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their wishes into effect, the pew door being locked, and the key in the possession of a person who does not reside in the parish.
Dr. Lushington will therefore please to advise, 1. Whether Mr. can legally hold two pews in the body of the parish church of
2. Whether, in the event of his being entitled to hold two such pews, he can prevent the parishioners from occupying that pew which he does not use himself, and whether he be justified in keeping the pew door locked.
3. Can the churchwardens or curate justify the breaking open of the pew door, so as to accommodate the parishioners and others attending the church, and if not, what steps should be taken to secure to the parishioners the use of the pew?
4. There being a gratuitous lecture given in the parish church of on the Sunday evening, which is numerously attended; will the authority of the churchwardens and curate, as to such lectures, extend over the whole of the church, so as to enable them to seat the persons attending the lecture in the pews which are kept locked by the owners, such owners being absent from the church, and seldom attending the lectures.
The only question in this case is, whether the pew in question be
appurtenant by prescription to Mr. 's house in the parish, or held by faculty. There may be two pews legally appurtenant to one house by prescription or faculty. If the owners or occupiers of Mr. 's house have, from time whereof memory is not to the contrary, held and enjoyed this pew as appurtenant to the house, or have had a faculty, then I am of opinion that this pew
remains the exclusive property of Mr. though his servants occupy another
pew, and that he cannot in any way be disturbed in the exclusive possession of it. On the other hand, if there be no prescription or faculty, Mr. can have only a possessory right, and it is, under the circumstances stated, competent to the churchwardens to remove him and place other parishioners in the pew. It is impossible for me, on this statement, to say whether Mr.
has or has not a prescriptive or faculty right to this pew, a prescriptive right especially depends on many facts, long exclusive enjoyment, and repairs, &c. If Mr. has that right, the churchwardens cannot open his pew, at any time, for the use of others, neither at ordinary services nor lecture. The curate has no authority at all in the matter by law.
If Mr. has no prescriptive right or faculty, the churchwardens ought to give him notice that he must no longer continue to keep this pew, and they should direct other parishioners to sit in it. If he persists in keeping it locked, the safest course is to proceed against him in the ecclesiastical court, for if Mr. should really have a prescriptive right, and the church wardens break the lock, they would be liable to pay damages.
As to the general question, all pews held by prescription or faculty are exclusive possessions, and the church wardens cannot interfere. With respect to others, if the occupiers are absent, I
think they may be used for the parishioners. Doctors Commons.
CASE submitted to Dr. Arnold.
The church of is an ancient parish church. The whole of the present auditory part is pewed, leaving no free sittings elsewhere than in the aisles and passages, (behind some of the pews) wherein three or four hundred persons may sit. The pews are 216 in number, and contain, upon a rough calculation, about 1374 sittings, and all of them are the private property of individual inhabitants of the parish, some of whom hold by prescriptive right, as appurtenant to, and having been built or repaired, and, for time immemorial, occupied by the tenants of particular messuages in -; others are held by faculties granted by the ordinary to the present possessors; and others are held by a mere possessory right, and unattached to any particular messuages, having been derived by purchase from former owners, or by succession to, and representation of, the ancestors of the former occupiers, who held by the same sort of title. The population of amounts to about comprising probably 1700 families, of which 216 alone are accommodated with pews in the church, leaving about 1500 families without any other accommodation than what the aisles or passages afford, and these, has been before statéd, do not contain more than from 3 to 400 sittings. These calculations, it will be observed, are made with reference to the present auditory part of the church, for although the choir is capable of containing nearly as many persons as are now in the present auditory part of the church, it seems to be quite clear that the choir cannot be used with any possibility of advantage as an addition to the present auditory part of the church, for if the choir were to be pewed without the reading desk and pulpit being removed into it, very few persons there could hear divine service, and scarcely any the sermon: and if the reading desk and pulpit were removed into it, the present auditory part would, for the same reason, be rendered useless and be abandoned.
The parishioners were at one time anxious to have had a chapel of ease built by the Commissioners for the Erection of New Churches, and application was made to them for that purpose, but upon more mature consideration of the capacity afforded by the present church for very extended accommodation to the parishioners, and of other circumstances, they deemed it right to abandon their application, and to turn their attention to the repewing and enlarging of the church in its present auditory part, for which purpose the church wardens have procured and submitted to the parish several plans, by which it seems that an acquisition of from
sittings may be obtained beyond the present number. The parishioners, however, will enter into no measure which will bring into question, or tend to disturb any of the possessory or other existing rights to the present pews or sittings in the church,
without the consent of the respective owners thereof. In order to effect the desired improvement, the whole auditory part must be repewed ; and persons who have at present prescriptive titles, which are in fact a freehold in them as appurtenant to their respective houses, and are good even against the ordinary; and others, who hold under faculties granted to them by the ordinary, (and who, perhaps, sed quere, hold by a title also paramount to the ordinary) must, in making the new arrangement, be compensated for their present pews, by others situated in a different part of the church, for although in some instances they may have pews given to them on the very site of those they at present enjoy, yet the removal of the reading desk or pulpit, or other circumstances, may deteriorate their present pews, and make it necessary, in justice to them, to place their new pews elsewhere. It is considered very desirable to avoid, if possible, the interference of the ecclesiastical court in carrying into effect these proposed improvements, for which it is scarcely necessary to add there is the most urgent occasion; because that court may choose to interfere, of its own authority, with the mere possessory rights, which the.parish, in an honourable feeling, would by no means bring into question, and although under a faculty for repairing the church, those to whom seats would be allotted in lieu of pews, which they at present hold by faculty, might be said to possess their new seats by a title of equal value to that which they had abandoned, yet it is feared that those who hold at present by title paramount to the ordinary, viz., by prescription, would, unless they were placed on the very site of their present pews, have exchanged their indefeasible title for one held only for the life of the possessor, and under the ordinary. On the other hand, it is apprehended that if the parish proceed, by consent among themselves, and without a faculty for allotting the new pews, not only those who at present have prescriptive rights, but those who have faculties, would in all cases, where their new pews were not upon the site of their old ones, hold them by the very precarious title of mere possession, with the advantage it is true of such an equity in their favour, in case of dispute, as might procure them faculties to their seats ; but even those who had prescriptive rights, perhaps, could not procure faculties annexing the pews to their respective houses to the full extent that their present pews are so annexed. As a step preparatory to the owners of the pews being applied to, to consent to the projected alterations, the churchwardens are desirous to know what prospect of security (and to what extent) they can hold out to the owners of pews, with reference to the title by which their new seats may be assured to them, and supposing a faculty could be obtained for annexing the pews to houses where they are given in lieu of others so annexed, it is important to know also, whether the ordinary would consider the consent and admission of the parish as sufficient evidence of such prescriptive title, for as these particular rights are in derogation of the principle and policy of the law, and are always considered in stricti juris, the ordinary might perhaps raise difficulties on this head, if faculties to annex the seats in question to particular houses were applied for. “It is a common error to suppose that by mere occupancy pews become annexed to particular houses; in country parishes the same families occupy the same pews for a long time, but I apprehend they still belong to the parish at large.”
“The uniform and exclusive possession of the inhabitants of a particular messuage, connected with the burthen of maintaining and repairing the seat, is evidence sufficient to establish a prescriptive title.” (1 Phill
. 329.) “Linings and cushions are ornaments not repairs." (331.) “A right paramount to the ordinary itself, namely, a faculty, by which the ordinary has parted with the right.” (Pettman v. Bridger, 1 Phil
. 324, per Sir J. Nicholl.) “A prescriptive title cannot be altered by any authority, nor the possessory title by the churchwardens alone, though it may be by the ordinary." "(Per Sir W. Scott, Groves and Wright v. Rector of Hornsey, 1 Hagg. 195.) Another difficulty which might result from calling in the aid of the ordinary is this, There are several gentlemen inhabitants of the town, each of whom is the owner of several pews, which they have acquired by purchase or otherwise, for the purpose of accommodating the tenants of several houses in the town, of which they are also the owners, but to which the pews are not legally attached. Now in a distribution of pews under the authority of the ordinary, it is apprehended that he will not permit more than one pew to be allotted to each of these gentlemen, and as their tenantry are a fluctuating body, it follows that if the pews were allotted to the present occupants of their houses, those pews would, upon a change of occupancy, be lost to the owners of the houses, and their succeeding tenants be left without pews, although considerable sums have been given for them in order to accommodate their tenantry. Under all the circumstances the churchwardens are directed by the parish to take legal advice as to the means of giving the present owners of pews as good and valid a title to the new pews which may be allotted to them, as they now have to the pews in respect of which such allotments might be made. And the churchwardens are also desirous of being enabled, by your opinion, to give such further information to the parishioners, upon the general practicability and best mode of carrying the desired alterations into effect, as may the better enable the parish to determine thereon.
You are therefore requested to advise, 1. By what title and in what manner can new pews be allotted and
secured to the prescriptive owners of pews, so as to give them a title equal in legal validity to that by which they hold their present pews. And you are requested to answer the same question as it affects the owners of pews at present held under faculties.
2. Whether, with reference to what was thrown out by Sir J. Nicholl, in Pettman v. Bridger, (1 Phill
. 324) where he adverts to “a right paramount to the ordinary itself, namely, a faculty, by which the ordinary has parted with the right,” persons holding pews by faculties can prevent the repewing of the church, and the removal of their seats. Or whether, for such a purpose, there is not a right inherent in the ordinary to revoke and annul all former faculties which may interfere with the general object of repewing the church.
3. You are also requested generally to advise what, under all the circumstances of the case, would be the best course for the parish to pursue for effecting their object, having strict regard to their determination to respect all possessory rights, and to give a fair equivalent in pews to those who may even be the present owners of two, three, or more pews.
1 and 3. The measure proposed is so very desirable in itself, and
taken up with such proper feelings, that it is earnestly to be wished that it may be met in the same spirit by all parties concerned, and be carried into effect. But I concur in feeling the difficulties which attend it, and which have been so acutely pointed out and so much considered. I am of opinion that so great an alteration in that part of the church which is commonly used for divine service cannot legally and safely be made without the authority of the ordinary by his faculty, for if it were attempted to be done without this, it would be in the power of any person, having an interest in the matter, (and every parishioner and inhabitant seems to have such) and who should take offence or think himself aggrieved, to call the work into question in the ecclesiastical court, even after it had been completed.
I should conceive that it may be presumed that the ordinary would favour so beneficial a work, and would not unnecessarily raise difficulties against it; and that unless there should be something appearing suspicious which should make it his duty to interfere, that he would not call in question the rights which the parish, being the parties interested to oppose them, are inclined to admit. With respect to persons holding pews by good and legal faculties, I think that they may have other pews granted them by the faculty which be obtained for the alterations, which would be held by as good a title, indeed by the same as that by which they hold their present pews, (in such case it would seem proper to insert the consideration for which the new grant is made, that they surrender a former one for general accommodation.) As to those who have full rights by prescription, I cannot venture to say that the ordinary can give them rights in a new pew fully equal to those they have in the old one, even on the consideration of the surrender of the others. But, might not such persons be induced, for public accommodation, to give up some part of their right, and take under the faculty, such title as the ordinary may properly give them, for themselves and their families, whilst they continue inhabitants of the parish. Where one person holds several pews by possessory title only, I do not see that the ordinary can properly sanction such holding, or an equivalent for it; might it not be a consideration for such parties, how far they could maintain their claims if brought into question.
2. I am of opinion that the ordinary has not such a general permanent power as is here suggested, but that persons holding pews with a full prescriptive title, or by faculty duly granted, can main
tain their rights to such against the ordinary. Doctors Commons.
J. V. ARNOLD.