CHAPTER 12 ORIGINAL TITLE AND CREATION OF MINERAL RIGHTS
| Jurisdiction | United States |
(Nov 1977)
ORIGINAL TITLE AND CREATION OF MINERAL RIGHTS
Hill, Cassas & De Lipkau
Reno, Nevada
SCOPE OF PAPER
This paper concerns itself with the acquisition of rights to mineral resources situated within lands originally subject to disposition under the laws of the United States. It deals also with lands presently in state ownership, the source of title to which stems from the United States. Generally excluded are the lands of the thirteen original states, as well as the half dozen others in which the Federal Government has never exercised sovereignty over the land. The paper also discusses the cadastral survey and land office, land records, land status and native claims, but omits so-called "acquired lands" which are subject to special land laws not applicable to the public domain.
SOURCES OF LANDS ACQUIRED AS PUBLIC DOMAIN
The sources of public domain lands have been (1) cessions from the several states during the period 1781 to 1802, (2) the Louisiana Purchase in 1803, (3) Red River Basin in 1818, (4) Florida cession in 1819, (5) the Oregon Compromise in 1846, (6) the Treaty of Guadelupe Hidalgo (Mexican cession) in 1848, (7) the purchase from Texas in 1850, (8) the Gadsden purchase from Mexico in 1853 and (9) the purchase of Alaska from Russia in 1867.
NATURE OF THE GOVERNMENT'S TITLE TO PUBLIC DOMAIN
LANDS AND MINERALS, AND LIMITATIONS THEREON
In all of the foregoing acquisitions, the United States received all right, title and interest in the lands and minerals held by its predecessor. Thus, where the predecessor's title was unencumbered, the United States took title, equally unencumbered. In numerous instances, however, the predecessor either lacked title to some part of the lands or minerals or its title thereto was in some manner burdened or restricted. Troublesome, time-consuming private land claims ranging in size from individual town lots1 to multiple-million acre Spanish and Mexican grant claims in the southwest,2 were asserted, examined and, if found valid, confirmed. Of the 1.8 billion acres of total public domain, some 40 million to 50 million were the subject of private land claims. Of these, approximately 34 million were confirmed and patented. After 18913 the Government required that all such claims be examined, no
[Page 12-2]
matter how meritorious the title and, upon approval, to be confirmed by issuance of a patent. Lands as to which grants were found invalid thereupon became open to entry under the mining laws,4 but in the case of a "floating" grant, until its description was fixed by survey, the surplus lands were not subject to location.5 Under the Regalian Doctrine embodied in Spanish and Mexican Law, the minerals did not pass to grantees of private grants unless specifically named in the instrument.6 By contrast, a grant or conveyance by the United States carries with it all minerals, unless expressly reserved or excepted by implication in the law or conveyance document.7 In any event, judicial decisions8 and confirmatory patents issued by the Federal Government eventually established — at least in practical terms — that a valid Spanish or Mexican land grant included the mineral estate. Consequently, such a grant is excluded from the public lands and the operation of the Mining Laws.9
As discussed elsewhere in this paper,10 the prudent seeker of mineral rights will investigate carefully in each instance to determine what, exactly, his grantor has to convey. As pointed out by Lindley
"The United States is the paramount proprietor of the public mineral lands, holding them not as an attribute of sovereignty, but as property acquired by cession and purchase. As such paramount proprietor, it has the same right of dominion and power of alienation as incident to absolute ownership in individuals...
As such absolute owner, the Government might, at its pleasure, withhold its lands from occupation or purchase, lease them for limited periods, donate them to states for educational or other purposes, and to individuals or corporations to aid in the construction of railways and other internal improvements, sell or otherwise dispose of them absolutely or conditionally, and prescribe the terms and conditions under which private individuals might acquire permanent ownership, or the right of temporary enjoyment."11
THE FEDERAL GOVERNMENT'S AUTHORITY TO DISPOSE OF
THE PUBLIC LANDS, OR INTERESTS THEREIN
The Constitution vests12 in Congress absolute power to dispose of public lands, and of making all needful rules and regulations.
[Congress] has the absolute right to prescribe the terms, conditions, and the mode of transferring this property, or
[Page 12-3]
any part of it, to designate the persons to whom the transfer shall be made. No state legislation can interfere with this right or embarrass its existence.13
With respect to the public mineral lands, Congressional policy concerning disposition has been clearly enunciated since no later than 1866,14 when lands valuable for mineral were reserved from sale except as otherwise expressly directed by law. The purpose of this reservation and Congressional policy concerning mineral lands was graphically clarified by the enactment of the Mineral Location Law of 187215 in which Congress decreed:
Except as otherwise provided, all valuable mineral deposits in land belonging to the United States...shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase....16
As described elsewhere17 in this paper, the broad policy proclaimed by these statutes has been limited, modified and eroded by subsequent legislation,18 judicial decisions,19 administrative decisions,20 and executive withdrawals.21
The resulting overlay and interplay of statutes, regulations, administrative rulings, executive orders and judicial decisions has created a dense and nearly impenetrable morass for the miner, and inexhaustible backlogs of work for the lawyer, landman and BLM bureaucrat. And, no end is in sight.
THE MINERAL PROFILE — ITS DIRECTION AND
VISABILITY — 1776 — 1977
The concept of the "royal prerogative", i.e. government ownership of the royal mines (gold and silver) and its application to lands in private ownership was followed in certain of our original colonies. Early court cases22 in dictum concluded that this royal prerogative could in fact be separated from the Crown by express grant. Most of the early American charters, although providing grants of mineral lands to the adventurers, contained perpetual reservations of a rental of 1/5 part of all gold and silver and in Virginia, an additional 1/15 part of all copper mined.
New York, from 1786 to this day asserts state ownership of gold and silver found in private property, based on such a perpetual reservation. However, there was much variation in the way the new states disposed of their own "public lands", and there is no doubt that some valuable mineral land passed into private ownership shortly after the Revolution.
[Page 12-4]
"By the cession of land west of the Alleghenies by the "original" states to the Federal Government and the vast acquisitions in the Far West, there was created a great public domain with an untold wealth of mineral resources but no method for their use or disposal.
The concept of the "royal mines" found its way into the Land Ordinance of May 20, 1785 with the reservation of one third part of all gold, silver, lead and copper mines, to be sold, or otherwise disposed of as Congress shall hereafter direct. The plenary power of Congress over the public lands under Article IV, Section 3, Clause 2 of the Federal Constitution provided the basis for disposition of mineral resources in the public lands. The emphasis on precious metals may seem strange, but obviously there was no disagreement that these were of value. This preoccupation with precious metals prompted the Supreme Court to observe in a discussion of this Ordinance in 1903.
"...nonprecious metals have probably contributed as much or more to the general wealth of the country."23
Some writers24 suggest that as the Ordinance was not reinacted this mineral policy died a natural death. However, the same policy was enunciated in connection with the sale of land to John Martin in Ohio under the Act of April 21, 1787. This patent, the first issued by the Board of Treasury, conveyed a tract of land in Ohio, was dated March 4, 1788 and carried the restriction: "excepting and reserving one third part of all gold, silver, lead, and copper mines within the same for future sale or disposition."25 It would be interesting to find out if the United States has an enforceable mineral interest in this tract of land.
The statutes of 1796,26 180027 and 180428 did not concern minerals, except salt springs, but in 180729 Congress made disposition of lands in what was known as the Indiana Territory wherein it reserved all known lead mines and made provision for leasing them.
Early leasing involved the Missouri lead mines and the lead mines in the Upper Mississippi Valley. The leasing might have been successful but for poor administration by the government, poor ownership patterns created by an illegal transfer of a portion of the Wisconsin mines as agricultural land, and prolonged litigation over the leasing system. The Missouri lead mines were sold under the 1829 Act.30 Finally, on July 11, 1846,31 Congress authorized sale of the mines in the Upper Mississippi Valley and in Arkansas at public auction at $2.50 per acre during the first year and made them thereafter subject to preemption rights.
Except for the 1829 Act which authorized the sale of the Missouri lead mines, the federal mineral policy during the period 1785 — 1846 had been to administer land which
[Page 12-5]
contained salines or known mines on a basis quite different from the treatment of agricultural lands. This...
To continue reading
Request your trial