Workman et al. v. Mifflin
| Decision Date | 01 January 1858 |
| Citation | 30 Pa. 362 |
| Parties | Workman et al. versus Mifflin. |
| Court | Pennsylvania Supreme Court |
Cuyler, for the plaintiff in error.—It is not easy to distinguish this case from Cuthbert v. Kuhn, 3 Wh. 365. In that case a lot of ground had been granted in fee, reserving a ground-rent, and a street having been opened across the lot, and damages awarded to the owner, a part of which were ordered to be paid to the owner of the ground-rent, the court held: — "That the ground-rent was apportioned by the opening of the street, and that the rent was reduced in proportion to the amount of the lot taken for public use."
The sum paid to the heirs of Workman was expressly found to be their damages. The ground-rent was a separate estate, for which the plaintiff should have claimed damages before the jury: Irvin v. Bank of U. S., 1 Barr 349; Turnpike Road v. Brosi, 10 Harris 29.
McCall, for defendant in error.—The case of Cuthbert v. Kuhn, 3 Wh. 357, is no authority for the broad proposition that a ground-rent is apportioned by the opening of a street through the ground out of which the rent issues. In that case, Mrs. Cuthbert did not claim to retain the whole damages, and yet ask for an apportionment; on the contrary, she offered to pay to the landlord a portion of the damages equivalent to the value of the rent.
This case being out of the way, how does the question stand upon principle? The opening of a street is an exercise of the right of eminent domain. It is not the act of the landlord; and therefore not an eviction. The right to the soil still resides in the tenant, subject to the license of the public to pass over it: Lewis v. Jones, 1 Barr 336; Dobbins v. Brown, 2 Jones 75.
An examination of the authorities will show, that in the case of an express contract for the payment of rent, so long as the estate, as contradistinguished from the possession, remains, the rent is payable at law, no matter what the condition of the demised premises by the act of God. Thus, if a house be blown down or destroyed by fire: Monk v. Cooper, 2 Str. 763; Belfour v. Weston, 1 T. R. 310, or gained upon by the sea; Taverner's Case, Dyer 56, a, or the occupation be rendered impracticable by the public enemies; Paradise v. Jayne, Aleyn 26; so where a wharf was swept away by the Thames; Carter v. Cummins, cited in Harrison v. Lord North, 1 Ch. Ca. 84.
In 1829, the defendants below, by the death of their ancestor, became seised of two lots 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 public highway, the rent should be apportioned, and that the plaintiff should recover only such proportion of the whole, as the part of the lots unoccupied by the street bears to the entire loss.
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 case 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 with a certain rent, and all the sheep died. It was claimed, that the rent should be apportioned, as the tenant had lost the enjoyment of the sheep without any default of his. The case was not decided, but the...
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