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 *606Burlington, of which the defendant, DeGoesbriand, was duly appointed and installed as the bishop, and that upon his installation he was authorized by Bishop Fitzpatrick to take charge of the church buildings in Highgate, and to control and manage the same as he thought proper. It is not questioned that Bishop DeGoesbriand succeeded to, and is invested with all the rights connected with this chapel or church which belonged to Bishop Fitzpatrick, and it is admitted that the other two defendants who assisted in tearing up and removing the pew in question, acted under his directions.
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. *607Rounseville, 5 Metc. 127; Kellogg v. Dickinson, 18 Vt. 266; Hodges v. Green, 28 Vt. 358; Barnard v. Whipple, 29 Vt, 402; First Baptist Church in Ithica v. Bigelow, 16 Wend. 28; Vielie v. Osgood, 8 Barb. Supr. Ct. 130. “ Pews or slips in meeting houses, or places of public worship,” are declared to be real estate in this State by statute ; (Acts of 1853, No. 33.) In the case of Kellogg v. Dickinson, ubi supra, it is said by Wiixiams, Ch. J., that “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 the Bakersfield Congregational Society v. Baker, 15 Vt. 119. The persons who build a meeting house in either of these ways may retain the fee and 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 purpose for which it was erected.”
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*608lations, by way of distinction, as they choose to assume for themselves, but we should disregard a most palpable reality if we failed to recognize the fact that large bodies of Christians, not in communion with the church of Rome, assert in their creeds and daily worship their right to the name of Catholic, and reject as heretical and schismatical any assumption that the terms Catholic and Roman Catholic are equivalent or even allied in signification. The sense in which this term was used and understood by the subscribers when they made their subscriptions “ for the purpose of building a Catholic Chapel ” is, therefore, properly to be determined by extrinsic oral evidence, and it appears that such evidence was introduced on the trial, without objection, to show that the building of this chapel was an undertaking commenced, carried on, and accomplished by the Roman Catholics in that vicinity, and that after its completion it was always used by that denomination of Christians for public worship, and had always been under the control and supervision of priests of that communion. These facts were not controverted on the trial, and are, therefore, to be regarded as proved. This subscription must, therefore, be considered and treated as if it had been expressed to have been made “for the purpose of building a Roman Catholic Chapel,” to be used as a place of public worship, according to the rites and ceremonies of the Roman Catholic church. It appeared on the trial that the owning or controlling of a pew in a church by a layman is forbidden by the canons or ecclesiastical laws oí that church, and that the plaintiff was a layman. But the canon law of the Roman Catholic church, considered in reference to any intrinsic obligation, has no force or authority in this State. It is a law of the church, and not of the State, and it is not to be considered in determining the legal rights of the parties except so far as it was recognized in or made a part of the agreement or contract under which those rights are derived. In the elaborate and lucid opinion delivered by Williams, Gh. J., in Smith v. Nelson, 18 Vt. 511, (see p. 549 to 552,) he says that in this State “ we have no religious establishment, no ecclesiastical law, or courts, established by any authority. All their laws are wanting in this essential requisite to give them any authority, that they are not ‘jprescribed ly the supreme power in a State.’ And though they *609may form constitutions, enact canons, laws or ordinances, establish courts, or make any decisions, decrees or judgments, yet .they can have only a voluntary obedience, [and] cannot affect any civil rights, immunities or contracts, or alter or dissolve any relations or obligations arising from contracts.”
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 *610(Whether the rules of the canon law, in relation to the property ¡in the pews, were adopted or recognized by them when they /entered into the original agreement or contract for the building, of this chapel, as being one of fact and not of law, and unless those rules were so adopted and recognized by the subscribers, we ought not to interpolate them into the text of the original contract. We do not, therefore, consider that the parol testimony offered by the plaintiff, which was received to show the original verbal agreement in regard to the division and holding of the pews among the subscribers, as claimed by the plaintiff, tended to establish a purpose or arrangement which was inconsistent or at variance with the written agreement, and we think that it was properly left to the jury to ascertain and determine from the evidence, under the charge of the court,, what the agreement of the subscribers in respect to rights of property in the pews was, and whether it was contemplated or understood by them, in making the agreement, that those rights were to be subject to and regulated by the canons of the Roman Catholic church, or were to be controlled by their own mutual agreement or contract. The jury, under the charge of .the court, found that the original agreement among the subscribers was that they should buy the land and build the church, and that the pews should be divided among the subscribers, so that each might own his pew in severalty, and that this agreement was practically carried out and acted upon; that there was a severance and division of the pews, agreed to at the time it was made, by all of the subscribers, or made according to the original agreement and subsequently acquiesced in by all the subscribers, so that thereafter, by common consent of the subscribers, the plaintiff, who was one of their number, was recognized and agreed by all of them to have the right to the exclusive occupancy and ownership of the pew in question, and that the plaintiff, from that time forward up to the time of the trespass complained of, did so occupy that pew claiming that right. And the court charged the jury that the plaintiff could not recover if the agreement among the subscribers was that the land, church and pews, should be under the control of the bishop, and held pursuant to the laws of the Roman Catholic church, and that no layman *611should hold a pew in the church without the consent of the bishop. The jury, by their verdict for the plaintiff, have negatived the existence of any agreement or understanding of that character among or on the part of the subscribers.
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 *612nothing towards the price of the land or the expenses of building the church, or as a consideration for the conveyance to him, could stand, as their grantee, in no right or position in regard to those who were then the owners of the pews in the church, superior to that in which the Messrs. Keyes themselves stood at the time of making their conveyance to him.
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.
*613These principles dispose of all the points made on the argument of this case. The case of Smith v. Bonhoof, 2 Mich. 115, was cited in the argument on the part of the defendants as an authority for the proposition that a church could not be a Roman Catholic church in which a layman was permitted to own a pew, inasmuch as it would be in violation of one of the fundamental laws of the church. -The facts on which the controversy in that case arose were in substance as follows : One Beaubien conveyed a piece of ground to Lefevre, Bishop of the Roman Catholic Diocese of Detroit, and his successors in office, in trust, for the erection of a church thereon to be used as a place of public worship, and for the spiritual use, benefit, and behoof of the German Roman Catholic church congregation in the city of Detroit, according to the rites and ceremonies of the Roman Catholic church, and for other trusts therein expressed. The deed also provided that in the event of a vacancy in the office of Bishop, happening between the death of Bishop Lefevre and the appointment of his successor, the premises should vest during such vacancy in the Archbishop of the Roman Catholic church of which the Diocese should be a suffragan. Trustees of the church were afterwards elected by the congregation organized as a corporation under the statute law of the State The priest officiating in the church under the Bishop leased a pew in it to the defendant, Bonhoof, who went into the possession of it, and the trustees rented the same pew to Smith, the plaintiff. The question in the suit was whether the officiating priest, or the trustees, had the right to control and rent the pews ; and the claim of each party was referred exclusively to the right to the control of the church edifice, and not to any private 2'ight of property in the pews distinct from and independent of that l'ight, like that claimed by the plaintiff in this case. It was held that, under the deed of trust, and the constitution, laws, and usages of the Roman Catholic church, by which the administration of the temporalities of the church is vested in the parish priest, the right to rent the pews belonged to the priest, and not to the trustees. In the opinion of the court delivered by Ch. J. Whipple, in that case, he says : “ If I am to believe the testimony of witnesses, it is clear that when the control of the church edifice is wrested from the clergy and placed in the hands of lay*614men, it ceases from that moment to be a Roman Catholic church.” But he does not intimate that a church in which a layman was allowed to own a pew could not be considered as a Roman Catholic church, and the case did not involve the decision of any such question. In view of the fact, stated in the very able and elaborate argument for the defendants in this case, that, by the provisions of the canon law, leases of pews in a church, whether in writing or by parol, cannot exceed three years in duration, that case furnishes a suggestive commentary upon a proposition of that character, as well as upon the alleged universality of the application of the rules of the canon law in respect to property in pews, in the fact, which appears in the report of the case, that in the fourth condition of the deed of trust from Beaubien to Bishop Lefevre, it was provided that, as soon as the church to be erected on the land should be completed, Beaubien, the grantor, and his wife might select and choose a pew in the church, and have and hold the same during each of their natural lives, free and clear of all expense, payment, assessments, and charge whatsoever. Our conclusions in this case result from the application of the principle that the original agreement of the subscribers or donors who, by the union of their efforts and contributions, created the property in this church and its pews, is to be carried into effect when properly ascertained ; and this principle is fully recognized in the case of Smith v. Bonhoof.
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.