Weaver

The case turns on the question, was it proved that the line of the railroad was definitely fixed before the declaratory statement of the defendant, as pre-emptor, was offered for filing?

The seventh section of the act of July 1, 1862 (amended in the act of July 2, 1864, by extending the time one year), provides: “That within two years after the passage of this act said company shall designate the general route of said road, as near as may be, and shall file a map of the same in the Department of the Interior, whereupon the Secretary of the Interior shall cause the lands within twenty-five miles of said designated route or routes to be withdrawn from pre-emption, private entry and sale.”

The Commissioner of the General Land Office is authorized to perform executive duties pertaining to the survey, sale, etc., of the public lands, “under the direction of the Secretary of the Interior.” (Hestres v. Brennan, ante, p. 211.)

It was admitted, in effect, at the trial, that the Commissioner of the General Land Office, by letter of the 31st of July, 1865, addressed to the local land officers, withdrew the land from sale, pre-emption and -settlement. The act being within the scope of the…