Duff, J. :-

This is an appeal from the judgment of the Court of Appeal of British Columbia of 3rd February, 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. But for the legislation of 1904 and 1917 the respondent company's title would be indisputable.

In 1904 the Vancouver Island Settlers' Rights Act was passed by the Legislature of British Columbia; the relevant provisions of it being these :

" Section 2; "In this Act, unless the context otherwise requires: (a) ' Railway Land Belt' shall mean the lands described by Section 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.

"Section 3; Upon application being made to the 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 the said land was first so occupied by the said settler."

By a judgment of this Board in McGregor v. Esquimalt and Nanaimo Ry. Co., (1907) 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 of the railway company and vesting a title in fee-simple in the grantee. The time limit of twelve months fixed, by Section 3 of the Statute of 1904 was extended by a statute of 1917 to September 1 of that year. On 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 19th December, 1883, the relevant date mentioned in Section 3 of the Act of 1904, had improved these lands with a bona 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 f