CHAPTER 5 THE APPLICATION FOR PATENT
| Jurisdiction | United States |
(Feb 1975)
THE APPLICATION FOR PATENT
Lohf & Barnhill, P.C.
Denver, Colorado
I. DETERMINATION OF THE PROCEDURE
The statute states that any person who is authorized to locate a claim, who has claimed and located a piece of land for such purposes and who has complied with the terms of applicable laws, may file in the proper land office an application for a patent, under oath, showing such compliance.
The statute states, further, that if no adverse claim shall have been filed, after the expiration of 60 days of publication it shall be assumed that the applicant is entitled to a patent and thereafter no objections from third parties to the issuance of a patent shall be heard, except it be shown that the applicant has failed to comply with the terms of the concerned laws and requirements.
Thus, search for the prescribed form and content of the application for patent receives little express help from the basic statute. Certain propositions are, however, implicit:
1. An application must be filed
2. It must be filed under oath
3. It must be filed by a person authorized to locate claims
4. It must be filed in the proper land office
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5. It must show compliance with all applicable laws
6. Notice of the proceedings must be given by posting and by publication
7. Compliance with applicable laws having been shown and all requirements having been complied with, patent shall issue as a matter of law.
Beyond the above propositions, and save for some amplification of provisions and specification of procedural steps set forth in the regulations, no guidance is provided. The patent applicant, and the attorney acting on his behalf, must formulate his own procedure and devise for himself that form of presentation deemed by him most likely to accomplish the desired objectives.
The structural framework of the procedure emerges from the proposition above stated. It is a tripartite arrangement. The sovereign, as owner of the land, speaking through Congress, has established the right to patent and has prescribed the conditions under which patent shall issue. The land office, now the Bureau of Land Management of the Department of Interior, acting in exercise of duties and responsibilities imposed upon it, must determine whether conditions made requisite have been met. The applicant, proceeding in exercise of the statutory right, must show compliance by himself with the imposed requirements. The application becomes, then, the medium by means of which the concerned
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parties perform their respective functions and determination is made of whether the requirements imposed by the sovereign as conditions to the grant have been satisfied.
A further factor requires consideration. The subject under attention is that of rights in land acquired by the location of mining claims. To the extent that valid rights to such land have been so acquired, the title of the sovereign is imperfect. Such rights may have been acquired by persons other than the patent applicant. If valid, they constitute property; if invalid, they must be found to be so. Due process requires that recognition be extended and that opportunity for determination be afforded. The application procedure must, then, embrace recognition of potential rights existing in third parties and opportunity for any such third parties to assert rights which they hold.
The basic essentials of content and procedure, and something of the nature of the proceedings, may be discerned. The burden is upon the applicant to make positive showing that he is entitled to the patent which he seeks. The duty is upon the Bureau of Land Management to determine that the applicant has, in fact, satisfied all requirements of applicable laws. Appropriate opportunity must be afforded to third parties to assert rights in the subject matter which they believe to be entitled to recognition. The end result sought is the determination of the justification for the
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passage of title from the sovereign to the applicant.
The analogy is inescapable. What is involved is a proceeding in the nature of a civil action. The action is one in the nature of both a petition to the sovereign and a quiet title action. It is, further, in that the decree sought is issuance of the patent, an action quasi in rem and binding upon the world. The applicant proceeds as the plaintiff. The application serves the office of the complaint. The Bureau of Land Management is the adjudicative body. The proceedings are quasi-judicial in nature. The content of the application and the observance of the several procedural steps must be evaluated in the light of these inescapable and established propositions.
II. CONTENT AND PROCEDURE
The proceedings being in the nature of a quiet title action and quasi-judicial, it follows that the content of the application should be set forth in a manner comparable to the averments of a complaint; further, showing of full compliance being required, it should be set forth with a specificity beyond that required in customary pleadings. Averments should be concise and positive; they should, however, be as complete as is required by the nature of the specific subject matter.
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Identity of the applicant must be shown. Where the applicant is a corporation, a certified copy of the Articles of Incorporation must be presented; if applicant is a joint venture composed of corporations, the identity of each must be presented. Present good standing is necessary; if applicant is a foreign corporation, showing of qualification and present good standing within the state where the land is situated is required.
A corporation being, in itself, a nebulous quantity, an attorney-in-fact should be designated; a proper power of attorney must accompany the application. Care should be taken in the drafting of the power of attorney to assure that the powers granted are sufficiently broad to encompass eventualities that may arise. Such eventualities can include, among others, withdrawal of claims from the application...
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