UNITED STATES f1. OSBORN.
specially qualified to do that work and charged with official responsibility 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 lineia 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 generallandcoffice, 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 9pinion, the plaintiffcould 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 V. OSBORN.
(01ffcuit 001Jll't, D. Washington, S.D. November 11,1890.)
·P1mLIC 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 within the'limits of a grant to a railroad company, where the entry was made after the same had been withdrawn from sale or entry, and before completion of the railroad, or any declaration of forfeiture of the grant, by a person who, in good faith, intended to acquire til'le to it by purchase from the railroad company, iii 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. Orowley, 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,ythe first section of which defines unlawful occupancy as follows: "All inclosures of any public lands in any state or territory of United States heretofore or to be hereafter ml1de, 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
theirioloBurehMno claim.,or color 01 or goOd.f,&ii.Q. or an asserted right thereto ()r under claim. made in goo(\ fltitb With. a view to entry tbeproper land-olficEj the United States at. any such inclosure was. or shall 'be made; are hereby deto beun,lawful.": . . .' '·.. , .,,' .
. 'T?e is the su?,ject of in the' case is situated in sechpns townshIp 7, range 35, lD Walla Walla county, and within of the withdrawal niade August 13,1870, of lands claimed Pacific'Railroad Company,under its grant for the pI,'ojecied to Portland. The defendant denies in his answer that,hehaa inclosed or ()ccupieu any part of section 20, and there is no proof that he has done &0. As to thelands in section 21, I find, from the eviden,ce,that the defElndant inclo'sed the tract described in the bill in the yet\r ,1882, and has ever sinceoccupie4 and cultivated the sil-me. That in soiaking possession of and improving said land he relied upon a promise of said company that it would, after perfecting its title, sell the land.tohhn at its appraised value, exclusive of the improvements thereon which he should. make, an<,1 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 ment 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 rO,ad, this land being north of aline 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 So decree be entered dismissing the bill.
WOODSTOCK IRON 00.
CLEWS ". WOODSTOCK IRON
Wwcuf.t Court, S. D. New York. October 13,1890.)
SEnVICBOJ' PROCESs-FoREIGN CoRPORATION-DOING BUSINESS IN BTATlI.
A foreign corporation, which has done no business in New York beyond negotiating a mortgage on its property, and having the bonds secured thereby put on 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. By appearing specially, and removing the cause from a state to a federal court, the corporation does not waive the dght to object to the jurisdiction.
SPECIAL AJ'PEARANCE-W.<lIVER OF OBJECTIONS.
Motion to Set Aside Service of the Summons. is an Alabama' corporation. SumIponsin .an action brought in the state court was served on its president, Alfred L. Tyll:lr. 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 thl:l negotiat,ion for said defendant of a certain loan upon mortgage afits 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 .bysaid mortgage listed on the stock exchange. Thereaftj3r, 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 areport 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, On July 18, 1890, the summons waf! 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 Ir.\anumctureof pig-iron and other manufacturing connected therewith. Deiendantremoved the .casl:l into this court, and moved to set aside the for that purpose. service of the'summons, having appeared Str01lg & Cadwalader, for the motion. Noah Davis, contra.
LACOMBE, Circuit Judge. In Good Hope Co. v. Rat'lway B. F. Co., 22 Fed. Rep. 635, it was held that service of summons upon the president, secretary, or treasurer of a foreign corporatkm,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 ofthe New York Code,) this court quoting with approval the language of the opinion in Moulin v. Insurance 00., 24 N. J. Law, 224, which characterized a. law similar to that of this state as " so contrary to natural justioe and to-the principles of internationallaw-that courts of other states ought not to sanction it.» As indicated in Golden v. Morning New81 42