Benefit Soc'y, 10 Haw. 128, 130. But there are exceptions to this general principle, as illustrated by City and County v. Tam See, 38 Haw. 592, 598; Estate of Enos, 18 Haw. 542, 548; Kalaeokekoi v. Wailuku Sugar Co., 18 Haw. 380, 386. Consideration of these contentions necessitates review of the record and the situation of the parties.
Appellants urge that they are entitled to a consideration of the question on the ground that an appellate court, in order to do substantial justice, may examine the full record and decide matters not considered by the trial court, if such matters go to the merits of the cause and appear in the record. In City and County of Honolulu v. Tam See, 38 Haw. 592, 602, this court sua sponte exercised its statutory power to correct an error appearing patently in the record as a manifest error injuriously affecting the substantial rights of the appellant. Even if we assume that the question of diversion of security in the instant action comes within the rule stated in the Tam See case, we do not think that the question will affect the outcome of this case.
Under these circumstances, the defendant is deemed to have waived its right to object under the 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" as here attempted. ( City and County v. Tam See, 38 Haw. 592, 598.) The next alleged errors to be considered question the sufficiency of the evidence to support the trial judge's finding of a written contract modified by a subsequent oral agreement as the basis for the judgment.
But the questions themselves were not presented for the consideration of the probate judge in those proceedings on either occasion, nor were the alleged errors or abuses called to his attention or made the subjects of objection and exception at the time they were purportedly committed. The general rule is that an appellate court will consider only such questions as were raised and properly preserved in the lower court. (For collection of authorities see 3 Am. Jur. 25, ยง 246, n. 15.) That rule applies to these particular questions unless this court is of the opinion that any of the alleged errors or alleged abuses patently appear on the record as a manifest error injuriously affecting substantial rights of the appellants on writ of error within the meaning of section 9564 of Revised Laws of Hawaii 1945. (See Territory v. Chong, 36 Haw. 537; City and County v. Tam See, 38 Haw. 592, 602; Wayne v. New York Life Ins. Co., 132 F. [2d] 28; In re Florsheim, 24 F. Supp. 991; Taylor v. Catalon, 140 Tex. 38, 166 S.W. [2d] 102.) But this court is not of that opinion and finds no ground of reversal.