Schurman v. Vagen

19 Ind. 304

• Court: Indiana Supreme Court
• Decided: November 15, 1862
• Status: Published

Opinion

Per Curiam.

Suit to rescind a contract, and to recover damages. There was a demurrer sustained to the complaint.

It was averred, that a contract was entered into between the parties, relative to the passage of one party, and his tenants, over the property of the other, in such terms as, perhaps, created an easement. This privilege was to be enjoyed on certain conditions, relative to the use of such property. If those conditions were violated, and such violation continued after certain notice, provided for, then the party granting the easement might stop the passage of said persons, etc.

It is further averred, that certain acts had occurred, which were a violation, etc.; that notice had been given, but that the same were continued; and the other party refused to permit the passage, etc., to be stopped.

It appears to us, that the complaint was sufficient, as to the recovery of damages, in reference to some violations named, but not to rescind; perhaps though to compel a performance, which in this case would, in the main, operate as a recision, as it might enable the plaintiff to end the enjoyment of the easement.

The judgment is reversed, with costs. Cause remanded.