than eight acres of land. The conveyance itself expresses that it is made agreeably to the provisions of the Act of February 6, 1730, 1 Sm. L.

SAINT PAUL'S REFORMED CHURCH OF 193, authorizing Protestant religious societies to

BETHEL TOWNSHIP v. HOWER et al.

Where there is a division in a church or other organiza.

tion that ought to be a unit, the test of legitimate

social succession is which of them has maintained the regular forms of organization according to the laws and usages of the body, or, in the absence of these, according to the laws, customs and usages of similar bodies in like cases, or in analogy to them. Where a church congregation divides, the title to the property is in that part of the congregation that is in harmony with the laws, usages and customs as accepted by all of them before the division and who adhere to the regular organization.

A congregation resolved to build a new church but took no action on plans submitted. Subsequently a minority set apart and fenced a small portion of the church lot and erected a church costing $15,009. No objection was made by the majority for ten years. Held, that the majority, having knowledge that the minority believed in their right, were estopped from recovering the land in ejectment.

take conveyances of land for religious and burial purposes. The evidence indicates that those holding to the creed of the Reformed Church and the Lutherans worshipped together, without friction, in the little church building first erected by their joint contributions and efforts for about fifty years. It then became necessary to erect a new and larger building. At this time, by agreement, two distinct religious bodies, one Reformed and one Lutheran, were organized; these occupied the church separately, neither to the exclusion of the other, but so arranging their services as to dates that there was no interference. This continued for about sixty years. The nature of this union of members in one congregation, with a severance of creed, is perhaps best indicated by article 2 of what is called the proclamation of 1827, thus:

"Article 2. Each congregation elects its own pastor, and if the one or the other side elects a pastor, the other side must be satisfied, namely, so long as the procedure is in accordance with the regulations of our forefathers and in accordance with the word of God, and in accordance with the regulations of the Evangelical

Appeal of St. Paul's Reformed Church of Bethel Township, formerly called "Klopp's Church," plaintiff, from the judgment of the Court of Common Pleas of Lebanon county, in an action of ejectment brought against George Hower and others, to recover a lot of land in Bethel township. The facts appear by the opinion of the Reformed and of the Evangelical Lutheran Supreme Court, infra.

Church; also, in no case shall a minister be

The court gave binding instructions for de- accepted for ministrations in this church who fendants. is not a member of either of the aforesaid Lutheran or Reformed synod."

Verdict and judgment for defendants; whereupon plaintiff appealed, assigning for error the above instructions.

Those adhering to the Reformed creed were probably greater in numbers and wealth than

For appellant, Cyrus G. Derr and J. M. the Lutherans. This joint occupation of the Funck.

Contra, George B. Woomer.

Opinion by DEAN, J. Filed May 8, 1899. About one hundred and thirty-two years ago a small Christian congregation, made up of German Protestants and Lutherans, established the "Reformed Church of Bethel Township in Lebanon County." On November 13, 1767, John Fox and others conveyed to trustees for this Reformed church, a tract of a little more

church continued from 1827 until 1882. Population had increased, and with it the membership of both sects, so that the second church building was insufficient. A congregational meeting was held February 17, 1882, and it was determined by a practically unanimous vote to erect a new building. To this end, a building committee was appointed who, on March 10, following, reported to another union meeting, loca tion, plans and details for the new church. These were discussed, but nothing definite was

holding distinct creeds, there was nothing in the original contract which made it perpetual; if the Reformed thought best to separate from the old organization and erect a new church with a separate congregational government, they had the right so to do; especially, as there was land enough for both without interference, and they did not disturb the old property, but left it to the free use of those who adhered to the old organization. He thereupon directed the jury to find for defendants. The burden of appellants' complaint before us is the opinion of the court as to the law, and the peremptory instruction to the jury.

The uncontradicted history of the church from 1767 to October 28, 1825, shows, by the interpretation of the parties, that the land was intended to be conveyed to and occupied by a union congregation composed of Reformed and Lutherans. Although the cestui que trust in the original deed was the "Reformed Church in Bethel," nevertheless, one of the trustees was a Lutheran, and the occupation thereafter to 1825, by common consent, was by those holding to both creeds. Then, on the date mentioned, a paper duly executed by the Reformed members was placed among the archives, declaring thus:

agreed upon. Delay followed; the members of the Reformed body became impatient and irritated at the delay, and and on February 13, 1884, | at a meeting of that particular part of the old congregation, it was resolved to build a new church themselves, and permit the use of it by the Lutherans, if the latter contributed $2,000❘ towards the cost. While the Lutherans did not | formally reject the offer, they did not accept it; they said nothing. The Reformed body, then, on July 12, 1884, by a vote of sixty-seven to fifty-three, resolved to build a new church for themselves; the minority went back and acted thereafter with the Lutherans, and together they remodeled and repaired the old church; the majority or the Reformed body went upon the extreme end of the eight-acre tract, upon about three-fourths of an acre erected a church building costing about $15,000. In that new building they have continued to worship as a separate body, and have been recognized by the classis of the Reformed Church as the regular | St. Paul's Reformed congregation. The Lutherans, and those of the Reformed body who adhered to the old organization, have continued to occupy the old but remodeled church as before the separation. The land appropriated for the new building is well marked by a fence, and the distance between the two churches is such that neither congregation in its services interferes with the other. Those who built the new church, after recognition by the church authorities as the Reformed Church, laid claim | to all the land upon which were both buildings, and undertook to assert their claim in equity proceedings, which claim, after full hearing, was defeated and the bill dismissed. Almost ten years afterwards, the old organization brought this ejectment to oust the Re-Reformed and Lutherans, with the understandformed body from the possession of the threequarters of an acre of land and the new building. The plaintiffs claimed at the trial in the court below, that the history of the organization | from the beginning, and especially the paper called the "Proclamation," must be regarded as determining the fundamental law of this particular organization; that under it all questions concerning the property must be decided by a vote of the members acting together in joint assembly; that, as those building the new church were but a minority of the whole, and as the majority did not concur, the minority must be treated as seceders from the organization and intruders upon the church land. The learned judge of the court below, while not expressly negativing this propostion, nevertheless held that, as the old organization contained two distinct elements, Lutherans and Reformed,

'Know all men by these presents, That we the undersigned, members of the Reformed Church, or the so-called Klopps Church, situate in Bethel township, Lebanon county, have given, for ourselves and our posterity, to the Lutherans in the same neighborhood and vicinity and their posterity a full right to aforesaid church, school house and land, the same as the Reformed have, so that it shall in the future be a union church, for all future time between the

ing that the services of both denominations shall not be held at the same time, but every. thing shall be kept up by the aforesaid denomi nations."

Then, following this, on April 29, 1827, when the corner stone of the new church was laid, the document called the "Proclamation" was formally executed by the building committees and elders of both creeds. This sets forth in full a standard of Christian doctrine in which both concur, being wisely silent as to that wherein they differ; then follow three articles, the second as heretofore quoted, which embody the fundamental law of government for the union church, thus:

"Article 1. Both the Lutheran and Reformed congregations have bound themselves together to erect jointly the St. Paul's Church, and that both sides shall have equal shares and rights.”

Here follows article 2, already quoted; then article 3: "In all lawful elections and decisions it shall at all times be left to the majority of votes whereunto each member obligates himself to agree and to be satisfied with that which the majority of votes decides so long as it is done in accordance with proper order."

ground, which would be embraced in defendants' fifth prayer for instruction, viz.: "That, under all the evidence in the case, the verdict should be for defendant." The defendant set up a claim of right, as the Reformed congregation, to the property; they set apart by metes and bounds and fenced three-fourths of an acre Under this law the organization continued of the land for a new church; proceeded to down until the commencement of this strife in build upon it a church costing about $15,000; 1882, of which the present suit is the culmina- were about two years in building it, for it was tion. It is clear, in fact undisputed, that de- not completed until some time in the year 1885; fendants are not only a minority of the union that building they have ever since occupied congregation, but also are only a part of the Re- without legal objection on part of plaintiffs, formed body. A decided majority of the mem- until the institution of this ejectment. The debers did not concur in the building of the new cree in the bill in equity in which defendants church, though when the first vote on the policy asserted claim to all the property did not adjuof building was taken nearly all favored it. Indicate their right of occupancy of the three-quarerecting it at that time and in that place, by ters of an acre, for they sought to sustain that plain implication, the minority violated the claim as owners of the legal title, which they fundamental law of the organization which were not, and the bill was properly dismissed. owned the land, and of which organization they Besides, these plaintiffs were not parties to that were members. In McGinnis v. Watson, 41 Pa. | bill, and were not the movers in denial of the 15, we held, in case of a divided congregation, new church's right. We have, then, the case that, "That part of it which is acting in har- of parties honestly believing they have title to mony with its own law must be approved and land, continuing for months in the construction sustained by the State law. The title de- of a costly and conspicuous building upon it, pends upon the legitimate, orderly and regular before the eyes of the real owner, with full maintenance of the organized congregation or knowledge on his part that their conduct rests succession of associated owners." In Kerr v. on a belief in their right; yet he stands by for Trego, 47 Pa. 296, we again held as follows: more than ten years without any legal assertion "On the division of a body that ought to be a of his right. For, notice the inception of the unit, the test of which represents the legitimate, proceedings. The whole congregation resolves social succession, is, which of them has main- to build a new church; the committee prepare tained the regular forms of organization accord- the plans, but the congregation as a whole does ing to the law and usages of the body, or, in the not act upon them; then the minority, the nomabsence of these, according to the laws, customs inal beneficiary in the original deed, proceed and usages of similar bodies in like cases, or in to set apart so much of the ground as is necesanalogy to them? This is the uniform rule in sary for the new building; then they invite the such cases. It is always applied in the case of others to contribute a small part of the expense; church divisions, and was so applied by us although a meeting of those thus invited was three times last year." And in the very late held, and the proposition was discussed, no case of Krecker v. Shirey, 163 Pa. 551, in an opin- action was taken. Now, ten years afterwards, ion by our late Brother WILLIAMS, an opinion the plaintiffs seek to eject defendants, and, most amply vindicated by both reason and au- | although occupying the old church with more thority, we held: "The title to the church prop- than seven-eighths of the land undisturbed, they erty of a congregation that is divided is in that seek to appropriate the $15,000 church of defendpart of the congregation that is in harmony ants. We are aware that as a general rule, the with its own laws, usages and customs as mere silence of the owner of the legal title will accepted by the body before the division took not estop him from asserting it against an inplace, and who adhere to the regular organiza- truder; but there is more than mere silence tion." here; there is a participation by the owner in the original proceedings to build; then silence, while defendants expend their money under an open assertion of right and apparent acquiescence by the owner for years in their claim. It is not our business to pass on the religious aspects of this dispute, but it is our business to determine whether, under the circumstances,

While we are satisfied that, by the judgment of the learned judge of the court below, the substantial justice of the dispute was reached, we do not think it can be sustained on the reasons given by him, without running counter to the settled law of the Commonwealth. But, we are of opinion, it can be sustained on another