The Ontario Weekly Reporter And Index Digest Vol 8 PDF Download

This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1912 edition. Excerpt: ...acts of any trespassers; and the trespassers cannot, I say, rely upan any rights of the Crown in reducing the amount of damages caused by reason of the trespasses which they have committed. As I understand the view of the majority of the Court, each step in this course of reasoning is assented to in the judgment of this Court, and out of deference to that view, it is, I think, my duty to examine the two principal propositions upon which it is based. 1. Were the appellants in possession of the timber in situ? It may be noted that there is no suggestion of a possession of the timber dc facto. Mr. Shilton candidly admits that the appellants had never cut any pine timber. As to possession (he is a member of the Ontario Bar and solicitor on record for the plaintiffs in the Schmidt Case), he said that it was "probably a question of law,"' depending upon the statute and the instruments in evidence. As to possession in law then, let us look at the case of the leased locations first; in respect of which the point has been explicitly decided more than once. Where trees are excepted, they are, in the words of Herlakenden's Case, 4 Rep. 63b, severed from the possession of land during the term. In Liford's Case, 11 Rep. 50a, it was held that the lessor in such a case " has the young of all birds that breed in the trees." And in Raymond v. Fitch, 2 C. M. & R. 588, it was held by the Court of Exchequer that a covenant by the lessee not to cut trees excepted from the demise was purely collateral to the land demised for the reason that the trees being excepted from the demise, the covenant not to fell them is the same as if there had been a covenant not to cut down trees upon an adjoining estate of the lessor (p....