#### Caleb Howard *versus*The First Parish in North Bridgewater.

A parish may take down their meetinghouse in order to rebuild, either as a matter of necessity or of expediency; in the former case they *are*not, and in the latter they are, bound to indemnify the pew-holder for the loss of his pew.

This was an action-on the *case.*The plaintiff, in his *first*count, alleged that he was seised of a pew in the meetinghouse in the parish, and that the defendants, in pursuance of votes of the parish, pulled down the meetinghouse without providing any sufficient indemnity to the plaintiff as a pew-holder. *144The *second*count alleged that the pulling down was an unnecessary, wanton and wasteful act on the part of the parish, the meetinghouse not being ruinous or greatly out of repair, but being a safe, convenient and honorable place of public worship. The defendants pleaded the general issue.

*Oct*21st.

The defence was, that the meetinghouse had become so old and decayed and that the interior was of so inconvenient structure, as to render it necessary and proper to take it down and rebuild, and that the parish was under no legal obligation to provide an indemnity for pew-holders.

Much evidence was introduced by the defendants tending to show that the house was inconvenient, decayed, and unfit to be longer used as a place of public worship. The plaintiff introduced evidence to counteract this, and to show that the pews were valuable to the owners. There was no evidence that the parish acted maliciously or wantonly.

*Morton*J. instructed the jury,

that although, taking into consideration the age, decay and inconvenience of the house, they might be of opinion that the taking it down and erecting a new one, was expedient and commendable, yet that the parish had no right to take it down because it was inconvenient, decayed and out of repair, unless it had become unsuitable for the purposes for which it was erected, without making an adequate compensation to the pew-holders; and that if they were satisfied that the house was, and by moderate repairs would have continued to be, for a considerable time, a convenient and suitable place of public worship for the parish and the pew-holders, and that the pew, as such and for the use and purposes for which it was intended, was valuable property to the plaintiff, they ought to find a verdict for the plaintiff for such sum as the pew was worth ; otherwise they ought to find for the defendants.

The jury returned a verdict for the plaintiff. The defendants excepted to the above instructions.

*W. Baylies*and *Beal,*for the defendants,

said that the parish had a right, when they considered it necessary and proper, to take down the meetinghouse and rebuild. The owner of a pew holds subject to the right of the parish, and when the parish exercise their discretion fairly, not wantonly *145or maliciously, the pew-holder has no remedy for the loss of his pew. In a case where the meetinghouse is rightfully taken down, the law does not authorize the parish to provide an indemnity to the pew-holder. *Gay*v. *Baker,*17 Mass. R. 435 ; *Daniel*v. *Wood,*1 Pick. 102; *Wentworth*v. *First Par. in Canton,*3 Pick. 344, [2nd ed. 347, note 1.]

*Oct. 23d.*

*Wood*and *Eddy, contra,*

referred to the same cases; also to Com. Dig. *Esglise, G*3.

*Per Curiam.*

We have looked at all the cases, and notwithstanding there may be some loose expressions in them of a jontrary tendency, we consider the law to be, that where the meetinghouse is so old and ruinous that the jury will say it was necessary to take it down, there shall be no compensation to the pew-holder ; and that although the parish have a right to take down a meetinghouse which may be in good condition, in order to build one in better taste or of larger dimensions, yet in such case they must make compensation. The instruction to the jury was in conformity with this view of the law ; and we must presume they were of opinion, that the taking down the meetinghouse and rebuilding was rather a matter of expediency than necessity.1

*Judgment according to verdict.*

1

 See Revised Stat. c. 20, § 38.