Jones v. Towne

Clark, J. In Fisher v. Glover, 4 N. H. 180, the court, in discussing the question of the rights of pew-holders, say, — “ It is usual to grant to individuals the exclusive use of pews, and these grants give to those individuals certain rights which are to bo protected. The rights thus acquired are, however, limited, and are, in our opinion, subject to the right of the society to have the meeting-house in such place as will best accommodate the whole. A reservation of this right is implied in the grant of a pew in a house of public worship. The convenience of individuals must in such cases be subject to the general convenience of the whole; and whoever purchases a pew, •purchases it subject to this right of the society.” The language of the court in this case, and the statement of the relative rights of the society and the pew-holders, apply equally to the right of the society to alter, or remodel, or to remove the church edifice, which was the question then under consideration. This declaration, that the rights of pew-holders, from the nature of the property, are subject to the superior rights of the society for certain purposes, was made many years before the adoption of any statute in this state relating to the sale, alteration, or repairs of houses of public worship. In Howe v. Stevens, 47 Vt. 262, it is said, — “ A pew-liolder’s right is only a right to occupy his pew during public worship ; and when the meeting-house is in such a ruinous condition that it cannot be and is not occupied for public worship, he can recover only nominal damages for injury to his pew.” “ Pew-holders, in the ordinary cases of meeting-houses or churches built by incorporations under the statute, have only a right of occupancy to their seats, subject to the superior right of the society owning the pew.” Perrin v. Granger, 33 Vt. 101. “ Pew-holders have merely a qualified and usufructuary right in their pews, subject to the right of the i'eligious society to remodel them, and to alter the internal structure of the building, or enlarge or remove it, or sell the edifice and rebuild elsewhere.” Sohier v. Trinity Church, 109 Mass. 1; — see, also, Gay v. Baker, 17 Mass. 435; Daniel v. Wood, 1 Pick. 102; Fassett v. First Parish in Boylston, 19 Pick. 361; 3 Kent 533; Kimball v. Second Parish in Rowley, 24 Pick. 347. Such is the common law of New Hampshire in relation to the pew-liolder’s right. It is a qualified ownership, subject to the superior title included in the ownership of the house. The pew-holder cannot remove the pew, nor use it for any purpose except occupancy when the house is opened for use, and pew-tenancy is as accurate a designation of his interest as pew-ownership. It is claimed, however, by the plaintiff, that the common law rights of the society have been abolished by the statutes now in force in relation to such property. But none of the provisions of chapter 140 of the General Statutes, relating to the sale, repairs, and modification *465 of meeting-houses, appear to be applicable to this case. Besides, the statute does not confer any new rights of property upon the pew-holder. It merely recognizes the superior rights of the society as they existed at our common law, and provides a mode of compensation to the pew-owner for the loss or destruction of his pew, in certain cases. In Kimball v. Second Parish in Rowley, 24 Pick. 347, 350, the court say, in speaking of the Massachusetts statute of 1817, — “ Parishes, having before the right to remove pews for certain purposes, were not deprived of it by the passage of the statute. They may therefore still rely upon their original right, even if they also have the statute right. They were not bound to avail themselves of the new provisions, but might well justify themselves in the proper exercise of their former rights.” The society had the right to remove the pew, and there remained to the plaintiff only the right of compensation for its loss. No question is made but what the amount tendered by the society to the plaintiff was sufficient compensation for the pew, and the rulings of the court upon this branch of the case were correct. By persisting in the occupation of pew No. 25, and excluding Fletcher, the rightful occupant, the plaintiff became a trespasser, and upon his refusal to remove upon request, Fletcher, or any one acting at his request, had the right to remove him, using no more force than was necessary ; and we think the ruling of the court upon this point was correct, that the exclusion of Fletcher from the occupation of his pew by the plaintiff, and his refusal to surrender it when requested, was such a disturbance and breach of the peace of the sanctuary as would justify the interference of the police. Exceptions overruled. Foster, J., did not sit.