does not appear that there was ever any record of the several assignments at any place, either at the local office or that of the proper recorder of the county where the land is situate or elsewhere.

Generally, an assignee, to be in a position to demand protection and notice from the local office, must inform that office of his rights. Van Brunt et al. v. Hammon, 9 L. D., 561; American Investment Co., 5 L. D., 603. The assignee of a desert land entry is required to prove his assignment by filing an affidavit and a certified copy of the instrument under which he claims, and must make affidavit as to the amount of land held by him. Circular, General Land Office, 40. None of these requirements was observed, either by Cory or Maxson, the assignee, owing to their ignorance of the law and departmental requirements.

But, although notice was given to Holliday, to which he was not entitled of record, but to which he was entitled if his interest had been disclosed by a compliance with the law on his part, and although notice was not required to be given to Maxson, who had not complied with the regulations in filing his affidavits and evidence of the assignment, yet notice should have been, but was not, given to the original entryman and assignor, Cory.

This has always been required in the case of perfected entries, where final receipt has issued, and where the tract covered by such entry is held to be subject to alienation. United States v. Gilbert et al., 17 L. D., 20; William A. Fowler, 17 L. D., 189; Lambert v. Lambert, 21 L. D., 169; Drew v. Comisky, 22 L. D., 174; United States v. Montoya et al. 24 L. D., 52. As much reason exists in requiring notice to be served upon the entryman of a desert land claim, under the law permitting assignments before the entry is completed by final proof, as in those cases where the tract may be transferred only after final proof. In either case, the entryman should be afforded an opportunity to be heard before the entry is canceled, in order to protect his rights growing out of the assignment or transfer, and to conclude him by the proceeding. It follows that the cancellation of the entry was not rightful, and that it must be considered as an existing entry at the time of the taking effect of the statute dispensing with yearly proof under that and like existing entries. Subsequent to the decision of your office in the case at bar, the rule was announced in the case of Hodgson r. Epley, 23 L. D., 293, 296, as to the computation of time under the statute, as follows:

If the entryman was in default for the year ending in 1894, the act should be applied to cure the default for that year. If not in default for the year ending in 1894, he should be excused for the entry year beginning in 1894.

In this case, the second entry year expired January 11, 1894, and therefore the proof of the annual expenditure for the entry year preceding that date was dispensed with by the statute, the entry must be considered one falling within the terms of the statute, as its cancellation had been illegal. The failure to file yearly proof for that year is

not, therefore, a cause for the cancellation of the entry now, as such proof has been dispensed with by the express terms of the statute which applies to entries existing at the time of its taking effect.

There is evidence tending to show that the assignment from Cory to to Holliday was held as collateral security for a debt due from the former to a bank in which the latter was a large stockholder, but this fact does not invalidate the assignment. At any rate, Maxson purchased the rights of Holliday in good faith and for a valuable consideration, and with the knowledge and consent of the original assignor. The failure of the parties to comply with the law in reference to filing evidence of their assignments and the affidavit of interest was not an intentional disregard of the law and departmental requirements, but was caused by ignorance of them.

The hearing supplies the omissions, except as to the citizenship of Holliday and Maxson, the assignees. They will be permitted to file their affidavits showing this fact, and the other facts required of assignees. It is not intended by this decision to decide the matter as to the yearly proof for the third entry year, as that matter is not in issue. Maxson states that he is ready to furnish the same, but there is no showing that it had been made.

Upon furnishing this required proof the entry of John D. Cory will remain intact, and so much of the entries of the parties to this proceeding as are adverse to such entry will be canceled.

JACKSON ET AL. v. GARRETT.

Petition for re-review denied by Secretary Bliss, April 9, 1898. See departmental decision of September 22, 1897, 25 L. D., 273, also 26 L. D., 48.

RAILROAD LANDS-SETTLEMENT CLAIM-SECTION 5, ACT OF MARCH

3, 1887.

TACOMA LAND Co. v. NORTHERN PACIFIC R. R. Co. ET AL.

Lands embraced within homestead entries or pre-emption filings at the date of a railroad grant, or at the time when said grant takes effect, are excepted from the operation of the grant.

A corporation created and existing under the laws of a State is a citizen of the United States within the intent and meaning of section 5, act of March 3, 1887.

A settlement within the corporate limits of a city can confer no pre-emptive right on the alleged settler, where no steps are taken to subject the land to the settlement laws under the act of March 3, 1877, prior to the repeal of the pre-emption law.

A settler who, under the law as it stood at the time of his settlement, had exhausted his homestead right by a prior entry, is not entitled to make a second or additional entry under the act of March 2, 1889, where prior to the passage of said act, and prior to the initiation of a valid settlement claim, the land had been sold by a railroad company as part of its grant, and the right of the purchaser validated by the act of March 3, 1887.

Secretary Bliss to the Commissioner of the General Land Office, April (W. V. D.) 12, 1898. (F. W. C.) Ten separate appeals have been filed from your office decision of September 20, 1895, sustaining the action of the local officers in awarding to Abner Shrives, upon certain conditions, the right to make entry of the SE. of the SW. of Sec. 5, and to the Tacoma Land Company the right to purchase under the provisions of Sec. 5 of the act of March 3, 1887 (24 Stat., 556), the W. of the NE. 4, the E. of the NW. 1, and lots 1 and 2, Sec. 7, and the E. of the NW. † of Sec. 29; all in township 20 north, range 3 east, W. M., Olympia land district, Washington. The several tracts involved are all within the limits of the grant made by the joint resolution of May 31, 1870 (16 Stat., 378), for that portion of the main line of the Northern Pacific Railroad between Portland, Oregon, and Puget Sound. The E. of the NW. of said section 29 is also within the limits of the grant for the branch line of said road across the Cascade Mountains, as shown by the map of definite location of such branch line filed March 26, 1884.

At the date of the passage of the joint resolution of May 31, 1870, supra, the tracts above described in sections 5 and 7, were embraced in subsisting homestead entries of record, which were, subsequently to the passage of said resolution, canceled. The tracts were, therefore, excepted from the operation of the grant made by said resolution. Northern Pacific R. R. Co. v. Bardon (145 U. S, 535); Northern Pacific R. R. Co. (20 L. D., 514). The remaining tract in section 29 was included in the pre-emption declaratory statement of Richard Martindale, made February 27, 1869, alleging settlement on the 19th of that month. This filing was of record, uncanceled, both at the date of the passage of said joint resolution of May 31, 1870, and also at the date of definite location of said Cascade branch, March 26, 1884, and was therefore excepted from the operation of the grants for both the main and branch lines of said road. Fish . Northern Pacific, on review (23 L. D., 15); Whitney v. Taylor (157 U. S., 585).

It therefore appears that all the land here involved was excepted from the operation of the grants for the Northern Pacific Railroad Company. Your office so held; from which the Northern Pacific Railroad Company duly appealed, and after a careful consideration of the matter your office decision in this particular is affirmed.

It might be stated that all the land here involved is in close proximity to Tacoma. It appears that a portion thereof has been within the corporate limits of the city of Tacoma since February 3, 1875. It

also appears that other portions of the land were included within the city by the extension of its boundaries at a special election held April 17, 1891.

The Tacoma Land Company, originally known as the Southern Improvement Company, was incorporated under the laws of Pennsylvania in 1871, with authority to do business in the then Territory of Washington, as provided for in its articles of incorporation, a copy of which was filed and recorded in the office of the Secretary of the Territory, on January 3, 1874. On October 20, 1892, it applied to purchase, under the provisions of the act of March 3, 1887, supra, all the lands here involved, basing its claimed right upon a purchase made of the Northern Pacific Railroad Company on December 30, 1874, of a large body of land, including that here in question, as shown by certified copy of the conveyance which was duly recorded in the county on March 10, 1875.

It is insisted that the Tacoma Land Company, being a corporation, is not a citizen of the United States or a person who has declared his intention to become such citizen, and is, therefore, not entitled to the benefits of the remedial legislation contained in the fifth section of the act of March 3, 1887. This question has frequently arisen in the land department in the administration of this act. In Telford et al. v. Keystone Lumber Company, on review (19 L. D., 141, 145), it was said:

It will be noticed that the language of the section in defining the personal qualifications of purchasers, is: 'Citizens of the United States, or to persons who have declared their intention to become such citizens.' Unlike the settlement laws, the further qualifications that they be over twenty-one years of age, or the head of a family, are not included in the section. No personal act, such as settlement, residence and cultivation, is required, or could be interpolated into the statute, and the acreage is not limited that the citizen could purchase. It seems to me that in view of this, it is not going too far in the construction of this section, to say that a corporation, where the purchase is made in good faith, and under the conditions prescribed, may have the benefit of the remedial statute, and that 'citizen,' as here used, should be construed as including corporations.

In Daily . Marquette, Houghton and Ontonagon R. R. Co. et al. (19 L D., 148), it was said:

This objection is pressed with much insistence, and a number of decisions are cited to sustain the contention. An examination of those decisions shows that their purport has been, in each instance, misunderstood and misconstrued. They only go to the extent of holding that a corporation is not a citizen for all purposes. There is, however, a long line of decisions which holds that a corporation is a citizen of the State wherein it has a legal existence, and as such citizen can sue and be sued in the courts of the United States. (Railroad Company . Wheeler, 1 Black, 285; and Santa Clara Co. r. Southern Pacific R. R. Co., 118 U. S., 395'6, where the supreme court refused to hear an argument on the question.) For a full discussion of the question, reference is made to the case of the Louisville R. R. Co. r. Letson (2 How., 497), where the court concludes, p. 558,-that a corporation created by and doing business in a particular State is to be deemed to all intents and purposes as a person, although an artificial person, an inhabitant of the same State for the purposes of its incorporation, capable of being treated as a citizen of that State

as much as a natural person.' And many other authorities to the same effect might be cited. As such citizens of the State they are in contemplation of law citizens of its laws. (Minneapolis R. R. Co. v. Beckwith, 129 U. S., 26.) The objection, on the ground that the land company is not a citizen, is overruled.

See also Gasper et al. v. St. Louis River Water Power Co. (22 L. D. 587), Nevada Southern Railway Co. (22 L. D., 1).

The departmental rulings upon this question have been uniform and many tracts of land of great value are now held thereunder, the title to which is wholly dependent upon these rulings.

In United States v. Northwestern Express Co. (164 U. S., 686), the sole question presented was whether a corporation created under the laws of the State of Minnesota was a citizen of the United States within the meaning of the act of March 3, 1891 (26 Stat., 851), conferring upon the court of claims jurisdiction to inquire into and finally adjudicate "all claims for property of citizens of the United States" taken or destroyed by Indians under the circumstances specified in the act, and at page 690, the court said:

The act in question was a provision made by the United States as the guardian of the Indians, controlling as well their persons as their property, designed to make provision for the payment of the injuries committed by its wards. It certainly contemplated that citizens of the United States, even strictly speaking, should be made whole for the losses they might have sustained. But it is evident that cases might arise, where, in order to make restitution to citizens of the United States, the term in question would require a construction embracing Federal and state corporations. For, as the legal title to the property of a corporation is generally in the corporation, claims for damages to such property could not be presented in the names of the several stockholders. To deny relief to such a corporation would be practically therefore to refuse redress to citizens of the United States.

It must have been contemplated, therefore, that a corporation thus chartered by Congress was to be treated under the terms of the act herein referred to as a citizen of the United States for the purposes thereof; and the same reasoning which thus operates to bring a Federal corporation within the terms of the act, leads also to the necessity of including corporations of the several States of the Union.

See also Smyth v. Ames (159 U. S., 466).

The Tacoma Land Company being a corporation created and existing under the laws of the State of Pennsylvania, is a citizen of the United States within the meaning of the act here in question and the decision of your office to that effect is affirmed.

The numerous claims made for this land under the homestead and pre-emption laws, and applications to locate scrip, are clearly set forth in your office decision, and date back to March 21, 1884, when Donald McRae tendered his homestead application to enter the SE. † of the SW. of said Sec. 5. The case arising upon his application was duly prosecuted to this Department, resulting in the decision of September 20, 1887, reported in 6 L. D., 400, in which it was held that by the joint resolution of May 31, 1870, supra, there was conferred upon the Northern Pacific Railroad Company a grant of lands for the line of its road from Portland to Puget Sound, and for that reason McRae's application was denied.