The opinion of the court was delivered by
Williams, Ch. J.On the trial of this action in the court below the right of a pew holder to a pew in a meeting house was recognized only as an inferior right to that of the owners of the house. If the house was taken down as a matter of convenience, or taste, *272by the owners, the owner of the pew was held entitled to compensation ; if as a matter of necessity, because the house had become ruinous and wholly unfit for the purposes for which it was erected, the owners thought proper to take it down, they were held at liberty to do so, without making any compensation to the separate pew holders. On examination we think that the decision of the county court was correct, and that it was in conformity to the principles of the law of England upon this subject, as well as the law recognized in this State and in the neighboring States.
In England the right to a seat in a church is usually a subject of ecclesiastical jurisdiction ; but a right to a pew may be annexed to a house and become an éasement appurtenant thereto; and fora disturbance of the owner in the possession thereof an action on the case lies at common law. On the ground that a right to a seat in a church, not annexed to the house, but claimed by an individual, was of ecclesiastical jurisdiction, the courts of law, in the cases of Stocks v. Booth, 1 T. R. 428, and Mainwaring v. Giles, 5 B. & Aid. 356, [7 E. C. L. 129,] refused to entertain jurisdiction of a suit brought for a disturbance in such right; but such an action was sustained in the case of Rogers v. Brooks et ux., 1 T. R. 431, in note, where the right was claimed as appurtenant to a house. I think, also, that a person may, in England, acquire a right to a pew in certain cases, so as to maintain trespass against one who destroys, or breaks, the pew. It was so considered in the case of Dantrie v. Dee, Palm. 46, [20 Vin. 457,] and the authority of that case for this position is recognized by Best, Ch. J., in the case of Spooner v. Brewster, 3 Bing. 136, [11 E. C. L. 69.] In this country the right of the owner of a pew to maintain trespass has been recognized in several cases. Gay v. Baker, 17 Mass. 435. As we have no ecclesiastical courts in this country, and as the right to a pew, or a seat in a church, is unquestioned here, and the property therein is considered as partaking of the character of real estate, there can be no valid objection to sustaining an action of trespass vi et armis, if the owner is disturbed in his possession. This action is rightly brought, to recover for the injury of which the plaintiff complains, if there exist no other objections to his recovery, inasmuch as he proved that he was owner of the pew in question.
The next question, which arises, is as to the authority, under *273which the defendant acted, and involves the question, as to the claim of the society under whom he acted. In England the fee of a church is in the parson, who is a sole corporation. The church may be built in a variety of ways, which it is not necessary to consider in this case. The disposal of the seats is usually with the ordinary. In certain cases, however, an individual may, by prescription, acquire a right to a seat in a church, and he cannot be displaced nor interrupted by the parson, church warden, or ordinary himself. Francis v. Lea, Cro. Jac. 366. In this country a church may be built by a parish, an incorporated society, or by an individual. These several methods were recognized in the case of Bakersfield Cong’l Soc. v. Baker, 15 Vt. 119. The persons, who build a meeting house in either of these ways, may retain the fee, and may maintain an action of trespass for an injury to the yard, or buildings, and the right to a seat, or to the pews, may be in other individuals, entirely distinct from them. The interest of the pew-holders is several. They have an exclusive right to occupy a particular seat, to the exclusion of all others, when the house is used for the purposes for which it was erected. This right of the pew-holders, however, must necessarily be a qualified and subordinate right. They may occupy their seats for the purpose of attending public worship ; but the individual cannot convert his pew to other uses, not contemplated. It is not necessary for us to say what might be done, either by a majority of the pew-holders, or by the owners of the house, if they should become of a different faith and were disposed to occupy it for a worship not recognized, and to which the minority did not adhere. It is enough for us to say, that we recognize the correctness of the doctrine laid down in Daniels v. Wood, 1 Pick. 102.
In England, as well as here, there exists a right to repair and rebuild a church, and of course to demolish and take down one already built, in case of necessity. This right was recognized in the case before mentioned from 1 Term Reports. It was very distinctly decided in the case of St. Mary Magdalen Bermondsey Church in Southwark, 2 Mod. 222, — a case much labored, because there were twenty four quakers, who were unwilling to pay towards the building a church. “ In a prohibition it was the opinion of the ‘ whole court, that, if a church be so much out of repair, that it is ‘ necessary to pull it down, and that it cannot be otherwise repaired, *274‘ in such case, upon a general warning, or notice, given to the par- ‘ ishioners, much more if there be notice given from house to house, ‘ the major part of the parishioners then present, and meeting ac- ‘ cording to such notice, may make a rate for the pulling down of the church to the ground and building of it upon the old founda- ‘ tion.” In Massachusetts this subject has been much considered, and it is well settled there, that the property of an individual in a pew is subject to a right in the parish to pull down and rebuild the meeting house.
The right of an individual pew-holder to a compensation for his interest in a meeting house, in certain cases, was recognized by the county court in the trial of this case; and we think that the law was correctly laid down to the jury, if the society, under whom the defendant acted, succeeded to the rights of the parish, who built the house.
In the first place, from what has already been remarked it is apparent, that the interest of the pew-holder is only a right to a particular seat in the house for the purposes of public worship. The building itself was not erected by the pew-holders, but by the parish, who owned the fee of the land and erected the house. The pew-holder has, therefore, no property in the building itself. His right is, to have the house continued as a place of public worship, if it can be done, so that he can enjoy his privilege of occupying that seat. The parish, even though the house is comfortable and convenient, may abandon it, or refuse to support public worship therein, so that his right to a seat may be of but little value for the time being; yet so long as it may be made a comfortable place of public worship, it may be of some value to him, in case others should be permitted to occupy it, or in case the parish should again resort to it. The pew-holder may therefore rightly claim, that the house should not he demolished without making him a compensation for his interest therein.
If, however, the house becomes wholly ruinous, unfit for a place of worship, and cannot be repaired, so as to be useful or convenient for that purpose, it is evident there is no beneficial interest left in the pew-holder, for which he can claim a compensation. His right to sit in a house without doors and windows, and when he cannot be protected from the inclemencies of the weather, must be wholly *275valueless. The charge of the county court was founded on and laid down these principles; and if the facts in the case were such, that they were applicable to the parties in this suit, there was no error in their charge.
On recurring to the facts found, it appears, that the meeting house was built by the town of Benson. By the law then in force for the support of the gospel (Acts of 1787) towns were empowered to build meeting houses, or places for the public worship of God, and to supply the pulpit with preaching, either by settling or hiring a minister, and to vote a tax, or taxes, sufficient for that purpose. •This law continued in force until the year 1807. Asa Farnham executed to the town a durable lease of a piece of land for a meeting house in January, 1797. The house, when erected, became the property of the town, — that is to say, they held the same in trust for the purposes for which the land was leased and the house erected. They could maintain trespass for any injury to the house, or land, thus leased to them, were authorized to repair and rebuild, if necessary, on the ground, thus given, and to lay any tax necessary for that purpose. The persons, to whom they sold the pews, owned the same, had a right to their seats and pews, and a right to occupy them, while the house was used for public worship.
By the statute of 1807 the power of raising taxes was taken away, and the town could not raise money as before; but yet the ownership of the house and the pews remained as before. It became necessary, however, in" order to preserve the house as a place of worship, and also to preserve the right of the pew-holders, and to carry into effect the intent expressed in the deed of Farnham, that others should he substituted to the rights which the town had anterior to 1807. Accordingly a voluntary society was formed, using the same form of worship and employing the same minister, who continued to occupy the house as a place of public worship; and in 1814 The First Congregational Society became organized and incorporated under a law passed by the legislature that year, and continued to occupy the house until its demolition by the defendant.
At a town meeting, regularly called in January, 1842, the town, by a vote, authorized their selectmen to release to the society all the right and title of the town in the house and lands, leased as abovementioned, and the selectmen accordingly executed a deed of *276the same to the society. This proceeding, we think, was authorized and legal; that it became necessary, in order to preserve the rights of all concerned, both the town and the individual pew-holders, to transfer their interest to the voluntary society thus formed ; and that, by that vote and deed, the First Congregational Society succeeded to all the rights, which the town had by the lease from Farnham and by erecting the house. After this, the pew-holders had the same interest in the house as before, and no greater. The society had the same interest and property and right, which the town had; and this enabled them to rebuild, or repair, and consequently to demolish the old house, whenever the society should think proper so to do.
The subordinate right of the plaintiff must yield to this superior right of the society. The jury have found, under the charge of the court, that the house was ruinous and wholly unfit to remain a place of public worship; that it could not be made a convenient and suitable place for worship, by moderate repairs ; and that the plaintiff’s pews were valueless to him, as pews in a house of public worship. The timber and materials did not belong to him ; and the society, who succeeded to the town, might make use of the same in erecting a new meeting house, as the house belonged to them, to be used for that purpose.
We think, therefore, on a view of the whole case, that by the principles of the common law, by the law applicable to this species of property in England, and as recognised in some of the other States in the Union, the defendant was justified, and that the plaintiff cannot sustain this action ; that it was not in the power of any individual to say, that an old, ruinous, or inconvenient house should remain as a place for public worship, and compel the society to resort to some other place, and abandon the one leased to them by Farnham.
The judgment of the county court is affirmed.