First Baptist Society in Leeds v. Grant , 59 Me. 245 ( 1871 )

Appleton, C. J.

The plaintiffs were incorporated by an act of the legislature of Massachusetts, approved June 23, 1804. Under this act the incorporators were duly organized. This organization has been legally kept up to the present time. The land upon which their house of worship was erected was conveyed to them by their corporate name on 24th October, 1806. Their house was erected on the land thus conveyed to them, the same year, under a contract with the plaintiff corporation. The land purchased and the house erected thereon were owned by the plaintiff corporation and not by the members of the same.

The several pew-liolders had an easement in and not a title to the freehold. Each pew-holder had a property in his pew and the •right to its exclusive possession. But this right was subject to the paramount rights of the parish. The parish was the legal owner of the house and the land on which it stood. It had the control of the house; the right to determine at .what hours on the Sabbath and at other times it should be open for public worship; to select the pastor, to contract with him as to the terms of his settlement, to determine who should be admitted to the pulpit in his absence, and to see that the house should be kept in a proper condition for its public use. The pew-liolder has certain privileges by reason of his ownership, — such as passing through the aisles, being addressed from the pulpit, etc. His property is not absolute but qualified. He may own a pew and yet not be a member of the parish corporation. The corporation may own the land and building thereon, while the pew-holder has only a qualified property in his pew. Gay v. Baker, 17 Mass. 169; Jackson v. Rounsville, 5 Met. 130; Revere v. Gannett, 1 Pick. 169; Daniel v. Wood, 1 Pick. 102.

■ The plaintiffs occupied and controlled their house, making repairs on the same until March 1, 1837, when (the First Universalist Society in Leeds having been previously organized) the pew-holders in the same, being in part members of the First Baptist Society and in part of the First Universalist Society, entered into an agreement as to the occupation of the house for five years, from Feb. 2, 1887, with an agreement as to the further occupation at the expiration of said term. The conclusion of the agreement is in these words: “ Now, therefore, we the undersigned, being pew-owners in said house, do hereby covenant and agree, each with the other and the societies aforesaid, that to' the extent of our influence and abilities, we will cause the above agreement to be carried into full effect and execution,” etc. This contract, it will be perceived, was a contract between individuals and binding on them, and not on the two parishes of which they were members.

On the first of March, 1849, the plaintiffs and the First Univer-salist Society made an agreement as to the occupation of the plaintiffs’ house by them respectively, for the full term of ten years, in which is the following clause: “ The above agreement is to settle all disputes by and between the said societies in relation to the occupancy of said house for the full term of ten years from the date above, and nothing in this agreement is to disturb or vary the title, claim, or privilege that either of the societies has or may have in the property of said house.”

After the year 1850 the records of the Universalist Society do not show any meetings of its members for the choice of officers.

Upon the petition of B. Davis and others (of whom the defendant was one), a warrant was duly issued calling a meeting qf the petitioners, at the Leeds Centre meeting-house, on the 18th of January, 1869, to organize a religious society to be known as the First Universalist Society in Leeds. The petitioners met at the time and place appointed and organized said society in due form of law, and admitted certain persons as members.

It will be perceived that the society, organized in 1869, is a new one, and has no connection with, nor rights derived from, the preceding society, which bore the same name; and that the plaintiffs have not parted with their interest in and title to the land purchased by them in 1806 and the building erected by them thereon. The plaintiffs, therefore, are entitled to maintain an action for any trespass upon their estate.

The acts complained of are not denied, but the defendant justifies as a pew-holder, and under certain proceedings had by virtue of R. S. 1857, c. 12, §§ 30, 31, 32.

As a pew-holder, the defense fails, for the acts done were not in pursuance of his rights as such.

•Nor can the defense be sustained under any of the provisions of the statute upon which it is based.

By R. S. 1857, c. 12, §' 30, “ when a house of .public worship is owned by persons of different denominations, and when an organized society, or its members, own five pews therein, one or more of the minority, owning not less than five pews, may apply to a justice of the peace and quorum, to obtain a division of the time of occupying the house ; and he shall call a meeting of the owners, by posting up a notice in a public place, in or about the house, thirty days at least before the meeting, stating the time, place, and object.of the meeting.”

Two conditions must co-exist before there can be any legal action under the provisions of this and the following sections: (1) there must be á house of public worship owned by persons of different denominations; (2) in such house, so owned, an organized society or its members must own at least five pews.

Now, in fact, neither of these conditions exists. (1) The house is not owned,. “ by persons of different denominations.” It was built and is owned by the plaintiff corporation. The interests of the parish and of the pew-holders are different and distinct. The pew-holder may own his pew and thereby have an easement in the house, but he in no way can be regarded as owning the house in which his pew is.

■ (1) Neither does any organized society, or its members, own five pews or more therein; that is, “ in a house of worship owned by persons of different denominations ;” for it will be observed, it is only to a case of ownership of pews in a house so owned that this section applies. It does not apply where the title is in the corporation, for when one has been organized in pursuance of the previous sections of c. 12, “such corporation by a major vote of its members may use and control the meeting-house or building for public worship, partly or wholly owned by them, as they please,” etc., § 29. • Defendant defaulted.

Kent, DicKERSON, Danforth, and Tapley, JJ., concurred. Walton, and Barrows, JJ., did not concur.