Religious Congregational Society v. Baker

15 Vt. 119

• Court: Supreme Court of Vermont
• Decided: January 15, 1843
• Status: Published

Opinion

The opinion of the court was delivered by

Williams, Ch. J.

This is an action of trespass, quare clausum fregit, for breaking and entering a certain meetinghouse in Bakersfield. To maintain this action, it is necessary that the plaintiffs should have, either the exclusive possession of the locus in quo, or, be the owner thereof, and «no adverse possession im any other person; and this will lead to the enquiry, — in whom was the fee of the place, &c., at the time of the alleged trespass ? or, in whom was the fee, and, in whom was the possession ? The plaintiffs are an organized society, or body corporate ; and there is, also, another organized society, or body corporate, in the same town, by the name of the Union Society, who claim to be the owners of the meeting-house in question.

From an examination of all the papers in the case, it is evident, that the fee of the land, on which the meeting-house stands, as well as of the rneeting-hoiise, is in the association, formed under our statute, called the Union Society. In England, the soil and freehold of the church, is in the parson, who is a sole corporation. In this country, it depends on the contract and agreement which may be made when the church is built. Where parishes are incorporated, and churches are built for them, the fee is usually in them, as it commonly is, or was, in Massachusetts and Connecticut; and ,this must be the meaning of Ch. J. Swift, in his digest, where he says, the fee is in the congregation. The congregation, as such, are not capable of-taking a fee. As many of our meeting-houses are now built, the fee may be in one corporation, while the use, and enjoyment, may belong to another. In such cases, those, for whose benefit they are erected, and who are entitled to the use, and enjoyment of the same, cannot be disturbed, or interrupted therein, without having an appropriate remedy.

By the articles of association, and by the subscription, under which the meeting-house in question was built, the several pew-holders, from time to time, were the Owners of the fee, and might be composed of different members from those which composed the other association, who, also, have a corporate existence, called the Religious Congregational Society. The Union Society, being the owners of the freehold, can, alone, maintain an action of trespass, quare ctau* sum fregit, against any one, for breaking and entering the meeting-house, unless they have given to the latter society, the exclusive possession of the same. This they have not done, nor consistently with their articles of association, or by-laws, could they do. The several pew-hoiders had a right to their pews and seats in the house, of which they could not be divested, except by their own consent. The Religious Congregational Society are entitled to the use and enjoyment of the house for all religious purposes, for performing divine service, for prayer, for praise, for speaking and hearing the word of God, according to the usages and cüstoms of a Congregational society; and if they are disturbed or interrupted therein, they have a remedy, but not by an action of trespass, quare clausum fregit. That the right to the use of a house for such, or similar purposes, will not enable them to maintain such an action, was fully recognized and established, in the case of Milford v. Godfrey, 1 Pick. 91. That the owner of a pew, cannot maintain such an action as this, was said by Buller, J., in the case of Stocks v.Booth, 1 Term. 428, and also, by Abbot, Ch. J., in the case of Mainwaring v. Giles, 5 Barn. & Ald. 256, although, it might, in some cases, be maintained in Massachusetts, where their statutes declare pews to be real estate.

The plaintiffs, however, contend that they are the cestui que use, and as such, are the owners, or occupiers of the house, and, that the court might direct the jury to presume a grant. The Religious Congregational Society, however, had not such a use, as would be executed by the statute of Henry VIII, and the possession transferred to the use, if, in any case, a corporation could be so seized of an estate in trust; nor 'could the court direct the jury to presume a grant, as the very object of the association of the Union Society, was, to secure to the several pew-owners their right and interest therein, and which would be defeated, if such a grant could be either made, or presumed. Neither did the dedication of the house make any alteration, either in the ownership, or possession, or change any of the rights, before existing therein. It recognized the right of the plaintiffs therein, but did not give them such an occupancy, or possessio pedis, as is always required and implied in the occupancy of real estate, to enable the possessor to maintain an action of trespass.

From the views already expressed, it appears that some of the requests of the defendants, to the county court, to charge the jury, should have been answered in their favor ; and the direction should have been, that the plaintiffs could not maintain this action.

The judgment of the county court is reversed.