Taylor v. Moffatt

2 Blackf. 304 | Ind. | 1830

Scott, J.

It is alleged here, on behalf of the appellant, that Owen, being the owner of the land, could dispose of the soil itself, or any privilege appurtenant to, or growing out of it; that in this case he has, by his covenant with Taylor, divested himself of the right to vend merchandise in JVew-Iiarmony; and it is inquired, can Moffatt possess greater privileges than his lessor? To this it may be replied, that an incorporeal hereditament may be conveyed to one, and the right of soil to another, and after a grant of the incorporeal hereditament, a conveyance of the land to which it is appendant is subject to that grant. But the privilege of vending goods is a right purely personal; it is not appendant to the land or growing out of it; and when Owen covenanted with Taylor that he should have the exclusive right to vend merchandise in JVew-Harmony, he did not by that covenant strip his land of any of its appurtenances. As soon as Moffatt obtained a lawful possession of the premises he occupies, he, as a free man, brought his personal rights into that place, as appendant to his person, and not to the land, and as long as that possession continues, he may lawfully exercise those rights, unaffected and unrestrained by any contract or agreement to which he is not a party. We are clearly of opinion that the appellant has no ground of action.

Per Curiam.

The judgment is affirmed with costs.