Chapter 1 - § 1.2 • UNITED STATES GRANTS AND PATENTS
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§ 1.2.1—The Property Power of Congress
The property power of Congress is set forth in the United States Constitution as follows:
The Congress shall have power to dispose of, and make all needful rules and regulations respecting the territory or other property belonging to the United States. . . .59
In the disposition of the public lands, Congress has plenary power to prescribe the conditions upon which government title may be obtained, and the procedure in relation thereto. It may donate the land, or it may exact different prices and affix different conditions in connection with the acquisition of title to different tracts. It may repeal, extend, or limit previous enactments at will, provided private or vested rights are not injuriously affected.60
§ 1.2.2—Disposition of Public Lands
In General
Lands of the United States may be disposed of under Congressional grants or under general acts providing for the disposal of such lands.61
Land grants are construed favorably to the United States government, and nothing passes except what is conveyed in clear and explicit terms. Any doubts or inferences are to be resolved in favor of the government and not against it.62 This presumption does not apply in the case of land exchanges.63
Among the general acts providing for the disposal of the public domain were the Homestead Acts, the Pre-emption Acts, the Timber and Stone Act,64 the Coal Lands Acts,65 and others.66
Entry of public land under the laws of the United States providing for their disposal, whether such entry be legal or illegal, segregates the land from the public domain, appropriates it to private use, and withdraws it from subsequent entry or acquisition until the prior entry or acquisition is officially cancelled and removed.67 "Entry" consists of an affidavit of the claimant's right to enter, a formal application for the land, and payment of the money required. "Entry" is not the taking of possession.68
Final Certificates
Where the right to a patent has become vested in a purchaser of public land from the United States, it is equivalent, so far as the United States is concerned, to a patent actually issued.69 The final certificate obtained upon the payment of the money is as binding upon the United States as a patent;70 the applicant becomes the beneficial owner of the land.71 (The final certificate of purchase is sometimes referred to as the "receiver's receipt."72 ) The execution and delivery of the patent after the right to it has become vested are merely ministerial acts of the officers charged with that duty.73 The patent does not invest the purchaser with any additional property in the land; it only gives him or her better legal evidence of the title that was first acquired by the certificate.74 Upon the issuance of a patent, it relates back to the date of entry.75
The land department has jurisdiction for good cause shown to cancel a final certificate and set aside the entry at any time before the patent issues,76 but may do so only on a proper showing with notice to the applicant whose entry is sought to be cancelled.77
Patents in General
A patent is an adjudication by the land department of the claim of the applicant to public land78 and the conveyance by which the United States passes its title to portions of the public domain.79
A United States patent is the highest evidence of title.80 Whether the requirements of the Act of Congress under which it was issued had or had not been complied with was, in the first instance, for the officers of the land department, and must be taken to have been properly resolved.81 All reasonable presumptions are indulged in support of their action.82 The presumption that all the requirements preliminary to the issuance of a patent have been complied with is not open to rebuttal in an action at law, and the patent itself is unassailable, except in a direct proceeding in equity for its correction or annulment.83 Even when a patent is directly attacked, there is a presumption that it was issued upon sufficient evidence that the law had been complied with by the officers of the land department.84
A court, in a contest between private citizens in which the United States has no interest or has parted with the legal title to the lands in dispute, may declare the holder of such title a trustee holding the same for the use and benefit of the true and equitable owner of the lands and require a transfer of such title in the manner approved by the courts of equity,85 but only when it is clear that some material error of law, imposition, or fraud has resulted in the issuance of a patent to one applicant when it should have been issued to another.86 It should be noted that prior to the enactment of Section 316 of the Federal Land Policy and Management Act of 1976,87 there was no mechanism for the correction of patents other than cancellation and reissuance.
Prior to June 17, 1948, a patent must have been issued in the name of the United States, signed by the president, and countersigned by the recorder of the General Land Office.88 On and after June 17, 1948, a patent must be signed by the Secretary of the Interior or his or her delegate.89
Title by patent from the United States is title by record, and although it is usual to deliver a patent to the claimant as in the case of deeds, delivery of a patent is not essential to its validity.90
Failure to record a patent in the local records does not affect its validity or operation.91 Patents of land from the United States do not come within the purview of the recording laws unless specifically included.92 Where the law authorizing a patent to be recorded does not undertake to make an unrecorded patent void as against subsequent bona fide purchasers from the United States, failure to record a patent in the local records does not affect its validity or priority,93 and does not result in a gap in the chain of title.94 In any event, an attempt by a state to make recording a condition precedent to the validity of a patent from the United States would be unconstitutional.95 Recording of a patent in the local records may, however, be necessary for a person to obtain the benefits of a statute that refers to the owner of record.96
Property and Rights Included in Patent
Except for rights specifically reserved to the United States pursuant to various statutes, a patent passes to the patentee all of the interest that the United States has in the land. The issuance of patents for lands that have been previously granted, reserved, or appropriated is beyond the scope of the authority of the officers of the land department; such patents are void, and actions may be maintained to annul them.97 As with any other piece of real property, real property conveyed by the federal government via patent can be conveyed and burdened by subsequent interests.98
Exceptions, Reservations, and Conditions in Patent
Vested and accrued water rights. Patents are issued subject to vested and accrued water rights,99 as provided in Section 9 of the Act of July 26, 1866.100
Extra lateral rights. Patents are issued subject to the extra lateral rights of lode mining claimants,101 but extra lateral rights are not effective as to the portion of a vein underlying a nonmineral patent if the nonmineral patent is prior in time to the mineral location.102
Ditches and canals. All patents for lands in Colorado issued upon entries made after August 30, 1890 contain a reservation of a right of way for ditches and canals constructed by the authority of the United States.103 The reservation includes ditches and canals "to be constructed."104
Coal and other specific minerals. Acts of Congress in 1909 and 1910 provided for the reservation to the United States of all coal in the lands patented, and the right to prospect for, mine, and remove the same.105 In 1914, Congress provided for the reservation to the United States of deposits of phosphate, nitrate, potash, oil, gas, or asphaltic minerals, together with the right to prospect for, mine, and remove the same.106
All minerals. A number of Acts of Congress require the reservation of minerals in a patent. Typical is the Stockraising Homestead Act, which provides that patents must contain a reservation to the United States of all the coal and other minerals together with the right to prospect for, mine, and remove the same.107 In the absence of a valid mineral reservation, a patent includes both surface and mineral estates.108
Erroneous Inclusion or Omission of Reservation in Patent
Public lands may be transferred only pursuant to the terms of a statute authorizing the transfer. The land department does not have the authority to include in a patent a reservation not authorized by statute.109 Therefore, a reservation may be invalid if not authorized by statute. For example, many statutory grants to railroads contain the following language:
Excluding and excepting all mineral lands should any such be found in the tracts aforesaid, but this exclusion and exception, according to the terms of the statute, shall not be construed to include coal and iron lands.
This statutory language, which provides that mineral lands should be excluded from grants to railroads, appears to be a mineral reservation when placed in a patent. However, the issuance of the patent pursuant to the statutory grant constitutes a conclusive determination that the lands granted are nonmineral in character.110 Therefore, what appears to be a reservation is in fact not a reservation at all.111
Conclusiveness of Patents
A United States patent is the highest evidence of title,112 and carries a presumption that all requisite steps and requirements of law and departmental regulations have been fully complied with.113 The officers of the land department are specially designated by law to receive, consider, and pass upon proofs presented with respect to matters involving public lands. If they err in the construction of the...
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