Sir W. J. J.-For the reasons given in the court of first instance, and in the Court of Appeal . confirming the judgment of the trial judge, 1 think this appeal should be dismissed.
J.-I concur in the judgment of Mr. Justice Gwynne in this case.
FOJRNIER and JJ.-concurred in dismissing the appeal.
J.-This appeal must, my opinion, dismissed.
The learned counsel for the appellants rested their contention upon the grounds :
1st. That the land in question, lot 4 in the 15th concession of the township of Burleigh, is within what is spoken of as " Free Grant Territory," in the Ontario statute of 1880, intituled " An Act to amend the Free Grants and Homesteads Act," and therefore subject to the provisions of that act and the regulations made in pursuance thereof, and that being such the license under which the appellants claim prevails over the letters patent under which the respondent claims; and 2nd. That even if the land be not within the operation of the " Free Grants and Homesteads Act," the license issued. in 1884 under which the appellants claim is the same license as that originally issued, which was about 1873, and renewed from year to year ever since, and as the lot in question is still specially named in the license of 1884 it must prevail over the letters patent and sale made to the respondent under act respecting the management and sale public lands upon the authority of McMullen v. Mac- *.
donell (1) and Farquh arson v. Knight
The statute of the late province of Canada 23 Vic. J. ch. intituled " An Act respecting the Sale and Management of the Public Lands " in its 11th section, enacted that except as thereinafter provided no free grant of public land should be made.
In its 13th section it enacted that:
By the 14th section the Governor in Council was empowered to set apart and appropriate such of the crown lands as he might deem expedient for wharves, piers, market places, and other purposes therein stated, and to make free grants thereof for such purposes subject to certain limitations therein expressed. And as to the sale of public lands it was enacted that the Governor in Council might from time to time fix the price per acre of the public lands and the terms and conditions of sale and settlement and payment. Then by the 16th section the Commissioner of Crown Lands was authorized to issue to purchasers, as well as to settlers on land, as a free grant, licenses of occupation, and that such license of occupation should operate to enable the holder to maintain suits against any wrong-doer or trespasser as effectually as he could under a p'atent from the crown, but that it should have no force against a license to cut timber existing at the time of the granting thereof. The 17th section gave to a certificate of sale, and to a receipt for money received on the sale of public lands, the same force and effect as by the previous section were given to the license of occupation.
The legislature of the province of Ontario in its first session passed an act, 31st Vic. ch. intituled "' An Act to secure Free Grants and home- J. stead to actual settlers on the public lands,"
and thereby enacted tha.t the statute of the Parliament of the late province of Canada, passed in the 23rd year of Her Majesty's reign, intituled "An act respecting the sale and management of the public lands," might be cited and designated in all acts and proceedings as "The Public Lands Act of 1860," and is the act thereinafter so designated; it then repealed the
13th section of the above act, and enacted that the
Lieutenant Governor in Council might appropriate any public lands considered suitable for settlement and cultivation, and not being mineral or pine timber lands, as free grants to actual settlers under such regulations. as should from time to time be made by order in council not inconsistent with the provisions of the act, but that such grants or appropriations should be confined to lands then already surveyed or thereafter to be surveyed within a very extensive tract of country particularly described in the fifth section of the act.
In the sixth section it was enacted that all persons to whom any land might be allotted or assigned under such regulations for a free grant should be considered as located for the land; and by sections seven and eight, that no person should be located for any land under the actor the said regulations unless certain conditions should be fulfilled; and by section nine, that no patent should issue for any land located under the act, or under said regulations, until the expiration of five years from the location, nor unless certain settlement duties should be LAKEFIELD performed.
Then by section ten, all pine trees on MANu- the land, except such as might be actually necessary to be removed for the clearing of the land and for build- Hi ing, fencing or fuel, were reserved as the property of - Her Majesty until the patent should issue, at which Gwynne J. time all trees remaining on the land should pass to the patentee.
Now by orders and regulations made under the above " Free Grants and Homesteads Act of 1868," and "The Public Lands Act of 1860," and passed by the Lieutenant Governor in Council on the 27th May, 1869, it was provided among other things E
Par. 1.-That the quantity of land to be located to any person as a free grant, under " the Free Grants and Homesteads Act of 1868," should be 100 acres.
Par. 2.-That any locatee under said act, being the male head of a family, should be allowed to purchase an additional 100 acres at 50 cents per acre cash at the time of such location, subject to the same reservations and conditions, and the performance of the same settlement duties, as are provided in respect of free grant locations by the 9th and 10th sections of said act, except that actual residence and building on the land purchased will not be required.
Par. 5. All pine trees growing or being on any land hereafter located as a free grant under the said act or sold under the preceding regulation shall be subject to any timber license in force at the time of such location or sale or granted within five years subsequently thereto, and may at any time before the issue of the patent for such land be cut and removed under the authority of any such timber license while lawfully in force.
Upon the same 27th May, 1869, another order in council was approved and passed whereby regulations of a wholly different nature were established in relation to the sale of lands under " The Public Lands Act of 1860."
By this order it was provided that all pine trees growing or being upon any public land hereafter to be sold and which at the time of such sale or previously were included in any timber license, shall be considered as reserved from such sale and such sale shall subject any timber license covering such land in force at the time of such sale or granted within three years from date of sale, and such trees may be cut and removed from such land under the authority of any such timber license while lawfully in force, but the purchaser at such sale or those claiming under him or her may cut and use such trees as may be necessary for the purpose of building fencing and fuel on the land so purchased, and may also cut and dispose of all trees required to be removed in actually clearing said land for cultivation ; butno pine trees except for the necessary building, fencing and fuel Gwynne J. as aforesaid shall cut beyond the limit of such actual clearing before the issuing of patent for such land; and all pine trees cut and disposed of (except for the necessary building, fencing and fuel aforesaid) shall be subject to the payment of the same dues as are at the time payable by the holders of licenses to cut timber or saw logs.
All trees remaining land at time the patent issues shall pass to patentee.
And it was, apparently ex majori cauteld, provided that this order shall not apply to any land to be sold as mining land nor to land to be sold to any free grant locatee under the regulations or order in council bearing date this day.
From the above orders and regulations it appears that while lands sold to a free grant settler under the above regulations in that behalf are made subject to any timber license in force at the time of such sale or granted within five years subsequently thereto, lands sold *under the Public Lands Act of 1860 are made subject only to such licenses as may be in force covering such land at the time of such sale or granted within three years from the date of such sale, and that the provision in the 10th section of "The free grants and Homesteads Act of 1868," that all trees remaining on the land at the time the patent to a free grant locatee issues shall pass to the patentee, is by the order and regulation made in relation to land sold under " The Public Lands Act of 1860 " made part of the contract of sale entered into with the purchaser to the benefit of which he is entitled.
The Lieutenant Governor in Council, prior to the month of February, 1811, appears to have exercised the authority vested in him by the 4th and 5th sections of " The Free Grants and Homesteads Act of 1868," by appropriating certain of the townships comprised in the tract of country described in the 5th section of the act as townships in which free grants might be made to actual settlers, but the date or terms of the order in council making such appropriation do not appear for J. the order has not been produced; but on the 13th February, 1871, an act was passed intituled " An Act to encourage settlement in the Free Grant Territory," whereby after reciting that authority was given to set apart $20,000 from the consolidated fund for the purpose.
It appears further that prior to the appropriation of such townships for free grants by the Lieutenant- Governor in Council, under the said " Free Grants and Homsteads Act of 1868," contracts of sale for the sale of some lots in some of these townships to settlers had been made under " The Public Lands Act 1860," and the above regulations made thereunder, which sales
Government seems to have desired to convert into free grants, for on the 2nd March, 1872, the statute 35 Vic. ch. 21, intituled " An Act to provide for the remission of sums due by settlers in certain Free Grant Townships," was passed whereby it was enacted that:
Then again, on the 24th March, 1874, an act 37 Vic. ch. 23 was passed, intituled " An Act respecting sales of pine trees by certain settlers " in the free grant townships in the districts of Muskoka and Parry
Sound whereby an order in council of the 4th of Octo- L ber, 1871, was affirmed and declared to be. good and valid in law.
Then on the 2nd March, 1877, the act 40 Vic. ch. 15, intituled " An Act respecting the Free
Grants and Homesteads Act of 1868," was passed, whereby after reciting that
Gwynne J. doubts have arisen as to the right of the Commissioner of Crown
Lands to issue licenses to cut timber over and lipon lots located or sold to free grant settlers under the " Free Grants and Homesteads Act of
1868," and that it was expedient to remove such doubts, it was enacted that nothing in the said act or in the act passed in the 37th year of Her
Majesty's reign, chaptered 23, or in any other act passed by the legislature of this province or within its legislative authority contained, shall be held to have iii any way restricted the authority of the Commissioner of Crown Lands to grant licenses to cut timber on lots located or sold under the said Free Grants and Homesteads Act of 1868, and on the contrary it is hereby declared that the said commissioner ever since the passing of the said act had and now has under chapter
23 of the Consolidated Statutes of Canada intituled "An Act respecting the sale and management of Timber on public lands," full authority to grant licenses to cut timber on lots located or sold under the said Free
Grants and Homesteads Act of 1868.
If this act had stopped here, although it may be difficult to conceive what doubt could have existed as to the right of the Commissioner of Crown Lands to grant licenses to cut timber on lands in the free grant townships equally as on crown lands in other townships under the regulations to be issued from time to time by order of the Lieutenant- Governor in Council, still, if any such doubts did exist, this first section of the act now in recital was sufficient to remove them; but the act, while in its form a mere declaratory act passed for the purpose of removing the doubts said to exist proceeds to repeal, not in terms but in substance and effect, the very plain provision of the 10th section of " The Free Grants and TE
Homesteads Act of 1868," which enacted that " all trees LLKEFIELD Temaining on the land at the time the patent issues shall pass to the patentee," for the 2nd section declares that
SMAIEP.
every such license heretofore issued, whether the same has expired or is still current, and every such license which may be hereafter issued, Gwynne J. to cut timber within the limits of any territory appropriated as free grant territory under the said "Free Grants and Homesteads Act of 1868," shall be deemed to have been and to be good and valid in all respects whatever for the period for which the same was or may be granted, notwithstanding the patents for lands included may in the meantime have been issued ; and every such license shall be taken to have conferred and to confer upon the holder thereof the right to .cut timber on the lands included therein until its expiration, whether such lands were or are located or sold under the said act, or were or are unlocated or unsold, subject, however, to such conditions, regulations and restrictions specially applicable to the free grant territory, or to the said lots so sold or located, as may have been heretofore or may be hereafter made by the Lieutenant-Governor in Council in respect to the payment of timber dues or otherwise, and subject also to such exceptions or restrictions as may be contained in any such license. Provided that no license shall confer the right to cut any other than pine timber upon lands which have been located or sold in the said territory prior to the date of such license unless the location or sale shall have been cancelled.
This mode of repealing the plain language of a prior statute as to the construction of which no doubt is alleged to have been entertained was corrected, however, by the Ontario statute, 43 Vie. ch. 4, whereby sees. 7 and 10 of the said " Free Grants and Homesteads Act of 1868," were expressly repealed and other provisions substituted therefor.
The clause substituted for the repealed 10th section of the act of 1868 enacts that all pine trees growing upon any land located or sold within the limits of the free grant territory after the passing of this act shall be considered as reserved from said location, and shallbe the property of Her Majesty [subject to certain specific exceptions stated.]
And that the patents for all lands hereafter located or sold as aforesaid shall contain a reservation of all pine trees standing or being on said lands, which pine trees shall continue to be the property of Her Majesty, and r any person or persons now or hereafter holding a license to cut timber LAKEFIELD or saw logs may at all times during the continuance of such license enter upon the uncleared portion of any such lands and cut and remove such trees and make all necessary roads for that purpose and for the purpose of hauling in supplies, doing no unnecessary damage thereby;
but the patentees or those claiming under them may cut and use such
SHAIRP. trees as may be necessary for the purpose of building and fencing on Gwynne J. the lands so patented, and may also cut and dispose of all trees required to be removed in actually clearing the said land for cultivation, but no pine trees (except for the said necessary building and fencing as aforesaid) shall be cut beyond the limit of such actual clearing; and all pine trees so cut and disposed of shall be subject to the payment of the same dues as are at the time payable by the holders of licenses to cut timber or saw logs.
And further that the patentee, his heirs or assigns, of land hereafter located or sold under the Free Grants and Homesteads Act and this act shall be entitled to be paid out of the consolidated revenue of the province on all pine trees cut on such land subsequent to the 3rd day of April next after the date of the patent and upon which dues have been collected by the crown, the sum of twenty-five cents on each thousand cubic feet of square or waney pine timber; and the Lieutenant-Governor in Council is to make regulations for ascertaining and determining the persons from time to time to receive such payments and the sums to be paid.
Now, it is to be observed that all of the above acts passed since the passing of " The Free Grants and Homesteads Act of 1868," were passed wholly in relation to the lands by that act authorized to be appropriated by order of the Lieutenant-Governor in Council for free grants to be made to actual settlers, and for the purpose of giving effect to that act or by way of amendment thereof ; so that it might be well doubted whether any of them would have any application to the case of a lot of land sold even in a free grant township, if such a sale should be made and a patent be issued therefor under the provisions of
"The Public Lands Act of 1860," and the regulations established by order in council under that act. With that question, however, we are not now concerned. For the purposes of the present case it is sufficient to say that the above acts leave no doubt as to the construction be put upon the term grant terrtory" used now consolidated the revised statutes Ontario, namely, that J. is the same construction as must be put upon the words in 40 Vic. ch. 15:
"Any territory appropriated as free grant territory under the said Free Grants and Homesteads Act of 1868 " and upon the words in 37 Vic. ch. 23, "free grant lands in townships open for sale and location under the ' Free Grants and Homesteads Act of 1868,'" and on the words in P5 Vic. ch. 21 "free grant townships," and upon the words in 34 Vic. ch. 5, " lands forming part of the public lands appropriated for free grants to settlers under the term of the Free Grants and Homesteads Act of 1838," and that construction must be, lands in those townships which by order of the Lieutenant- Governor in Council have been appropriated for free grants to be made therein to actual settlers.
The above several acts having been consolidated in ch. 25 of the Revised Statutes which is intituled " An Act respecting Free Grants and Homesteads to actual settiers on public lands," their provisions must receive in the consolidated act the same construction as they must have received in the original acts as they stood before consolidation.
By a book produced from the Crown Lands I)epartment it appeared that 133 townships within the limits prescribed by the act of 1868 have been by older of the Lieutenant-Governor in Council appropriated as free grant townships for free grants to be made therein, and that Burleigh, which has been a township of the county of Peterborough at least as far back as 1851, is not one. There can, therefore, be no doubt, in my opinion, that neither the above act 43
Vic. ch. 4 nor the revised statute ch. 25 has any application whatever to the lot of land in question in this suit, which must be regarded in point of law, as it in point of fact was, as sold and patented under the provisions of " The Public Lands Act of 1860 " now consolidated as ch. 24 of the Revised Statutes under the title "An Act respecting the sale and management of Public Lands."
Now the lot was sold to the respondent on the
13th of March, 1884, and by the regulations, under which the sale took place as above extracted, we have seen that the land was subject only to such timber license as was then in force, or as should be granted within three years from the date of the sale; and by these regulations, which constituted the terms of the sale, it was declared that all trees remaining on the land at the time the patent issues should pass to the patentee.
It is admitted that all settlement duties were performed by the purchaser, and that his last instalment of purchase money was all paid up in fnll on the 18th of April, 1888.
We must assume then, and it is not disputed, that the respondent became then entitled to receive his patent, and this being so it is contended by the respondent that it was not competent for the Commissioner of Crown Lands to grant a license to cut any timber upon the lot after the 18th of April,
But in my opinion the Commissioner of Crown
Lands has not done so or affected to do so unless it be under the words in the license " and pine trees lands or lots sold under orders in council of the 27th
May. 1869." It is true that he issued the license under which the appellants claim upon the 3rd of May,
1888, but the true construction of the license, in my opinion, is that it covers and professes to cover only such of the lots comprised in the location described on the back of the license as were unlocated and unsold at the date of the issue of the license on the 3rd May, 1888. Now in the location endorsed on the license the lot in question is mentioned as it had been in licenses issued ever since 1873, yet by an express .
notice, also endorsed on the license, the licensee was informed that this particular lot had been sold on the 13th March, 1884, and so was not included in the lots over which the license operated.
The chief object the regulations under which the public lands are sold to purchasers is to prescribe the extent to which the lands sold shall be subjected to licenses to cut timber thereon.
I have no doubt, therefore, that when a lot was unsold when a license to cut timber thereon issued, but was sold while such license was in force, the licensee would be bound to ascertain and. to conform himself to the terms of such regulations as among those which, by the express terms of the act respecting timber on public lands, now ch. 26 of the revised statutes of Ontario, the license is subjected to. But in the present case, as the lot had not been only sold, but the right of the purchaser to receive his patent therefor had accrued before the license issued, the license construed as above, and as I think it must be construed, in express terms excludes the lot in question from the operation of the license, which conferred upon the licensee the right to cut timber only upon such of the lands enumerated on the back as had not been sold before the issue of the license, and the notice endorsed gave express information to the licensee that the lot in question had been sold on the 13th of March, 1884.
It is said, however, that the license expressly authorizes the licensee to cut " pine trees on lands sold under order in council of the
27th May, 1869."
From the context in connection with which these words are used they certainly seem to be used as applying to the regulations of that date under " The Public Lands Act of 1860," and not those of the same date made under " The Free Grants and Homesteads Act of but in virtue of what authority these words were inserted in the license did not appear.
However, assuming them to have been intended to apply to lands sold under the Public Lands Act
1860, now ch. 26 of the revised statutes of Ontario, the licensee must be regarded as having thereby express notice of those regulations and must be bound by them, and by reference to them it appears that no timber is reserved to the crown otherwise than as is stated in those regulations, and that by the express terms thereof all trees remaining on the land at the time the patent issues shall pass to the patentee; and as all the timber in question was cut long after the issue of the patent it is unnecessary to enquire whether there was any right over the timber reserved to the crown which the Commissioner of Crown Lands could grant over the lot in the interval between the final payment of the balance of purchase money on the 18th
April, 1888, and the issuing of the patent. As to the point that the license which issued on the 3rd May,
1888, was the same license as that issued in all the years subsequent to and in the year 1873 when the first appears to-have been granted and before the lot in question was sold, and that, therefore, the license of
1888 covered the lot in question equally as did that issued in 1883, and in prior years, it does not seem to me to be necessary to make any observations further than that it cannot be entertained.
The appeal, therefore, mqst be dismissed with costs.
J.--I am of opinion that this appeal should be dismissed for the reasons given in the court below in the judgments of Mr. Justice Osler and Mr. Justice Maclennan.
Appeal dismissed ith costs.