On 10th Sept., 1883, D. et al. obtained a certificate of pre-emption under the British Columbia Land Act, 1875, and Land Amendment Act, 1879, of 640 acres of unsurveyed lands within the 20 mile belt south of the C. P. R., reserved on the 29th Nov., 1883, under an agreement between the Governments of the Dominion and of the province of British Columbia, and which was ratified by 47 Vic., c. 14 (B.C.).
On 29th Aug., 1885, this certificate was cancelled, and on the same day a like certificate was issued to respondents, and on the 31st July, 1889, letters-patent under the great seal of British Columbia were issued to respondents.
By the agreement ratified by 47 Vic., c. 6 (D), it was also agreed that three and a half million additional acres in Peace River District should be conveyed to the Dominion Government in satisfaction of the right of the Dominion under the terms of union to have made good to it, from public lands contiguous to the railway belt, the quantity of land that might at the date of the conveyance be held under preemption right or by crown grant.
On an information by the Attorney General for Canada to recover possession of the 640 acres :
Held, affirming the judgment of the Exchequer Court, that the land in question was exempt from the statutory conveyance to the Dominion Government, and that upon the pre-emption right granted to D. et al. being subsequently abandoned or cancelled, the land became the property of the crown in right of the province, and .not in right of the Dominion.
* :-Sir Henry Strong C.J., and Fournier, Taschereau, Gwynne and King JJ.