
    The Inhabitants of the First Parish in Medford versus Thomas Pratt.
    A meetinghouse for public worship built by a town before it is divided into parishes, becomes, upon such division, the exclusive property of the first parish; and the use of it for many years before the division, for town meetings for municipal purposes, gives the town no easement in it, for such use is presumed to have been with the consent of the town in its parochial character, and an adverse right of an easement cannot grow out of a mere permissive enjoyment.
    Trespass against the defendant for breaking and entering the plaintiffs’ meetinghouse.
    Upon a case stated it appeared, that on the 18th of January, 1768, the town of Medford voted “to build a meetinghouse j-Qr pUjji¡c worship, provided £600 can be raised by the pews ; ” and a committee was then appointed “ to find a place suitable to build a meetinghouse upon.” On the 11th of August, 1768, the committee, having been authorized by the town to purchase five eighths of an acre of land belonging to John Bishop, provided the land of Thomas Secombe, adjoining the same, should “ always lie common for the use and benefit of the town of Medford,” reported that they had agreed for the land of Bishop for the purpose before mentioned, and their report was accepted by the town. On the 18th of August, 1768, the town voted an additional sum of £133 “ towards building a meetinghouse for public worship also to build it on the land purchased of Bishop ; and that of the subscribers towards the charge of erecting a new meet inghouse, the one who should subscribe the highest sum should have the first choice of the pews, &c., no person however to be entitled to a pew who should not suoscrme a certain sum. On the 27th of October, 1768, Bishop, in consideration of a sum of money paid by the town treasurer, conveyed by deed to the treasurer and his successors, for and in behalf and to the use of the town, the land mentioned, habendum to the sole use and behoof of the town for ever. On.the 28th of the same month, Secombe, “in consideration of the good will and affection he had for the inhabitants of said town, and desirous of further accommodating them with a plot of land for building a meetinghouse upon,” conveyed by deed, in like manner and form, a small piece of land adjoining the land purchased of Bishop. The meetinghouse stands on these two parcels of land. From 1768 to December 1823, the town had the control of the property, at various times altering and repairing the meetinghouse, appropriating parts of it to particular purposes, selling pews and applying the money received for them to the payment of town debts, leasing part of the land not covered by the meetinghouse, voting to build (in 1771) and actually building (in 1795) a schoolhouse on part of it; and until 1826, using the meetinghouse, whenever they were disposed, which however was not always the case, for the purpose of >wn meetings. In 1823, the town settled the Rev. Andrew Bigelow as their minister, upon a salary of 800 dollars a year. On the 22d of December, a special town meeting was held, on the application of the requisite number of freeholders in writing, setting forth that they were “members of the second congregational society,” &c., and that they had seceded from Mr. Bigelow’s society, &c. In February 1824, a part of the inhabitants of the town were incorporated by the name of “ The Second Congregational Society in Medford.”
    There had never been but one church and congregation, or religious society, in the town, previous to the formation of the society last mentioned, but all transactions of a parochial nature had always been done by the town, and the taxes for the support of public worship had been assessed with other town taxes, without distinguishing how much was assessed for either. In April 1824, the inhabitants not associated with the second society, were duly organized as the first parish in Medford. On the 7th of April, 1826, the committee of the first parish addressed a letter to the selectmen, suggesting that since the division of the town into two parishes, the meetinghouse could not be used for town meetings, without an arrangement for that purpose with the first parish. On the 10th of May, the selectmen wrote in answer, that the meet inghouse was built by the town, and had since been used as well for town as for parish meetings, and that the incorporation of a second parish could not deprive the town of any of its rights and privileges, so as to oblige them to incur the expense of providing another building for town meetings ; the selectmen also informed the committee, that a town meeting would be held in the meetinghouse, pursuant to a warrant for that purpose, on the 17th of May, to choose representatives to the General Court, and for other town business, and requested that the sexton might ring the bell and open and close the house, for which services they engaged that the town should pay. A warrant was issued as above mentioned, and the defendant, being an inhabitant and entitled to vote on all matters mentioned therein, went to the meetinghouse for that purpose, and finding- it shut, he opened it and entered, to attend to the business of the meeting, and did attend during the time it was held there ; which is the trespass complained of in the plaintiff’s writ. Ever since the 1st of May, 1824, the sexton of the first parish (who had been sexton of the town for several years before the division) has had the custody of the key, and the sole care of the meetinghouse, jy appointment of the first parish, and under a salary granted and paid by them; hut he had continued to open the meetinghouse, ring the bell, and make fires, for town meetings at the instance of the selectmen, since the 1st of May, 1824, as before, whenever a town meeting has been held there,' without any charge to the town, and without any objection, until the date of the parish committee’s letter before men-, tioned. Since the 1st of May, 1824, all expenses for the support of public worship in the meetinghouse have been paid by the first parish.
    
      Oct. 20th.
    
    If the Court should be of opinion, that the first parish have had an exclusive right to the meetinghouse since the incorporation of the second .congregational society, so that the town could not, without the consent of the first parish, hold meetings there for transacting town business, the defendant was to be defaulted; but if otherwise, the plaintiffs were to. become nonsuit.
    
      Hoar and Bartlett, for .the plaintiffs,
    contended, that the meetinghouse was strictly parochial property. Part of the land on which it stands, was given by Secombe expressly for the purpose of accommodating the town in building a meetinghouse, and the residue was appropriated to the same purpose by the vote of the town ; and by law, no inhabitant not belonging to the parish was obliged to contribute for the expenses of the building. Anc. Charters &c. 104, 105, 243, 373, 419, 537, 782 ; St. 1799, c. 87, § 4. Upon the incorporation of a new religious society within the town, all the parochial property vested in the remaining inhabitants as constituting the first parish. St. 1786, c. 10, § 4, 5; Eager v. Marlborough, 10 Mass. R. 430; Baker v. Fales, 16 Mass R. 488; Jewett v. Burroughs, 15 Mass. R. 464; First Par in Shapleigh v. Gilman, 13 Mass. R. 192; First Par. in Brunswick v. Dunning, 7 Mass. R. 445; Brown v. Porter, 10 Mass. R. 93; Milford v. Godfrey, 1 Pick. 91. While all the inhabitants were parishioners, they might use the meet- • i , j c • ■ i , . . mghouse, if they pleased, lor municipal purposes, but that could not be an adverse user capable of giving an easement, after the property, by a division of the town into parishes, should become vested in a part only of the inhabitants.
    
      Rand, for the defendant.
    The legal right to the land and the meetinghouse is in the town in its civil capacity, subject however to an easement in .the parish to use the meetinghouse for religious purposes, and perhaps to rebuild it when gone to decay. There is nothing in Bishop’s deed, nor in the effective words of Secombe’s, to show that the grants were made in order that the town should build a meetinghouse upon the land.
    Supposing however that the grant was for that purpose, it does not follow that the town took for religious uses exclusively. In most of our towns, from time immemorial, meetinghouses have been built as well for the accommodation of the inhabitants at town meetings, as for public worship. Should the plaintiffs prevail, our towns generally, whenever the parish may think fit to withhold from them the use of the meetinghouse, may be put to the needless expense of erecting a building merely for town meetings, to be held three or four times in a year.
    But if the legal right, in the present case, is in the parish, yet as the town have always used the meetinghouse for town meetings, it must be inferred, that by some ancient grant the town have an easement for that purpose. Nor would there be any inconvenience, as has been suggested, from sustaining these two distinct rights ; for if the town should ask the use of the meetinghouse at an improper time, when it was wanted for public worship, the parish might refuse their request.
    The authorities cited go no further than to show, that property, so far as it is held by a town for religious uses, becomes the property of the first parish; but we say that here the property was not given nor dedicated for religious uses exclusively ; and that the town so understood the grants and their own votes, is manifest from their voting, soon after they became possessed of the land, to appropriate part of it to a «choolhouse.
    
      April term 1827
   The opinion of the Court was read as drawn up by .

Parker C. J.

It has been settled, in a series of decisions within the last twenty years, that on a division of a town into two or more parishes by reason of the incorporation of a parish within the limits of the town, all the parochial burdens, as well as the parochial property, devolve upon that corporation, which by force of our statutes is thus constituted the first parish. This necessarily results from the early organization and double character of our towns, which original’" partook of the parochial, as well as of the municipal character Towns, by the earliest colonial laws, were obliged to build meetinghouses and support ministers. The .inhabitants were then almost all of one doctrine and one form of worship, and indeed different sects or denominations, at that time, were not recognised as having any legal character or existence; and the towns generally were not so populous as to require more than one house of public worship for their accommodation. But in process of time the inhabitants became more numerous, and from that and other causes, parishes were created within towns, and the body, from which the parts were taken to constitute these new corporations, became of right, as well as by particular provisions of the legislature, the first parish; and they retained every thing of a parochial na turc which had been enjoyed by the town, unless some special provision was made for a division of the property. Thé justice of this principle cannot be denied, for the' remnant were discharged of no part of their duties or burdens, and the seceders always voluntarily withdrew, carrying with them a great part of the taxable property from which those duties and burdens were before discharged. Of all property which may be said to be parochial, that of a meetinghouse is most decidedly so. It is always built for parish uses, and except by consent of the parish, whether in the form of a town or otherwise, can be appropriated to no other use.

We cannot entertain a doubt, therefore, that on the ixicorporation of the new parish in Medford, that corporation which ipso facto became the first parish, represented the whole of the old parish or town, and became the proprietors of all the parish property, which had always been used as such, and especially of the meetinghouse upon which the alleged trespass was committed.

The ground therefore which admito of argument, as not having been before settled, is the right supposed to be acquired by uninterrupted use of the meetinghouse for municipal purposes, from the time when it was erected until just before the entry which is complained of in this action. If this could be considered an adverse enjoyment, it would amount to an easement, which would justify the act of the defendant as one of the inhabitants of the town. But we cannot consider it in this light, for the town never usurped any rights over the parish. It was itself the parish, and must be considered as having, in its parochial character, consented to and indulged this political or municipal body in the use of the parochial property. An adverse right of an easement cannot grow out of a mere permissive enjoyment, as was de cided in the case of The Inhabitants of the First Parish in Gloucester v. Beach, * the authorities for which position are Cooper v. Barber, 3 Taunt. 99, and Daniel v. North, 11 East, 374.

Notice having been given by the parish before the entry of the defendant, that the use of the house for municipal meetings must be discontinued, his entry was a trespass, and judgment must be entered for the plaintiffs. 
      
       See Winthrop v. Wintkrop, 1 Greenl. 208; Ashby v. Wellington, 8 Pick. 524; Woodbury v. Hamilton, 6 Pick. 101. Where land is granted to a town for the use of the ministry, the grant is to he taken to refer to the town in its parochial, and not in its municipal character. Richardson v. Brown, 6 Greenl. 355.
     
      
       See Sargent v. Ballard, 9 Pick. 251; Matthews on Presump. (Rand’s ed.) 818 et seq.; Hill v. Crosby, 2 Pick. (2d ed.) 467, n. 1, and cases there cited. As to prescription, see Kent v. Waite, 10 Pick. 138; Melvin v. Whiting, 10 Pick. 295; Coolidge v. Learned, 8 Pick. 504.
     
      
       Reported in 2 Pick. 60, note.
     
      
       See 2 Stark. Ev. (5th Amer. ed.) 539; Matthews on Presump. (Rand’s ed.) 324; per Le Blanc J., 3 East, 302.
      Unity of possession has the effect of suspending an easement. Canham v. Fisk, 1 Price, P. C. 148; Sargent v. Ballard, 9 Pick. 255.
     