Frost v. Earnest

Where an act of the legislature authorised the widening of a certain street in the District of Southwark, and provided that compensation should be made to the owners of property for damages that they might sustain thereby, by proceeding before a jury in the Court of Quarter Sessions, it was held, that an eviction of the plaintiff, by authority of the district for the purpose of widening the street, was not a breach of a covenant for quiet enjoyment in a lease of the premises, made after the passage of the act of assembly.

IN ERROR. This was a writ of error to the District Court for the City and County of Philadelphia, to remove the record of an action of covenant, brought in that Court by Henry Frost against Jacob Earnest. The plaintiff declared on a lease dated the 3d day of January, 1833, whereby the defendant demised to him a house and lot of ground, on Front-street in the District of Southwark, for a term of five years from the 15th day of January then following, at the rent of $155 per annum, with a covenant that the plaintiff should “ peaceably and quietly have, hold, use, occupy, and possess the said demised premises with the appurtenances during the term aforesaid, without the lawful let, suit, trouble, molestation or interruption of the defendant, his heirs or assigns, or of any other person or persons whatsoever.” The breach assigned was, “ that the Corporation of Southwark, on the 13th day of March, a. d. 1834, ejected, expelled, and removed the said plaintiff, by due process of law, from the possession and occupation of all and every the premises, with the appurtenances, &c., and kept and held out him, the said plaintiff, so thereof expelled from his possession and occupation thereof, &c.” The defendant pleaded non infregit conventionem, &c.; and the cause came on for trial, before Pettit, (President,) on the 24th of November, 1836, when the plaintiff having proved the lease declared upon, gave in evidence a notice from the solicitor of the Corporation of Southwark to the plaintiff dated March 13th, 1834, requiring the plaintiff to remove from the premises without delay, alleging that the corporation were about, immediately, to remove the house, and to open Washington-street as the law directs. Also, a notice from the defendant to the plaintiff, dated March 14th, 1834, informing him of the eviction, &c. Also, a receipt, dated the same day of the lease, Jan. 3rd, 1833, for $25 paid the former tenant for the good will of the premises. Also, the record of the proceedings of the Court of Quarter Sessions of the County of Philadelphia, in relation to the assessment of damages in widening Washington-street, by which it appeared that the defendant was paid $3000 for damages to the premises in question; and, that the jury decided that tenants were not entitled to damages; and that the said Court confirmed the report of the jury. Also, an agreement between E. Tanner and the plaintiff, dated Jan. 17th, 1833, for putting up a ten-pin alley, on the premises, at an expense of $350, with proof that the same was erected. The plaintiff also proved that the defendant admitted that the plaintiff ought to receive $500 or $600, remuneration; but denied that he was liable for the injury the plaintiff had received, and. referred him to the county commissioners, and they, when applied to, said, that it was a matter between landlord and tenant, with which they had nothing to do. The evidence offered by the defendant, related to the extent of damage done to the plaintiff; and is not material to. the question on this writ of error. The learned judge charged the jury, as follows: — ■ “ This is an action of covenant. The plaintiff has declared upon a certain lease from the defendant to him, of a messuage and lot of ground on Front-street, in the District of Southwark. The particular covenant which, it is alleged, the defendant has broken, is, that the plaintiff should peaceably and quietly have, hold, use, occupy and possess the demised premises, with the appurtenances, during the term of five years, commencing, &c. without the lawful suit, trouble, eviction, molestation or interruption, of the said defendant, his heirs, or assigns, or of any other person or .persons whatsoever. The breach assigned is, an eviction, during the term, by the Corporation of Southwark, by due process of law. The proof of the eviction appeared in the records of the Court of Quarter Sessions of the County of Philadelphia, in regard to the opening of Washington-street, from the river Delaware to Fourth-st. under an act of assembly, passed the 25th of March, 1831; the assessment and payment of damages to the defendant; the premises mentioned in the lease, having been entirely taken and used fordhe purposes of said street; the notice from the solicitor of the district of Southwark, requiring the plaintiff to quit the premises>’without delay,- and the plaintiff’s immediate removal in consequence of these proceedings, and of this formal notice and requisition ,* the leasehaving nearly four years to run. There is a-broad principle of law at the very foundation of this case: if determined in favour of the defendant, it puts an end to this suit. ' It-is denied by the defendant’s counsel that the covenant comprehends such an eviction as this. I was strongly inclined to reserve this question, and submit to the jury the assessment of any damage which the plaintiff might have sustained. In that case I should probably have deemed myself bound to. say, that in point of law the inquiry-was limited to the value of the unexpired term of the lease; inasmuch as neither the money paid by the plaintiff to á' former tenant for the good will of the tavern stand, nor the expenses of the ten-pin alley, could be recognised, upon any legal principle, as embraced by such a covenant as this. But, upon reflection, I.havé formed so decided an opinion upon the important question of the cause, that I deem it my duty to state it unreservedly. In entering into the covenant, the parties to it had in view only existing rights. Though the act of assembly had already been passed, yet it was uncertain whether the commissioners of the District of Southwark would exercise the authority conferred upon them, in reference to the widening of Washington-street, or if they exercised it, whether they would do so within the term of the lease, or, if within the said term, whether the enlarged street would embrace this property, or property on the other side of the- old street. To hold this covenant to apply, would.be to say, it-would apply, if not to- a naked possibility, at least, to a doubtful and uncertain contingency. Upon this subject I adopt the views of the Supreme Court of Massachusetts, as delivered by Chief Justice Parsons, in the case of Éllis v. Welch, (6 Mass. Rep. 250.) Again, the lessor here did not covenant against any paramount right of the commonwealth. This prerogative, whether.grown out of a reservation in the original grant of title to land, or founded upon the general principles of sovereignty, could not have béen contemplated by the parties.. The doctrine of the books by which a general covenant in- a lease for quiet enjoyment, extends only to entries and interruptions by those who have lawful' title, has never been regarded as comprehensive enough to reach the case of an easement acquired by the public, after the execution of the lease, though acquired under their general paramount and controlling prerogative. Further than this: — Look to the reason, why such a covenant does not, according to all the authorities, extend to wrong doers. It is that the tenant has his remedy by action, for all tortious entries and disturbances. Now the act of assembly under which the street was widened, expressly provides for the assessment and payment of damages accruing to the owners of property in the opening of the street. The interest in an unexpired term of a lease, and in improvements lawfully erected and put up during the term, is property, such as the act of assembly clearly contemplates, and in regard to which any damages actually accrued, would have been assessed and paid. The tenant had the right to go before the jury appointed upon this subject, and we must presume they would have acted according to law; at any rate, the Court of Quarter Sessions would have protected him. As this remedy was open to him, he has no action upon the covenant now in question. As to a suggestion that the defendant may have applied for, and received, in the sum awarded to him as owner of the premises, the estimated value of the property of the present plaintiff, in addition to his own proper damages, it is enough to remark, that the plaintiff, upon proof of the case, is not without a legal remedy; but the present action being upon the covenant for quiet enjoyment, does not embrace such a claim.” The jury having found a verdict for the defendant in conformity with the charge, the plaintiff took a wtit of error, and assigned the following errors. ■ - “ 1. The Court erred in instructing the jury,' that neither the money paid by the plaintiff for the good will of the tavern stand, nor the expenses of the ten-pin alley, could be recovéred in this suit.’ 2. In deciding that the lessor did not' covenant against any paramount right of the commonwealth. 3. In deciding that the covenant in the lease did not extend to such an eviction as was proved by the plaintiff. 4. In deciding that the plaintiff’s remedy was by proving his damages before the jury appointed by the Court of Quarter Sessions, and. not by action against the lessor on the covenant in the lease. 5. In deciding that the tenant had the right to go before the jury, appointed by the Court of Quarter Sessions to assess damages, and there claim compensation for the eviction.”