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In Equity.
Judson, Sharpstein & Sullivan and P. H. Winston, for plaintiff.
Louis D. Campbell, for defendant.

HANFORD, J. This case has been submitted upon a demurrer to the plaintiff's amended bill. The plaintiff, claiming to own three separate 40-acre tracts of the mud flats in Tacoma harbor, brings this suit for an injunction to prevent the defendant from proceeding further with certain harbor improvements it is making, in front of land it owns abutting upon the shore, which the bill alleges will interfere with plaintiff in the possession and use of the premises which he claims to own. The bill shows that said premises are what is commonly known as “tide-lands,” or mud flats, and are situated below the line of ordinary high tide; that they are bare at ordinary low tide, but subject to overflow daily, and are not within the surveys of the public lands of the United States. The plaintiff's claim of title is based upon the location thereon of certain landscrip called “Valentine Scrip.” The plaintiff and his vendors were owners of the scrip, and they located the same, and filed the proper certificates and declarations in the United States land-office at Seattle, on October 30, 1889, which time was prior to the president's proclamation making complete the admission into the Union of this state, but subsequent to all the acts of legislation and proceedings leading up to that event. In deciding this case, I shall leave untouched the interesting question as to the power of congress to dispose of tide-lands in a territory, and most of the many other important questions which have been discussed in the very able arguments made before me, my opinion being such that it is unnecessary for me to do more than pass upon the single question as to validity of the plaintiff's claim of title, and a single reason for my opinion upon that question is all that need be given.

The Valentine scrip was issued pursuant to the act of congress of April 5, 1872, (17 St. U. S. 649,) for the relief of Thomas B. Valentine, authorizing scripto be issued to him, and authorizing him, or his legal representatives, to locate such scrip upon such “unoccupied and unappropriated public lands of the United States," whether surveyed or unsurveyed, as he or his legal representatives, might select. The act provided further that such selection should be made, if on unsurveyed land, so as to conform to the government surveys, when the land should be surveyed, and in tracts of not less than 40 acres. This statute authorizes the location and entry of land, which, at the time of entry, either has been, or remains to be, surveyed and included in the public surveys of the township, according to established and known rules governing the land surveys of the United States. And obviously it was not intended by congress to give Mr. Valentine, his representatives or vendees, any right to acquire title by use of such scrip to any part of a navigable river, channel, or harbor, or the bed or shore thereof, situated outside the limits subject to survey according to established rules. As part of a general plan and system for the sale and disposition of the lands of the United States, the laws provide for surveys to be made, and officers

specially qualified to do that work and charged with official responsibility are assigned to the duty of subdividing the land and locating and establishing boundaries. The lands surrounding this harbor have been by such officers surveyed, and the boundary line between the land and the water of the bay has been by this official survey located and established. The line is approximately the line of ordinary high tide, which, according to all the laws and usages of this country, is the boundary line dividing the land and the water, and the limit to which the surveys may lawfully extend. The space which the plaintiff seeks to protect is not surveyed as land, and remains unsurveyed because situated outside of this boundary, and it was regarded by the official surveyor as being not land at all, but as water. The work of the surveyors in the field with their plats and field-notes has been approved by the commissioner of the general land-office, and it is, as to all matters relating to the sale and disposition of the lands of the United States, conclusive and binding upon all persons having to deal with the United States, as well as upon the government itself. Bates v. Railroad Co., 1 Black, 204. Therefore, in my opinion, the plaintiff could acquire no title or right to the premises he claims by the proceedings in the land-office, and he cannot lawfully maintain this suit. The demurrer will be sustained, and a decree dismissing the bill, with costs, will be entered.

UNITED STATES 1. OSBORN.

(Circuit Court, D. Washington, S. D. November 11, 1890.)

PUBLIC LANDS-UNLAWFUL OCCUPANCY-GRANT TO RAILROAD.

The inclosure and occupancy of lands in an odd-numbered section, and within the limits of a grant to a railroad company, where the entry was made after the same had been withdrawn from sale or entry, and before completion of the railroad, or any declaration of forfeiture of the grant, by a person who, in good faith, intended to acquire title to it by purchase from the railroad company, is not made unlawful by the act of congress entitled “An act to prevent unlawful occupancy of

the public lands,” approved February 25, 1885, (23 U. S. St. 321.) (Syllabus by the Court.)

In Equity
P. H. Winston, U. S. Atty.
D. J. Crowley, for defendant.

HANFORD, J. This suit is founded upon the act of congress entitled "An act to prevent unlawful occupancy of the public lands," approved February 25, 1885, (23 U. S. St. 321, the first section of which defines unlawful occupancy as follows:

“All inclosures of any public lands in any state or territory of the United States heretofore or to be hereafter made, erected, or constructed by any person, party, association, or corporation, to any of which land included within the inclosure the person, party, association, or corporation making or controlling

the inclosure had no claim or color of title, made or acquired in good faith, or an asserted right thereto by or under claim, made in good faith with a view to entry thereof at the proper land-office under the general laws of the United States at the time any such inclosure was or shall be made, are hereby declared to be unlawful.”

The land which is the subject of controversy in the case is situated in sections 20 and 21, township 7, range 35, in Walla Walla county, and within the limits of the withdrawal made August 13, 1870, of lands claimed by the Northern Pacific Railroad Company, under its grant for the projected railroad to Portland. The defendant denies in his answer that he has inclosed or occupied any part of section 20, and there is no proof that he has done so. As to the lands in section 21, I find, from the evidence, that the defendant inclosed the tract described in the bill in the year 1882, and has ever since occupied and cultivated the same. That in so taking possession of and improving said land he relied upon a promise of said company that it would, after perfecting its title, sell the land to him at its appraised value, exclusive of the improvements thereon which he should make, and expected to so acquire title to it from said company. Said company's purpose to build the projected railroad down the Columbia river, to Portland, had not been abandoned in 1882, and the defendant had an actual claim to the land, made in good faith on his part, at the time of his entry thereon. The mere statement of the facts in the case, as above, ends it, for by no possible construction of its terms can the act referred to be made applicable, and I am unable to understand why the late United States attorney for the territory of Washington instituted this suit, unless it was for the purpose of obtaining a decision upon the question as to the true southern limit of the railroad lands earned by the partial completion of the road, this land being north of a line designated as the southern limit in an order made by the acting commissioner of the general land-office March 20, 1885, known as the “Harrison Line,” and is part of the land granted by the United States and earned by the company, if said line correctly fixes the extent of the grant. Said order was revoked within a month after it was made, and there has been contention and uncertainty ever since, as to the titles to all the lands north of said line and up to another line known as the "McFarland Line.” The question, however, does not arise in the case. It can be decided either way, and the result of this case will be the same; for by the plain language of the act which I have quoted, one of the essentials of an unlawful occupancy is that at the time of its inception there should have been no claim to the land made in good faith, and no color of title acquired in good faith, and it is clearly established and conceded that the defendant entered under both a claim and color of title made and acquired in good faith. Let a decree be entered dismissing the bill.

CLEWS v. WOODSTOCK IRON Co.

(Circuit Court, S. D. New York. October 13, 1890.)

1. SERVICE OF PROCESS-FOREIGN CORPORATION-Doing BUSINESS STATE.

A foreign corporation, wbich has done no business in New York beyond negotiating a mortgage on its property, and having the bonds secured thereby put on the list of the New York Stock Exchange, is not engaged in business in the state, and no jurisdiction over it is acquired by service of summons on its president while

temporarily in the state for those purposes. 2. SPECIAL APPEARANCE-WAIVER OF OBJECTIONS.

By appearing specially, and removing the cause from a state to a federal court, the corporation does not waive the right to object to the jurisdiction.

Motion to Set Aside Service of the Summons.

Defendant is an Alabama corporation. Summons in an action brought in the state court was served on its president, Alfred L. Tyler. That officer was a resident of Alabama, and had no residence in the state of New York. He was at the time of service in New York city, attending to the business of various enterprises, including the negotiation for said defendant of a certain loan upon mortgage of its property. In order to obtain such loan he presented the application of said defendant, on June 16, 1890, to the committee on stock-list of the New York Stock Exchange, asking to have the bonds secured by said mortgage listed on the stock exchange. Thereafter, on three or four occasions, he appeared before the committee to urge the granting of the application and explain the same. On June 25th the committee made a report favorable to the application. The bonds were sold by said Tyler principally to two firms of brokers, and were admitted to the list July 22, 1890. On July 18, 1890, the summons was served. The regular business of the defendant, which is carried on at the city of Anniston, Ala., is the development of lands owned by it in said state, mining and transportation of ores therefrom, and the manufacture of pig-iron and other manufacturing connected therewith. Defendant removed the case into this court, and moved to set aside the service of the summons, having appeared specially for that purpose.

Strong & Cadwalader, for the motion.
Noah Davis, contra.

LACOMBE, Circuit Judge. In Good Hope Co. v. Railway B. F. Co., 22 Fed. Rep. 635, it was held that service of summons upon the president, secretary, or treasurer of a foreign corporation, which is not engaged in business in this state, would be inoperative to confer jurisdiction. The decision was rendered after the converse of that proposition had been announced by the court of appeals, (construing section 432 of the New York Code,) this court quoting with approval the language of the opinion in Moulin v. Insurance Co., 24 N. J. Law, 224, which characterized a law similar to that of this state as so contrary to natural justice and to the principles of international law that courts of other states ought not to sanction it.” As indicated in Golden v. Morning News, 42 Fed.

Rep. 112, that decision must be accepted as settling the law in this circuit. Its principles are as applicable to causes which are removed as to those which are not. It would be absurd to hold that proceedings in a state court were void on the theory that such court acquired no jurisdiction of the party because its attempted service of process was abhorrent to natural justice and international law, and at the same time to hold that a federal court could administer justice under such a service after the cause had been removed to its forum. Nor does removal and special appearance by the defendant waive its right to avail of a defective service. Harkness v. Hyde, 98 U. S. 476; Aliner v. Markham, 28 Fed. Rep. 395. The only question, therefore, which is left for decision upon this application is whether the corporation defendant was at the time of service of the summons engaged in business in this state. That question must be determined by what it had done, or was doing, at that time, rather than by what it might do thereafter. That it will probably hereafter provide a regular agency in this state for the continuous transaction of the business of registration and transfer of its bonds and payment of the interest on the coupons during the continuance of the mortgage is immaterial. The only business which it had done up to the 18th July was the borrowing of money upon its bond and mortgage, and the obtaining from the stock exchange of the privilege of having such bonds called on the list of securities dealt in on its floor. It could apparently have secured this privilege, and could have sold its bonds by correspondence. It kept no office here. It did not continuously, or even for a period of some duration, carry on here the business which it was organized to carry on, and by the regular transaction of which it gave evidence of its continued existence. It cannot, therefore, be held under the authorities that the defendant was, at the time when Tyler was served, engaged in business in this state so as to make service of the summons on him efficient to bind the corporation. U. S. v. American Bell Tel. Co., 29 Fed. Rep. 37; Good Hope Co. v. Railway B. F. Co., 22 Fed. Rep. 635; Hunter v. Improvement Co., 26 Fed. Rep. 299; St. Louis WireMill Co. v. Consolidated Barb-Wire Co., 32 Fed Rep. 802; Carpenter v. Air-Brake Co., Id. 434. Motion granted.

ISAACS v. MCNEIL et al. ·

(Circuit Court, S. D. Washington. November 10, 1890.)

ELECTIVE FRANCHISE-DENIAL OF RIGHT-STARE DECISIS.

Damages cannot be recovered, in an action against election officers, for deprivation of plaintiff's right, under the laws of Washington Territory, to vote, (if such right existed,) where the decision of the board as to her right to vote was controlled by and followed a previous decision of the supreme court of the territory, which decision had not been reversed or overruled, and where no fudeness or malicious

conduct on the part of the defendants is charged. (Syllabus by the Court.)

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