
    The Covington & Cincinnati Bridge Co. v. Magruder et al.
    
      On petition in error common pleas court reverses judgment of probate court — In appropriation proceedings — It is duty of common pleas to retain cause for trial — Judgment of common pleas without such, trial will be reversed, when — Condemnation proceedings for site of bridge and approaches.
    
    1. Where on a petition in error the court of common pleas reverses the judgment of the probate court in appropriation proceedings, it is made its duty by the Revised Statutes, section 6438, to “retain the cause for trial and final judgment;” and when, without a trial by jury as in the probate court, the court proceeds at once to render final judgment, the judgment of the court of common pleas will be reversed.
    2. A company organized to construct a bridge over the Ohio river, is authorized to purchase, appropriate and hold any interest in real estate, whether an estate in fee simple or a less estate, which, in the opinion of the directors, will be required for the site of the bridge and of suitable avenues or approaches leading thereto.
    (Decided December 18, 1900.)
    Error to the Circuit Court of Hamilton county.
    George A. Magruder and wife, by a trustee, leased to Abraham M. Taylor one hundred and thirty-five feet of land in Cincinnati, Ohio. The lease contained covenants that the lessee should erect upon the ground demised a good and substantial brick building, not less than three stories high and covering the entire front of said lot, and to insure each of the buildings for at least fifteen hundred dollars against loss by fire. If not so insured by the lessee within thirty days from the completion of the buildings the lessor might cause them to be insured at his expense. The lease was for ninety-nine years, renewable forever, at certain agreed rent. Upon the death of Taylor, his real estate was partitioned among his children, and the east half of the premises above mentioned, being 67 1-2 feet front was allotted to Charles Taylor, he to pay $1,215 per annum for that portion. The plaintiff, The Covington and Cincinnati Bridge Company, being desirous of acquiring that real estate for its purposes, in January, 1895, purchased the leasehold of Charles Taylor, subject proportionately to the number of feet thereby conveyed, to all the terms, conditions and stipulations contained in a lease for ninety-nine years, renewable forever, executed by Abert, trustee, and, Magruder and wife to Abraham M. Taylor, the portion of the rent reserved in said lease assumed by the bridge company, being $1,215 annually. On the 19th of July, 1895, the Covington and Cincinnati Bridge Company filed their petition in the probate court of Hamilton county to appropriate the1 land so leased for the purpose of widening a roadway and extending the approaches to their bridge, _ commonly known as the' suspension bridge. Having made a proposition to the defendants for the purchase of their interest in the said property, which proposition was not accepted, the bridge company, on the 18th of December, 1895, filed a supplemental petition against the defendants, praying for the appropriation of their interest in the premises aforesaid. The defendants answered this petition, setting up, among other things, that the Magruder s, the owners of the fee and of the lease, have assented and do assent and agree to the erection of the bridge and the approaches thereof as a compliance with the covenants of said lease, respecting the kind and description of structure or building that should or may be erected thereon, by the terms of the lease, and have waived and do thereby waive all objections to the same, if any can be made thereto on account of the covenants in the lease.
    
      The probate court found for the bridge company on the preliminary hearing and ordered the jury to assess compensation. On the trial before the jury the lease to Abraham Taylor, the partition between his'children, and the conveyance to the bridge company were shown, and in addition thereto, two agreements between the bridge company and one Sarah Taylor, as to the use of the premises by the bridge company, a bond by the bridge company and Bradford Shinkle to Charles S. Taylor, reciting the lease of the property in question to Abraham Taylor and its. transfer to the bridge company, reciting, whereas, the said Covington and Cincinnati Bridge Company assumes, in proportion to the number of feet it bought, and agreed to perform all and every of the terms and conditions of' the lease upon the part of said lessee to be performed, and conditioned to be void if the bridge company hold, the Taylors harmless for any breach of the terms and conditions of the original lease by the bridge company. And it was shown that in pursuance of said conveyance and agreements the bridge company ‘entered into possession and continuously occupied said premises.
    The plaintiff offered evidence' tending to show that the interest of the Magruders was limited by the value of the land exclusive of the buildings, which was placed at from $12,000 to $16,000 each. The Magruders asked the probate court to charge the jury, in substance, first, that the bridge company, was bound by virtue of its contract to pay defendants $1,215 annually during the term of the lease; second, that the right to receive the $1,215 per annum, according to the terms of the lease, is, as between the bridge company and the Magruders the measure of damages; third, that neither the salable value of the ground rent nor the nature and value of the land were to be considered in assessing compensation to the Magruders; fourth, that the Magruders were entitled to re ceive a full equivalent for the annual rent of $1,215, for the full term of ninety-nine years, renewable forever, and that the jury should ascertain what sum when securely invested would yield that amount; five, that the jury were to determine from the evidence what sum would be necessary to purchase a well secured income of $1,215 net per annum, and to award that sum to the Magruders; all of which charges were refused. And the court charged that the jury were to determine the market value of the ground rent and award such market value to the Magruders, and market value was, in substance, defined as the fair selling value. The jury awarded $20,250 as compensation.
    Motion to set aside the verdict and award a new trial was overruled and a final order entered awarding the property to the bridge company free and clear from the terms and conditions of the said lease thereupon. On petition in error the common pleas court reversed the judgment of the probate court; and without retaining the cause for trial by a jury, proceeded to render final judgment dismissing the proceedings. The circuit court affirmed the common pleas court and it is now sought here to reverse the judgments of the common pleas and circuit courts and to affirm the judgment of the probate court.
    
      Robert Ramsey and Ramsey, Maooioell & Ramsey, for plaintiff in error.
    1. It is true that in Ohio, both by statute and decision, a perpetual leasehold estate is to be deemed land for certain purposes. But the discussion of that question is irrelevant. Whatever the nature of the interest of the lessors under the lease, it was still a right of some kind which, until quieted, interposed as complete an obstruction to the public improvement as though it were a fee simple estate unimpaired by lease or otherwise. The statute provides for the appropriation of any “parcel of property, interest, or right” which stands in the way of public improvement. Sec. 6414 Rev. Stat. The right to appropriate any obstruction, whether it be in the form of an estate in the land, or a stone wall on the land, or a personal covenant in a lease affecting the use of the land, is necessarily involved in the very idea of eminent domain. Lewis on Eminent Domain, Sec. 265.
    2. The claim that the company has assumed all the covenants of the lease, and that those covenants must be held inviolate, is unfounded for two reasons: (a) If the company had assumed the covenants of the lease, the appropriation would not amount to a violation of contract; but (b) the company did not assume the covenants in any sense which would establish a privity of contract with the lessor. Railroad Co. v. Kip, 46 N. Y., 546; Decamp v. Railroad Co., 47 N. J. L. 43; Tail’s Exr. v. Asylum, 84 Va., 271; West River Bridge Co. v. Dix, 47 U. S. (6 How.) 507; but the taking of a lessee’s interest in a fractional part of the premises did not create any privity of contract with the lessor. Jones, Admx., v. Smith, 14 Ohio, 606; Crawford v. Chapman, 17 Ohio, 449; Sutliff v. Atwood, 15 Ohio St., 186.
    Nor does the fact that the lessor has accepted the apportioned installments of rent directly from the several assignees of the lessee operate as a novation or establish a privity of contract with him. Harmony Lodge v. White, 30 Ohio St., 569; Taylor v. DeBus, 31 Ohio St., 468; Smith v. Harrison, 42 Ohio St., 180.
    If it were otherwise, then the original lease with all of its covenants and conditions would be split up into separate and independent leasehold estates in the several tracts as to which possession had been severed. But such is not the effect of a severance of possession. 2 Taylor on Landlord & Tenant, section 491; 1 Washburn on Real Property, p. 536, section 15; Eyton v. Jones, 21 L. T. N. S., 789; Clark v. Cummings, 5 Barb. 339.
    It is said that the appropriation is not necessary, for the following reasons:
    First, that the restrictions upon use under the lease are not made conditions of title and may therefore be disregarded by the bridge company without imperiling its possession.
    Second, that those restrictions have been waived.
    1. Upon the first point it is sufficient to say that until this public improvement can be made without breach of contract, a court will not deem a proceeding in eminent domain unnecessary. Giesy v. Railroad Co., 4 Ohio St., 308; Toledo Con. Street Railway v. Street Ry., 6 C. C., 362, 3 Circ. Dec., 493.
    2. The claim that all restrictions upon the use of the premises have been waived, is wholly without foundation.
    
      (a.) There was no evidence either tending, or designed to show such waiver.
    
      (I?.) The answer alleging waiver is not effective to put that question in issue, or call for a reply denying the allegation, since the pleadings of the civil action are not appropriate to special proceedings. The expropriator files its application in this particular proceeding. That is all the pleading there is. The statute makes up the issues. Section 6420, Rev. Stat.
    (c.) Nor can the answer be taken as amounting in itself to a waiver. It came too late. The statute requires the corporation to endeavor to agree with the owner. Failing in that, it may invoke the aid of the court. Jurisdiction having once attached by the filing of the application, it can not be defeated thereafter by any act of the defendant.
    (cZ.) But a mere waiver would have been insufficient even if it had been made in time. Public improvements can not be erected upon the faith of a waiver. There must be a title, that is, an independent title, and not a title which is linked by covenants and conditions with the titles of somebody else. The so-called waiver would still leave the bridge company yoked to the Taylors under the original lease.
    (e.) Again, it is a misnomer to speak of waiver. The tests by Avhich the original lease was found to be indivisible and entire in all its parts, show that such consent as would be necessary to enable the bridge company to make its improvement, Avould amount in laAv to the formation of a neAV contract. The law will not compel the parties to enter into a contract of lease. If an existing title is inadequate to the needs of the corporation, then it is for the corporation to say Avhat kind of a title it will offer to buy. If it can not reach a purely voluntary agreement with the owner in that respect, then the law may be invoked for the appropriation of that uniform title which is conferred in every case, to-wit, an easement in the nature of a fee simple estate. The law does not compel the parties to make contracts that are not mutually satisfactory.
    
      
      (†.) Finally, waiver implies privity of contract. If there is no privity of contract between the bridge company and these defendants in error, there is nothing for these defendants in error to waive.
    It is claimed that the court erred in holding that the appropriation extinguished the covenant of rent. It is true that where a lease is not in the nature of an obstruction to the public improvement; that is, where its covenants may be performed notwithstanding the improvement, an appropriation of the reversionary interest does not necessarily affect the covenant of rent. But where the public work can not been ter ed upon consistently with the provisions of the lease, the lease must give way, just as a house or a stone wall must give way. The covenants of the lease are mutual and dependent. The court can not. make a decree extinguishing certain of the covenants, and preserving others. Each group of covenants forms the consideration for the other, and they must-stand or fall together. Otherwise, the court would, be making new contracts for the parties.
    
      Richards, Baer & Richards, and Harper & Allen, for defendants in error.
    The interest the bridge company really wishes to appropriate is a ground rent, which is an interest incorporeal in its nature, separate and independent of the leasehold, and capable of enjoyment apart from and in addition to the use and enjoyment of the land by the lessee. Williams Real Property, 243; Tiedeman Real Property, Sec. 171.
    Along-with and in addition to this incorporeal reversion, or the technical fee, or whatever one may choose to call it, the lessor has a valuable separate and independent property, i. e., the right to receive a certain sum of money annually; the payment of which sum is a charge on the premises superior to all other charges. Williams, R. P., 322; Stephenson v. Haines, 16 Ohio St., 478.
    If it is sought to cancel and extinguish this contract, instead of appropriating the use of the land, another difficulty arises, for that differs widely from the mere act of appropriation. For the cancellation of the agreement and the release of the Taylors, both parties to that agreement, must be parties in this case.
    The effect of condemnations of land for public uses upon rents and leases has been the subject of adjudication in numerous cases. Randolph on Eminent Domain, Sec. 340; Workmen v. Miflin, 30 Pa. St., 362; P. W. & B. Ry. Co. v. Williams, 54 Pa St., 103; Foote v. Cincinnati, 11 Ohio, 408.
    There is no pretense in this case that every interest in or in any way connected with *the land involved herein is to be ascertained and taken in this proceeding. The original lessees are not parties hereto, nor is it contended that they have the least interest in the matter, the bridge company have stepped into their shoes, acquiring all their rights and assuming all their obligations. The bridge company now own by voluntary purchase a perpetual lease on the premises; and they occupied the premises by virtue of this lease before action was commenced against these defendants.
    This proceeding is manifestly for the only purpose of securing the interest of the Magruders; the right to collect rent.
    We shall now consider whether the bridge company has shown the necessity for the appropriation contemplated by section 6420, Revised Statutes. Randolph on Eminent Domain, Secs. 52, 185, 186; Sec. 6416, Key. Stat. Geisy v. Railway Co., 4 Ohio St., 308; Lewis on Eminent Domain, Sec. 163.
    The point we wish to make is that the perpetual lease voluntarily purchased by the bridge company enables them to build and maintain the bridge, that this is the public use contemplated by the statute and the constitution and that any further interest taken by the bridge company would be for their own private benefit and profit. McArthur v. Kelly, 5 Ohio, 139.
    It is well settled that the exercise of the right of eminent domain rests upon public necessity, and is just as broad as that necessity and no broader. Weisenberger v. Miller, 3 Circ. Dec., 714, 7 C. C., 173, 180, affirmed, 61 Ohio St., 561; State v. Railway, 40 Ohio St., 504.
    It seems to me there is a striking analogy between the case at bar and the case of taking water from a river for canal purposes. In each there is a clear public use. and in each the corporation attempted under guise of a proceeding in eminent domain to gain an undue private advantage. Cooper v. Williams, 5 Ohio, 391.
    So in the case at bar the public welfare does not require that more property should be taken than a sufficient estate to support and protect the building and maintenance of the bridge. x\s the leasehold estate already owned by the bridge company is sufficient for this purpose no further estate or property interest can be taken. Buckingham v. Smith, 10 Ohio, 288; Bloodgood v. Railway Co., 18 Wend., 9; Railway Co. v. Felton, 69 Fed. Rep., 273; Railway Co. v. Kip, 46 N. Y., 546.
    And so in all such cases where an appropriation was permitted, the condemning corporation was in possession of the property as lessee, under a contract with the lessor to deliver up possession at a certain time. West River Bridge Co. v. Dix, 47 U. S., (6 How.), 507.
    Now we contend that the bridge company own a sufficient estate and, therefore, it is not necessary to use the property of another. 47 U. S. (6 How.), 537; State v. Railway Co., 55 N. J. L., 194; Lawrence v. Railway, 36 Hun., 467.
    Our interest in this property is capable of enjoyment apart from and in addition to the use of the land for bridge purposes.
    We have seen that the proposed taking is beneficial to the corporation considered as a business enterprise, that this will not authorize a taking. McQuillen v. Hatton, 42 Ohio St., 202.
    Now in order to authorize the condemnation in the case at bar the bridge company must show clearly that “each parcel of property, interest, or right * * * sought to be appropriated” (section 6416, Revised Statutes) is necessary for, and is to be used by, the public (section 6420, Revised Statutes) and that such property, interest or right can not remain in and be enjoyed by the now owner without defeating this use by the public.
    Many cases could be cited in which even after condemnation and payment of award it was held that certain interests remained in and could be enjoyed by the former owner. Lane v. Kennedy, 13 Ohio St., 42; McClelland v. Miller, 28 Ohio St., 488; Railway Co. v. Williams, 35 Ohio St., 168; Platt v. Pennsylvania Co., 43 Ohio St., 228; Daily v. State, 51 Ohio St., 348; Benley v. Sweeney, 64 N. H., 296; Kansas Central Ry. Co. v. Allen, 22 Kan., 285; Lewis Eminent Domain, Sec. 586 et seq.; Randolph Eminent Domain, Sec. 215.
    
      But, for another reason the bridge company is not entitled to and can not be authorized to condemn the interest of these defendants. The bridge company purchased a perpetual lease of these premises from Taylor, our tenant, and the owner of the lease, and thus acquired the right to use the premises by agreement with the owner.
    Contracts made between owners of property and those vested with authority to condemn the same for public use are subject to the same general rules and principles as though the power to condemn did not exist. Lewis Em. Dom., Sec. 289; Nye v. Railway, 113 Mass., 277;Wade v. Hennesey, 55 Vt., 207; Regents Canal Co. v. Wade, 26 L. J. N., s. c. 566; Leipper v. Railway, 36 L. J., Ch. 841; Harding v. Railway, 41 L. J., Ch. 371; Railway Co. v. Reynolds, 116 Ind., 356; Railway Co. v. Geisel, 119 Ind., 77; Railway Co. v. Sherry, 126 Ind., 334.
    By the same rule it was held a fee passed by a deed purporting and apt to convey a fee. Cushman v. Brownlee, 128 Ind., 266; Vermilya v. Railway Co., 66 Ia., 606; Gray v. Burlington Ry., 37 Ia., 119; State v. Railway Co., 55 N. J. L., 194.
    We claim that by virtue of the assignment of the lease to the bridge company and the entry into possession and occupancy of the land by them there is a privity of estate between the bridge company and these defendants in error; and that a privity of contract exists between the bridge company and these defendants in error by virtue of the deed from Charles Taylor to the bridge company, and the bond from the bridge company to Charles S. Taylor conditioned upon the performance by the bridge company of the terms, conditions and stipulations of the lease under which the land is held. Woodland Oil Co. v. Craw
      
      ford, 55 Ohio St., 161;Borgman v. Spellmire, 4 N. P., 416; Sutliff v. Atwood, 15 Ohio St., 186.
    The bridge company has acquired all of Taylor’s rights and assumed all Taylor’s liabilities. They are bound to us by privity of estate, and by privity of contract. Section 6416. Such necessity was not made to appear and such necessity does not in fact exist.
    True, the agreement is made Avith Taylor, but it is in favor of the Magruders, and they may adopt and enforce it. Crumbaugh v. Kugler, 3 Ohio St., 544; Thompson v. Thompson, 4 Ohio St., 333; Emmet v. Brophy, 42 Ohio St., 82.
    If the Iuav under which the bridge company is proceeding authorizes the condemnation sought herein, still the condemnation can not be permitted; for then the law impairs the validity of contracts-in violation of section 16, article 8 of the state constitution, and further section 10, article 1 of the constitution of the United States prohibits the passage of such a law. Foote v. Cincinnati, 11 Ohio, 408.
    Certainly under the lease the premises may safely be used for bridge purposes if a license is obtained from the landlord. Hoav can the necessity for this appropriation contemplated by sections 6416 and 6420, Revised Statutes, be found Ain til it appears that the landlord refused to permit the proposed use and when it appears of record that the landlord offers to grant a full license without compensation and that the bridge compar v refuses to accept such license, surely the court should not hesitate to dismiss the proceeding.
    A leasehold estate is a hereditament (section 4181, Revised Statutes), and may therefore be partitioned (section 5754, Revised Statutes). The leasehold was in fact partitioned by the Taylors and enjoyed by them in severalty for many years. The bridge company has acquired the whole estate of one owner in severalty.
    The right to make partition of leasehold estates has been repeatedly considered by the New York courts in various cases, presenting many phases of the question, growing out of the Van Rennselaer lease, from which the following principles may be deduced.
    1. In general, all covenants running with the land are divisible.
    2. If a division is physically impossible such covenants multiply.
    3. A permanent leasehold estate may be partitioned voluntarily or compulsorily.
    4. After partition had each tenant, as between themselves, is answerable for the breach of any covenant in respect to the part assigned to him.
    5. If the landlord is made a party, or recognizes the partition, all covenants are severed and each tenant becomes exclusively liable for the breach of any covenant; and -the rights of the landlord Avill be confined to the several interests in the portion in which the default occurred. Van Rennselaer v. Gallup, 5 Denio, 454; Same v. Jones, 2 Barbour, 643; Same v. Bradley, 3 Denio, 135; Same v. Chadwick, 24 Barb., 333.
    And this is so not only in New York: Farley v. Craig, 11 N. J. Eq., 262; Woodworth v. Campbell, 5 Paige, Ch. 518; Cook v. Webb, 19 Minn., 167, Hunter v. Hazeton, 5 N. H., 216.
    If the partition betAveen the Taylors was not already binding upon us when the bridge company puehased, it certainly is now. For since the institution of these proceedings we have accepted rent from Sarah Taylor independently of the other tenant, then we ratified the partition in open court.
    Even though an answer may not be absolutely necessary in such a case, it is the usual practice and quite proper. Railway Co. v. Railway Co., 17 W. Va., 812; Toledo, Ann Arbor, etc., Ry. v. Railway, 6 C. C., 521, 522, 3 Circ. Dec., 566.
    Every right a man possesses, whether it arises under contract, or as a condition of an estate, he may waive or relinquish without impairing1 the contract or defeating the estate. 2 Blackstone, 155; 1 Wash-burn on Beal Property, 453.
    Like all other conditions, forfeitures can only be reserved to the landlord and his assigns, and they alone can take advantage of the breach. If they elect to waive a forfeiture, the estate continues with all the other obligations attached thereto. Tiedeman Real Property, Sec. 191; Tiedeman Real Property, Sec. 268; Church v. Grant, 3 Gray, 142; Bleaker v. Smith, 13 Wend., 531; 1 Taylor Landl. and T., Secs. 497, 498, 258, 261 and note 1; Hubbard v. Hubbard, 97 Mass., 188; Woodland Oil Co. v. Craawford, 55 Ohio St., 161.
    If wre sought a forfeiture of the lease for breach of any covenant, in this lease a forfeiture would be denied; because the covenants are mere provisions to secure the payment of the rent reserved. Gallaher v. Herbert, 117 Ill., 160; Vanatta v. Brewer, 32 N. J. Eq., 268.
    Now it is clear that, irrespective of the public use to which the land is devoted, we would not be permitted to forfeit the lease if the lessee used the land in the prohibited manner; and it is equally certain that we could agree with the lessee so as to permit any and all uses of the premise and relieve the leasehold from the effect of any covenant without disturbing the operation of the lease in other respects. Fisher v. Smith, 48 Ill., 184; Clark v. Jones, 1 Denio, 517; Cartwright v. Gardiner, 5 Cush., 273; Lawrence v. Railway, 36 Hun., 467; Olmstead v. Aqueduct, 17 Vr., (N. J.), 495; Railway Co. v. Kip, 46 N. Y., 546.
    Indeed, where the appropriating corporation is not the lessee, it is generally held that a landlord is not a proper party to a proceeding to appropriate land held under a permanent lease. Appropriation is not an eviction, nor an incumbrance on the land. It does not divest the tenant of his seisin, and but partially disturbs his possession. The tenant’s liability to pay rent to his landlord continues unimpaired, and the tenant is entitled to a compensation to include his liability to pay rent for the full term. Workmen v. Mifflin, 30 Pa. St., 362; Railway v. Williams, 54 Pa. St., 103.
    To refute the claim of defendant in error, that the arrangement with Taylor amounts merely to a subletting, requires merely a reading of the deed. No reversion remains in Taylor. Under that deed the bridge company take the entire leasehold estate for. the full term of the lease. Tiedeman Real Property, Sec. 182; 1 Washburn Real Property, 334; Hulford v. Hatch, Douglass, 174; St. Louis Public Schools v. Boatman’s Ins. Co., 5 Mo. App., 91.
    That the bridge company do not believe there is a reversion in Taylor is demonstrated by the fact that Taylor has not been made a party to this proceeding.
    But whatever they may be, sub-tenant or assignee, they have the right to use the land forever, and that right satisfies the public necessity.
    There is no necessity for condemning the ground rent belonging to the defendants in error.
    
      1. Only such interest as is necessary to meet the public wants can be taken; and it can be retained only so long as it is used by the public, and can not be diverted to any other purpose. The power rests upon the public necessity and can be exercised only where such necessity exists. Giesy v. Railway Co., 4 Ohio St., 308.
    It is settled that statutes granting the power of appropriation must be strictly construed. Currier v. Railway Co., 11 Ohio St., 228; Miami Coal Co. v. Wigton, 19 Ohio St., 560; Platt v. Pennsylvania Co., 43 Ohio St., 228.
    The grant of power to the bridge company in this case is now contained in section 3542, relating to bridges over the Ohio river (1868).
    2. The statute does not expressly confer the power to take the fee, and unless such power is expressly given it can secure only an easement; that is, a right to use the ground for bridge purposes, its rights ceasing when the use ceases. McCombs v. Stewart, 40 Ohio St., 647; Corwin v. Corwin, 12 Ohio St., 629; Malone v. Toledo, 34 Ohio St., 541; Vought v. Railway Co., 58 Ohio St., 123.
    3. The perpetual leasehold estate granted in the lease and now held by the bridge company, is one of inheritance, and possesses the substance and dignity of an estate in fee. Loring v. Melendy, 11 Ohio, 355; Worthington v. Hewes, 19 Ohio St., 66; Village of St. Bernard v. Kemper, 60 Ohio St., 244.
    Appropriation for public uses does not discharge the lessee’s liability for the payment of rent. Foote v. Cincinnati, 11 Ohio, 408; Randolph on Em. Dom., Sec. 340; Workman v. Mifflin, 30 Pa. St., 362; Cooley, Const. Limitations (6th Ed.), p. 647; Buckingham v. Smith, 10 Ohio, 288.
    
      The right of the defendants in error to the rents reserved can not be canceled or discharged without, their consent.
    This contract the bridge company must perform.. It can not set it aside under any scheme of appropriation, because its officers think better terms can be had from a jury. Gray v. Railway Co., 37 Iowa, 119; Jersey City v. Railway Co., 55 N. J. L., 194; Railway Co. v. Kipp, 46 N. Y., 546; Tate’s Exr. v. Asylum, 84 Va., 271.
    In this case there was a transfer from Sarah M. Taylor and the executors of Abram Taylor to-Charles Taylor of the whole interest of the Taylor estate in this property, for the entire term.' That constitutes an assignment, as distinguished from a subletting. Washburn, Real Property (5th Ed.)., p. 529; Williams, Real Property, p. 565, 598, note; Digby’s. History of Law of Real Property, p. 412; Tiedeman,. Real Property, p. 182; Lee v. Payne, 4 Mich., 106; Dartmouth College v. Clough, 8 N. H., 22; Woodhall v. Rosenthal, 61 N. Y., 382; Craig v. Summers, 47 Minn., 189.
    But the question is immaterial, since our clients have approved the partition of the leasehold estate and consented to the public use of the property in question, — the effect of which will be considered tinder the next head.
    All restrictions, if any, upon the use of the premises by the bridge company have been waived by the defendants in error. 2 Lewis Eminent Domain, 2d Ed., Secs. 390, 304; Railway Co. v. Railway Co., 17 W. Va., 812; Sou. Min. Co. v. Russell, 54 Pac. Rep., 140 (Ks.); Railway Co. v. Belt Ry. Co., 6 Ohio Cir. Ct., 521, 3 Circ. Dec., 566.z
    
      The lease fixes the price which the bridge company is to pay for the use of the property. It is only such covenants as might interfere with that use or result in the bridge company being evicted which it can complain of and seek to have removed.
    Under the authorities, it is settled that our clients would be estopped from interfering with the use of the property by the bridge company; and no question of compensation can arise, because the measure of that is already fixed by the rent reserved. Goodin v. 47 Ohio St., 366; Uncanoonuck Road Co. v. Orr, 41 Atl. Rep., 665 (N. H.); Railway Co. v. Englehart, 77 N. W. Rep., 1092 (Neb.); Railway Co. v. Allen, 113 Ind., 581.
    The bridge company made no effort to secure the extinguishment of the alleged objectionable covenants,, and, therefore, has no right to condemn. 2 Lewis on Em. Dom. (2d Ed.), Sec. 304a.
   Davis, J.

A large amount of interesting, but irrelevant, learning is displayed in supporting the contention of the defendants in error. The case, as we apprehend it, lies within narrow bounds.

By section 6438 of the Revised Statutes, the court of common pleas, if it reverse the judgment of the probate court in appropriation proceedings, is required to “retain the cause for trial and final judgment.” In this case the record shows that the court of common pleas, having heard the cause on “the petition in error, the record and proceedings of the probate court and the arguments of counsel,” reversed the judgment, of the probate court and rendered judgment for the costs against the expropriator, The Covington and Cincinnati Bridge Company; and, without further trial, proceeded to render a final judgment dismissing the supplemental and amended petitions and adjudged that the plaintiffs in error, the defendants in error here, go hence without day and recover their costs. To all of this the bridge company, by its attorney, excepted. There was no bill of exceptions taken. Indeed, none was necessary; for the error, if any, plainly appears in the journal entry of the court of common pleas. A reading of the whole of the section of the Revised Statutes referred to, discloses that the “trial” in the court of common pleas must be a jury trial, as in the trial in the probate court. It does not appear that such a trial was had in the common pleas. On the contrary, it appears that the court of common pleas reversed the judgment of the probate court and retained, the case for trial and heard and considered the premises,” that is, upon further consideration of the “petition in error, the record and proceedings of the probate court and the arguments of counsel,” found that there existed no right nor necessity for the appropriation of the interest of the defendants in the described property, and thereupon rendered final judgment. This was a palpable violation of the statute. The case of Railway Co. v. Bailey, 39 Ohio St., 170, does not apply. In that case the court of common pleas reversed the probate court and retained the case for trial and final judgment. It was held that error would not lie to the judgment of reversal because it was not a final judgment. In this case the court did not retain the case for trial, and erroneously proceeded to final judgment. The judgment of reversal and the judgment of dismissal were one and the same.

This error would dispose of the case here; but we will briefly indicate our conclusions on.the vital question involved in the record.

The right of eminent domain is inherent in the sovereignty, and whatever property is required for the public use, whether real or personal, and whatever extent of interest therein, whether tangible or intangible, may be appropriated. These are settled principles of the law. Lewis on Emient Domain, Secs, 262, 262a; 10 Am. and Eng. Ency. Law, 2nd Ed., 1088.

By the constitution of this state, this power is lodged in the legislature under the general grant of legislative power, and the limitations are few and simple, practically none except that the property shall be taken for a public use only, and that compensation shall be made to the owner in money, without deduction for benefits to any property of the owner. In delegating this power the legislature has regard to the purpose for which it is to be exercised. In some cases it may be a mere franchise, a right of way, in other cases the public interest may require ownership in the property. Hence, while the legislative grant should be strictly construed, it should not be technically construed so as to defeat the purpose of the grant. By the statute of Ohio, Revised Statutes, section 3542, a company organized to construct a bridge over the Ohio river is authorized to purchase, or appropriate, and hold such real estate as, in the opinion of the directors, will be required for the site of the bridge, and of suitable avenues or approaches leading thereto. This grant, when fairly construed, confers the power to acquire any interest in real estate, whether an estate in fee simple or a less estate, which in the opinion of the directors will effectuate the purpose of the grant. In fact, it would seem to be the policy of the state that bridge companies “shall own” the banks of the stream over which the bridge is constructed, unless permitted to occupy by a written grant with tbe owner. Such is' tbe law as to bridges wholly within the state. At any rate, Revised Statutes, section 3542, in our opinion, confers the right to acquire and hold whatever interest in real estate is necessary, in the opinion of the directors of the bridge, company, for the site of the bridge, its avenues and approaches. Beyond the question whether the proposed taking is a public use, or not, the necessity of' the appropriation is not a judicial question. Ranney, J., Giesy v. Railway Co., 4 Ohio St., 325. Boom Co. v. Patterson, 98 U. S., 403, 406. Mere physical occupancy of the land may not, in the judgment of the directors, meet all the needs of the company for a site. It may not be desirable to construct the abutments., and approaches of an interstate highway upon a mere leasehold, although the lease may be with the privilege of renewing it forever. The embarrassment of paying rent forever, for the site, may be a good reason for preferring to own the site of the structure, and for not negotiating for and accepting a mere right, to occupy the land on the terms of the owners. It is nearly certain that the company would not deem it. to be a business-like course to construct and maintain a costly bridge upon a leasehold where the lease not. only did not permit a bridge, but required the owner of the bridge to maintain a block of store buildings, over the whole of the described land. Under such circumstances, it is no more than ordinary prudence to endeavor to extinguish the lease and to obtain the complete title to the land by purchase or appropriation of the outstanding interest. Having the right, to acquire the absolute ownership of the property, by purchase or appropriation, if in their judgment it was needed, the directors proceeded strictly according fco law when they proposed- to buy the interest of the defendants and to so complete the title of the company to the land, and upon refusal by the defendants to accept their proposition, in instituting the proceedings to appropriate. The offer by the defendants, in their answer, to waive compliance with the covenants of the lease respecting the kind of structure to be erected and maintained on the land, avails them nothing. It is in effect an attempt to make a new and different contract; and to compel the company to •abide by this waiver, would be to give to the defendants the option, and'to destroy the right of the plaintiffs to appropriate as in the opinion of the directors may be necessary. The finding of the court of common pleas that there is on the part of said corporation no right nor necessity for the appropriation of the interest of the defendants in error in or to the said described property, and the judgment of the same court dismissing the case, as well as the judgment of the circuit court affirming it, are erroneous.

In its present state of mind the court has been unable to agree to affirm the judgment of the probate court. Members of the court, including myself, would affirm the judgment. The case will therefore be remanded to the court of common pleas for trial as provided by law.

For the reasons stated the judgment of the common pleas court, in reversing the judgment of the probate court and dismissing the amended and supplemental petitions herein, and that of the circuit court affirming the judgment of the common pleas court, should be reversed.

Reversed.

Minshall, J., dissents.  