Green, C. J.
This action was commenced in the Circuit Court of the county of Essex, to recover certain arrears of rent and assessments on a pew in the Third Presbyterian Church of Newark. Upon the trial the plaintiffs recovered less than one hundred dollars. The only point submitted for the opinion of this court by the case certified, is, whether the plaintiff' is entitled to costs.
The pew in question was by deed, dated the 1st day of January 1825, conveyed from the plaintiffs to one Hugh McDougall. Ths title of McDougall was subsequently vested by a regular chain of conveyance in the defendant. By the terms of the deed the pew is conveyed, subject to the annual payment of two per cent, upon the appraised value of the pew, and also to the payment of such sums as shall yearly be assessed and affixed upon the said pew, in the mode specified in the deed of conveyance. The obligation to pay the rent and the assess-[328] merits devolved upon the owner of the pew, and the declaration charged that the defendant, by virtue of his right and title to the pew, became liable to pay the arrears of rent and assessments sought to be recovered. In order to sustain this action, it became necessary for the plaintiffs upon the trial to shew that the title of the pew was in the defendant. The title to the pew came necessarily and directly in question. The only inquiry therefore, is, whether the title to the pew is “ a title to any lands, tenements, hereditaments, or other i*eal estate ” within the meaning of the first section of the act constituting courts for the trial of small causes — if it be, the demand was not cognizable before a Justice of the Peace, and the plaintiffs are entitled to their costs.'
The conveyance under which the defendant claims, vests the title in him, his heirs and assigns forever. He has as absolute aud unqualified a property in the thing, as the nature of the subject admits of. Is the subject to be classed among things real-, or personal ?
The precise nature of property in a pew seems not to be very definitely settled. Blk. 2 Com. 429, informs us that pews in a church are somewhat of the same nature as a monument, or tombstone, or a coat of armor, or ensign of honor hung in a church. That they are in the nature of heir looms, and' may descend by custom immemorial from the ancestor to the heir. .
This description can be applicable only to the tangible property, to the material of which the pew is constructed. It may be true as applied to a monument, a coat of armor, or a seat or pew placed in the aisle or chancel of a church. It has no applicability to the right of burial in a particular part of the churchyard, or to the right of occupying a particular pew in a church. Accordingly, we find that an action for removing a coat of armor, for breaking or defacing a monument, or for injuring or destroying a pew, can be maintained only by the party by whom the monument was erected, or the pew constructed, or by his heirs. Cowen’s Case, 12 Co. 105; Dawtrie v. Dee, 2 Roll’s Rep. 140; Palm. 48; Spooner v. Brewster, 3 Bing. 136.
But the exclusive right of occupying a particular seat or pew in a church, is an incorporeal heriditarnent. It is in the nature [329] of an easement, a right or privilege in the lauds of another. For an interruption of this right, an action on the case for a disturbance, as in other cases of injury to incorporeal hereditaments, is the only remedy. 1 Chit. Pl. 162; Com. Dig. “Action on the case for disturbance,” A. 3; 2 Saund. 175 c.
And it seems that in England the right to a pew is never a mere personal right. It can exist only as appurtenant to a house in the parish. Unless the right be claimed as appurtenant to a house, and it be so averred in the declaration, no action at common law will lie.° The remedy in such case is of a spiritual nature, and must lie in the ecclesiastical court. Corven’s case, 12 Coke 104; Maaiwaring v. Giles, 5 Barn. & Ald. 356; 1 Chit. Pl. 163, 415; 2 Chit. Pl. 817; 1 Phil. Ec. R. 316.
The reason assigned is, that the freehold of the church and of the churchyard is in the parson, for the common benefit of all the inhabitants of the parish. The body of the church is common to all the inhabitants, and every parishioner who is entitled to Christian burial in the church yard. It is not in the power of the parson to grant an exclusive right to the occupancy of a pew, or to a particular place of burial. Corven’'s case, 12 Coke 104; Com. Dig. Cemetery B.; 8 Barn. & Cress 288. (a)
[330] In this state, and it is presumed generally in this countiy, a different principle prevails. The freehold of the church, and of the burying ground, is in the corporation, or in the trustees, for the use of the congregation. The practice has long prevailed (originating either in a vote of the corporation, or in a resolution of the trustees, with the assent of the parishioners), of leasing or selling to individuals an exclusive right to a particular pew, and to a particular spot of ground for the purpose of burial. The right thus acquired is a legal right, and for the infringement of which an action at common law may be maintained. But when the conveyance is absolute, as in the present instance, to a man and his heirs, is his right to the pew a mere chattel interest ? Obviously we think it is not. It has none of the characteristics of a chattel.
True, the owner of a pew has not an absolute and unlimited interest in the property. He owns neither the soil beneath, nor the space above it. He has no such ownership of the pew itself, as to authorize his altering or converting it to any other use. ' His interest is both qualified and limited. The absolute ownership is in the corporation, or in the trustees in whom the title is vested. They may encumber the legal title — may alter the pews — may raze and rebuild the edifice without the consent of the pew-holder, and without an invasion of his right.
The title of the pew-holder is usufructuary. He has strictly no title to the pew itself. He cannot treat it as his own property. He can use it only for the purposes to which it has been dedicated, and in the mode prescribed or agreed upon at the time of the purchase. It is in reality a mere easement — a privilege or use in the freehold of another. Still, it is an hereditament, although incorporeal, and as such, when vested, as in the present instance, in the owner, and in his heirs, it is real estate, not personal. But whether it be regarded as a mere easement, [331] or as a corporeal hereditament, for which trespass or ejectment will lie; still it is technically a thing real.
This is the dictate of sound principle, and seems the result of the adjudged cases (when not controlled by statutory regulations) both in England and America. Bates v. Sparrell, 10 Mass. 325; Gay v. Baker, 17 Ibid. 435; Kemball v. Rowley, 24 Pick. 347; Freligh v. Platt, 5 Cowen 494; Price v. The Methodist Church, 4 Ohio 530.
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Green, C. J.
This action was commenced in the Circuit Court of the county of Essex, to recover certain arrears of rent and assessments on a pew in the Third Presbyterian Church of Newark. Upon the trial the plaintiffs recovered less than one hundred dollars. The only point submitted for the opinion of this court by the case certified, is, whether the plaintiff' is entitled to costs.
The pew in question was by deed, dated the 1st day of January 1825, conveyed from the plaintiffs to one Hugh McDougall. Ths title of McDougall was subsequently vested by a regular chain of conveyance in the defendant. By the terms of the deed the pew is conveyed, subject to the annual payment of two per cent, upon the appraised value of the pew, and also to the payment of such sums as shall yearly be assessed and affixed upon the said pew, in the mode specified in the deed of conveyance. The obligation to pay the rent and the assess-[328] merits devolved upon the owner of the pew, and the declaration charged that the defendant, by virtue of his right and title to the pew, became liable to pay the arrears of rent and assessments sought to be recovered. In order to sustain this action, it became necessary for the plaintiffs upon the trial to shew that the title of the pew was in the defendant. The title to the pew came necessarily and directly in question. The only inquiry therefore, is, whether the title to the pew is “ a title to any lands, tenements, hereditaments, or other i*eal estate ” within the meaning of the first section of the act constituting courts for the trial of small causes — if it be, the demand was not cognizable before a Justice of the Peace, and the plaintiffs are entitled to their costs.'
The conveyance under which the defendant claims, vests the title in him, his heirs and assigns forever. He has as absolute aud unqualified a property in the thing, as the nature of the subject admits of. Is the subject to be classed among things real-, or personal ?
The precise nature of property in a pew seems not to be very definitely settled. Blk. 2 Com. 429, informs us that pews in a church are somewhat of the same nature as a monument, or tombstone, or a coat of armor, or ensign of honor hung in a church. That they are in the nature of heir looms, and' may descend by custom immemorial from the ancestor to the heir. .
This description can be applicable only to the tangible property, to the material of which the pew is constructed. It may be true as applied to a monument, a coat of armor, or a seat or pew placed in the aisle or chancel of a church. It has no applicability to the right of burial in a particular part of the churchyard, or to the right of occupying a particular pew in a church. Accordingly, we find that an action for removing a coat of armor, for breaking or defacing a monument, or for injuring or destroying a pew, can be maintained only by the party by whom the monument was erected, or the pew constructed, or by his heirs. Cowen’s Case, 12 Co. 105; Dawtrie v. Dee, 2 Roll’s Rep. 140; Palm. 48; Spooner v. Brewster, 3 Bing. 136.
But the exclusive right of occupying a particular seat or pew in a church, is an incorporeal heriditarnent. It is in the nature [329] of an easement, a right or privilege in the lauds of another. For an interruption of this right, an action on the case for a disturbance, as in other cases of injury to incorporeal hereditaments, is the only remedy. 1 Chit. Pl. 162; Com. Dig. “Action on the case for disturbance,” A. 3; 2 Saund. 175 c.
And it seems that in England the right to a pew is never a mere personal right. It can exist only as appurtenant to a house in the parish. Unless the right be claimed as appurtenant to a house, and it be so averred in the declaration, no action at common law will lie.° The remedy in such case is of a spiritual nature, and must lie in the ecclesiastical court. Corven’s case, 12 Coke 104; Maaiwaring v. Giles, 5 Barn. & Ald. 356; 1 Chit. Pl. 163, 415; 2 Chit. Pl. 817; 1 Phil. Ec. R. 316.
The reason assigned is, that the freehold of the church and of the churchyard is in the parson, for the common benefit of all the inhabitants of the parish. The body of the church is common to all the inhabitants, and every parishioner who is entitled to Christian burial in the church yard. It is not in the power of the parson to grant an exclusive right to the occupancy of a pew, or to a particular place of burial. Corven’'s case, 12 Coke 104; Com. Dig. Cemetery B.; 8 Barn. & Cress 288. (a)
[330] In this state, and it is presumed generally in this countiy, a different principle prevails. The freehold of the church, and of the burying ground, is in the corporation, or in the trustees, for the use of the congregation. The practice has long prevailed (originating either in a vote of the corporation, or in a resolution of the trustees, with the assent of the parishioners), of leasing or selling to individuals an exclusive right to a particular pew, and to a particular spot of ground for the purpose of burial. The right thus acquired is a legal right, and for the infringement of which an action at common law may be maintained. But when the conveyance is absolute, as in the present instance, to a man and his heirs, is his right to the pew a mere chattel interest ? Obviously we think it is not. It has none of the characteristics of a chattel.
True, the owner of a pew has not an absolute and unlimited interest in the property. He owns neither the soil beneath, nor the space above it. He has no such ownership of the pew itself, as to authorize his altering or converting it to any other use. ' His interest is both qualified and limited. The absolute ownership is in the corporation, or in the trustees in whom the title is vested. They may encumber the legal title — may alter the pews — may raze and rebuild the edifice without the consent of the pew-holder, and without an invasion of his right.
The title of the pew-holder is usufructuary. He has strictly no title to the pew itself. He cannot treat it as his own property. He can use it only for the purposes to which it has been dedicated, and in the mode prescribed or agreed upon at the time of the purchase. It is in reality a mere easement — a privilege or use in the freehold of another. Still, it is an hereditament, although incorporeal, and as such, when vested, as in the present instance, in the owner, and in his heirs, it is real estate, not personal. But whether it be regarded as a mere easement, [331] or as a corporeal hereditament, for which trespass or ejectment will lie; still it is technically a thing real.
This is the dictate of sound principle, and seems the result of the adjudged cases (when not controlled by statutory regulations) both in England and America. Bates v. Sparrell, 10 Mass. 325; Gay v. Baker, 17 Ibid. 435; Kemball v. Rowley, 24 Pick. 347; Freligh v. Platt, 5 Cowen 494; Price v. The Methodist Church, 4 Ohio 530.
I am aware that some inconvenience may be apprehended from, holding the ownership of pews and of places of burial as real estate. Considerations of supposed expediency or real policy have led to various statutory enactments in different states, regulating the character of the property in pews. In Massachusetts, by statute, pews are real estate throughout the commonwealth, except in Boston, where they are personal property. In Connecticut they are declared by statute to be personal — in New Hampshire to be real estate.
The question before this court is not a question of policy, or of expediency, but of legal principles, and in this view I entertain no doubt that the title to a pew is a title to real estate within the provision of the first section of the act, constituting courts for the trial of small causes.
Let it be certified to the Circuit Court of the county of Essex, as the opinion of this court, that the plaintiff is entitled to costs.
Randolph, J. The plaintiff is entitled to judgment in this case; but whether he may recover costs, depends on the question whether a pew in a church for which a party holds a title, be real or personal estate, I have no hesitation whatever in saying that it belongs to the former. It is an incorporeal hereditament of the nature of an easement; and although it does not partake of all the properties of real estate, or entitle its owner to all the rights of a freeholder, or subject him to all the liabilities of such citizen, yet it comes under the denomination of real estate, and its title cannot be investigated in a justice’s court, and the property in it would go to the heir, unless there be special provision to the contrary. See 10 Mass. 323; 1 T. [332] Coke 207 & (L); Burton on Real Property § 1172; 5 Cowen 496; 16 Wend. 32; 3 Hill 26; 2 Starkie’s Ev. 628.
Let judgment be for the plaintiff with costs. (b)
Whitehead, J. concurred.