Chapter § 20.4 Patents

• Jurisdiction: Washington

§20.4 PATENTS

The system of federal patents to land (conveyances of title equivalent to a deed) is discussed below.

(1) Authority to issue patents

Authority to issue patents of federal land is lodged with the Commissioner of the General Land Office under statutes dating from 1836. This function was transferred to the Secretary of the Interior by Reorganization Plan No. 3 of 1946. See 43 U.S.C. §§ 1-2 notes (§1 repealed by Pub. L. No. 89-554, §8(a), 80 Stat. 632 (1966).

Patents are now issued by the designee of the Secretary of the Interior, currently the Bureau of Land Management. 43 U.S.C. §15. In issuing patents, there is no authority for inclusion of any other terms than those of conveyance, with recitals showing compliance with the law, except for required statutory reservations. Deffeback v. Hawke, 115 U.S. 392, 406, 6 S. Ct. 95, 29 L. Ed. 2d 423 (1885). If the government officers issue a patent without authority and apparently transfer title to lands it purports to convey, the patent is void for want of power over the subject matter and not merely voidable, because either it was never within the government's control or it had been withdrawn from the government's control. Doolan v. Carr, 125 U.S. 618, 625, 8 S. Ct. 1228, 31 L. Ed. 844 (1887).

(2) Rights granted and rights reserved

Once a patent is issued, the patentee presumptively obtains legal title in fee simple, subject to such reservations and restrictions as are reflected in the patent. Niles v. Cedar Point Club, 175 U.S. 300, 308-09, 20 S. Ct. 124, 44 L. Ed. 171 (1899); see also Lawson v. United States Mining Co., 207 U.S. 1, 8, 28 S. Ct. 15 (1907). In theory, the federal government conveys all of its rights held as sovereign in the land patented by issuance of a patent, subject only to express reservations in patents. The usual patenting language is "give and grant."

The following is a typical exception and reservation provision:

Subject to any vested and accrued water rights for mining, agricultural, manufacturing, or other purposes, and rights to ditches and reservoirs used in connection with such water rights, as may be recognized and acknowledged by the local customs, laws and decisions of courts; and there is reserved from the lands hereby granted, a right of way thereon for ditches or canals constructed by the authority of the United States.

In Ide v. United States, 263 U.S. 497, 501, 44 S. Ct. 182, 68 L. Ed. 407 (1924), the reservation in issue reserved a right-of-way "for canals and ditches constructed or to be constructed by its authority," including ditches to be constructed that were not in existence at the time of the issuance of the patent.

Federal statutes may require certain language in exception and reservation provisions. In 1890, Congress required patents issued under public land laws west of the 100th meridian to reserve a right-of-way for canals and ditches constructed by the authority of the federal government. See Act of Aug. 30, 1890, ch. 837, §1, 26 Stat. 391 (codified in 43 U.S.C. §945); Ide v. United States, 263 U.S. 497, 501, 44 S. Ct. 182, 68 L. Ed. 407 (1924). However, not all patents issued under the 1890 Act followed the statutory reservation language. In Ide, the reservation at issue reserved a right-of-way "for canals and ditches constructed or to be constructed by its authority"¬"language not found in the original statute. 263 U.S.at 501. The United States Supreme Court interpreted the 1890 Act as granting the federal government the power to expressly reserve the right to construct ditches that were not in existence at the time of the issuance of the patent. Id. at 501-03.

Congressional intent in authorizing the issuance of patents to federal land governs what rights the federal government may reserve in land it has conveyed. "R.S. 2477" highways or roads are unstated reservations or exceptions to rights conveyed by a federal patent. Section 8 of the Mining Act of July 26, 1866, granted rights-of-way across public lands for the construction of highways without requiring the federal government to approve the grant or to record a title showing the grant. This statute was codified in 43 U.S.C. § 932 and was repealed by FLPMA, 43 U.S.C. §§ 1701-1784, subject to existing rights. See Pub. L. No. 94-579, Title VII, §706(a), 90 Stat. 2743 (Oct. 21, 1976). Regardless of whether these roads are specifically referred to in any patent, they may in fact exist, comparable to a dedication to the general public.

In Leo Sheep Co. v. United States, 440 U.S. 668, 680-81, 99 S. Ct. 1403, 59 L. Ed. 2d 677 (1979), the federal government argued that it had an implied easement across the private property of a successor in interest to the Union Pacific Railroad, to which the federal government had issued a patent in 1862. Although the federal government attempted to imply an easement for purposes of public access to a recreational site, the United States Supreme Court refused to recognize the alleged implied easement, or an easement of necessity, where the federal government had failed to expressly reserve a right-of-way and Congress had not intended an implied easement in granting the statutory power to issue...