after stating the ease, delivered the opinion-of the court.
Taking up the assignments of error in the order in which they are presented, the first is, that the statute under which the proceeding was instituted and conducted in the lower court, is unconstitutional. This contention is based upon three grounds. The first is, thаt private property for public use can be constitutionally taken only when there is a necessity for such taking, and that no such necessity exists in the present case. The answer, however, to this position is, that the prоperty sought to be condemned being intended for a public use, the necessity for its appropriation is not a subject of judicial cognizance, but belongs exclusively to the legislature. Roanoke City v. Berkowitz,
This view overlooks or ignores the existence of the right of eminent domain, which the State possesses, and which is inherent in every sovereignty. Indeed, the power is essential not-only to the public safety and convenience, but to the existence of government, and cannot be surrendered by the agents of the State. All the property in the State is, therefore held subject to this power, the exercise of which is subject only to the limitatiоn that just compensation must be made in all cases for the property taken. And we perceive no distinction in principle between a case like the present, where the State is already in
In his work on Constitutional Limitations, Judge Cooley, in treating of this subject, well says: “"When the existence of a particular power in the government is recognized on thе ground of necessity, no delegation of the legislative power by the people can be held to vest authority in the department, which holds it in trust, to bargain away such power, or to so tie up the hands of the governmеnt as to preclude its.repeated exercise, as often and under such circumstances as the needs of the government may require.” Chap. 15, p. 525. And the same view has been frequently taken by the courts of the severаl States and by the supreme court of the United States. Thus, in the leading case of West River Bridge Co. v. Dix,
Such a provision is contained in the general statute relating to the condemnation of property, as it stands in chapter 56 of the Code of 1873; but we do not think the effect of the omission of a similar provision in the statute under consideration, was to prohibit, or that such omission was intended to prohibit, the commissioners from taking into consideration all the circumstances necessary to be considered in order to ascertain the “fair rental value” of the land proposed to be taken. In no other way could such a result be arrived at, and by plain implication, thеrefore, the commissioners were authorized to consider all such circumstances in discharging their duties under the act. But be that as it may, there is no evidence to show that the defendants .have been prejudiced by the rеport of the commissioners, and nothing more upon that point need be said.
"We are of opinion, however, that the circuit court erred in holding that the State was. entitled to all the buildings on the premises, and in proceeding accordingly. The deed of lease of the first of January, 1870, by which the rights of the parties in this particular are to be determined, is plain and unambiguous in its terms, and neither fraud nor mistake in respect
And in a recent ease in the supreme court of the United States, the rule, and the reason upon which it is founded, is stated in these words: “Ho principle of evidence is better settled at the common law, than when persons put their contracts in writing, it is, in the absence of fraud, acсident, or mistake, conclusively presumed that the whole engagement, and the extent and manner of their undertaking, was reduced to writing. * * Where parties have deliberately put their engagements in writing, and no ambiguity arises out of the terms emрloyed, you shall not add to, contradict, or vary the language mutually chosen as most fit to express the intention of their minds. What if parol evidence prove, never so clearly, that they used such and such words in making their bargain, the writing signed, if it contain not those words, is final and conclusive evidence that they were set aside in favor of the other expressions that are found in the written instrument. And hence this rule of law is only a conclusion of reason, that that medium of proof is most trustworthy which
The record shows that on the 27th of March, 1874, permission in writing urns given by the executor of Tait and the legatees to the asylum authorities to remove such improvements as they might thereafter put upon the premises, and no claim is made by the defendants to any of the improvements which were made after that date. But to all the improvements on the premises at that time, they do claim to be entitled as a part of thе freehold, and their claim is well founded. Effinger v. Hall,
Indeed, the legislature itself, in the act of June 7, 1870, establishing the Central Lunatic Asylum, recognized that the State was entitled only to thе use of the buildings then on the premises, as lessee, and that the title was in Tait. Acts 1869-70, p. 189. And by a subsequent act, passed at the session of 1873-74, appropriating money for the purpose of erecting a ward in the asylum, it was expressly provided that no portion of the money should be expended on the buildings then existing, and providing further that the right to sell or remove the buildings to be erected under the provisions of the act, should
The circuit court ought, therefore, to have adopted, as the basis of its order, that part оf the commissioner’s report which ascertains the sum of nine hundred and forty-five dollars per annum as a just compensation for the use of the land and the buildings which were thereon on the 27th day of March, 1874, instead of entering the order complained of. And for this error, the order will he reversed, and the case remanded for further proceedings in conformity with this opinion.
Decree reversed.