The opinion of the court was delivered January 30, 1859, by
Woodward, J.— The equity of the plaintiff’s bill is founded
on the assumption, that he, as the owner of a ground-rent, is affected by the proceedings of the railroad company against his tenants, and yet, he assigns an excellent reason why he is not affected by thesé proceedings, to wit, that he was not a party to them.
He and his tenants had distinct estates in fee, — his incorporeal, theirs corporeal, — each subject to the distinct acts of sepa*245rate owners, and separate taxations. It has been held, (1 Barr, 349,) that a sale of land for taxes, subsequent to a reservation of a ground-rent, will not cut it out; and by an Act of Assembly of 23d January, 1849, the ground-rents of Philadelphia are expressly saved from the effects of such sales. So distinct are the freeholds, which vest in the landlord and his ground-rent tenants.
The railroad company took the ground, not the ground-rent. Their proceedings were against another, and an entirely distinct estate from that which the plaintiff held. Of course, he is unaffected by anything that was done.
But he complains, that it was substantially an apportionment of the ground-rent, without his consent, and he prays that apportionment of the principal of the ground-rent may be decreed.
A ground-rent being a rent-service, and not a rent-charge, is undoubtedly apportionable, and may be partially released, without extinguishing the whole ; and if part of the ground be taken for public use of a highway, equity will apportion the rent, in relief of the tenant, compensating the ground landlord out of the damages awarded. 1 Wh. 337; 4 W. 98; 9 Id. 262; 3 Wh. 357.
But here the tenants are seeking no relief in equity, and that the appropriation to public use, of part of a lot, held on ground-rent, fgZf&W mtitle the landlord to call for the extinguishment of it, pro tanto, was very satisfactorily demonstrated in Workman v. Mifflin, 6 Casey, 362.
The doctrine of that case, not inconsistent with the ruling in Cuthbert v. Kuhn, 3 Wh. 357, is decisive against the plaintiff.
He has his remedies unimpaired against the lot, for his rent, and so long as that is regularly yielded, according to the reservation, he stands in need of no relief.
The decree is affirmed.