Heeney v. Trustees of St. Peter's Church

The Vice-Chancellor: We have here a motion to dissolve an injunction granted to a pew-holder against the trustees of St. Peter’s Church, restraining them from pulling down and prostrating the present edifice. It appears that on a sale of pews in the jrear one thousand seven hundred and ninety-four, the complainant became the purchaser of one: under certain written rules. He had gone on occupying and paying rent for it until two or three years ago, when he removed to Brooklyn and where he now goes to church. The trustees have resolved" to pull down the present structure and erect a church of larger dimensions, so as to accommodate an encreasing congregation—the present building not being sufficient for the followers of the church. It also appears that the church is too much dilapidated to allow of repairs, save at a very serious cost. A question arises as to the right of the complainant to restrain the trustees ? [612] h is necessary to turn to the conditions upon which the pews were sold in the month of April one thousand seven hundred and ninety-four. By the seventh clause of these conditions, no person was to be allowed to sell or give his pew t0 a friend or stranger, but the same was to descend in right only to such relation as would be his heir at law, provided the latter belonged to the church. Thus, the party who originally purchased became entitled to something like a qualified fee. The trustees contend that this is a right which must be subject to their control so far as the pulling down of the church is requisite and so long only as the present erection shall stand. This is so, as a general rule. The right to a pew gives no right to the soil. It gives only a limited estate. The law upon this subject is no doubt rightly laid down in the case of Freligh v. Platt, 5 Cowen, 494; and there it was decided that- a sale of pews in a church is not a disposition of real estate ; the grantee acquires a limited usufructory right only. He may use the property as a pew ; but he has not an unlimited absolute right. He cannot use it lawfully for purposes incompatible with its nature. The right, too, is limited as to time. If the house to which it was an appurtenant be burnt or destroyed by time, the right is gone. And hence, in the present case, it is contended that upon a pulling down and rebuilding, where the accident of time has made it necessary, the pew-holder’s right is gone. This would seem to be in accordance with the principles which govern the English Ecclesiastical courts ; and I am inclined to say these principles are also to be considered as a part of the common law. In those courts it is considered that pews of a church are for the benefit of the parishioners generally. The churchwardens have the control of them; and their duty is to assign a pew to each parishioner. When this is done, the person to whom it is assigned becomes entitled to the possession. Pews in some instances are appurtenant to particular dwelling houses, so that the occupier of the house enjoys it. In general, however, pews remain subject to the regulations of the churchwardens. If they want to accommodate more persons, they can make ^changes, And where a parishioner requires a more per [613] manent seat or location, he can apply to the bishop for what is called a “ facultyand under it the party gets a right even greater than falls to the lot of an ordinary parishioner: and yet this faculty does not run to a man and his he rs, It may attach to a house or to a person: but not to heirs, There are various cases to show this in the reports of Haggard and Phillimore;(a) and also the case at law of Stocks v. Booth, 1 T. R. 428, where it was held, (referring to Burns’ Ecclesiastical Law) that even possession for above sixty years of a pew in a church is not a sufficient title to maintain an action upon the case for a disturbance in the enjoyment of it. The plaintiff must prove a prescriptive right or a faculty and should claim it in his declaration as appurtenant to a messuage in the parish. It was also held that a faculty to a man arid his heirs is bad. I do not see why these decisions should not have force in the present case. Here, it is true, there is a written contract, whereby a purchaser became an owner and the right would devolve to his heir, provided the latter became and was a member of the church. I think, however, there is no necessity to pass definitively upon the construction of this contract. The trustees deem it necessary to rebuild; and whether Mr. Heeney (the complainant) has a title or not, is a matter which can be passed upon hereafter, when he comes to claim a pew in the new building. There is no just reason why the trustees should be restrained. No charge is made of any impropriety in regard to the funds ; and it is admitted that a new edifice on this site will be beneficial and that the whole property is still to be used for the purposes of the church. In the mean time the complainant will be put to no inconvenience: for it is shown that he is in the practice of attending church at Brooklyn where he resides. The case is a novel one; but after considering it in all its bearings, I deem it most desirable to [614] let the trustees go on and prostrate the present old building —leaving the complainant to his legal and equitable rights with regard^ to a pew in the new building when it is completed. If there were no good ground for the acts of the trustees, I might do otherwise. As it is, let the injunction be dissolved. Footnotes [(a)] As, for instance, Tattersall v. Knight, 1 Phill. R. 237; Fuller v. Lane, 2 Add. R. 426; Walter v. Gunner, 1 Hagg. 321. See also, Partington v. Rector, &c. of the parish of Barnes, 2 Lee’s R. 345; Pitman v. Bridger, 1 Phill. 324; Blake v. Osborne, 3 Hagg. 733.