33 Vt. 593 | Vt. | 1861
This is an action of trespass q. c., with a count in case joined under the statute, (Acts of 1856, No. 8,) for the destruction by the defendants of a pew in the Roman Catholic chapel or church in Highgate, which the plaintiff claims to have owned as his property.
It appeared from testimony introduced on the trial which was not controverted, that the building of this church was commenced in the year 1849, and finished in 1851, and that when the building was commenced, the land upon which it was erected was owned by Messrs. S. W. & S. S. Keyes; that from September, 1851, to the time of the alleged trespass by the defendants in tearing up and removing the pew in question, which was on the 13th day of May, 1856, the plaintiff was in the exclusive use and occupancy of that pew whenever the church was open for public worship ; that on the 25th of January, 1853, the title and estate of the Messrs. Keyes in the land on which the church was erected was conveyed to the Right Rev. John B. Fitzpatrick, who at that time was the bishop of the Roman Catholic diocese of Boston, of which the State of Vermont formed a part; that in October, 1853, the territory within the limits of the State of Vermont was separated from the Diocese of Boston, and erected into a new Diocese of the same church, called the Diocese of
Pews constitute a subject of peculiar ownership. They are defined to be inclosed seats in churches, and it is said that according to modern use and idea, they were not known till long after the reformation, and that enclosed pews were not in general use before the middle of the seventeenth century, being for a long time confined to the family of the patron ; (Hook’s Church Dictionary, title Pews.) In England the right of property in a pew is a mere easement or incorporeal right, and hence the English doctrine that case only will lie for the disturbance of the occupant. In Boothly v. Baily, Hob. 69, (13, sec. 1,) it is held that the church and church yard are, in law, the soil and freehold of the parson, yet the use of the body of the church, and the repair and maintenance of it is common to all the parishioners : “ And for avoiding of confusion, the distribution and disposing of seats and charges of repair belong to the ordinary,” (or person having ecclesiastical jurisdiction,) “ and therefore no man can challenge a peculiar seat without a special reason,” as prescribing to repair and maintain it. But in this country the owner of pew has an exclusive right to its possession and enjoyment for the purposes of public worship, not as an easement, but by virtue of an individual right of property, derived in theory a.t least from the proprietors of the edifice or freehold, and hence trespass guare clausum, lies for a violation of the owner’s right of possession. It is now well settled in this country that in the absence of any statute provisions, this kind of property is to be considered as real estate in all cases arising under the statute of frauds, or of conveyances, or of descents and distributions ; 1 Greenleafs Cruise on Real Property, 44; Shaw v. Beveridge, 3 Hill 26; Jackson v.
The persons who by their agreement, efforts and means, create property of this description, have an unquestionable right to establish its character and incidents, provided that these be such as are not inconsistent with the laws of the State, and the respective rights of the plaintiff and the defendant, DeGoesbriand, will, therefore, depend upon the agreement entered into between the various parties connected with the purchase and conveyance of the land upon which the church was erected, and with the building of the church itself.
The original subscription for the building of this chapel or church was, by its terms, a subscription “ for the purpose of building a Catholic chapel in Highgate village,” and the subscription for'the purchase of the land for the site is expressed to be “ towards the purchase of the two lots of land for the use of chapel.” The term “ Catholic Chapel” used in the first of these subscriptions has no such precise and definite signification as to exclude extrinsic oral evidence to interpret its meaning, or to point its application to the subject matter. The courtesies of private society and of political and religious controversy accustom us to concede to persons of any communion or party such appel
It is urged on the part of the defendants that the object and design of the parties to the original undertaking to build this chapel or church, as expressed in their subscriptions, was to erect a Roman Catholic church, and that the admission of the right of a layman to own and hold a pew therein would prevent its being a Roman Catholic church, even though recognized in the subscription or agreement, and that any agreement for the division of the. pews among the subscribers to be owned in severalty, whether contained in the original subscription or agreement, or not, is to be rejected and disregarded as being repugnant to the obvious design and intent of the parties in reference to their proposed undertaking; that the original subscription for the building of the church was a contract in writing that the church to be built by the funds to be raised should be a Roman Catholic church, and that no parol testimony should have been admitted to show that at the time the subscription papers were signed there was a parol agreement made by the parties thereto that the several subscribers (they being laymen,) should own the pews in the church, because it would be repugnant to the written contract, inasmuch as the building to be erected could not be a Roman Catholic church if laymen were permitted to own pews in it. Assuming the purpose expressed in the subscription papers to be that of “ building a Roman Catholic chapel,” the natural import of those terms in their popular sense would seem to be that the building to be erected should be used as a house for the celebration of public worship according to the rites and ceremonies of the Roman Catholic church, and such a use of the building is consistent as well with the claims of the plaintiff as with those of the defendants in this case ; for the celebration of public worship cannot be said 'to be necessarily, if at all connected with any right of property in the pews. The agreement or intention of the original subscribers to the undertaking is to be carried into effect whenever properly ascertained, but we regard the question
The cases of Kellogg v. Dickinson, 18 Vt. 266, Jackson v. Rounseville. 5 Metc. 127, and Shaw v. Beveridge, 3 Hill 26, fully adopt the principle that the right of property in pews, when owned by private individuals, is separate and distinct from the title to the fee or freehold of the church itself, and that trespass guare clausum lies at the suit of the owner for a violation of his right of possession of the pew, and especially for its actual destruction. In view of the facts thus found by the jury, it would be immaterial, as affecting the plaintiff’s right of recovery, whether the original agreement among the subscribers was that the land should be conveyed to the Bishop of the Diocese, or to the persons who styled themselves the “ Catholic Society of Highgate.” There is nothing in the ease tending to show that the Messrs. Keyes ever treated the original contract made with them, for the purchase of the land on which the church was erected, as being forfeited by reason of a non-compliance with its terms ; but, on the contrary, they appear to have recognized it as a valid and subsisting contract, which they were willing to execute on their part whenever the price of the land was paid to them. When their title was conveyed to Bishop Fitzpatrick in January, 1853, they had received the full price of the land according to the terms of the original contract, and a part of the payment for the land had been made to them by the plaintiff on behalf of the subscribers for that object; and the plaintiff then held the pew in question in actual possession in severalty, nnder a division of the pews in fact, previously made by the agreement or acquiescence of all who were then interested in the property. After the land was paid for, the Messrs. Keyes should be regarded as holding the legal estate or freehold of the land and the church for the benefit of the persons who purchased the land and erected the church; and, for a forcible injury to the possession of any pew then owned in severalty, the pew owner could have sustained trespass even as against them; and it is quite obvious that Bishop Fitzpatrick, who paid
It is urged on the part of the defendants that the right to pews is real estate, and can only be divided among tenants in common by a conveyance in writing, or by fifteen years possession under a parol partition ; that five years possession alone, will not make a legal severance of the tenancy in common ; that if the plaintiff had any right to the pew in question, it was the right of a tenant in common with two of the defendants, (Twombly and Minaid,) who contributed to the fund to buy the land and build the church; and that an action of trespass vi et armis or guare clausum will not lie in favor of one tenant in common against his co-tenant. Where the grantees of a township made a division of it in fact among themselves, and the division was acquiesced in for a period of fifteen years, it has been recognized as a valid division in law, however informal it might have been, and although not made in Conformity with the requisitions of the statute. Booth v. Adams et al., 11 Vt. 156. Such a division ripens by a possession under it for fifteen years into an absolute legal title in severalty. It is true that one tenant in common cannot bring an action of trespass against another for entry upon, and enjoyment of, the common property ; but when one tenant in common occupies a particular part of the common property by the agreement of the Other tenants in common, it is regarded as being so far a severance in fact as to permit him to maintain trespass against them for the same acts which would constitute trespass in a stranger, even though the length of such occupation would be insufficient to mature an absolute legal title in severalty. This principle was settled in the case of Keay v. Goodwin, 16 Mass. 1, and is recognised in the case of Booth v. Adams et al., ubi supta; and in 4 Kent’s Comm. 370, it-is said that if one tenant in common “ occupies a particular part of the premises by agreement, and his co-tenant disturb him in his occupation, he becomes a trespasser.” See also the case of Johnson et al. v. Goodwin, 27 Vt. 288.
We regard this case as having been properly submitted to the jury, under well considered and appropriate instructions from the court; and, finding no error in those instructions, or in the refusal to instruct the jury as requested by the defendants, or in the admission of the parol evidence offered by the plaintiff to show the original verbal agreement in regard to the division and holding of the pews among the subscribers as claimed by him, the judgment of the county court is affirmed.