Petty v. Tooker.

This provision looks to a formal application, in each instance, to the corporate authorities for admission into the society; and the trustees may no doubt adopt such regulations that no pew can be rented originally, or sold or assigned to a new occupant, without their previous consent, or even that of the society itself.

If, however, a society, instead of adopting these appropriate and effectual precautions, chooses to throw open its doors to the public at large, and invite in new members, irrespective of their personal character or religious tendencies, they have no reason to complain that the powers and privileges of their new associates, whom they have voluntarily received, and of whose contributions they avail themselves, should be the same as their own.

It follows from these principles, that the change in the religious character of the parish of Bellport has been produced by the exercise by the trustees, and the majority of the corpora tors, of their legitimate powers. The idea upon which the plaintiffs rest the regularity of their election as trustees, viz.: that the defendants and those who elected them, were to be regarded as seceders from the society, has no legal foundation. Seceders from Congregationalism, in a religious sense, they may have been; but this could not disfranchise them as corporators. The corporators are those who can vote at the elections; and their qualifications are, as we have seen, prescribed by the stat ute. If they have been stated attendants upon the worship of the society for one year next before the election, they are enti tled to vote. Nothing else is required; and it is plain that there is no power which can add to these qualifications, or which can properly say to one who possesses them that unless he also adheres to the peculiar faith and governmental forms of the society he cannot vote. Every election at which per-. sons are prohibited from voting upon any such ground is of course illegal. Secession from the doctrines or faith of the ohurch is a purely religious offence, and the ecclesiastical judicatories alone can take cognizance of it.

As between the two elections, therefore, of the 21st and 24th of February, 1852, to which the plaintiffs and defendants

Rose v. Bunn.

respectively trace their title as trustees, there is no doubt which is to be considered as legitimate and regular. It would be dif ficult, under the proof, to discriminate between these two elections, in respect to the regularity of the meetings at which they took place. Each purports to have been called pursuant to the statute; and hence if their proceedings had been properly con ducted, there would have been nothing but the order of time to give precedence to either. But the case shows that at the, election on the twenty-fourth, all those members of the corporation who adhered to the Presbyterian organization were prohibited from voting, on the ground that they were seceders from the society. This is entirely fatal to that election, and no rights dependent upon it can have any validity. No such objection attaches to the election of the twenty-first, and there is nothing whatever to impeach its regularity. The defendants therefore, who deduce their title by regular succession from this election, must be regarded as the legitimate and rightful trustees of the corporation.

The judgment of the Supreme Court must be affirmed.

All the judges concurring,

Judgment affirmed.

ROSE v. BUNN et al.

The qualification of a grant of lands, by the words "grass, herbage, feeding and pasturage only excepted," if not good as an exception or reservation, is effectual tó create an easement in the grantor to enter and depasture the lands.

Where the grantor retains such an easement, and the grantee has the right to plow and plant such arable parts of the tract granted as he may elect, with general liberty to take timber for fencing without restriction to the arable land, and subject to a provision requiring him to leave the lands he may till uninclosed by fences from October to April, the duty of fencing is upon the grantee; and in defect of fences he cannot distrain the grantor's cattle damage feasant.

Rose v. Bunn.

APPEAL from the Supreme Court. The action was in the nature of replevin for the taking of three hundred and twenty sheep. The answer set forth that the defendants, and several other persons named, were possessed of a certain close upon the Shinnecock hills, in the town of Southampton, in the county of Suffolk, and that the sheep mentioned in the complaint were wrongfully upon the said close, eating and destroying the corn there and doing damage, wherefore the defendants, and the other persons, took them as a distress, as they lawfully might, &c.

The parties entered into a stipulation by which it was assumed that the sheep came upon the locus in quo by reason of a defect of fences, and agreed that the only questions to be litigated on the trial should be whether the defendants had a right to plant corn on the premises, and whether, if they did, they were obliged to protect the crops by fences to be maintained by themselves.

On the trial, the plaintiffs gave in evidence a conveyance in fee from certain Indian sachems of the Shinnecock tribe, in behalf of themselves and their people, to the trustees of the town of Southampton, of a considerable tract of land, embracing the premises in question, dated August 16, 1703; and also an instrument called a lease from the grantees in the first mentioned conveyance to the grantors, "and their people" of the same premises. By the last mentioned instrument, the trus tees of Southampton assumed to demise, grant and let to farm the premises aforesaid to the lessees, upon the conditions and provisos afterwards expressed, for a term of one thousand years from the date; the lessees yielding and paying the lessors annually one ear of Indian corn. At the end of the description of the premises, the instrument proceeded: "meadows, marshes, grass, herbage, feeding and pasturage, timber, stone and convenient highways only excepted; with all and singular the privileges and advantages of plowing and planting, and timber for firing and fencing, and all other conveniences and advantages whatsoever, excepting what before is excepted, to the only use and behoof of said Indians, their heirs and successors,

Rose v. Bunn.

&c., provided always the said Indians do not keep nor cause to be kept any part or parcel of the land within fence or enclosed from the last day of October to the first of April, from year to year, during the whole time aforesaid."

Certain parol evidence was introduced to show the practice of the Indians and those having interests under them; from which it appeared that the premises included in the convey. ances consisted in part of salt marshes or meadows, and in part of hills susceptible of cultivation, and that the Indians, and the white people who hired of them, had been accustomed to plant these hills, and sometimes to fence their cornfields and sometimes not to do it. During the season in which the sheep were distrained, the Indians, for the first time in about ten years, planted corn on the premises in several detached parcels, separate from each other, none of which were fenced. They were interspersed among the pasture land. The parcels thus planted were nineteen in all, and of different sizes. The white people have always been in the habit of pasturing the hills with cattle and sheep. It was proved by an aged witness, that they had been accustomed to do so seventy years, to his knowledge. When fences had been heretofore made around the cultivated portions, these inclosures were thrown open on the first day of November.

At the close of the evidence the parties agreed that the jury should be dismissed, and that the judge should decide the case in the same manner as though it had been tried by him without a jury. He subsequently decided the case in favor of the plaintiff; and the judgment thereupon entered was affirmed. at a general term in the second district. The defendants appealed. The case was submitted on printed arguments.

Miller & Tuthill, for the appellants.

William Wickham, for the respondent.

DENIO, J. It is the most favorable position for the defendants to assume that the lease of 1703 inured, according to

Rose v. Bunn.

its terms and obvious intention, to the use of the Shinnecock Indians in perpetuity, or at least during the long term granted, as though they bore a corporate character which would authorize them to take and hold land as a tribe; and I shall accordingly so assume. It might be difficult, however, to maintain that they possessed such a capacity in respect to private grants and conveyances, if the case turned upon that question. The controversy must therefore depend upon the proper construction of the instrument given in evidence, and its legal effect. It contains general words of grant and demise of the whole of the premises contained within the boundaries specified; but these are greatly qualified by what follows. The meadows and marshes were excepted; and they were proper subjects of an exception, according to the technical rules referred to by the defendants' counsel; and so with the timber, stone and highways. It is objected that the "grass, herbage, feeding and pasturage," which are also excepted in terms, being the annual profits of the land, cannot be excepted or reserved to the grantees, such reservation being, as it is argued, repugnant to the grant; and, moreover, that being things not in existence at the time of the grant, they cannot be the subject of an exception. But I am of opinion that the restriction, whether it be called an exception or a reservation, is an effectual qualification of the grant, by which the lessees, by accepting the deed, are bound. The right of the grantors, and those whom they represent, to enter with their cattle to depasture the land-assuming the general title to pass to the lessees-was such a servitude or easement as may be legally created by the acceptance of a deed reserving such rights. (Hills v. Miller, 3 Paige, 254; Child v. Chappell, 5 Seld., 246, 253.) Besides servitudes, or easements as they are now called, may be established by prescription; and it was shown that the rights which the deed professes to create in favor of the lessors, had been continually exercised by the inhabitants of Southampton, for a great length of time. The evidence renders it probable that they had been from the time of the execution of the lease.

Enough has been said to show that the plaintiff, as an