Tait's Ex'or v. Central Lunatic Asylum

Lewis, P.,

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, that 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 property 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, 80 Va., 616 . And the second ground upon which the objection is based is equally untenable, namely, that the statute is repugnant to the contract clause of the federal constitution, because it impairs the obligation of the covenant on the part of the State, contained in the deed of- lease of the 1st of January, 1870, which bound the State to deliver to the lessor, his agents, or assigns, possession of the demised premises at the expiration of the term, to-wit, on the 81st of December, 1879.

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 limitation 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 *277 possession of the property, as lessee, under a contract with the lessor to deliver possession at a certain time, and an ordinary case of condemnation, where no such relations growing out of contract exist; for in the former case the State, in entering into the contract, acts merely as an individual may do, whereas in condemning the property, it acts in its sovereign capacity. In other words, a right founded upon a contract with the State is not more sacred than any other property.

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 the 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 government 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 several States and by the supreme court of the United States. Thus, in the leading case of West River Bridge Co. v. Dix, 6 How., 507 , the court said: “The power denominated the eminent domain of the State is, as its name imports, paramount to all private rights vested under the government, and these last are, by necessary implication, held in subordination to this power, and must yeild in every instance to its proper exercise. The constitution of the United States can, by no rational interpretation, be brought to conflict with this attribute in the States. There is no express delegation of it by the constitution, and it would imply an incredible fatuity in the States to ascribe to them the intention to relinquish it.” And in the same case it was also said that every contract is made in subordination to certain' conditions, of which the right of eminent domain is one. See also Boom Co. v. Patterson, 98 U. S., 403 ; United States v. Jones, 109 Id., 513 ; 3 Pars. Cont., 537 et seq., and eases cited.

*278 The third ground of objection to the validity of the statute is, that it does not make proper provision for ascertaining a just compensation to the owners for the use of the property in question. The statute provides that the commissioners, to be appointed by the court, after viewing the premises and hearing such evidence as either party may offer,” shall only ascertain what will be a fair rental value for the property actually taken, and shall make report,” etc. The defendants contend that the establishment and maintenance of a lunatic asylum on the land, injuriously affects the value of the residue of the tract, and, therefore, that the commissioners ought to have been directed to consider “the damages to the residue of the tract” occasioned by the proximity of the asylum for the use of which the land was wanted.

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, therefore, 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 report 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 *279 thereof is alleged. Hence, its language or legal import cannot he altered or modified by evidence of any previous or contemporaneous parol agreement respecting the removal of the buildings on the premises at the date of the deed, or thereafter to be erected thereon during the tenancy, and the depositions considered by the circuit court ought, therefore, to have been excluded. 1 Greenl. Ev., sec’s 275, 277. In Woodward v. Foster, 18 Gratt., 200 , Judge Joynes, after referring to the rule of the common law on this subject, said: “These general principles are of the utmost importance in the administration of justice. Without them, there would he no certainty in written contracts, and no safety in the most formal transactions. They ought not to he frittered away by nice distinctions to meet the hardships, real or supposed of particular cases.” Accordingly, it was held in that case that the legal import of the defendant’s endorsement of certain negotiable instruments, could not be varied by evidence of a contemporaneous parol agreement.

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, accident, 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 employed, 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 *280 is most precise, deliberate, and unchangeable.” Bast v. Bank, 101 U. S., 93 . See also Crawford v. Jarrett, 2 Leigh, 630 ; Watson v. Hurt, 6 Gratt., 633 ; Towner v. Lucas, 13 Id., 705 ; Colhoun v. Wilson, 27 Id., 639 ; Barnett v. Barnett, 83 Va., 504 .

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 the freehold, and their claim is well founded. Effinger v. Hall, 81 Va., 94 . The terms of the lease, as we have said, are unambiguous. There is nothing doubtful about it; its legal import is unquestionable. Any doubt as to “the extent and manner” of the contract arises not from reading the deed, but the evidence as to the alleged contemporaneous parol agreement. If or can we look to the deed of lease from Tait to the agent of the Ereedman’s Bureau, because that is a wholly different transaction, between different parties, and having no connection whatever with the deed under consideration. And even if this were not so, the result would be the same, for no right was given the lessee, by the terms of that deed, to remove or dispose of the buildings on the premises after the end of the term.

Indeed, the legislature itself, in the act of June 7, 1870, establishing the Central Lunatic Asylum, recognized that the State was entitled only to the 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 *281 be obtained from the lessor by the board of directors. And in a number of the annual reports of the superintendent of the asylum, which by consent are made a part of the record in this case, the same construction was pnt upon the lease. 25Tor does the provision in the lease, binding the State to pay the taxes on the buildings, if any should be assessed thereon during the term, militate against this view. As the buildings were occupied by the State, it may have been supposed that no taxes would be assessed upon them. At all events, the provision does not give the lessee the right to remove the buildings, nor, we repeat, does it occasion any ambiguity to be explained by parol evidence. If, then, the deed does not express the true agreement between the parties, it was the folly of the State’s agent to have signed it.

The circuit court ought, therefore, to have adopted, as the basis of its order, that part of 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.