The opinion of the court was delivered by
Wheeler, J.
This meeting-house and land appear to have been subject to three kinds of ownership. At the bottom of all was the right of- George Howe to the reversion of the land, if his deed of it conveyed an estate upon condition; or to the remainder of the estate in it, if his deed conveyed an estate with a conditional limitation. Then there was the right of the brick meeting-house society to the house, and to the land so long as the condition in that deed should be kept. And besides these, there were the rights of the pew-holders, of whom the plaintiff was one, to the pews. The source and extent of the interest of the plaintiff as one of the pew-holders, do not appear, further than that it is stated that he owned one pew in his own right, and one undivided fifth part of five others in the right of his wife, unless other facts stated show a different interest. The other facts stated do not *270refer to Ms interest as a pew-holder in the one pew held in his own right; therefore he is taken to be clearly the owner of that pew. The defendant appears to have acted wholly for, and in the right of, the school district, in what he did about tearing up and removing the pews; and not at all for, or in the right of, the meeting-house society ; and as to this one pew of-the plaintiff, the school district appears to have had no right whatever, except that acquired of Mary P. Howe, devisee of the estate of George Howe. George Howe appears to have formerly had the whole estate whereon the meeting-house was built, and the meeting-house society to have built the house upon it, with his permission. When this was done, probably, he owned the land and the society the house. Barnes v. Barnes, 6 Vt. 388" court="Vt." date_filed="1834-03-15" href="https://app.midpage.ai/document/barnes-v-barnes-6571651?utm_source=webapp" opinion_id="6571651">6 Vt. 388; 1 Wash. Real Prop. 4. The exceptions state that after this, he conveyed the house and land by his deed ; but the deed itself is made a part of the exceptions, and that shows that he did not in terms assume to convey anything but the land. The land is described in the deed as being that on which the house then stood ; and the habendum is to the grantees, to hold upon special' trust, to permit the owners of the house to occupy the land for the purpose of continuing a meeting-house on it. This looks as if he did not claim to own, nor assume to convey, any right to the house, nor anything more than the land itself, apart from the structures upon it. If this was so, then, although there may have been such a failure to fulfill the condition in the deed and proceedings thereupon, as to entitle Mary P. Howe to the land, she would not thereby acquire any title to the house ; and the right of the society to that, and of the plaintiff to his pew, would remain undisturbed by the failure. But if this was not so, the defendant, acting for, and in behalf of, the school district, was privy to the right, and to all things affecting the title of the district, and stood affected by the decree in the suit of the plaintiff and others against the district and the defendant and others, the same as the district was. That decree settled conclusively, that, at the time in question, the school district had no right to disturb the society in the continuance and occupancy of the house; and, consequently, that the defendant *271had no right under the district, to disturb the plaintiff’s occupancy of his pew. Inasmuch as the plaintiff, apart from his connection as a member with the society, was merely a pew-owner, subject to the rights of the society, as between them, probably, the society had the right to tear up and remove his pew, for the purpose, when necessary, of repairing or remodelling that, or building another, house for like public worship ; but the defendant was, in law, a stranger to the society, and could not stand at all upon that right. The failure to so beep the house in repair that it could be occupied for the purposes of public worship, for which it was built, would not, of itself, terminate the plaintiff’s right to his pew, nor leave him without right to maintain an action for an injury done to his right to it by a stranger; but would only make his right to it less valuable, and in that way lessen the amount he could recover. Upon the case as stated in the exceptions, the plaintiff had title to this pew, and the defendant had no legal justification for tearing up, destroying, or removing it.
This action is stated to have been brought for breaking and entering the house and taking out and destroying the pews. The mere entry into the house would not be any invasion of the individual rights of the plaintiff as a pew-holder; and he could not recover in this action for such entry; and it is insisted in argument that, therefore, he cannot be entitled to recover for anything done to the pew after the entry. But the pew itself, as it belonged to the plaintiff, was his real estate; and although he did not so own the materials of which it was made, nor have such exclusive right to it, that he could maintain the action of trespass for every interference with it, still, he could maintain that form of action for its destruction. The tearing up and removal of the pew.were equivalent to a destruction of it, and were a material and substantial part of the injury sued for, that the plaintiff could maintain the action for, without suing for the entry with it, and which he could recover for when sued for with the entry, without recovering for the entry. If the injury to the pew was a mere matter of aggravation, it would-be different-; but it is more than that; it is of the gist of the action. His right to the exclusive possession of *272Ms pew, was so distinct from the ownership and possession of the house, that he couM maintain trespass even against the society itself, or any one standing upon its right, for an exclusion of himself from his pew, unless done in the exercise of the right to repair or rebuild belonging to the society to which his ownership was subject. O'Hear v. De Goesbriand et al. 33 Vt. 593" court="Vt." date_filed="1861-01-15" href="https://app.midpage.ai/document/ohear-v-degoesbriand-6577105?utm_source=webapp" opinion_id="6577105">33 Vt. 593. It is also insisted that the plaintiff did not so have possession of his pew that he could maintain this action. But, as has already been seen, the possession of the plaintiff’s pew by himself, was separate from the possession of the house by the society, or by strangers; and although the school-district and the defendant may have so got and kept possession of the house that the society could not maintain trespass for any injury to that, without first recovering possession by an action of ejectment, or otherwise, still, the tearing up of the plaintiff’s pew appears to have been the first invasion of the plaintiff’s individual right, and the first injury to his possession ; and for that invasion and that injury, he is entitled to maintain this action. 3 Bl. Com. 210; 1 Chit. Pl. 177. Upon these considerations, the evidence offered by the defendant and excluded by the court, was'inadmissible, for the reasons given when it was excluded, and because, if admitted, it would not have varied the rights of the parties. The case shows that before the acts complained of in this suit were committed, the meeting-house became ruinous and dilapidated ; meetings in it ceased; and at the time of and after these acts, it remained unfit and unoccupied for public worship. The plaintiff’s right as a pew-holder was only a right to occupy his pew or pews during public worship, and these facts showed that there was no such worship during the time covered by his declaration that he could occupy them to attend upon, and that during that time, whether entitled to one pew only or to some right in the other five as well, he was not disturbed in the enjoyment of anything that could have been of any actual value to him, and that therefore he could not recover any actual damage. The exceptions do not show whether the court held the plaintiff entitled to recover nominal damages for one pew only, or for all. As the case stood, the plaintiff was entitled to recover nominal *273damages for the invasion of, and technical injury to, his rights, and no more than that, whether the rights were to one pew or several; and the verdict was right, whether it was for all the pews or only one. Hence there is no occasion now to examine into the plaintiff’s right to the five pews.
Judgment affirmed.