It will be noted at once that a most important change was effected by the insertion of the one word "townships" in the section as revised, and whether it was done advisedly or whether it is an illustration of what His Honour Judge Barron calls the "pitch and toss method of amending our laws,"21 it is submitted that the question of the combined effect of sections 599 and 601 depends very largely upon the question of the intention of the legislature, as a matter of interpretation, in inserting that word. It is remarkable that the marginal heading to the section reads: "Streets in cities, towns, and incorporated villages, how far vested in the municipality." There would be strong reason to suspect that the word was inserted inadvertently in the first instance,22 were it not for the fact that concurrently with this change there was made the change in section 599 by inserting the phrase "unless otherwise provided for." Whatever the effect of the alteration may be it was evidently not fully appreciated by the revisers, judging from the fact that it was not until the revision of 1873 that the heading was changed to "possession in the municipality."

The conclusion seems irresistible that the original "Highways Act" was not intended to vest then existing highways in the Crown unless they were "altered or amended" under the Act, the policy of the Act being clearly that only such highways as were to be opened under the Act and such as were to be substituted for old highways should be affected.

And with regard to urban highways, the "right to use " them was to be "vested" in the municipality. When in the revision this section was extended to cover also "townships," and at the same time the highways themselves (instead of the "right to use" them) were declared to be in the municipality, the question would at once have arisen as to the status of those rural highways which would come under both sections. Apparently for the purpose of obviating any overlapping, the revisers added to the section from the Highways Act the phrase "unless otherwise provided for."

21 Barron on Conditional Sales, 2nd ed., 74.

22 Note a similar change in s. 39 of the Land Surveys Act (R. S. O. c. 181), in the revision of 1897, when the word "townships' was added to the section. This appears to have escaped the notice of Mr. Armour, for in his Real Property he still distinguishes between rural and urban municipalities in dealing with the section. Ar. on R. P. p. 71.

The question therefore seems to resolve itself into a consideration of the effect of the words "highway shall be vested." The only weakness of the position that these words give the right of property in the soil to the municipality is the variance between the language of sections 599 and 601. The one vests the "soil and freehold;" the other vests the "highway." If the term "highway could be used in a sense analogous to that of a private way, i.e., of an incorporeal right of property, the difference in language might be explained on the theory that concurrent rights exist in the Crown and the municipality, the former to the fee, the latter to a qualified property right. But the word highway cannot be used in any such sense. As a descriptive word in an Act it could hardly mean anything else than the land itself. When therefore highways are declared to be vested in the municipality it appears difficult to ascribe to the provision any other meaning than would be given to the phrase "soil and freehold in the highway shall be vested.”23

If this view is correct then the proper division of the subject is a division of all highways into two classes, not a division of the property rights in all highways into two species of property, one a qualified property" and the other the ultimate fee.

The former method is the one supported by the most direct authority. In the earliest case in which the conflict of the two sections was discussed,24 Burns, J., said: "It may be difficult to say to what particular class of roads that provision was intended to extend—not to all roads or highways, for if that had been the intention nothing could have been easier than to have said so in so many words: it only refers to highways or roads altered, amended or laid out, according to law. In case of such roads it may have been considered advisable to vest the soil and freehold of new and substituted roads in Her Majesty unless some other provision were made by which it would pass to the municipality. In that case it would vest under the 314th25 section." Speaking of the present section 601, he says: "That section, I think,

Sarnia v. Gt. Western Ry. Co., 21 U. C. R. 59, and note the language of Street, J., in Roche v. Ryan, post.

"This was the view adopted in Roche v. Ryan, 22 O. R. 107. 25 Now section 599.

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does vest in the municipalities the several streets and roads. within their borders, except as specified in the two cases mentioned."

The views in this case have never been seriously shaken, but there has been an undercurrent of opinion which expressed itself in the judgment of Boyd, C., in Re Trent Valley Canal, 11 O. R. 694, as follows: "Though many judicial opinions have been expressed upon their scope and effect, I think that a satisfactory solution of their meaning has yet to be pronounced by an appellate court." The judgment in that case might be considered authoritative for the view that the freehold of highways is in general in the Crown, were it not for the fact that the learned Chancellor displayed great reluctance in deciding the facts of the case and greater reluctance to laying down a general rule. The learned Chancellor himself admits: "This aspect of the case was not presented or argued, and it may be I have overlooked some statute which would alter the result."

The case was a contest between a municipality and a private individual for the compensation which the Dominion was paying for lands expropriated. The land in question had been dedicated by the private individual as a highway and adopted by by-law. On appeal the Chancellor declined to proceed without having the Attorney-General of the province added as a party to the proceedings. The Attorney-General was added and in the subsequent hearing it was held that the compensation should go to the AttorneyGeneral as representative of the Crown, to be applied as he thought best. The matter as between the municipality and the private individual, on the one hand, and the Crown on the other, seems not to have been fully argued, the two former contenting themselves with arguing their cases against each other, the result being a fate similar to that of the two boys who found the nut. The Chancellor said: "Originally, it may be that the soil and freehold of this street remained in the private owner, subject to the public easement, but since 1858, at all events, I am compelled to think that it became vested in Her Majesty by virtue of 22 Vict. c. 99, s. 301.26 I have not fully investigated whether there was not some earlier enactment to a like effect, but this section appears to me to embrace the present case."

28 Present section 599. Note that neither in the judgment nor in the argument was there any reference to the enactment of the next year referred to, post.

The result is, as will be seen, a leaning though not a decisive adherence to the view that s. 599 covers all highways.

Mr. Biggar, in his Municipal Manual, also expresses his adherence to this view.

To the authorities above cited should be added a dictum of Lord Fitzgerald in De La Chevrotiere v. City of Montreal, 12 A. C. 149: "There is a distinction between the Canadian law and the law of England as to public highways. The Canadian law agrees rather with the law of Scotland, which is founded on the civil law, viz., that when a street or road becomes a public highway, the soil of the road is vested in the Crown if there is no other public trustee, or, if there is a corporate body that fills the position of trustee, then in that corporate body in trust for that public use." This passage is sometimes considered as affecting the law of this province;27 but it is submitted that, however correct may be the view expressed in it, it cannot in any sense be considered an authority for this province, for the reason, if no other, that "Canadian law" in that case referred to, was the law of the Province of Quebec.

In Sarnia v. Great Western Railway Co. (21 U. C. R. 59, at p. 62), McLean, J., expressed a similar view. The most that either of these dicta could amount to is an effort to define the position which the Crown holds, in cases where the fee is in the Crown, by employing the analogy of the equitable doctrine of trusts. They can not be said to lend any force to the theory of a general fee in the Crown.

In Roche v. Ryan (22 O. R. 107), Street, J., gave expression to the other theory: "Of the conflicting views which have been taken of the effect and meaning of sections 525 and 527, I prefer that which interprets section 527 as relating only to roads and streets laid out by private individuals, and treat it as vesting not the surface merely, but also the soil and freehold in the municipality. Its language is wide enough to cover the soil and freehold as well as the surface, and it would be unnecessary to save to the individuals who laid out the streets the rights which they had reserved in the soil unless the effect of the section would otherwise have been to deprive them of all rights." But in the same case, in the Divisional Court, Galt, C.J., strongly insisted that this was too narrow a view of the

27 See Biggar's Municipal Manual, p. 822.

operation of the section and said: "In my opinion, therefore, with great respect for the decision of the learned Judge, I am unable to arrive at the same conclusion. I consider that when lots have been sold abutting on a street, the property in that street is absolutely vested in the corporation."

It will be noticed that while the Divisional Court differed from Street, J., on the point in question, which was the extent of the right of the private owner over lands which he had dedicated as a highway, there was no hesitation in affirming what may be called the "vertical" theory of division of highways into classes as opposed to the division of the rights over all highways between the Crown and the municipality.

If this theory is correct there seems no way of avoiding the conclusion that under section 601 the municipality owns the soil of its highways. If the two sections are in conflict, s. 599 must give way because it is expressly subjected to the condition: "Unless otherwise provided for."

Toronto.

F. W. WEGENAST.

(To be continued.)