Argument.

the patent issues, are to pass to the patentee, but this provision cannot affect a prior licensee, for the license is not revoked by the issue of the patent: Farquharson v. Knight, 25 U. C. R. 413; McMullen v. Macdonell, 27 U. C. R. 36; Contois v. Bonfield, 25 C. P. 39; Anderson v. Muskoka Mill & Lumber Co., 27 C. P. 180. The three years period after location mentioned in these regulations, does not apply to the case of land which has been actually under license before the date of location. It is intended to cover the case of land which has never been under license. Where a license has actually been issued before the date of location, the licensee has a vested right of renewal of the license, and does not lose his right until the issue of the patent: Gilmour v. Buck, 24 C. P. 187. The license is in fact a grant of the pine trees, and is not affected by the subsequent issue of the patent.

Watson, Q. C., and E. B. Edwards, for the respondent. The Timber License Act, R. S. O. (1887) ch. 28, expressly provides that no license shall be granted for a longer period than twelve months from the date thereof, and a license expires at the end of the license year in which it is issued. The validity of the license in question therefore must be decided at the time of its actual issue, and cannot be referred back to the time of the issue of the first license, of which the present license purports to be a subsequent renewal. Under the regulations governing this case, no license can be granted to take effect after the expiration of three years from the time of the location or sale of the land and the license under which the defendants seek to justify their trespass is invalid on this ground. Then these regulations also provide that all trees on the land at the time the patent issues shall pass to the patentee, so that on this ground also the plaintiff is entitled to succeed. The lot in question is not in any way subject to the Free Grants and Homesteads Act. The township of Burleigh has not been specifically appropriated or set apart for the purposes of the Act and the reservations in section 10 apply only to such land as has

been specifically appropriated or set apart. Here the Argument. patent has been given to the plaintiff as absolute purchaser and contains no reservation or condition whatever as to pine or other timber. Clearly, therefore, the pine and other timber became and were the property of the plaintiff. Poussette, Q.C., in reply.

May 13th, 1890. OSLER, J.A. :

The principal question is, whether the plaintiff's land can be said to be land located or sold within the limits of the Free Grant territory within the meaning of the Act respecting Free Grants and Homesteads to actual settlers on public lands, R. S. O. (1887), ch. 25, so as to be subject to the reservations in the Act and Orders in Council made in pursuance of it respecting pine timber thereon.

Section 3 of the Act enacts that the Lieutenant-Governor in Council may appropriate any public lands considered suitable for settlement and cultivation, not being mineral or pine timber lands, as free grants to actual settlers under such regulations as shall from time to time be made, not inconsistent with the provisions of the Act.

Section 4. Such grants or appropriations shall be confined to lands surveyed or hereafter to be surveyed, situate within "the tract or territory" defined in the section.

The township of Burleigh is within this tract, but none of the public lands therein have ever been appropriated or set apart by the Lieutenant-Governor in Council for the purposes of the Act. In other words it is not what is commonly called a "free grant township." The defendants rely upon section 10, which enacts that pine trees growing or being upon land located or sold, within the limits of the Free Grant territory after the 5th of March, 1880, shall be considered as reserved from the location, and shall be the property of Her Majesty; and upon section 11, which enacts that the patents for all lands located or sold, as aforesaid, shall contain a reservation of all pine trees standing or being on the land, and any person now or hereafter hold

42-VOL. XVII. A.R.

OSLER
J.A.

Judgment. ing a license to cut timber or saw logs on such lands, may at all times during the continuance of the license, enter upon the uncleared portion, and cut and remove trees, and make necessary roads, &c.; and they contend that the "territory" mentioned in section 10 is the whole tract or territory defined in section 4, or that out of which appropriations for free grants may be made, and not merely that which has been set apart and appropriated by the Lieutenant-Governor in Council for that purpose, which is the plaintiff's contention.

It appears to me having regard to the whole Act and the course of legislation that the expression " Free Grant territory," in section 10, is not necessarily to be construed as meaning the territory or tract defined in section 4.

Sections 10 and 11 were introduced into the Free Grants Act, then R. S. O. ch. 24, by the Act of 1880, at which time a very large number of townships had been brought under the Act. and appropriated as free grant lands by the Lieutenant-Governor in Council, and as such constituted a Free Grant territory All lands not so appropriated remained unaffected as ordinary Crown or public lands, for as section 10 formerly stood there was no room for the argument which has been built upon its amended form.

The Act relates to free grant settlers, and to land located or sold to them under its provisions, and the rights of license holders over such lands.

The intention of sections 10 and 11 manifestly was, and is, to preserve to the Crown the right to pine timber on such lands notwithstanding the location and sale, and subsequent patent-to change in short the law as it was under the former section, by which all trees remaining on the land when the patent issued passed to the patentee. Section 14, the origin of which is 40 Vic. ch. 15, sec. 2, was left unaltered, and it throws light upon the meaning of the expression. It enacts (inter alia) that every license issued to cut timber within the limits of any territory appropriated as Free Grant territory, shall be deemed to be good and valid for the period for which it

OSLER
J.A.

may be granted, notwithstanding the patent for lands Judgment. included therein may have been issued, and every license shall confer upon the holder the right to cut timber on the lands included therein until its expiration, whether located or unlocated, sold or unsold, subject to such conditions, regulations, and restrictions specially applicable to the said Free Grant territory as may have been heretofore, or may be hereafter, made by the Lieutenant-Governor in Council.

Here the free grant territory alluded to is evidently that which has been appropriated as such under section 3, and I think it cannot have been intended to place public lands not so appropriated, even though in that part of the Province within which the appropriation might be made, in a different position from other public lands in respect of which the rights of the purchaser and license holder are defined by the Act respecting Timber on Public Lands, R. S. O. (1887) ch. 28, and regulations made by the LieutenantGovernor in Council thereunder. See also the preamble of 34 Vic. ch. 5, which speaks of lands "forming part of the public lands appropriated for free grants."

It was argued that as section 10 refers to lands located or sold within the limits of the Free Grant territory, lands not appropriated for free grants are included if within the territory out of which the appropriation may be made; but this appears to me to relate to the regulations of May, 1869, under which the free grant locatee is entitled to purchase an additional 100 acres at the time of his location, subject to the same reservations and conditions and performance of the same settlement duties as provided in respect of the free grant location.

The plaintiff is therefore not a locatee or purchaser under the Free Grant Act and regulations, and as the patent contains no reservation of the pine trees as required by section 11, the Crown evidently took that view of his position. As purchaser and patentee he is subject only to the rights conferred by the license under which the defendants claim, unaffected by the provisions of the Free Grant Act and regulations.

Judgment.
OSLER
J. A.

Now the license itself in terms limits and defines the rights of the holder in such a way as to exclude the plaintiff's lot from its operation, at all events from the moment of the issue of the patent. It gives him license and power to cut every description of timber (1) on lands unlocated, and unsold at the date thereof, viz., the 30th of May, 1888, or (2) sold or located during the time it is in force, i.e., up to the 30th of April, 1889; (3) pine trees on lands or lots sold under orders in Council of 27th of May, 1869: (4) pine and cedar trees, when reserved, on lots sold under Order in Council of 3rd of April, 1880, upon the location described on the back of the license. Other classes of lots are referred to in the license, but as they are free grant lots and mining lands, I do not specify them.

As the plaintiff's lot was located and sold long before the date of the license, viz., on the 13th of March, 1884, and as no reservation was made on the sale of the lot, of pine and cedar under the Order in Council of 3rd of April, 1880, the only regulations applicable are the pine timber regulations of 27th of May, 1869. These provide that “ all pine trees on any public land thereafter to be sold, which at the time of such sale or previously was included in any timber license, shall be considered as reserved from such sale, and shall be subject to any timber license covering or including such land in force at the time of such sale, or granted within three years from the date of such sale, and such timber may be cut and removed from such land under the authority of such timber license while lawfully in force.

"All trees remaining on the land at the time the patent issues shall pass to the patentee."

On the back of the license is a schedule of lots included in the location, with the date of sale or location, and the plaintiff's lot is stated therein to have been sold or located on the 13th of March, 1884.

I have already in the recent case of McArthur v. Northern and Pacific Junction R. W. Co., 17 A. R. 86, expressed the opinion that the express provisions of section 1, sub