Page:Federal Reporter, 1st Series, Volume 10.djvu/458

 446 FEDERAL REPORTER. �missioner declared that he had no authority to assent to a relocation of the line from that point, because it had been definitely loeated, the map thereof filed and accepted, and the lands withdrawn. But the commissioner might well assume that he had authority by virtue of the act of congress requiring the intersection in O'Brien county to require such a relocation of the line as to make it conform to the terms of the act ; and at what point on the old line the deflection northward, to accomplish that purpose, should commence, must, of course, have depended upon circumstances. The commissioner might well have considered himself authorized to indicate the point in question, It was imperatively necessary that some one should fix the point of departure from the old line, and we see no reason why the commissioner was not that person. At all events, it is beyond question that he did require the relocation through Clay and O'Brien counties, and that he suspended the adjustment of the land grant until the reloeation was effected. �The relocation was made in compliance with the act of congress. Who is now objecting to the changed line ? Not the United States or any purchaser of alternate sections from the United States. The secretary of the interior, Mr. Schurz, clearly, in his decision of April 8, 1880, recognized the changed line through Clay and O'Brien coun- ties to the point of junction. The only party complaining of the change as unauthorized and nugatory is the defendant company, and yet the change was made necessary by the action of that company in locating its line. First, there was long delay in making the location, and in the second place the line was so loeated as barely to touch O'Brien county, rendering it impracticable to comply with the act of congress without abandoning the old line of 1864. We think it would be unjust and inequitable to allow the defendant com|)any to exclude the eomplainant from a participation in the disputed lands upon grounds that arose from the delay of location under its enter- prise, and the final location of its line at the extreme noiih-west cor- ner of O'Brien county. �The respondent's eighth proposition is that "the lands in contro- versy were earned by the defendant company under the provisions of the act of congress of May 12, 1864, as early as 1871," and that "these lands had not only been earned by the construction of the road directly through them, but they had been patented to the state for the benefit of the defendant company, and they had been mostly conveyecl by the state to the company in obedience to legislative com- maiKI, ��� �