
    Timothy Gay versus Eliphalet Baker.
    A parish or corporation is the sole owner of the soil, on which their meeting house stands, and of the building. A pew-holder has an exclusive right td occupy his pew, and to maintain trespass, or a writ of entry, against any one who disturbs him in his seat. But the parish may, when necessary, take down the house, and rebuild on the same ground; or may alter the form and shape of it, for the purpose of making it more convenient If in doing this the pews are destroyed, the parish must provide an indemnity for the pew-holders on just and equitable principles ; it being a necessary condition of the property in a pew, that it shall be subject to the regulations of the parish, for useful purposes.
    Trespass for taking down a pew belonging to the plaintiff in the meeting-house in the first parish in Dedham.
    The action was submitted to the opinion of the Court upon an agreed statement of facts, from which it appeared that the plaintiff was owner of pew No. 70, on the floor of the meeting-house, and had been in quiet possession thereof for nearly thirty years; but for nine years past had ceased to be a member of the parish, or to pay taxes therein. In August, 1819, the parish voted to enlarge, alter and repair the meeting-house, and appointed the defendant and others a committee for that purpose. In pursuance of this authority, the defendant, with the concurrence of the other members of the committee, directed the taking down of all the pews in the meetinghouse, including that belonging to the plaintiff, and they were taken down accordingly. Prior to this transaction, a committee, chosen for that purpose, appraised all the pews in the meeting-house. The parish have always been ready to pay each pew-holder the value of his pew, according to the appraisement so made.
    If the Court should be of opinion, upon the facts agreed, that the plaintiff was entitled to recover, his damages were to be assessed by a jury; otherwise he was to become nonsuit, and the defendant to recover costs.
    
      Metcalf, for the plaintiff,
    contended that he had “a distinct property in the pew itself, unlimited in its duration ” * (according to the intimation of Sewall, J., in Bates vs. [ * 436 ] Sparrell 
      , which could not be constitutionally taken from him without a compensation, of which neither the parish nor any persons, appointed by them alone, can make an estimate that shall bind the adverse party. The defendant cannot justify under the statute of 1817, c. 189; for that relates only to proprietors’ houses, and if it extended to a parish meeting-house, yet the parish, in this case, have not conformed to that statute.
    As to the form of action, Metcalf admitted that the authorities show that in England trespass will not lie; though Chitty seems to hold otherwise, if the plaintiff is “ actually turned out of possession ” . The reason assigned by Buller, J., why trespass will not lie, is, that the plaintiff has not the exclusive possession; the possession of the church being in the parson . In an action against the parson, this reason would have great force; but in a suit against a mere wrong-doer, it seems not to apply. A more satisfactory reason is, that in England a right in a pew is, in general, a mere easement, an incorporeal hereditament, for disturbing the enjoyment of which, trespass is not a more appropriate remedy than for disturbing a right of way, or of the jus patronatos.
    
    Title to a pew, in England, is derived only by faculty, or prescription, which supposes a faculty. But a faculty of a pew to a man and his heirs and assigns is not good ; for the seat belongs not to the person, but to the house, lest it should descend to strangers, and the parishioners be excluded .
    In this state, title to pews is derived in the same way as to other real property, by purchase and descent, and by the usual forms of conveyance. The owners have a freehold of inheritance, with the incidents of other freehold estates. Pews are subject to attachment and levy by appraisement; may be encumbered so as to render the grantor liable on his covenants of conveyance  ; and are * recoverable in ejectment or other real action . [ * 437 ] In Perrin vs. Leverett 
       trespass was brought for entering, &c., the plaintiff’s pew, and no objection was made, by court or counsel, to the form of action.
    
      As the Court has sustained real actions for the recovery of pews, it is too late to deny that trespass is maintainable for illegally entering, or for injuring them. If the Court considered them as mere easements or incorporeal hereditaments, ejectment could never have been supported. It does not lie in such cases. The older books say ejectment does not lie da piscaria 
      
      . It is said, however, by Ashhurst, J., in The King vs. Old Alresford 
      , that a fishery is a tenement, and that it may be recovered in ejectment; but he also says “ trespass will lie for an injury to it.”
    The principles even of the English law of pews will support trespass in this case. The case finds that the plaintiff’s grantor built the pew in question. Pews in the aisle, in England, do not belong to the parson, nor is he bound to repair them . A pew in an aisle, which has been maintained and repaired by the owner, is part of his freehold ; and neither the parson nor the ordinary can dispose of it, or intermeddle with it  ; and it may be prescribed for, as appurtenant to a house out of the parish .
    The interest in pews in the body of the church, in England, the manner of deriving title to them, and other incidents, are such as to render the decisions in that country inapplicable here, while, as it regards pews in the aisle, which resemble ours in their incidents, the decisions favor this suit.
    
      Chickening, for the defendant.
    
      
       10 Mass. Rep. 325.
    
    
      
       1 Chit. PI. 143.
    
    
      
       1 D. Sp E. 430.
    
    
      
      
        Poph. 140, Brabin & Tradum’s case.—1 Barn. & Ald. 507, per Bayley & Abbott, Js.
      
    
    
      
       9 Mass. Rep. 28, Spring vs. Tongue.
      
    
    
      
      
         10 Mass. Rep ubi supra. 15 Mass. Rep. 170, Mason vs. Dillingham.
      
    
    
      
       13 Mass. Rep 128.
    
    
      
      
        Cro. Car. 492, 8 Mod. 278
    
    
      
       1 D. £ E. 361.
    
    
      
       1 Sid. 88, Baxton vs. Bateman.
    
    
      
      
        Gibscris Codex* 29A
      
    
    
      
      
        Forrest’s Rep. 14, Davis vs. Witts.
    
   Parker, C. J.,

delivered the opinion of the Court.

It appears by the case agreed, that the act complained of as a trespass was done by the defendant as one of a committee of the first parish in Dedham, pursuant to a vote of the parish [*438] to alter and repair their meeting-house, in which * the plaintiff’s pew stood; and that he acted under the directions of the other members of the committee.

The general question is, whether the defendant can justify the act complained of under the proceedings of the parish; and this depends upon the nature of the plaintiff’s property, whether abso lute, or qualified by the rights, which the parish had over the meeting-house, within which the pew was situated.

Now, it must be obvious, we think, that the property of the plaintiff in his pew, although to be treated as real estate, is by no means subject to the same rules and principles, as his property in his farm would be. If it were so, the rights of the parish over the meetinghouse could not be exercised on the most urgent occasions, without interfering with the rights of each pew-holder.

The corporation or parish is the sole owner of the soil, on which the meeting-house stands; as also of the building itself; it having been erected pursuant to a vote of the parish, and paid for by a tax on all the parishioners. The pew-holder has an exclusive right to occupy his pew, and to maintain trespass, or a writ of entry, against any one who disturbs him in his seat. But he does not own the soil over which his pew is built; nor the space above it; for there may be other pews in a gallery above him, whose owners have an equal right with himself.

The building and the soil being the property of the parish, they may, when necessary, take it down and rebuild upon the same spot; or may alter the form and shape of it, for the purpose of making it more convenient. If, in doing this, not wantonly, but for useful purposes, the pews are destroyed, they must provide an indemnity for the pew-holders, on just and equitable principles; and if they do this, there can be no just cause of complaint; because, in the very nature of the property in a pew, there is a necessary condition, that it shall be subject to the regulations of the parish, for purposes of this sort.

If it were not so, all improvements in such public * edifices would be at an end; and even if they become [ * 439 ] ruinous and unfit for public worship, they must be suffered to remain or to fall, without any right to interfere on the part of the parish.

The statute of 1817, c. 189, appears to have affirmed these principles; and there cannot be a question of the right of the legislature, to make provisions in relation to such property.

Plaintiff nonsuit.  