CHAPTER 9 LEGAL ISSUES PRESENTED BY CHECKERBOARD, INHOLDING, AND SPLIT ESTATE LANDS
| Jurisdiction | United States |
(May 1995)
LEGAL ISSUES PRESENTED BY CHECKERBOARD, INHOLDING, AND SPLIT ESTATE LANDS
Charles A. Breer
Davis, Graham & Stubbs, L.L.C.
Denver, Colorado
TABLE OF CONTENTS
I. INTRODUCTION
II. DISPOSAL OF FEE SIMPLE ESTATES
A. The Early Years
B. Land Grants To Railroads
C. Land Grants To States
D. Grants To Settlers And Homesteaders
E. Grants To Miners
III. SPLIT OWNERSHIP OF THE SURFACE AND MINERAL ESTATES
A. Early Methods Of Mineral Disposal
B. Events Leading To Reservation Of Minerals
C. Acts Reserving One Or More Minerals In The United States
IV. LAND MANAGEMENT PATTERNS
A. Management Of Retained Federal Lands
B. Management Of Retained Federal Minerals
C. Management Of State Lands
V. PROBLEMS CREATED BY THESE LAND DISPOSITIONS
A. Use Problems
1. Surface Use Problems
2. Split Estate Use Problems
a. Traditional Rule
b. Common Law Changes To Traditional Mineral Estate Dominance
c. Statutory Changes To Traditional Mineral Estate Dominance
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d. Surface Use Agreement
B. Access Problems
1. Access Across Private Lands To Reach Public Lands
2. Access Across Federal Lands To Reach Patented Inholdings
a. National Forest Inholdings
b. BLM Inholdings
3. Access Across Federal Lands To Reach State Inholdings
4. Access Across Federal Lands To Reach Outstanding Mineral Rights
5. Access Across Federal Lands To Reach Less Than Fee Simple Inholdings
a. Access To Unpatented Mining Claims
b. Access Over Federal Lands to Mineral Leases
c. Access Across Unpatented Mining Claims
6. Access Across Private Surface To Federal Reserved Minerals
C. Management Problems
VI. OPPORTUNITIES TO AVOID PROBLEMS CREATED BY DISPARATE LAND OWNERSHIP
A. The "Silver Bullet" Solution
B. More Limited Solutions
1. Land Exchanges
2. Cooperative Agreements
3. One-Stop Permitting
4. Land Use Planning
5. State and Local Regulation
C. Keys To Successful Solutions
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I. INTRODUCTION
For much of the 19th and early 20th centuries this Nation adhered to a policy of transferring federally owned lands and resources into private ownership as part of broader goals of generating revenue and promoting westward expansion.1 While Congress' transfer of the public lands promoted settlement and generated revenue, the methods employed to transfer ownership of lands were rarely, if ever, considered in conjunction with each other. As a result, the various land grants to railroads, states, settlers, and miners created a complex patchwork of interlocking and overlapping federal, state, and private land ownership patterns. These incongruous divisions of property—divisions which remain throughout much of the west today—create a litany of use,2 access,3 and management4 problems. Mineral developers, recreationists, and other land users are frequently forced to coordinate their proposed uses with a combination of federal, state, and private entities who not infrequently have inconsistent objectives and requirements.
In recent years federal land managers, states, and private citizens have increasingly attempted to alleviate the problems created by such random land ownership and jurisdictional patterns. Be it Congressional proposals for "ecosystem management,"5 state statutes allowing one-stop project permitting,6 or more mundane land exchanges, the common theme among the different approaches is to eliminate to the extent possible problems arising from uncoordinated land disposals made years ago.
This paper examines the source of today's irregular land ownership patterns, including Congress' early fee simple grants to railroads, states, settlers, and miners, as well as the
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subsequent grants which reserved various minerals to the United States.7 An analysis of the problems created by the irregular land ownership patterns follows with a focus on the difficulties of using, accessing, and managing both surface and mineral estates in federal, state, and private lands. Finally, the paper describes some of the mechanisms available to alleviate the problems created by the various land ownership patterns.
II. DISPOSAL OF FEE SIMPLE ESTATES
A. The Early Years
In the years following the American Revolution the United States acquired vast tracts of western land from various countries and Indian Tribes through a combination of conquest and purchase.8 Ownership of these newly acquired lands was, for the most part, vested entirely in the federal government.9 While the government owned the land and any unauthorized use was technically a trespass,10 the rights of citizens to use the "public lands" in those early years was generally unfettered.11 Even where private individuals did not have direct congressional authority to use the public lands, they often were vested with what the Supreme Court characterized as an "implied license" to use the public lands.12 However, starting in the mid-19th
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century the unfettered right to use western lands was significantly diminished as Congress began disposing of its lands under a variety of unrelated programs.
B. Land Grants To Railroads
Substantial grants of land were made to railroads between 1850 and 1871.13 The genesis of the railroad grants was the Nation's growing demand for additional railroads in the early to mid-19th century due to the train's superior speed and reliability for transporting goods, commodities, troops, and mail.14 To build additional railroads required significant capital outlays, and private investors were unable or unwilling to build the railroads without Congress' financial assistance.15 The question of how to finance the railroads sparked considerable disagreement. Some members of Congress argued that directly subsidizing "internal improvements" was not one of Congress' enumerated powers under the U.S. Constitution. The counterargument was that such subsidies fell within Congress' "power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States."16 Congress eventually chose to indirectly subsidize private railroad construction through land grants. Indirect subsidies avoided problems over the constitutionality of the government's role in funding internal improvements, as well as any possible infringement upon states' rights.17
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Congress' early grants to aid in construction of the railroads contained modest incentives.18 The scope of the grants was expanded significantly, however, in 1850 when Congress enacted the Illinois Central Grant, which later served as a model for the transcontinental railroad grants. The Illinois Central Grant conveyed to the states of Illinois, Mississippi, and Alabama a right-of-way plus each alternate even section of public land in a six mile strip on either side of the road and its branches.19
In the years following the Illinois Central Grant a series of events coalesced which precipitated enactment of several transcontinental railroad grants known as the Pacific Railroad laws.20 A transcontinental railroad had first been suggested in the 1830s but it was the California Gold Rush and California's admission to the Union which made a commercial trans-continental link a necessity.21 Enactment of the transcontinental railroad acts was further bolstered by the secession of the Southern states and their representatives in Congress who had opposed a Pacific line out of fear that new anti-slavery states would be created.22 Moreover, the forces sometimes described as "manifest destiny" spurred railroad development.23
Congress' Pacific Railroad grants, while modeled after the Illinois Land Grant, were much more lavish in the quantity of lands conveyed. The grants included a 200 foot right-of-way
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on either side of the track, and up to 10 alternate odd-numbered24 sections of public land per mile on each side of the road and up to 20 sections per mile within territories.25 Where the granted lands contained existing homestead or preemption claims or were classified as mineral lands, the railroad was entitled to select indemnity lands located, in some cases, as far as sixty miles from the railroad line.26 The combined grant and indemnity lands thus created a checkerboard belt cutting a giant swath across northern, central, and southern portions of the western United States.
Faced with the need to sell the land in order to finance future construction, the railroads quickly organized company land departments which advertised as far away as Europe for buyers. Lands "not sold or disposed of" within three years following completion of the railroad were supposed to revert to the public domain and be subject to settlement and preemption like other public lands.27 In reality, however, the railroads were generally able to retain ownership despite the three year limitation by "mortgaging" the lands to affiliates.28 Today millions of acres of these checkerboard lands remain in private hands.29
Perhaps aided by hindsight, it seems amazing that Congress would not have attempted to avoid the use, access, and other problems associated with creating such an irregular land ownership pattern. Almost any other method of disposing of the land would have avoided many of these problems. Moreover, it is not entirely clear why Congress made such awkward grants. One explanation is that Congress expected to dispose of all of the land and never contemplated
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today's pattern of federal and private ownership.30 The Supreme Court has suggested that the grant of alternating sections was designed to disarm critics of the railroad grants who claimed that Congress should not be directly subsidizing railroad construction.31 Those in favor of aiding the railroads had argued that granting the alternating sections was not in fact a subsidy because the government's retained sections would at least double in value due to railroad access and...
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