after stating the case: The decision in the case of McDowell v. Railway, at this term, controls the disposition of this appeal. The only difference between the two cases is found in the fact that “about 1 May, 1906, defendant entered upon and occupied the strip of land through and over said described tract for railway purposes, and on 23 May about one-half the grading of said road had been done.” We do not think that this act of the defendant substantially complies with the condition in the deed. It falls far short of constructing the road over the premises granted. In all other respects the two cases are conceded to be alike.

Eor the reasons set forth and upon the authorities cited in the opinion in that case, the judgment herein must be

Affirmed.