30 Pa. 362 | Pa. | 1858
The opinion of the court was delivered by
— In 1829, the defendants below, by the death of their ancestor, became seised of two dots of ground, out of each of which issued ground-rent, and they continued seised until this suit was brought. During all this period, the plaintiff below has been the owner of the ground-rent. In 1850, under authority of an Act of Assembly, a street was opened on a part of each of these lots, covering nearly the whole of one, and about one-fourth of the other. The damages caused by opening the street were duly assessed, and the sum reported by the jury for the defendants was paid to them, and they still retain it. The rents for the years 1853-’4-’5 and ’6 not having been paid, this action of covenant was instituted; and the defence set up is, that inasmuch as a part of the ground, out of which the rents issue, has been taken for a
We are of opinion that the defence is not well founded. The appropriation of the ground for a public highway is not an eviction by the landlord, nor by one holding paramount title. It is an exercise of the right of eminent domain, which does not divest the tenant of his seisin, and but partially disturbs his possession. Subject to this right all property is held, and it has been ruled that a warranty of possession is not broken by the entry of the Commonwealth and construction of a canal: Dobbins v. Brown, 2 Jones 75. The tenant has still an exclusive possession of all except the surface, and even of that diminished only by the public right of passage. Nothing has been taken from him which has diminished his right of property; for in municipal society, property is ownership, subject to the right of eminent domain. That was the property which the ancestor of the defendants bought when the ground-rents were reserved; and it was out of the lots thus liable to public appropriation that the rents issued. True, rent is sometimes said to be incident to enjoyment, and from this it is argued that, inasmuch as a part of the enjoyment of the lots has been taken away, the tenant’s liability for rent has rateably diminished. But when it is said, that rent is incident to enjoyment, that enjoyment only is meant, the right to which the tenant has obtained from the landlord. If the landlord withhold, or take away any thing which he has granted, it is equivalent to a partial eviction. A tortious disseisin of the tenant by a stranger, however, has never been held to relieve the tenant from his covenant to pay rent, though it takes away his enjoyment of the thing demised; and if a house be destroyed by fire, the tenant who has covenanted to pay rent is at law still liable, notwithstanding his enjoyment is entirely lost. He was even bound to rebuild, until relieved by the statute of Anne.
The question ever returns, what did the landlord agree that the tenant should enjoy, and what rights of enjoyment did the tenant acquire ? In the ease now before us, as has been seen, the landlord never stipulated, that no part of these lots should ever be taken for public use, and the tenants acquired no right to the enjoyment of such an exemption. The sequence of this is, that no enjoyment of the thing demised, as the consideration for the rent, has been taken, away, or even diminished, by the appropriation of a part of the ground for a public highway. An examination of decided cases would show, if it were necessary, that this is a correct view of the enjoyment to which the tenant is entitled, and which is essential to preserve his liability to pay rent.
In Taverner’s Case, 1 Dy. Rep. 55 b, the first which I have been able to find, there was a lease of land and a flock of sheep,
There is another view of the case which leads to the same conclusion. The defendants below have received, and still retain, $4750, the damages awarded to them, occasioned by opening the street. It is impossible to regard those damages as anything else than compensation for what the Commonwealth has taken away. They are a substitute for the diminution of enjoyment meat of the land, as much so as the proceedings of a sheriff’s sale are a substitute for the land sold. The aggregate enjoyment of the damages, and of the land burdened with the public right of passage, is a precise equivalent to that which the tenants had before the street was opened. They have all, though in a modified form, which their ancestor obtained as the consideration for the ground-rent reservation. It is no satisfactory answer to this view of the case, to say that the landlord might have applied for an assessment of his damages, and that those which were reported by the jury in this case, were exclusively those of the defendants. If this be admitted, it does not break the force of the truth that they have all which the landlord demised, and that they are not prejudiced, even though still liable to the ground-rent. But it appears to me, that the ground-rent landlord could not have applied for any assessment of damages sustained by him. It must not be forgotten that even the owner of land, taken for a public highway, is entitled to compensation only as a thing of grace, not of right. The allowance of six per cent, in all grants, as well by the original proprietaries, as by the Commonwealth, was itself compensation. And although, in most of the statutes passed since the year 1700, relative to opening roads, provision has been made for assessing the damages of the landowner, through whose lands the new road has been opened, yet this has been accorded as a favour, and not because there was any obligation to make compensation: McClenachan v. Curwin, 3 Yeates 362; Ferce v. Meily, 3 Yeates 153. Ho others are, therefore, entitled to an assessment of damages than those to whom the right is given by statute.
The Act of Assembly of June 18th, 1836, accords an assessment
In considering this case, we have not overlooked Cuthbert v. Kuhn, 3 Whart. 357. That case is authority for all that was decided in it. It is, however, an unwarrantable deduction from it, that a ground-rent is apportioned by opening a street through the land out of which the rent issues. It is impossible to read the ease, without the conviction, that it was a mode selected by the parties in which to effect an amicable arrangement. Nor was its object so much apportionment, as substitution of money for the land out of which the rent had been reserved. The tenant appealed to this court as a Court of Equity, admitted that damages had been awarded to her for opening the street, that a part of them had been awarded on account of her liability to the ground-
We have considered this case without reference to the question, not necessarily presented, whether, in Pennsylvania, the heir, as such, is liable upon the covenant of his ancestor, binding himself and heirs. We are far from admitting that any such liability exists, but as it is unnecessary to decide the question, we leave it open for future consideration, should it ever be presented.
Judgment affirmed.