Niebuhr v. Piersdorff

Dixon, C. J. The question which the plaintiff seeks to have determined, namely, as to the right of the trustees, or a majority of the members of the society, to turn the old church into a school-house, cannot be decided. in this action. The plaintiff has mistaken his remedy 318 for that purpose. The action is trespass, for breaking and entering the close of the plaintiff, and taking down and removing Ms pew or seat from the church. The evidence discloses that lie was not, at the time of the entry and removal of the seat by the trustees _ or under their direction, a pew-owner, so that an action in this form can be maintained. Por, though the owner of a pew may, in a proper case,maintain trespass for an injury to his possession (Shaw v. Beveridge, 3 Hill, 26, and cases cited), yet the plaintiff had no such seisin or possession as will enable him to maintain the action as against the trustees or those acting under them. He was, at most, a mere licensee, occupying, at the will of the trustees and subject to their power of change or removal, a space in the body of the church for his seat, which was loose, or in no way attached to the building. If the trustees, by virtue of their general authority and control over the temporalities of the corporation, might remove' the seat from one place to another within the building without liability as trespassers, then they may remove it entirely from the building, and an action in this form cannot be maintained. 32 Barb. 222; 17 La. Ann. 127; 8 Barb. 135; 17 id. 103; 18 N. Y. 395; 19 Pick. 361. The plaintiff had not that distinct and separate interest as a pew-holder which will support the action. His remedy was by an action on the case for the disturbance or destruction of his general right as a member of the association, or by a suit in equity to restrain the proceedings of the trustees. I have written the foregoing as the opinion and judgment of my brethren. With due deference, I am by no means satisfied with their conclusion. It seems to me that the plaintiff had, under the authority and action of the trustees and congregation, such a separate and several possession of the space occupied for his seat, and which he had retained from the time the church was erected, that he might maintain trespass as against mere 319 wrong-doers. And it seems to me also that the trustées, having, as the plaintiff offered to prove, entered and caused the seat to be removed for the unlawful purpose of converting the building into a school-house, contrary to the wishes of the plaintiff and other proprietors, and without compensation to him or them, are to be regarded as mere wrong-doers or trespassers ab initio. And I find nothing in the authorities cited at all in conflict with the conclusion. By the Court. —Judgment affirmed.