Page:Federal Reporter, 1st Series, Volume 10.djvu/457

 C, M. & ST. P. BY. CO. V. S. C. <t; ST. P. B. CO. 445 �through Clay and O'Brien to the point of junction, says to him that "by the act of eongress of May 12, 1864, it is required that a map be duly filed in the department, properly authenticated, showing the located line of road throagh Clay and O'Brien counties to the point of intersection with the Sioux City & St. Paul road;" and in this let- ter the commissioner, in order to enable Mr. Sheppard to make the survey and proper returns, enclosed to him a diagram showing the located line of the McGregor Western road to the eastern boundary of Clay county, and of the proposed line of said road through Clay and O'Brien to the point of intersection in the latter county ; also forms of authentication to be attached to the maps which Mr. Sheppard was to make and return. Now, all this is entirely inconsistent with the defendant's view that the line had been definitely located through Clay county and a part of O'Brien county ever since 1864. �But what follows is still more explicit. In a letter of November 3, 1868, the commissioner again writes to Mr. Sheppard: �"I am in receipt of your letter of the twenty-seventh ultimo, asking further instructions as to the point of intersection of the McGregor, etc., with the Sioux City, etc., road. In answer, I have to state that the act of May 12, 1864, expressly states that the McGregor Western Railroad ' shall intersect the road running from Sioux City to the Minnesota state line, in the county of O'Brien,' which, according to the located line of the last-named road, the point of inter- section will be at the north-west corner of O'Brien county. In regard to your' proposition to delay the survey of the line till spring, I have to request and insist that the work be commenced immediately, in order that this office may determine by sectionized limits the lands to be held at $2.50 per acre within 10 miles of each side of the located line running through Clay and O'Brien to the point of intersection." �Here again is clear proof that the line of 1864, through Clay and O'Brien counties, was not regarded and treated by the government as definitely settled, and as fixing the limits of the grant to the Mc- Gregor enterprise; and if, as defendant's counsel contend, the com- missioner's action in the matter did not amount to a positive order for a relocation of the line from the eastern boundary of Clay county to the point of junction, it was such a requirement as could not be ignored or disregarded by the McGregor Company. Nor is this action of the commissioner at all inconsistent with his refusai to accede to Mr. Russell Sage's request. Mr. Sage asked permission to relocate the line from a point, (Algona) about 40 miles east of the east line of Clay county. It is evident that the commissioner eon- sidered the line fixed and established from that point to Clay county; and it had, doubtless, been acted upon in the department. The eom- ��� �