The former commissioners, if they thought it expedient that walls, embankments, or works upon the island should be set further inward into the land and more land set out as a foreland for the preservation of the residue, might set the walls and works further inward making satisfaction to owners and proprietors, and this is what has been done :

32 Geo. 3, c. 31, ss. 13, 14.

The commissioners may sell surplus lands vested in them not required for the execution of the purposes of the Acts. This is not a quia timet action, but directed against acts which have done injury to the land. The subject cannot have the right to destroy what the Crown is bound to protect:

Attorney-General v. Tomline, 40 L. T. Rep. 775; 12 Ch. Div. 214; 42 L. T. Rep. 880; 14 Ch. Div. 58.

In the judgment delivered in deciding the appeal, James, L... examines the nature of the plaintiffs' right being of opinion that there was a right on the part of the owners of land, within the natural barrier of the shingle to have it protected from wilful injury or trespass. Brett, L.J. said that Colonel Tomline's was not in the position of a servient tenement, but yet he must not do an act which would let the sea in. Cotton, L.J. said the Crown is under an obligation to protect the land from the incursions of the sea and a grantee of land vested in the Crown can stand in no better position than the Crown itself would do. If contrary to the submission which is made on behalf of the commissioners the defendant is owner of the plot of foreshore he occupies he is nevertheless under the obligations not to take away shell and sand from it the plot in such a way as to expose the sea-wall to damage or injury by the sea. The plaintiffs also base their claims on the Acts:

Attorney-General of Southern Nigeria v. John
Golt and Co. (Liverpool) Limited, 112 L. T.
Rep. 955; (1915) A. C. 599 at 614.
p.

Lucien Fior and A. S. Diamond for the defendant. The land between the two sea walls is not vested in the plaintiff commissioners. The plaintiffs are not necessarily, in the absence of special circumstances entitled to an injunction because they have another remedy:

Grand Junction Waterworks v. Hampton Urban District Council (No. 1), 78 L. T. Rep. 673; (1898) 2 Ch. 331, per Stirling, J. at p. 345.

A special action in the name of their treasurer or clerk or an indictment is given them against persons injuring or destroying the walls or banks, and therefore no other remedy such as injunction is open to them:

32 Geo. 3, c. 31, s. 10;

46 & 47 Vict. c. lxxiii., s. 27.

Sect. 11 of the earlier Act throws the duty of maintaining the walls and banks upon the commissioners but the foreland is not vested in them. The soil of works abandoned by the commissioners is vested in and becomes the property of adjoining owners: 46 & 47 Vict. c. lxxiii., s. 34.

Vol. 126.-3257.

Vol. 126.-449 [CHAN. DIV.

In Attorney-General v. Tomline (sup.) the accretion was natural, here the barrier is of an artificial nature viz., the new sea wall. On the assumption that the defendant is a trespasser he is liable to be convicted for an offence made felony by the Act of 1792, and until conviction for that felony civil remedies against him are in abeyance, and this action ought to be stayed:

32 Geo. 3, c. 31, s. 32;

Smith v. Selwyn, 111 L. T. Rep. 195; (1914) 3 K. B. 98, per Kennedy, L.J. at p. 102. The defendant is entitled to ownership and possession of his foreshore, and trespass is wrongfully alleged by the plaintiffs. He is entitled to take away that which comes on his own land in consequence, to a large extent, of the industry employed by him or his predecessors in collecting it there. Subject to the rights of the Canvey Island Commissioners in the habendum to the conveyances of 1907 and 1919 means subject to their right to enter on the land for the purpose of repairing the sea wall." If they abandon the wall the soil would. belong to the defendant as owner of the adjacent land:

66

46 & 47 Vict. c. lxxiii., &. 31.

In any case the Act vested the surface of the soil only in the commissioners, and they have not shown that they have ever been in possession.

Coverdale v. Charlton, 40 L. T. Rep. 88; 4
Q. B. Div. 104;

Wandsworth District Board of Works v. United
Kingdom Telephone Company Limited, 51
L. T. Rep. 148;

Attorney-General of Southern Nigeria v. John
Holt and Co. (Liverpool) Limited, ubi sup.

The defendant has claimed a title to the land by prescription. The shell was not placed against the wall by the Canvey Island Commissioners, and it is in recent years only that the deposit in question has collected previously to which the wall did not suffer in any way. By consenting and allowing the open removal and use of sand and shell from the foreland for sale for building and other purposes for more than twenty years, the plaintiffs have been guilty of laches and acquiescence. They are estopped by the fact that there has been on their part no effectual assertion of their right. The commissioners made a path of surface shell removed. from land outside it along the top of the sea wall. They also sold shell to the Rochford Urban District Council.

Edward Clayton, K.C. in reply.-The right to an injunction in case of trespass is clear. The Act of 1792 upon its proper construction vests the right to possession of the foreshore in the plaintiffs:

32 Geo. 3, c. 31, ss. 10, 13, 16.

The commissioners were given power to sell surplus land vested in them:

46 & 47 Vict. c. lxxiii., s. 48.

In Coverdale v. Charlton (ubi sup.) it was not necessary that the local board should have more than the surface of the street vested in them, here it is necessary for carrying out the purposes for which the commissioners were incorporated that the land should vest in them. The plaintiffs are lawfully in possession. The person who has the

CHAN. DIV.]

title is in actual possession. Possession follows the title:

Jones v. Chapman, 2 Exch. 803, per Maule, J. at p. 821;

Ramsey v. Margrett, 70 L. T. Rep. 788; (1894) 2 Q. B. 18, per Davey, L.J., at p. 27. Cur. adv. vult.

EVE, J.-The constitution, powers, and duties of the plaintiffs in this action are sufficiently and accurately stated in the first four praagraphs of the statement of claim. It has been proved that in the years 1812 and 1813 their predecessors, in exercise of their powers under sect. 13 of the Act of 1792, substituted further inland the new wall referred to in par. 5 for the pre-existing wall and paid to one, Wilson, the then owner of the land on which the new wall was built and lying seaward thereof as far as the old wall, the sum of 1501. as reasonable satisfaction under the section.

Wilson's land in respect of which this payment was made covered an area of about 3 acres, and the payment of 150l. was fixed on the basis of the area, being worth 40l. an acre. The new wall is 4300 ft. in length and the defendant, alleging that he is the owner in fee in possession of a strip of the land (formerly Wilson's) intervening between the two walls and having a frontage along the new wall of 100 ft., from east to west, has removed and carried away from the said strip part of an accumulation of sand, shell, shingle, and other drift some 3 ft. in depth, and asserts his right to remove and carry away all such drift even though such removal and carrying away exposes the plaintiffs' wall and works and the lands protected thereby to greater risk of inundations of the sea. That this greater risk exists in consequence of the defendant's acts the plaintiffs have established by uncontradicted evidence, and the first question I have to decide is whether, assuming the strip to be the defendant's freehold, the plaintiffs are entitled to an injunction restraining him from so removing drift therefrom as to expose their wall and works to the greater risk I have indicated.

I think the answer to this question is to be found in the judgments in the case of the Attorney-General v. Tomline (40 L. T. Rep. 775; 12 Ch. Div. 214; and on appeal, 42 L.T. Rep. 880; 14 Ch. Div. 58), more particularly in those of Fry, J. and Cotton, L.J.

The defendant alleges, and it appears to me correctly, that the strip is foreshore. He is therefore, on the hypothesis upon which this part of my judgment proceeds, in the same position as Colonel Tomline was that is to say, an owner of foreshore on which has been accumulated by the action of successive tides a natural barrier against the sea. This barrier he is claiming a right to remove, notwithstanding that by so doing he will expose the plaintiff's wall to greater risk of damage or destruction by the sea and the land beyond it to increased chances of being inundated.

No doubt there is a distinction between this and Tomline's case in that in the latter the drift constituted the only barrier between the incoming sea and the threatened land whereas in this case the threatened premises are themselves a wall and drainage system erected and made as protective works, but I do not think this distinction is material. The new wall was erected further inland in order to set out a larger part of the island for a foreland for the preservation of the residue thereof (sect. 13 of

[CHAN DIV.

the Act of 1792) and it cannot, in my opinion, be the law that the owner of the freehold or foreshore is relieved from his obligation not to destroy the natural barrier because the owner of the land abutt. ing on the natural barrier takes the further precaution of erecting an artificial barrier behind the natural one formed by the foreshore itself. I think the concluding part of Cotton, L.J.'s judgment in Tomline's case commencing with the words "Theoretically for the purpose of considering" in the middle of p. 69 of 14 Ch. Div. to the end on p. 70 is conclusive on this part of the case. It is true that a substantial part of the drift on the strip has been accumulated and retained there in consequence of the placing on the foreshore some twenty years ago by some one other than the plaintiffs or the defendant of certain barrels full of damaged cement. These have to some extent undoubtedly prevented the drift deposited by one tide from being withdrawn by a later tide, and it was argued that this again distinguishes this case from Tomline's. I do not think so. Groynes and artificial means to retain drift on the foreshore are of constant Occurrence. Their presence often enables an accumulation to be maintained sufficient to afford adequate protection to the inlying land, and at the same time leave a margin which can safely be removed for commercial purposes. I cannot treat the presence of these barrels as modifying the defendant's obligations towards the plaintiffs, and the result is that even if the defendant be in fact the owner in fee of the strip the plaintiffs are, in my opinion, entitled to the qualified injunction asked for in the first part of par. 1 of their claim.

But the plaintiffs deny that the defendant has any interest as owner or otherwise in the strip and alleging that they are the owners thereof under a statutory title they claim an injunction to restrain the defendant from removing any part of the drift, and from otherwise trespassing on the strip.

The determination of this question depends on the construction of the Act of 1792. The exercise of the powers conferred by sect. 13 involved two operations-the taking of land further inward for the erection thereon of the new wall, and the setting out or leaving out as additional foreshore of the land lying between the new wall and the site of the old wall. The reasonable satisfaction which these operations entailed had to be made to the person or persons whose lands shall be so taken or left out." There can be no question but that the new wall and the banks and works connected therewith vested in the commissioners by virtue of sect. 10 of the Act, but there are no express words in that section or elsewhere in the Act which can be pointed to as vesting in them the land set out or left out as additional foreshore.

On the other hand it is difficult to see how the owner could have any continuing interest in the land taken or set out after satisfaction had been made, for by sect. 14 the measure of satisfaction was obviously the value of the land and by sect. 16 the money or recompense to be paid for any land taken or left out for a foreland belonging to any corporation or other incapacitated person had to be paid to the nominees or trustees therein mentioned "in trust with all convenient speed to be reinvested in the purchase of other lands which shall be conveyed and settled upon and subject to the like uses, trusts, and limitations as the land so taken or left out belonging to such corporation or other incapacitated persons shall be then settled, limited

or assured." On the whole I think that the effect of the statute must have been to vest in the commissioners the whole of the land taken and set out pursuant to sect. 13.

Of so much of Wilson's land as was used for the erection of the new wall and works the plaintiffs and their predecessors have been in possession for over a century and it may be that this ought to be construed as possession of the whole area, but, if not, they rely on specific acts of ownership exercised by them on the foreshore. In 1902 they gave one, Hester, a revocable licence to erect a jetty from land in the rear of the new wall to the sea-crossing their wall; the same to be erected in strict accordance with certain plans, and to the satisfaction of their engineer and to be removed if they so required. In 1904 they exhibited notice boards warning persons against removing shell and shingle, and in 1910 they gave a revocable permit to one, Humberstone, to erect and on payment of a small annual acknowledgement to retain a boat house on the shore. The land has been regularly visited and supervised by their bailiff who reported to the works committee of the commissioners any acts done by other persons thereon calculated to endanger or interfere with the wall and works. Having regard to the nature of the tenement, I am satisfied that the plaintiffs are and at all material times have been in possession.

On the 14th April 1919 one Gould, in consideration of the sum of 451. purported to convey to the defendant the strip of foreshore in dispute in this action together with the site on which a length of 100 ft. of the plaintiffs' new wall had been erected, and a small piece of land on the far side of the wall occupied in part by a ditch and other drainage works belonging to the plaintiffs.

By the habendum the purchaser is to hold the premises subject to the rights of the plaintiffs and the Thames Conservancy over the sea wall or any other part of the land. According to deeds produced by or on behalf of the defendant, Gould purchased from one Wiggins, in 1907, four days after Wiggins had purchased from one Russ, who was a mortgagee from Hester under a mortgage dated in Sept. 1904. Beyond this no titie has been deduced by the defendant or indeed suggested, and no possession or acts of ownership by or on the part of any predecessor of the defendant were proved, but under colour of the deed of April 1919 the defendant entered on the land-erected a hut in which he sells tea and other refreshments to visitors in the summer, and recently excavated and removed for sale the sand, shell, and other drift in the manner, and to the extent which gave rise to this action. On these facts he bases a claim to be owner in fee of the strip. Such claim cannot, in my opinion, succeed. The title, such as it is, disclosed by the deeds, is expressly subject to the rights of the plaintiffs, and cannot successfully be set up against the title they have established under the statute. The possession of the plaintiffs and of the defendant is at most doubtful or equivocal and in these circumstances the law attaches it to the title: (see Jones v. Chapman, 2 Ex. 803 and Ramsey v. Margrett, 70 L. T. Rep. 788; (1894) 2 Q. B. 18.)

The defendant is a trespasser and the plaintiffs are entitled to an injunction to restrain him from excavating or removing any stones, shingle, shell or soil from the strip in question-which must be properly identified-and from otherwise trespassing on the said strip or any part thereof. I do not

[P.C.

think it is a case for more than nominal damages, and I award the plaintiffs the sum of 40s. under that head. The defendant must pay the costs of the action.

At an early stage of the hearing counsel for the defendant raised the point that the plaintiffs' case amounted in substance to a charge of felony against the defendant, and he applied to have the action stayed until after criminal proceedings had been taken against the defendant, citing Smith v. Selwyn (111 L. T. Rep. 195; (1914) 3 K. B. 98) as sufficient authority for the making of such an order. There are many answers to this application, the most conclusive perhaps being this, that the statement of claim so far from alleging any felonious act on the part of the defendant under sect. 32 of the Act of 1792 or otherwise expressly asserts that the defendant has done the acts complained of under a claim of right. In the face of that assertion any prosecution would be an idle and useless proceeding, and must inevitably fail.

Solicitors: Kingsford, Dorman, and Co., agents for Gregsons and Powell, Southend-on-Sea; Engall and Crane,

Judicial Committee of the Privy Council.

July 25, 26, and Nov. 18, 1921. (Present: Lords HALDANE, CAVE, and CARSON, DUFF, J. and Sir ROBERT STOUT.)

CHARLES WILSON AND OTHERS v. ESQUIMALT AND ΝΑΝΑΙΜΟ RAILWAY COMPANY (and Crossappeal Consolidated). (a)

ON APPEAL FROM THE COURT OF APPEAL OF BRITISH COLUMBIA.

British Columbia-Vancouver Island Railway company Grant of land as subsidy-Reservation of rights-Act of provincial Legislature-Dis. allowance by Governor-General in Council-Title to land" Reasonable proof "-Settlers' Rights Act 1904 (Brit. Col. 1904, c. 54), s. 3.-British North America Act 1867 (30 & 31 Vict. c. 3), 88. 53, 90, 91 (sub-s, 29), 92 (sub-ss. 10, 13). By a conveyance dated the 24th Dec. 1890 certain lands on Vancouver Island had been conveyed by deed to G. by a railway company reserving to the company certain rights, inter alia, the right to take timber for railway purposes, and the right to take land for stations and workshops. In Feb. 1918 a Crown grant was issued under Brit. Col. 1917, c. 71 purporting to convey to the executors of G. a title in fee simple to the land applied for, subject only to certain exceptions and reservations in favour of the Crown. On the 30th May 1918 the GovernorGeneral by an Order in Council disallowed the Act of 1917. By an Act passed by the Dominion Parliament in 1905 the railway had been declared to be a work for the general advantage of Canada" so as to pass within the exclusive legislative jurisdiction of the Parliament of Canada in virtue of the British North America Act 1867, s. 91 (29) and s. 92 (10).

Held, that upon the passing of the Act of 1905 the

Legislature of the province ceased to possess the

(a) Reported by EDWARD J. M. CHAPLIN, Esq., Barristerat-Law.

authority to deprive the railway company of its legal title to any of the subjects actually forming part of the railway as defined by sect. 2, sub-sect. 21 of the Dominion Railway Act (R.S.C. 1906, c. 37). The disallowance of a provincial statute was inoperative at all events as to private rights completely constituted and founded upon transactions entirely past and closed, and the absence of registration of the grant did not affect the question, as the appellants had when they applied for registration a completely constituted right to register their title. Held, further, that in a proceeding before the LieutenantGovernor in Council for a Crown grant of land under sect. 3 of the Settlers' Rights Act 1904, the function of the Lieutenant-Governor in Council was judicial in the sense that he must preserve a judicial temper and perform his duties conscientiously with a proper feeling of responsibility. He was not bound to govern himself by the rules of procedure regulating proceedings in a court of justice. The procedure followed must be presumed to have been adopted in exercise of his discretion, and his decisions taken in the exercise of that discretion were final and not reviewable in legal proceedings. Decision of the Court of Appeal of British Columbia reversed.

APPEAL from a judgment of the Court of Appeal of British Columbia dated the 3rd Feb. 1921 dismissing the appeal from the judgment of Gregory, J. in an action brought to set aside a Crown grant of lands on Vancouver Island dated the 15th Feb. 1918 made under the Vancouver Island Settlers' Rights Acts 101 (Brit. Col. 1904, c. 54) as amended by Brit. Col. 1917, c. 71, s. 2.

The respondent company claimed to be entitled to the lands comprised in the said grant.

Gregory, J. set aside the Crown grant upon the ground that there had not been a sufficient hearing accorded the respondent by the Lieutenant-Governor in Council.

The Court of Appeal, by a majority, affirmed his decision on other grounds. From that decision the present appeal was brought. There was also a cross appeal as to damages.

S. S. Taylor, K.C. and Arnold (both of the Canadian Bar) for the appellants in the principal appeal.

Sir John Simon, K.C., Hon Sir M. Macnaghten, K.C., and H. B. Robertson, K.C. (of the Canadian Bar) for the railway company, the respondents in the principal appeal.

The following cases were referred to:

Esquimalt and Nanaimo Railway Company v. Granby Consolidated Mining, Smelting, and Power Company Limited, 122 L. T. Rep. 199; (1920) 172;

Esquimalt and Nanaimo Railway Company v. Wilson and another, 122 L. T. Rep. 563 ; (1920) A. C. 358;

Kay v. Goodwin, 6 Bing. 576;
Surtees v. Ellison, 9 B. & C. 750;
Wood v. Morewood, 3 Q. B. 440;
McGregor v. Esquimalt and Nanaimo Railway
Company, 97 L. T. Rep. 223; (1907) A. C.

462; Attorney-General for British Columbia T. Canadian Pacific Railway Company, 94 L. T. Rep. 295; (1903) A. C. 204; McClintock v. Union Bank of Australia Limited, 20 N.S.W. State Reports, 494.

The considered opinion of their Lordships was delivered by

DUFF, J.-This is an appeal from the judgment of the Court of Appeal of British Columbia of the 3rd Feb. 1921, affirming the judgment of the trial judge, Gregory, J., in favour of the respondent company in which their Lordships have to consider the effect of the Vancouver Island Settlers' Rights Act of 1904 and the amending Act of 1917 that was subsequently disallowed, as well as the effect of that disallowance upon the rights of the grantees under Crown grants issued by authority of those enactments.

Two actions were brought by the respondent company to establish its title to certain lands comprised in a grant to the appellants professedly made under the authority of the statutes mentioned.

A history of the legislation and other public and private proceedings and transactions affecting more or less directly the land whose title is in controversy would be a rather voluminous one, but it is unnecessary now to enter into that history in detail. Admittedly, these lands are situated in a considerable district in Vancouver Island known as the Esquimalt and Nanaimo Railway Belt; a tract of land granted by a provincial statute to the Dominion Government in execution of the terms of an arrangement arrived at in the year 1883 in settlement of disputes between the two governments, and in turn by the Dominion Government, pursuant to the same arrangement, granted to the Esquimalt and Nanaimo Railway Company (the respondent company) as a subsidy in aid of the construction of a line of railway (the Esquimalt and Nanaimo Railway) in Vancouver Island. for the legislation of 1904 and 1917 the respondent company's title would be indisputable.

But

In 1904 the Vancouver Island Settlers' Rights Act was passed by the Legislature of British Columbia the relevant provisions of it being these: Sect. 2. In this Act, unless the context otherwise requires:

(a) Railway Land Belt" shall mean the lands described by sect. 3 of Ch. 14 of 47 Vict., being An Act relating to the Island Railway, the Gravingdock, and Railway lands of the Province."

(b) Settler" shall mean a person who, prior to the passing of the said Act, occupied or improved lands situate within the said railway land belt, with the bona fide intention of living thereon.

the

Sect. 3. Upon application being made to Lieutenant-Governor in Council, within twelve months from the coming into force of this Act, showing that any settler occupied or improved land within said railway land belt prior to the enactment of Ch. 14 of 47 Vict., with the bona fide intention of living on the said land, accompanied by reasonable proof of such occupation or improvement and intention, a Crown grant of the fee simple in such land shall be issued to him or his legal representative free of charge and in accordance with the provisions of the Land Act in force at the time when said land was first so occupied or improved by said settler.

By a judgment of this board in McGregor v. Esquimalt and Nanaimo Railway Company (97 L. T. Rep. 223; (1507) A. C. 462) it was decided that a grant under the statute of 1904 had the effect, as to the lands comprised in the grant, of displacing the title or the railway company and vesting a title in fee simple in the grantee. The time limit of twelve months fixed by sect. 3 of the statute of 1:04 was extended by a statute of 1917 to the 1st Sept. of that year.

On the 5th July 1917, the appellants, Wilson and McKenzie, as executors of Joseph Ganner, deceased, applied under the Act of 1917 for a Crown grant of the lands in dispute alleging that Joseph Ganner in his lifetime and before the 19th Dec. 1883, the relevant date mentioned in sect. 3 of the Act of 1904, had improved these lands with a bonâ fide intention of living thereon; this allegation being supported by statutory declarations of the executors and others. The late Joseph Ganner had already in his lifetime received a conveyance of these lands, "less the right of way for the railway," by deed reserving to the company the right to take timber for railway purposes, rights of way for their railway" and the right to enter and to take such land as might be required for stations and workshops and excepting all minerals including coal; and subsequently, pursuant to this application on the 1th Feb. 1918, a Crown grant was issued purporting to convey to Wilson and McKenzie, as executors of Ganner, a title in fee simple to the land applied for, subject only to certain exceptions and reservations in favour of the Crown. On the 30th May 1918, the GovernorGeneral by an Order in Council disallowed the Act of 1917.

The Court of Appeal, with the exception of McPhillips, J. who dissented, concurred with the trial judge, Gregory, J. in holding, though not precisely upon the same grounds, that the authority vested in the Lieutenant-Governor in Council by the statutes of 1904 and 1917 was subject to certain conditions that had not been observed in the proceedings resulting in the issue of the grant, which they decided was consequently invalid. The questions which thus engaged the attention of the courts below will require discussion, but in the meantime it is more convenient to deal with the points arising in consequence of the fact that in the year 1905 that is to say, after the passing of the Act of 1904, but before the passing of the Act of 1917, the "railway" of the respondent company was, by an Act of Parliament of Canada (c. 90, s. 1), declared to be a work for the general advantage of Canada"; the word "railway "in this statute signifying by force of sect. 2, sub-sect. 21, of the Dominion Railway Act (R.S.C. 1903, c. 37) :

Any railway which the company has authority to construct or operate, and all branches,

sidings, stations, depots, wharfs, rolling stock, equipment, stores, property real or personal and works connected therewith, and also any railway bridge, tunnel, or other structure which the company is

authorised to construct.

Upon the passing of the Act of 1905, in virtue of the enactments of sect. 91 (29) and sect. 92 (10) of the British North America Act, the "railway of the respondent company passed within the exclusive legislative jurisdiction of the 1 arliament of Canada and, accordingly, their Lordships think the Legislature of the Frovince ceased to possess the authority theretofore vested in it under No. 10 of sect. 92 and No. 13 of the same section of the British North America Act, to deprive the railway company of its legal title to any of the subjects actually forming part of the "railway so declared to be “a work for the general advantage of Canada,' and to vest that title in another. It does not follow, however, that lands acquired by the railway company as a subsidy granted for the purpose of aiding in the construction of the railway and not

held by the company as part of its " railway or of its undertaking as a railway company were withdrawn from the legislative jurisdiction of the province in relation to “property and civil rights"; and, in their Lordships' opinion, that authority was,notwithstanding the enactment of the Dominion Act of 1905, still exercisable in relation to such subjects.

On the other hand, as their Lordships have already noticed, the railway company was, by virtue of the stipulations contained in the conveyance to Ganner, the owner of certain rights (to take effect timber for railway purposes, rights of way for the railway, to take land for stations and workshops), which rights, it cannot be denied, were held by the company as part of its railway undertaking. Whether or not they were actually part of the "work," that is to say of the "railway" declared to be a work for the general advantage of Canada," these rights were so identified with the railway undertaking as to justify the most serious doubts whether they could legally be swept away or impaired by provincial legislation. And it was with entire propriety that Mr. Taylor, as counsel for the appellants, agreed that all lands and all such rights as ought to be considered as part of the railway undertaking, should be treated as excluded from the operation of the grant.

66

Indeed, the real controversy seems to concern the coal only, and as regards the coal it appears to have been so dealt with that it would be impossible to regard it as any longer a part of the railway undertaking, though in respect of the working of it, in so far as such working may affect the railway, all parties are of course under the control of the Board of Railway Commissioners.

The question that was principally discussed before their Lordships' Board was that presented by the contention of the respondent company concerning the effect of the disallowance of the Act of 1917, by which it is argued the grants already made to the appellants are nullified. In relation to this question the pertinent sections of the British North America Act are sects. 56 and 90. By the first of these a power of disallowance in respect of Dominion Acts is vested in the Queen in Council; by sect. 90 the provisions of sect. 56 are, inter alia, made applicable to statutes passed by the provincial legislatures, the Governor-General in Council being substituted as disallowing authority for the Queen in Council, and the period of two years named in sect. 56 being reduced to one year. Textually, sect. 56 is as follows:

Where the Governor-General assents to a Bill in the Queen's name, he shall by the first convenient opportunity send an authentic copy of the Act to one of Her Majesty's Principal Secretaries of State, and if the Queen in Council within two years after receipt thereof by the Secretary of State thinks fit to disallow the Act, such disallowance (with a certificate of the Secretary of State of the day on which the Act was received by him) being signified by the GovernorGeneral, by speech or message to each of the Houses of Parliament or by Proclamation, shall annul the Act from and after the day of such signification.

For the purposes of the present appeal the point under examination turns, as their Lordships think, upon the effect to be ascribed to the words shall annul the Act from and after the day of such signification."

Cases may no doubt arise giving place for controversy touching the application of this phrase