[Page 181]
Province of Quebec it is not so held, and according to the common law prevailing anywhere in the Dominion, it may be
held in the names of trustees (as in this case) for the benefit of any church
designated. An ordinance passed in 1898 by
the North-West Territorial legislature
so provides in express terms. The Greek Catholic Church cannot mean the
"Greek Orthodox Church" first mentioned in the requisition for the permit to build, and subsequently changed
in the title to "Greek Catholic
Church." The very fact that the
two names are used shews that they cannot mean one and the same church and the evidence establishes that they constitute two different bodies.
The letter of the Dominion lands agent to the Department, of the 25th May, 1898, cannot supersede the
certificate of title.
For these reasons I
have come to the conclusion that the appeal should be dismissed with costs.
Davies J.—This case
arose out of a dispute between
rival bodies of Galicians residing in a settlement
called Star, N.W.T., as to the religious uses and purposes to which the church
built by them in that settlement should be
dedicated.
The plaintiffs, who
sued on behalf of themselves and other members of the congregation of the church, claimed an injunction restraining the
defendants in whose names, as trustees, the church
premises stood, from using or permitting the church to be used for religious
purposes and uses other than those in communion with and under the jurisdiction
and control of the Roman Catholic Church.
The judgment or decree from which this appeal is
taken adjudged the lands of the church
erected there on to be
[Page 182]
the property of that branch of the Greek
Church and which is united with the Roman Catholic church and which may be
properly designated as the United Greek Catholic Church.
The defendants contested the suit on the ground
that the people who built the church and obtained the patent for the lands had,
before or at the time they began to build the church and afterwards when they
obtained their formal patent for the lands, severed any connection they may
have had when in Galicia with the Roman Catholic Church, and repudiated being
subject to the jurisdiction and authorities of that church, claiming to be
united with and subject to the jurisdiction of the Greek Catholic Orthodox
Church, the bishop of which, in North America, has his seat in San Francisco.
Although the question incidentally arises it is
not necessary for us to decide whether the church and premises in dispute are
subject to the jurisdiction of the Bishop of the Greek Catholic Orthodox Church
or not. The sole question necessary for us to determine is whether or not they
are united with and subject to the jurisdiction of the Roman Catholic Church.
If they are not the appeal must be allowed and
the action dismissed.
The facts are very voluminous, and complicated,
and rendered more difficult properly to appreciate and decide because of the
singular and unique position in which the church to which these people belonged
in Galicia stood towards the Roman Catholic Church in that country, and also
because the witnesses with rare exceptions gave their evidence through interpreters,
many of the witnesses understanding the English language very little, and most
of them not at all; while the great bulk of them were almost totally illiterate
and ignorant.
[Page 183]
It is clear beyond any doubt that the Russo Greek
Catholic Orthodox Church as such was prohibited for political reasons in
Galicia by the Austrian Government, and that the church which was permitted and
did exist in Galicia and which may properly be called a branch or offshoot of
that church, was subject to the jurisdiction and supremacy of the Pope of Rome,
though having a hierarchy and bishop of its own and a "use" or form
of worship and ritual with vestments similar to those of the Greek Church.
What the official or legal name or designation
of that church in Galicia was, is difficult if not impossible to determine
under the evidence.
The respondent in his factum and argument at bar
insisted that it was the Greek Catholic Church, the same designated in the
patent of the lands, but admited that it was known as and called by many different
names according to the nationality or religion of the person who spoke of it.
The Ruthenians themselves call it "The
Ruthenian Church." The Poles call it "The Ruthenian Church." The
Church of Rome also calls it the "Ruthenian Catholic Church."
Catholics of the Greek rite "The Graeco Ruthenian Church," and
outsiders in order to give it a description properly describing its relation to
the Greek Church and the (Roman) Catholic, call it "Uniate" or
"Greek Uniate."
The Roman Catholic bishop Legal says of it:
The Greek Church is the portion of the
Christian Church not in communion with Rome which uses the Greek or oriental
liturgy. The Greek Catholic Church of Galicia is a portion of the Roman
Catholic Church using a liturgy in the Slavonic language. I have heard it
called by the name of "The Uniate Greek Church." We also call it "The United Ruthenian Church" and
"The United Greek Ruthenian Church." I would call them Catholics of
the Ruthenian Rite to distinguish
them from Catholics of the Latin or Roman Rite. The Greek Catholic Church of
Galicia has exactly the same Creed as the Roman Catholic Church but I believe
their liturgy is that of the Greek or Eastern Church, which is very
different from that of the Roman Catholic
Church.
[Page 184]
The testimony on the other hand of
ecclesiastics called on behalf of the defendants was to the effect that the
Greek Catholic Church meant the Greek Orthodox or Greek Catholic Orthodox or
Eastern Church, as distinguished from the Roman Catholic or Western.
The court below in its form of judgment or
decree says that it is that branch of the Greek Church which is united with the
Roman Catholic Church and which may be properly designated as "The United
Greek Catholic Church."
I am satisfied, however, from a careful perusal
and comparison of the evidence of the different witnesses, that the phrase or
terms used in the patent, as I gather from the certificate of title, to
describe the church in dispute, namely, "The Greek Catholic Church,"
does not necessarily and legally imply the Roman Catholic Church or a church in
union with and subject to its jurisdiction, and that the name and description
being doubtful and ambiguous, we are necessarily driven to a consideration of
all the facts and circumstances connected with the building of the church, and
the patenting of the land, in order properly to determine the meaning of the
terms of the trust.
As to the difference between the church indifferently
called by the witnesses the "Uniate," or "Greek Uniate," or
"Greek Catholic," or "Ruthenian Church," or "Greek
Ruthenian," or more popularly "Ruska Church," as it existed in
Galicia, and designated by the court below in their decree as "The United
Greek Catholic Church," and "The Greek Orthodox Church of the
East," they are formulated by agreement of parties in the appeal book.
[Page 185]
The former affirms and the latter denies the
following Roman Catholic dogmas or beliefs:
1. The infallibility and supremacy of the Pope.
2. The immaculate conception of the Virgin.
3. Purgatory, and
4. The double procession of the Holy Ghost.
The study I have given to the evidence convinces
me that the trial judge, Scott, J., was right in his conclusion that these
Galician peasants
did not trouble themselves very much over
the differences in creed between the two churches (Eastern and Western). Many
of them do not understand what these differences are.
There is also little, if any, difference in the
rites, ceremonies, vestments and ritual of the Orthodox Eastern Church or Greek
Orthodox Church, and those of the Galician Church called "Uniate,"
"Ruthenian," "Greek Catholic," and "Ruska." To
the ordinary ignorant Galician peasant such as those of this Star congregation,
I would conclude from the evidence there would not be any.
The real vital difference present to the minds
of these people, as I gather from their testimony, was the supremacy of the Pope
and the authority and jurisdiction of the Roman Catholic bishop over them.
In their own country, Galicia, these people
ecclesiastically and the church to which they belonged, though having bishops
and a hierarchy of their own, were beyond doubt subject to the supremacy and
jurisdiction of the Pope.
As bishop Legal says in his evidence:
If Greek Catholics (by which term he meant
these very people) go to a place where there is no Hierarchy or Bishop of their
own rite they are enjoined to submit themselves to the Roman Catholic Hierarchy
there, but they must return to their own rite as soon as an opportunity occurs.
[Page 186]
When these people emigrated to the North-West
they were not only free to follow or accept any form of religion that they
wished and determined on, but they knew that was so. Witness after
witness testifies to this fact.
The question then arises: Did they remain in the
church to which they belonged in Galicia owing obedience to the Pope of Rome,
and subject to his supremacy or did they unequivocally change and throw off
that allegiance?
I am of opinion that they did the latter, and
that amid much conflict of testimony, hard, if not impossible, to reconcile on
other points, the evidence on this one point is clear that these Galicians made
up their minds on coming to the North-West Territories to repudiate and did repudiate
the authority and jurisdiction over them of the Pope and of the Roman Catholic
bishop of the diocese, and that the church they built was not intended to be,
and was not in law, under such jurisdiction.
Evidence was given in order to shew why they did
this. That it was owing to the taxation they had to bear for the church in Galicia and which they feared they would be subject to in Canada. That it was because their hearts
were with the church of their brothers in blood in Russia and that they only
had submitted in Galicia because the law prohibited there the Greek Orthodox
Church. That they really believed the tenets and held the faith of the Eastern
Church as distinguished from the Western. These reasons do not concern me. They
may be true in whole or false in whole, true in part and false in part, as from
the evidence I conclude. But what I am concerned with is the fact itself. Did
they for any reason clearly repudiate the supremacy and jurisdiction of the
[Page 187]
Roman Catholic Church, and erect a church
building intended not to be in communion with it?
Whether or not they could without such repudiation,
and if they had remained subject to the jurisdiction of the Church of Rome,
have secured to themselves the right to worship in this country according to
the forms, ceremonies, and rights of the Greek Orthodox Church which they
seemed to have possessed by law in Galicia, including the right which they also
possessed there to have married priests, is a question I do not propose to
enter into, as it is not necessary for the decision of this appeal. I will
assume for the purpose of my argument that they could. What then are the facts
in evidence respecting the determination of these Galicians to establish a
church not in communion with or subject to the jurisdiction of the Pope?
They are of several kinds. First oral evidence
of their acts and declarations when preparing to build and while building their
church and obtaining their patent; second, written evidence of their
intentions, desires and determination; and third, evidence that the Roman
Catholic bishop of the diocese appreciated and recognized the facts, accepted
them doubtless reluctantly, but acquiesced to the extent hereafter referred to.
In 1892 the Galicians first began to come to the
present settlement. In 1896, or the winter of 1897, there were about 18
families there, including both settlements, Star and Wostok, and they held a
meeting together at Sowka's house and determined to write to the Greek Orthodox
bishop Nicola, at San Francisco, for a priest. In April, 1897, reverend father
Dymytrow, a Uniate priest in communion with the Church of Home visited the
settlements and held three
[Page 188]
services. In June, 1897, the reverend fathers
Kamneff and Alexandroff, two priests of the Greek Orthodox Church, sent by
bishop Nicola, came to the colony, held services, administered sacraments and,
it is said, received the allegiance to the Orthodox Church of some 60 families
to which numbers the colony was now increased. They set about organizing
congregations, getting land, permits for logs, etc., the orthodox congregation
of the settlement of Wostok being one result of their visit.
There is some doubt and dispute as to the number
of the families of the Star settlement that took an active part in these
proceedings, and I am not inclined to lay too much stress therefore upon these
facts. But that many of the leaders of the Star settlement associated themselves
with those of the adjoining settlement of Wostok in all that Avas done until
the moment when the location for the church came to be decided on seems to me
clear.
In September, 1897, father Dymytrow returned for
a two weeks' visit holding services and administering the sacraments. At this
time the project of building a church at Star settlement ripened towards completion.
The land in question was procured, a cemetery upon it was consecrated by father
Dymytrow and at one of the services held in a school house bishop Legal, coadjutor
of the Roman Catholic bishop of the diocese, was present and at the close of
the service pronounced the benediction. The services were conducted in a
language the bishop did not understand, and few if any of the people present
understood him, but the bishop was then aware of the desire of the people not
to remain in communion with his church, promised them assistance, and sought
through an interpreter naturally and properly to retain them in that
[Page 189]
communion. He afterwards no doubt in the most
perfect good faith, but without the knowledge of any of the Galicians, had the
necessary entry made for the land in the name of the Roman Catholic bishop of
the diocese and it was not till some time afterwards they found out the fact.
The decision to erect a church having been
reached in November, 1897, the three present trustees made application for a
permit to cut timber on the Government lands for a church and the Government
agent at Edmonton sent to them a form of requisition to be filled out and
signed. Not being able to read or write they went to a Mr. Morrison who was
accustomed to assist them in any writings they required, taking with them the
form of requisition which was partly in blank. At its head in the agent's
handwriting was a memo as follows:
I must know where the church is to be
built, on what quarter section, and this requisition must be signed by the
trustees for the Church or by the priest in charge.
Then followed the printed form with blanks for
the quantity of timber required, the place where it was desired to cut the
timber, and the quarter section where the church was to be built, all of which
Morrison filled up. Then followed "remarks," written also by the
agent, as follows:
This timber is required and will be used in
the erection of a church building for the mission
of the church and for no other
purpose.
Morrison says he interrogated the three trustees
as to the kind of church they required and ascertained it was for the "Greek
Orthodox," which words he inserted in the blank by their instructions.
These words are entitled to greater importance because in blue pencil beneath
the blank left by the agent were writ-
[Page 190]
ten the words "State whether Catholic or
Greek Orthodox." He therefore had to interrogate them on the very point we
now have in dispute. Was the church proposed to be built to be a Catholic
Church or a Greek Orthodox Church, as opposed to a catholic one, by catholic
all parties understanding Roman Catholic? Having got their answer "Greek
Orthodox," he wrote in the words and witnessed their marks being put to
the requisition. As the document was put in evidence and comes up before us
amongst the original records I find the words "Greek Catholic Church"
written in blue pencil across the face of the requisition, but there is no
evidence when or by whom they were written, and Morrison does not remember
whether they were there or not when he filled up the document. I attach great
importance to this document not only because of its contents, but because of
the time when it was filled up, long before there was the slightest sign of any
trouble between the members of the congregation. If these three trustees were
at that time voicing the desires and intentions of their neighbours and friends
by whom they had been appointed, there can be little doubt what kind of church
was intended to be built.
This was in November, 1897. It was not till January,
1898, that bishop Legal made the entry for the land in the bishop's name.
The Galicians that winter went to work getting
out the logs for the church, and in April had it partially erected when father
Tymkiewicz arrived. Some of these Galicians worked for three winters getting
out logs and lumber under this permit, and it was with these logs and this
lumber the church edifice was built. The Rev. Father was sent to this country
at the instance, as I understand, of the Roman Catholic
[Page 191]
bishop. He was a "Uniate" churchman,
in communion with and subject to the Church of Rome and remained with these
Galicians as their priest from April till August, 1898. For some reason,
doubtless good, his evidence was not given, but the defendants and other
members of the congregation gave evidence which was not rebutted that he
represented himself to the congregation as an orthodox priest, and told them
they should not take anything from the French bishop, that, he, Tymkiewicz, did
not belong to the French bishop and that if the people took anything from him
he, the priest, would leave them. This it was said he told them every time he
held Sunday services. It was during the time he was their priest, and with his
full knowledge and concurrence, if not at his direct instance, that the people
succeeded in getting the entry made by the coadjutor bishop Legal for the land
cancelled and a relinquishment signed by bishop Grandin or the proper officials
of the diocese of the lands. This relinquishment was not in evidence either,
but it was accepted as satisfactory by the department before issuing the patent
to the trustees.
When in April or May the members of the congregation
learned that the title to the church land had been applied for in the name of
the coadjutor bishop Legal, meetings were held and it was determined to get the
title back. Bishop Legal himself had gone to Europe, but several visits were
made by the defendants and other leaders amongst the Galicians to bishop
Grandin or the officials acting for him, with the result that the bishop
finally executed the necessary relinquishment.
The formal application by the trustees for a
patent was not in evidence, but the letter written by the agent of the
department in Edmonton to the secretary
[Page 192]
of the Department of the Interior, Ottawa, was put in by consent, perhaps to avoid necessity of calling the agent. However,
the letter is most important as shewing what the intentions, desires and
determination of the people of the Star settlement were at its date, 25th May,
1898, when Tymkiewicz was their priest and before, as far as I can gather,
there was the slightest dispute or variance between or amongst the members of
the congregation. The letter reads:
Edmonton, 25th May, 1898.
Sir:—
With reference to your file 438627, I beg
to enclose herewith what purports to be an assignment from His Lordship Bishop
Grandin of L.S. 1 of section 27, 56, 19 W. 4 M.
It appears to have been an error asking for
a patent in His Lordship's name. This land is not intended to go to the
Catholic Church but to the members of the Greek Catholic Little Russian
denomination who are settled in this vicinity.
The trustees for these people are Mikel
Polischy, John Polopovisky and Mikel Melnyk.
They were very deeply concerned over the
fact it was proposed to hand this land over absolutely to the Roman Catholic
Church; they insist on having the entire control in their own hands, and as it
is highly desirable to meet their wishes in this connection, I should be glad
(if the relinquishment which I herewith enclose is inadequate) if you will be
so good as to have an instrument prepared to meet the case.
I am, Sir, your obedient servant,
A. D. L.
The Secretary, Department Interior,
Ottawa, Ont.
It was in July following the receipt of this
letter that the patent of the lands issued to the trustees, defendants
in trust for the purposes of the congregation
of the Greek Catholic Church at Limestone Lake in the said district.
Reverend father Zacklynski, who came to them as
priest about the latter end of July, came, therefore, after the issue of the
patent.
[Page 193]
I am of the opinion that the construction of the
patent must be determined by the words themselves and if they are ambiguous by
the facts and circumstances surrounding and preceding its issue, and that the
great mass of testimony as to Zacklynski's engagement by these Galicians as
their priest, and doings and sayings while with them, has little or no
relevance to the real question to be decided. I hold the same with respect to
the subsequent engagement and services of Korchinski, a priest of the Greek
Orthodox Church, and who was made one of the defendants in this suit, but
disclaimed any desire to enter or be forced into litigation.
The trusts existed when each of these priests
came there. It only remains to determine what they were. That determination
must rest upon preceding and contemporary facts and circumstances and not upon
subsequent ones, more particularly those arising after the trouble in the
congregation arose.
Reviewing, therefore, these preceding and contemporary
facts and circumstances in the light of the declarations contained in the
requisition for the timber limit and in the land agent's letter for the patent,
enclosing the relinquishment of the lands from His Lordship bishop Grandin, I
cannot entertain any doubt that the "Congregation of the Greek Catholic
Church at Limestone Lake" did not mean a church united with and subject to
the jurisdiction of the Pope of Rome, and the authorities of the Roman Catholic
Church.
I think the plaintiffs have entirely failed to
discharge the onus of proof which lay upon them and that the appeal should be
allowed, the judgment of the court below reversed and the action dismissed with
costs.
[Page 194]
IDINGTON J.—The appellants obtained
from the Crown a grant of subdivision one of section twenty-seven, township
fifty-six, range nineteen west of the fourth meridian,
in trust for the purposes of the
congregation of the Greek Catholic Church at Limestone Lake in the district of
Alberta.
This is evidenced by a certificate of title,
dated 6th July, 1899, issued out of the Land Titles Office, for the North
Alberta Land Registration District.
The grant was led up to by events I will refer
to, which took place eighteen months, or more, prior to this date.
It is unnecessary, here, to determine the exact
trusts upon which defendants hold the property in question.
It is only necessary to determine, whether or
not that trust was and is, explicitly or impliedly, to serve the purposes of a
church, and ail that might be incidental to a church, for the uses of a
congregation that recognized and recognizes the jurisdiction of the Pope.
If such was not the trust then the plaintiffs'
action must fail.
Such is the legal issue. Let us not lose sight
of it.
The learning imported into the case, as to the
racial, or linguistic, or ecclesiastical origins of the people concerned, or of
their forefathers, matters much less than such an ardent pursuit, as is presented,
of that learning might imply. Still less does the name of the faith, or church
organization or growth of either matter here. The name Greek Catholic is
ambiguous. It has been used as properly designating entirely different bodies.
A few salient facts relating to the origin and
status of that branch of the Roman Catholic Church,
[Page 195]
that may be known here, in order to avoid any
confusion, as Uniates, of Galicia, must be kept in view. As to these facts
there is no room for controversy and in truth there is not any controversy.
The outcome of ancient strife, national and
religious, has left in Galicia, a Province of Austria, three churches recognized
by the State and each with a distinctly separate ecclesiastical head,
responsible to, and recognizing, the jurisdiction of the Pope.
By reason of their original race and creed,
which had disavowed the authority of the Pope, the ancestors of the people now
in question, when they came to the recognition of the papal authority, were
known to learned ecclesiastics as "Uniates."
It was an appropriate designation of them. It
was so none the less, though it may have been a constrained recognition.
It was not, apparently, the name that the people
generally called themselves. The very constraint, through which it was brought
about, may have tended in the popular mind to the ignoring of the term Uniate.
And as a result, they called and continued to call themselves as of the
"Greek Catholic Church" up to the time now in question.
It is to be observed that there seems to have
been, notwithstanding all this long recognition on the part of these people and
their ancestors of the jurisdiction of the Pope, a tendency to revert to the
ancient faith and practice.
This kind of atavism, if I may be permitted to
use such a word in relation to church matters, is not without precedent or
parallel.
I am quite prepared, therefore, to give credence
to the mass of evidence, I may say overwhelming mass of evidence, in this case,
that very many of the early
[Page 196]
Galician settlers in the North-West Territories were animated by a desire to assert, in the first place, what to them was an
unwonted freedom of action, and in the next place to ignore the papal
authority.
This was shewn by the first step that the
defendants and others took when they moved in the matter of securing for
themselves and others public religious services in the new settlement.
Now what did they do? Did they go to the Roman
Catholic bishop in the North-West and ask him for guidance and assistance? If
they had been loyal believers in the authority of the Pope, surely that would
have been the first step they would have taken. Instead of doing so they write
or one of them writes to the bishop of Alutzk and Alaska, to have him supply
the settlement with a priest. Certainly this bishop was not a Roman Catholic
bishop. His reply seems to indicate that he had the greatest antipathy to the
Pope and papal authority. Yet this letter in reply was read in public meeting
to the people whom the appellants represented and claim yet to represent.
We hear of nothing to indicate objections
thereto on the part of any one.
This correspondence had its beginning in a meeting
of these people in 1896. And it seems to me to have in it the root of the whole
matter.
A second letter was received. Another place
benefited by it and a church there arose out of it as well as this one in
question.
A good many of the people, at first concerned in
the movement, went off to this other church which was nearer to them I take it.
They were all from Galicia, both those who went to this church and the other
one. And many of them in the other church had the same origin as those who are
now in question.
[Page 197]
There is no doubt of the other church being one
that does not recognize the papal authority.
There is only, in the fact I refer to of some
going to that kind of church, this: that it shews the ferment amongst these
people had begun and spread as the appellants assert.
The next important fact is the visit of the
reverend father Dymytrow to the settlement in April, 1897, when he held three
services there. He was in truth a Roman Catholic priest. Much stress has been
laid upon this fact, and the further fact that some, if not all of the
appellants and their friends attended these services. Why should they not have
done so?
It is beyond my comprehension to conceive why
they should, if religious men, feeling the needs of public worship, and of the
aids of a priest, abstain from doing so because the priest, in accord with them
in other respects, was one who recognized papal authority. He was nearest
there, in faith, to what they believed.
On the occasion on which bishop Legal appeared,
at one of such services, they were held in a school house, and not in this
church. What were people like the appellants to do under such circumstances?
Keep away, or go and make a nuisance of themselves? It is urged, if I
understand the contention on this point, that they should have protested
against the bishop's presence. I most decidedly say, decency forbade them doing
so.
Father Dymytrow did not build, or initiate then
the building of, the church in question. He said they were too poor to build
then. Notwithstanding that, within two or three months afterwards, they
followed out what they had previously projected, and still desired, in regard
to building this church. They met on more than one occasion to settle this
matter of
[Page 198]
church building and the site thereof. And every
appellant has sworn, and is abundantly corroborated by many other witnesses,
that they determined to build a church for the uses of those who desired to
worship in a Greek or Greek Catholic or Russian or Orthodox Church or church of
any other name one pleases, but, most clearly and decidedly, not one over which
the Pope would have jurisdiction.
They selected the appellants as trustees.
In June, 1897, two men, named respectively Kamneff
and Alexandroff, came as missionaries and held services according to the rules
of the Greek Orthodox, or from a Roman Catholic point of view, heterodox
church. Reverend father Alexandroff was then, he says, only a deacon of that
church.
The reverend father Kamnell, I take it, was a
priest in that church.
They were sent by the "Bishop of North
America and the Aleutian Islands," the same that under another title I
have already referred to.
These two missionaries served, in the Limestone
Lake District, for a considerable time, and chose a church site, and made entry
in the land office therefor, and suggested to the people concerned in this to
take another selected site. But its being too far away did not meet with
approval.
There was no church built or started at the
place now in question when Alexandroff came. He came in the summer, and the
church building started in the fall of the same year. The site in question was
selected whilst Alexandroff was there; some say by him or approved by him.
Wasyl Polushie says:
We started to get out the logs shortly
after father Alexandroff came the first time and were working at it when father
Dymytrow came the second time.
[Page 199]
It seems from some of the evidence that logs
were got from private property and this may relate to such contribution.
But the next step taken to build was getting a
permit from the Government to use timber from Crown lands.
This very important piece of evidence shews an
application of 29th Nov., 1897, signed by Michailo Melnyk and Michailo
Polushie, two of the defendants, and one Fedor Melnyk. All signed this by
making their mark. It is a printed form filled up by one who had no interest in
the matter, and beyond doubt wrote just what he was told to write.
In filling up there appears the following:
This timber is required and will be used in
the erection of a church building for the mission of the Greek Orthodox Church,
and for no other purpose.
On this form appears a memo in pencil
"state whether Catholic or Greek Orthodox" and in pencil across a
corner of the form appears words "Greek Catholic Church."
How this pencil marking, in handwriting of
clerks or officers of Government came about is not explained, and I will not
speculate. One thing is quite clear, that at least two of the appellants on the
date of this document intended that the church should be built for the
"Greek Orthodox Church" which, it is conceded on all sides, is not
the church for which respondents claim it, but that for which the defendants
now claim it.
Are we to suppose that these men deliberately at
that time set about to perpetrate a fraud? Why should they? No doubt the bounty
of the Crown was open to any church in that country. No need of fraud.
[Page 200]
This, it must be observed, was at or about the
time father Dyrnytrow was in the neighbourhood for two weeks. Were they acting
for him or with him? Can it be supposed that it was the result of anything suggested
by him? If so it would, I infer, be more in accord with him as he is presented
by the evidence for appellants, rather than what the respondents ask us to
infer it was.
There is much evidence to shew that he told them
not to accept anything from the French bishop or to recognize him. And that is
uncontradicted.
Shortly after or about this time it seems bishop
Legal, or some one in his name, applied for the lot in question for the purposes
of a Roman Catholic Church. We are not enlightened on this point by his
evidence. Though he was a witness for respondents, he was not asked as to how
this came about, or the purpose of the surrender of claim to it which I am
about to advert to.
It is quite clear, however, that when this entry
was discovered by the appellants, and those they represented, that steps were
at once taken to have it set aside.
The bishop, or those who represented him, after
demurring yielded, and the claim the bishop had made was duly and properly
assigned or surrendered to or for the appellants. Thereupon the entry was made
in the names of the appellants, with the concurrence of the reverend father
Tymkiewicz and a French priest, who, I take it, was there to represent the
bishop.
Father Tymkiewicz is said to have been a Roman
Catholic priest, sent from Galicia specially to minister to the wants of these
Galicians. Why should he have taken this step? It may have been that he simply
de-
[Page 201]
sired to appease these people whose church
property in Galicia had usually been held by their own archbishop, and where
that could not be done lay trustees were to be entrusted instead, but yet to
hold it for the Roman Catholic Church or those in the fullest sense holding the
faith of that church.
Is the evidence consistent with that? Is it not
rather consistent with an entire surrender of all claims of that kind in favour
of the appellants and their friends, holding the wellknown views they did hold,
on the question of the supremacy of the Pope?
I cannot conceive how, under all the
circumstances, father Tymkiewicz, knowing, as he must have known, the then
attitude of these appellants on the point in question, could have intended they
should be bound or expected to execute a trust so repugnant to them.
Nor can I understand why, if he did, no record
was kept by him or some one else of what the trust was. Again, it is said by
many witnesses that father Tymkiewicz had been present at the meeting of the
people moving to get the property out of the bishop's hands and, later, told
them not to take a single thing from the French bishop. How can that be at all
reconciled with the creating of a trust in favour of Roman Catholic authority
or of those of the Roman Catholic faith?
Then we have before this surrender the proper
remonstrance of the bishop with these people for leaving or wanting to leave
their religion. We have also evidence of his promise, if they would abide by
the old faith, to help them build the church. And we have the fact that he
never contributed anything to the erection of the church.
All that seems to me quite inconsistent with any
intention, on the part of those concerned, to impose
[Page 202]
upon the appellants any such trust as is sought
to be enforced in this suit.
It seems quite consistent with a desire on the
part of those having authority to speak for the Roman Catholic Church not to do
anything that would, or might be, inconsistent with future pleasant relations
with those who were so much akin to them in faith; that gentle methods would be
much more likely to lead them, or some of them, in the desired way than any
legal bond.
The conclusion seems to me irresistible that
once and for all the bishop, on behalf of his church, abandoned all claim and
thus ended the matter.
The respondents, though calling him as a
witness, did not venture to question him on this point. This seems most
significant.
As to all that followed if the trust was not impressed
at the outset it goes for nothing.
I cannot see why so much has been made of the
later occurrences. The evidence as to reverend father Zacklynski is
overwhelming that he was telling these people to have nothing to do with the
supremacy of the Pope or with his church, and it is not denied. Moreover he
ended, as he practicably admits he began, by asking (if Spaczinski is rightly
reported) this congregation to abjure both Russian and Roman and keep their own
church.
This latter incident is reported differently by
other witnesses. Who is correct? Why was the plaintiff, Zacklynski, the author,
it would seem, of all this disturbance, not brought as a witness to this
wonderful thirty-five days' trial?
Surely he was informed during that time of what
was being said about him.
[Page 203]
It is a remarkable thing that of those who
testified for the respondents the lay plaintiff, Petro Melnyk, seems to be the
only one of the settlers who had lived there from the time of the earlier
meetings to organize a church. Then came in March, 1897, Mr. Spaczinski, the
leading witness for respondents. He is sworn never to have contributed anything
to building this church, and does not deny it. He is sworn to have recanted
with the others, but denies it.
He, however, accepted the books of father Alexandroff
to act as lay reader, apparently in accord with the recantation. He was
recalled in reply and states that reverend father Zacklynski asked them, at the
rupture with him at his last meeting, to swear that they would stick to their
own religion, not go over to the Orthodox Russian Church, nor to the Roman Catholic
Church. Other witnesses differ from this version entirely.
He produces a book of which a part is translated.
It indicates that "on the 4th day, 6th month of 1898 subscribers to
finishing the church" appear as follows, etc. The first name, of ten, given
is Pavlo Pasempko $15. In the evidence Pasempko states that he came to Alberta in May, 1899. Which date, 1898 or 1899, is correct? Who is to blame for the
inaccuracy? Or are there two Pavlo or Paulo Pasempkos? I think not. I refer to
this trifling incident as illustrative of the difficulties in this case and
doubt one may have as to the accuracy of Mr. Spaczinski. I refer to these
matters, relating to him, because upon his accuracy depends the weight to be
given to the signing of what I may designate "the call" to father
Zacklynski, which, though subsequent to the creation of the trust now in
question, is a piece of evidence that if the signers perfectly understood
[Page 204]
when signing, tends to reflect upon their
evidence a light leading to discredit them.
He testifies that when the appellants and others
signed the call to father Zacklynski it was signed by all but four of those who
did sign it, in a house he names, and that the paper was read by one Karetz to
them. First he said it was written by Peter Stephura and then by Alexander
Karetz and explains by saying Stephura had written one just like it. It
contains the statement that the signers "are all Uniates." Zacklynski
came six months after this was sent by Stephura. This witness, however, tells of
one Petro Zwanycz writing Zacklynski to come, but does not say whether before
or after signing this paper.
None of these alleged writers appear as
witnesses.
A number of the signers deny the reading or hearing
it read.
The original shews twelve out of twenty signers
to have signed by means of a mark. It is difficult to fix the attention of
illiterate and even many literate people, though apparently listening, so that
they can catch the meaning of what is read, unless sentence by sentence is
explained. No one ventures to suggest such a thing was done.
I would be slow to bind such people by the
expression Uniate in such a document as meaning something that in the face of
other facts is most improbable as having been at all present to their minds.
They had gone for six months without a priest.
Why? Simply because they would not recognize the proper authorities of the
Roman Catholic Church, at hand. And why not? We are not offered any explanation.
We are told that many of them had in the time of
the reverend father Alexandroff formally repudiated
[Page 205]
the head of that church. And they had just after
that objected to the land being in the name of the bishop.
When father Zacklynski, who was found through
the channels of a newspaper advertisement by him, and not through any
application to the bishop, came, he, if the evidence of a great many church
members is to be believed, was loud in proclaiming himself as an Orthodox Greek
Catholic and not a Roman Catholic. And whenever he proposed borrowing from the
bishop to pay a debt for the building of the priest's house those people were
up in arms.
I think one cannot help, in reading the evidence
in this case, being impressed with the want of support plaintiffs' case got
from those who were there before the building of the church, and how strongly
and distinctly those older settlers, who were there, and knew what happened,
and who were the most active in promoting it, and the chief contributors to the
building, speak on the subject.
The circumstances, and the evidence, seem to
point nearly all one way, and that way against the establishment of a church
that acknowledged the jurisdiction of the Pope.
It is not a case of conflict of evidence so much
as a case needing to properly appreciate the evidence given and then to disregard
the trifling unimportant incidents and matters subsequent to the creation of
the trust, when the general scope and purpose of the parties in relation to
that trust had already been made clear, and to apply that properly appreciated
evidence to the interpretation of the ambiguous phrase in this certificate of
title.
With every respect I think this evidence was not
properly appreciated in the court below, and weight
[Page 206]
given to the subsequent events that should have
been discarded.
I concur in the brief judgment of the Chief
Justice of the court below.
I would, but for the zeal with which the case
has been pressed and the importance attached to it by those interested, have
contented myself with that expression of opinion.
I think the appeal should be allowed with costs.
MACLENNAN J.—A very careful perusal
and consideration of the evidence in this case have led me to the clear
conclusion that we ought to allow the appeal.
It is clear that at and prior to the 29th of
November, 1897, active proceedings had been taken among the Galicians in the
vicinity of Limestone Lake for the building of a church. For this purpose land
for a site and materials for the building had to be procured. The people were
very poor, and it was thought that land might be obtained, and lumber also,
from the Government without payment. When a question of site came to be
discussed there was a difference of opinion depending upon distances and
convenience. The ultimate result of this difference was that two churches were
built, I think about six miles apart; one of these was at Wostok, and it is
admitted that the Wostok congregation is an undoubted Greek orthodox
congregation. I think that is an important fact, seeing that one section of
those who were in the first place acting together on the project of building a
church, and who had no differences among themselves, have built and are
enjoying their property without dispute as orthodox, while the other congregation,
without any difference of circumstances, have on hand the present unfortunate
dispute.
[Page 207]
On the date above mentioned, the 29th of
November, 1897, a requisition was made to the land office for a permit to cut
timber for the church. The requisition specifies the land on which the church
was to be built, and declares with special emphasis that the timber was to be
used in the erection of a church building for the mission of the
Greek Orthodox Church, and for no other purpose. That requisition is signed by
three persons, two of them being two of the present defendants. The land
specified in this application consists of forty acres of Government land, and
it is upon that land the church was built and now stands.
In pursuance of this application a permit was
duly granted. It has not been produced, but it will be presumed to have
accorded with the application. The people immediately proceeded to cut the
timber and to erect the church, and it was completed some time in the following
year. Now, pausing here, what is the effect of what has been done? They have
asked the Crown for a site for the purpose of building thereon a church of a
specified character and denomination. They have also asked for a gift of timber
for the same purpose. The gift both of the land and the timber is made and the
church is built. The object and the purpose of the gifts are in writing. I
think it plain that the church when built became and was under those
circumstances impressed with the trust stated in the permit, namely, a trust
for the Greek Orthodox Church, and for no other, and that if there were nothing
else in the case, the appellants would be entitled to succeed.
But that is not all. The congregation appointed
the three lay defendants trustees to receive and hold the title to the
property—in pursuance of the ordin-
[Page 208]
ance, N.W.T. Cons. Ord. 1898, ch. 28, and after
the church was completed, or about completed, those defendants applied to the
land agent for a patent. The agent then on the 25th May, 1898, wrote to the
Department of the Interior, at Ottawa, in effect asking for the issue of the
patent to those trustees. The agent refers to the fact that an application had
been previously made by or in the name of the Roman Catholic bishop Grandin for
the land, but that he had assigned or relinquished all claim, and that
this land is not intended to go to the
Catholic Church, but to the members of the
Greek Catholic Little Russian denomination who are settled in this
vicinity.
It is not disputed that these words correctly describe
the Greek Orthodox Church, described in the permit for land and timber above
mentioned.
The patent was issued in pursuance of this
request. It does not appear what its date was nor what were its precise
contents. All that has been proved is that a certificate of title was obtained
by the trustees under the Land Titles Act for the forty acres in question,
expressed to be
in trust for the purposes of the
congregation of the Greek Catholic Church at Limestone Lake.
The words Greek Catholic Church are ambiguous.
There is much testimony that such words might mean either the Roman Catholic or the Orthodox Church. We must gather
which is meant by evidence, and the letter
of the agent applying for the grant would be sufficient to shew that it was the Orthodox Church which meant. But if that were not sufficient, the
fact that the Crown had previously, by
its permit to build an orthodox church on this very land, with logs also
granted for the same purpose, to my mind make
it
[Page 209]
clear to a demonstration that the land and
church in question have from the beginning been held, as was expressly intended
by the donor, the Crown, as a Greek Orthodox Church.
For these reasons, as well as for the reasons
much more fully expressed in the opinions of my brothers Davies and Idington,
which I have had the opportunity of perusing, and also for the reasons
expressed in the dissenting judgment of the Chief Justice of the Supreme Court
of the Territories, I am of opinion that the appeal should be allowed, and that
the action should be dismissed with costs both here and below.
Appeal allowed with costs.
Solicitors for the appellants: Short,
Cross, Biggar & Ewing.
Solicitor for the respondents: C. DeW.
MacDonald.
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