James Jackson vs. Gamaliel Rounseville & others, 5 Met. 127

Shaw, C. J. This is an action of trespass for breaking and entering the plaintiff’s pews, in a Baptist Meetinghouse in Middleborough. It comes before the court, upon exceptions to the charge of the judge, and on a motion for a new trial because the verdict was against evidence. The verdict was for the plaintiff, with nominal damages.

This case hardly raises any question as to the general rights of the holders of pews in meetinghouses, as the meetinghouse in question, and the land on which it stands, are held under an indenture of four parts, very elaborately drawn, the general tenor of which is, that the premises shall be held and improved, for the use of a baptist meetinghouse, for public worship only. The first question discussed was, whether an action of trespass quare clausum fregit will lie in such case.

So long as pews are considered in point of law as real estate, as they are in this Commonwealth, except in the city of Boston, we can perceive no reason, why the actual form of action, given by the common law, to redress a wrong done to the- right of possession of real estate, is not the legal and proper remedy. We are of opinion that the charge, in that particular, was correct. Gay v. Baker, 17 Mass. 435. Rev. Sts. c. 60, § 31.

Whether in legal right, in parishes and religious societies constituted in the usual way, the society has authority, by their committee or otherwise, to lend the use of their meetinghouse, and whether, in such case, the use of the house extends to the use of the pews, to the exclusion of the owners, for such an occasion, is a question which we think is not raised in the present case.

It has been the practice in various parts of the Commonwealth, and especially in the city of Boston, for religious societies to lend the use of their houses to the government, for the annual election sermon, and to various societies and philanthropic associations, to hold meetings for various purposes ; and upon such occasions it has been usual for the body or association, to whom the house is lent, to control the use of the pews, without regard to the particular owners.

Perhaps loans of the use of houses of worship may be resolved into a mere practice of courtesy on the part of religious societies, and of voluntary acquiescence, amounting to an implied license on the part of pew owners, not affecting the legal rights of either. And perhaps it is more for the harmony and well-being of society, that the practice should stand on considerations of liberality and courtesy, than to discuss the question of strict law; at least until a case occurs, which requires it.

In the present case, there was conflicting evidence, both as to the authority of the committee, and as to the point whether, if they had that authority, they had duly exercised it, and as to the proceedings on the part of those to whom it was given. The evidence was left to the jury, under instructions from the court, in point of law, sufficiently favorable to the defendants, and we can perceive no legal ground, upon which they can claim to set aside the verdict, for any misdirection in matter of law.

As a verdict against the weight of the evidence, the court are of opinion, that the motion to set it aside cannot be sustained. Judgment on the verdict.