The opinion of the court was delivered by
Strong, J.
— 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 [369]*369public highway,, tbe 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 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, [370]*370with 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 doctrine was asserted that such loss of enjoyment did not relieve the tenant: In Paradise v. Jayne, Aleyn’s Rep. 26, the tenant had been ousted by the king’s enemies, but was held to continue liable. This case was decided by Rolle, J., the author of the abridgement. The subsequent decisions are almost uniformly the same. Without reviewing them at length, reference maybe made to Baker v. Holtzapffel, 4 Taunt. 45; Hallett v. Wylie, 3 Johns. 44, cases at law; and to Hare v. Groves, 3 Anst. 687, and Holtzapffel v. Baker, 18 Vesey 115, cases in equity,; also 6 Mass. 63, 1 Dall. 210.
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 [371]*371of damages only to “the owner of any land through which a public road shall be opened.” The ground-rent landlord is not the owner of the land out of which the rent issues. He has an estate it is true, but it is an estate in the rent, not in the land. The one is incorporeal, the other corporeal. It is only the owner of the land, the corporeal, that can petition for a jury to asseess damages. It is true, that it has been held, that one who holds less than a fee simple in the land, is an owner within the meaning of the statute, but his estate must be a part of the fee, one of the fractions of the unit, necessary with other interests to constitute the entire whole.
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The opinion of the court was delivered by
Strong, J.
— 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 [369]*369public highway,, tbe 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 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, [370]*370with 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 doctrine was asserted that such loss of enjoyment did not relieve the tenant: In Paradise v. Jayne, Aleyn’s Rep. 26, the tenant had been ousted by the king’s enemies, but was held to continue liable. This case was decided by Rolle, J., the author of the abridgement. The subsequent decisions are almost uniformly the same. Without reviewing them at length, reference maybe made to Baker v. Holtzapffel, 4 Taunt. 45; Hallett v. Wylie, 3 Johns. 44, cases at law; and to Hare v. Groves, 3 Anst. 687, and Holtzapffel v. Baker, 18 Vesey 115, cases in equity,; also 6 Mass. 63, 1 Dall. 210.
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 [371]*371of damages only to “the owner of any land through which a public road shall be opened.” The ground-rent landlord is not the owner of the land out of which the rent issues. He has an estate it is true, but it is an estate in the rent, not in the land. The one is incorporeal, the other corporeal. It is only the owner of the land, the corporeal, that can petition for a jury to asseess damages. It is true, that it has been held, that one who holds less than a fee simple in the land, is an owner within the meaning of the statute, but his estate must be a part of the fee, one of the fractions of the unit, necessary with other interests to constitute the entire whole. The estate of the ground-rent landlord is distinct. It is no one of the fractions necessary to make up the entire fee in the land. It would appear to follow, that the damages which the defendants below received, were all that could be assessed, and therefore the landlord is without remedy, unless he has it in the covenant of the tenants. If it be suggested, that the damages awarded constituted a fund to which the owner of the rent was bound to resort, the answer is easy. It is true that road damages are to be applied to the discharge of liens upon the land occupied by the road: Reese v. Addams, 16 S. & R. 40. The owner is a trustee for the lien-holders, and courts will protect their rights. Now assuming, what does not appear in the case, that the landlord had a right of re-entry, and therefore a lien, and might have taken arrears, due at the time of the assessment, out of the fund, yet he had duplicate securities, the lien, and the covenant of the tenants. He might select either, and his neglect to claim in one does not satisfy his claim, and bar his resort to the other: 9 Watts 529. But whatever may have been his rights, as respects arrears due at the time of the assessment, it is clear that he could not have taken out of court the rents subsequently accruing, for which this suit is brought, or the principal of the rest. At law he had no right to it, and in equity the utmost which could have been asked was that a part of the fund should be impounded, sufficient to meet the accruing rents. The defendants having received the, money, cannot complain that no such demand was made.
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-[372]*372rent, offered to pay off the principal of the rent, the just proportion of the ground occupied by the street, and prayed that on payment it might be decreed extinguished, and the landlords be enjoined against proceeding to recover it. Chief Justice Gibson, in delivering the opinion of the court, admits that the law furnished no ground for relief, but asserts that equity might, under the circumstances, decree the substitution. It was not supposed then, as now, that apportionment or substitution might be effected in an action of covenant, or any where or in any mode, without payment of the entire principal of the ground-rent. Payment of the whole principal was regarded as the foundation of the tenant’s equity; payment out of the damages assessed, or out of other property of the tenant. The ease is, therefore, no authority for the doctrine that appropriation of the ground by the public, for a highway, without more, without payment of the entire principal, extinguishes the rent. The defendants below neither paid nor offered to pay any part of the principal, and were, therefore, not only without any defence at law, but without any equity.
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.