The character of the rights enjoyed by the holder of a church pew has been the subject of numerous decisions in this country, which are, however, not entirely harmonious in character, and are frequently unsatisfactory in their discussion of the principles involved.83d In England, there may be an easement, consisting of the privilege of occupying a particular pew in the parish church, annexed to a particular house or messuage, this apparently not differing in nature from any other easement, the house or messuage constituting the dominant tenement,

83. Post, Sec.Sec. 361-380.

83a. See 2 Lewis, Em. Domain, Sec.Sec. 451, 468; Elliott, Railroads, Sec. 938.

83b. See e. g. Bale v. Todd, 123 Ga. 99, 50 S. E. 990; Teachout v. Capital Lodge, 128 Iowa, 380, 104 N. W. 440; Gates v. Sebald, 180

Mich. 578, 147 N. W. 481.

83c. Ante, Sec. 51 (d), note 97.

83d. See Article by Carl Zoll-man, Esq., "Pew Rights in American Law," 25 Yale Law Journ. 467, incorporated in "American Civil Church Government, ch. 15, by that author.

And the church the servient tenement.84 In this country it. is generally recognized that a "pew holder" is not, as such, a part owner of the church edifice, or of the land on which it stands, these belonging usually to the ecclesiastical authorities, the church corporation, or trustees.85 He is sometimes said to have an easement or "incorporeal hereditament,"86 but if he has an easement, it is an easement in gross, since in this country a pew is never appurtenant to a particular house or messuage. Pews have also been said to be "real estate,"87 but this can be so only when one's interest is, as regards its possible duration, equivalent to an estate of freehold. If one's interest in a pew is

84. Hinde v. Chorlton, L. R. 2 C. P. 104; Brumfitt v. Roberts, L. R. 5 C P. 224; Phillips v. Halliday

[1891] App. Cas. 228.

85. First Baptist Soc. in Leeds v. Grant, 95 Me. 245; Re New-south Meeting House in Boston, 13 Allen (Mass.) 497; Sohier v. Trinity Church, 109 Mass. 1; Jones v. Towne, 58 N. H. 462, 42 Am. Rep. 602; Presbyterian Church in Newark v. Andruss 21 N. J. Law, 325; Freligh v. Piatt, 5 Cow. (N. Y.) 494; Trustees of Ithaca First Baptist Church v. Ligelow, 16 Wend. (N. Y.) 28; Wheaton v. Gates, 18 N. Y. 404; First Baptist Church in Hartford v. Witherell, 3 Paige (N. Y.) 226, 24 Am. Dec. 223; Kincaid's Appeal, 66 Pa. St. 411, 5 Am. Rep. 377; Howe v. Stevens. 47 Vt. 262.

86. First Baptist Soc. in Leeds v. Grant, 59 Me. 245; Presbyterian Church in Newark v. Andruss, 21 N. J. Law, 325; Gamble's Succession, 23 La. Ann. 9. See Washburn, Easements, 682.

It has been occasionally stated, rather ambiguously, that the "owners of pews have an exclusive right to their possession and occupation for the purposes of public worship, not as an easement, but by virtue of their individual right of property therein, derived, perhaps, in theory at least, from the corporation represented by the trustees who are seised and possessed of the temporalities of the church." Shaw v. Bever-idge, 3 Hill (N. Y.) 26, 38 Am. Dec. 616; O'hear v. De Goes-briand, 33 Vt. 606, 80 Am. Dec. 652.

87. Price v. Lyon, 14 Conn. 280; Attorney General v. Proprietors of Federal St. Meeting House, 3 Gray (Mass.) 1; Kimball v. Se--ond Congregational Parish in Rowley, 24 Pick. (Mass.) 347; Trustees of Ithaca First Baptist Church v. Bigelow. 16 Wend. (N. Y.) 28; Viele v. Osgood, 8 Barb. (N. Y.)130; Howe v. Stevens, 47 Vt. 262; Barnard v. Whipple, 29. Vt. 401, 70 Am. Dec. 422.

1252 Real. Property. [Sec. 359 limited to a term of years, or is "from year to year," it would seem to be at most personal property merely.*8 Frequently, if not ordinarily, at the present day, especially in church edifices of recent construction, a pew holder, so called, would appear to be in the position merely of a licensee, he paying so much periodically for the privilege of occupying the pew.

As to the rights of the person entitled to use a pew, upon the destruction of the church edifice or the sale thereof, the cases are not in entire accord. The view more generally adopted is that the church corporation or trustees are liable to him for the value of his right if the building is destroyed or sold without an absolute necessity for such action, while there is no such liability in case such necessity exists.89 There are occasional suggestions that the pew owner would have a right to be allotted a pew in a new edifice substituted for the old.-90

- Burial rights. The privilege of interring bodies in a burial ground belonging to a corporation or association,90a has been referred to as an easement,91 as a usufructuary right,92 and as a license.93 The question of the nature of the interest of a lot holder, as he is frequently termed, is dependent primarily upon the intention manifested by the instrument by which it is created or evidenced, and the nature of such instrument. It may occur that a lot is conveyed outright to one for burial purposes, he acquiring an estate there in to endure so long as it is used, or capable of use, for burial purposes.94 This, however, is unusual.

88. See Mcnabb v. Pond, 4 Bradf. (N. Y.) 7; Johnson v. Cor-bett. 11 Paige (N. Y.) 265, 276; Inhabitants of First Parish v. Spear, 15 Pick. (Mass.) 144; Trustees of the Third Presbyterian Congregation v. Andruss, 21 N. J. Law, 325. In Pennsylvania, the right to a pew is considered to be personal property. Church v. Wells' Ex'rs, 24 Pa. St. 249. And so by statute in Massachusetts. Rev. Laws 1902, c. 36, Sec. 38; and New Hampshire Pub. Stat. 1901 ch. 220, Sec. 14.

89. Gorton v. Hadsell, 9 Cush. (Mass.) 508; Sohier v. Trinity Church, 109 Mass. 1; Wheaton v

Gates, 18 N. Y. 395; Cooper v. Trustees of First Presbyterian Church, 32 Barb. (N. Y.) 222; Mayor v. Temple Beth El, 52 N. Y. St. Rep. 638, 23 N. Y. Supp. 1013; Kincaid's Appeal, 66 Pa. St. 411, 422; Kellogg v. Dickinson, 18 Vt. 266.

90. Daniel v. Wood, 1 Pick. (Mass.) 102; Mayor v. Temple Beth El, 52 N. Y. St. Rep. 638, 23 N. Y. Supp. 1013.

90a. As to the nature of a right of interment in land belonging to an individual, see Woolridge v. Smith, 243 Mo. 190, 40 L. R. A. (N. S.) 752, 147 S. W. 1019; Hines v. State, 126 Tenn.

A privilege of interring bodies in a cemetery lot has been regarded as passing by descent.95 Whether it could ordinarily be devised or transferred inter vivos to persons outside the family would appear to depend on the provisions of the instrument under which it is held and the regulations of the cemetery corporation or association.96

1, 42 L. R. A. (N. S.) 1138, 149 S. W. 1058. See also as to private burying grounds within the confines of another's land. Brown v. Anderson, 88 Ky. 577, 11 S. W. 607; Mitchell v. Thome, 134 N. Y. 536, 30 Am. St. Rep. 699, 32 N. E. 10.

91. Hook v. Joyce, 94 Ky. 450, 21 L. R. A. 96, 22 S. W. 651; Jacobs v. Congregation Children of Israel, 107 Ga. 518, 73 Am. St. Rep. 141, 33 S. E. 853; Richards v. Northwest Protestant Dutch Church, 32 Barb. (N. Y.) 42, 20 How. Pr. 317.

92. Buffalo City Cemetery v. City of Buffalo, 46 N. Y. 503; Windt v. German Reformed Church, 4 Sandf. Ch. (N. Y.) 471; Price v. Methodist Church, 4 Ohio 415.

93. Dwenger v. Geary, 113 Ind. 106, 14 N. E. 903; Partridge v. First Independent Church, 39

Md. 631; Rayner v. Nugent, 60 Md. 515; Gowen v. Bessey, 94 Me. 114, 46 Atl. 792; Page v. Symonds, 63 N. H. 17, 56 Am. Rep. 481; Mcguire v. Trustees of St. Patrick's Cathedral, 54 Hun (N. Y.) 207; Kincaid's Appeal, 66 Pa. St. 420, 5 Am. Rep. 377.

94. Lakin v. Ames, 10 Cush. (Mass.) 198; Silverwood v. Lat-robe, 68 Md. 620, 13 Atl. 161; New York Bay Cemetery Co. v. Buckmaster, 49 N. J. Law 449, 9 Atl. 591; Matter of Brick Presbyterian Church, 3 Edw. Ch. (N. Y.) 155.

95. Jacobus v. Congregation Children of Israel, 107 Ga. 518, 73 Am. St. Rep. 141, 33 S. E. 853; Matter of Brick Presb. Church, 3 Edw. (N. Y.) 155; Gardner v. Swan Point Cemetery, 20 R. I. 646, 78 Am. St. Rep. 807, 40 Atl. 871.

96. See Pearson v. Hartman,

The corporation or society controlling the cemetery may make regulations as to the mode and limits of the use of lots therein for burial,97 but such regulations must not be unreasonable or arbitrary.98 All rights in the persons entitled to use the burial ground are terminated by the necessary abandonment of the use of the land for burial purposes.99

In so far as the person to whom the privilege of burial is granted, has no more than an easement or usufructuary right, he does not have the possession of the burial lot.1 Somewhat strangely, however, it has been decided or assumed, in several cases, that he may maintain trespass quare clausum fregit against one interfering with his right.2