A
land patent is evidence of
right,
title, and/or
interest to a
tract of land, usually
granted by a
central,
federal, or
state government to an individual or
private company.
In the original 13
American
Colonies, a proprietor would grant land patents. Besides
patent, other terms for the
certificate that grants such rights include
first-title
deed and
final certificate.
In the United States
, all property can be traced back to the first title
deed and to claims that document titles for
land originally owned by France
, Spain
, United Kingdom
, Mexico
, Russia
, or Native
Americans.
A land patent is known at law as "
letters
patent" and usually issues to the original grantee, and their
heirs and assigns forever. The patent does not constitute title but
is mere evidence of right to title existing in law.
Brief History and Effect
Depending
on which part of the country, land in the United States of America
was acquired by purchase, war, or treaty from United Kingdom,
France, Spain, Mexico, Russia, the Republic of Hawaii
, and the Native American
Indians.
In British
colonial America,
the Crown made large grants of territory
to individuals and companies. In turn, royal colonial governors
later made smaller grants of land based on actual surveys of the
land. Thus, in colonial America on the
Atlantic seaboard, a connection was made
between the surveying of a land tract and its "patenting" as
private property.
Many original colonies land patents came from the corresponding
country of control (i.e. United Kingdom, Spain, France, etc.).
Those patents are still in force; the
United States Government honors
those patents by treaty and they can not be changed.
After the
American Revolution and the
ratification of the Constitution of the United
States for the United States of America, the United States
Treasury Department
was placed in charge of managing all public lands
until 1812 when the General Land
Office was created to assume that duty.
This date
of 1812 when the United States Treasury
Department started to take over assigning of Land Patents did
not apply to California which was not a state until the year of
1850. There is at least one Land Patent from the year 1919
that was dated "TWENTY-SECOND day of SEPTEMBER in the year of our
Lord one thousand nine hundred and NINETEEN and of the independence
of the United states the one hundred and FORTY-FORTH" and was
signed by President
Woodrow Wilson of
the United States of America.
The General Land Office issued more than 2 million patents that
passed evidence of title to individual parcels of public land. Some
patentees bought their land for cash, others homesteaded a claim,
and still others came into ownership via one of the many donation
acts that Congress passed to transfer public lands to private
ownership. Whatever the method, the General Land Office followed a
two-step procedure in granting a patent. First, the private
claimant went to the land office in the land district where the
public land (section) was located. The claimant filled out "entry"
papers to select the public land, and the land office register
(clerk) checked the local registrar records to make sure the
claimed land was still available. The receiver (bursar) took the
claimant's payment, because even homesteaders had to pay
administrative fees. Next, the district land office register and
receiver sent the paperwork to the General Land Office in
Washington. That office double-checked the accuracy of the claim,
its availability, and the form of payment. Only then did the
General Land Office issue a patent relative to the particular land
in question.
The first United States land patent was issued March 4, 1788 to
John Martin. That patent reserves to the United States one third of
all
gold,
silver,
lead and
copper
within the same.
Usage restrictions placed on the land and are spelled out in the
patent, i.e. oil and mineral rights, road ways, ditches and canals,
etc. or later by private contract. The rights inherent in patented
land are carried from heir to heir, heir to assignee, or assignee
to assignee (buyer to buyer) and cannot be changed (except by
private contract (warranty deed) particularly relative to statutory
regulation by a State, e.g., zoning, building codes, etc.). In most
cases, the law of a particular piece of patented land will be
governed by the congressional act or treaty under which it was
acquired or by terms spelled out in the patent, e.g., a Homestead
Act or reservations placed on the face of the patent [or] reference
the
Treaty of Guadalupe
Hidalgo which [at law] governs a proportional amount of
jurisdictional dicta relative to large amounts of land in
California and adjoining territories (if invoked).
In the
territory states, the territory agrees to enter the Union of the
United States of America, an Enabling Act is agreed to as a
condition precedent of statehood
(Republic of Texas is an exception as it retained its
unappropriated lands, and Hawaii
as it was a
conquered territory). The Enabling Act requires that all of
the unappropriated (unpatented) lands be forever disclaimed by the
people of the territory, to the United States for its disposition.
For example, the enabling act of the
Washington Territory declares, in
part:
"...that the people inhabiting said proposed States do
agree and declare that they forever disclaim all right and title to
the unappropriated public lands lying within the boundaries
thereof, and to all lands lying within said limits owned or held by
any Indian or Indian tribes; and that until the title thereto shall
have been extinguished by the United States, the same shall be and
remain subject to the disposition of the United
States.
.."
After the right and title to land was disclaimed by the people of
the territory, it was held in trust by the United States until
someone proved a claim to it; typically by
homesteading the land for a certain period of
time. Once a proper claim is filed, the
General Land Office (now the
Bureau of Land Management)
certifies that a survey was paid for along with another sum of
money. Then pursuant to the various land acts of Congress, such as
the
Homestead Acts, the land was then
granted to the private domain by letters patent under the signature
and
seal
of the
President of the
United States of America.
An excerpt from [a]
Homestead Act -
“
The purchaser shall acquire absolute title
by the
purchase, and be entitled to a patent from the United States, on
payment of the office fees and sum of money…”
Thirty-Seventh Congress, Session II.
Cu. 75 Section 2 (1862). All land patents are supported by one or
more acts of Congress.
Definition -
Absolute Title: “As applied
to title to land, an exclusive title, or at least a title which
excludes all others not compatible with it. An absolute title to
land cannot exist at the same time in different persons or in
different governments.” Black’s Law Dictionary 6th Edition.
Fictitious entities, like trusts, corporations, etc., cannot obtain
land patents except by express act of the
United States Congress. An example of
Congress granting land through patents to fictitious entities is
the railroad grants made to compensate the railroad companies for
building railroads across America.
A Land Patent is permanent and cannot be changed by the government
after its issuance except in case of fraud, clerical error, or
failure to pay the initial administrative fees. A statute of
limitations applies.
The following court citations demonstrate the operation and effect
of a land patent.
“A patent of the United States…[A]s a deed its
operation is that of a quitclaim or rather
of a conveyance of such interest as the United States possessed in
the land…[T]his record, [the patent] so long as it remains
unvacated, is conclusive.” Beard v.
Federy, 70 U.S.
478, 3 Wall, 478, 18 L.Ed.88.
(1865).
“A patent to land, issued by the United States under
authority of law, is the highest evidence of title,
something upon which its holder can rely for peace and security in
his possession.
It is conclusive evidence of title against the United
States and all the world.
..” 2 The American Law of Mining, § 1.29 at
357.
Nichols v.
Rysavy, (S.D.
1985) 610 F.
Supp.
1245.
"Congress has the sole power to declare the dignity and
effect of titles emanating from the United States… and [Congress]
[D]eclares the patent the superior and conclusive evidence of legal
title."
Langdon v.
Sherwood, 124 U.S.
74 (1888).
In the history of the United States, no Land Patent has ever lost
an
appellate review in the courts.
In
Summa Corp.
v. California
ex rel. State Lands
Comm'n 466 US 198, the United States Supreme Court
ruled that the Land Patent would always win over
any other form of title. In that case, the land in question
was tidewater land and California's claim was based on California's
constitutional right to all tidewater lands. The patent stood
supreme even against California's Constitution, to wit:
[The patent] “[P]assing whatever interest the United
States has in the premises and thereby settling any question of
sovereign ownership….” Pueblo of Santa Ana v.
Baca (CA10 NM) 844 F2d 708; Whaley v.
Wotring (Fla App D1) 225 So 2d 177; Dugas
v.
Powell, 228 La 748, 84 So 2d 177.
[quote at 28 Am.
Jur.
2D, F.
2 § 49].
Note: In this case a particular individual
assignee.
Patented land [that] has been transferred to successive assigns or
heirs by
warranty deed,
quitclaim deed and/or seller-financed
land contract, is often subject to
additional terms contained within the document body of a
mortgage or
deed of
trust.
The "Warranty Deed" is merely a "color of title". Color of Title
means: "That which is a semblance or appearance of title, but not
title in fact or in law." Howth v. Farrar, C.C.A. Tex.; 94 F.2d
654, 658; McCoy v. Lowrie, 42 Wash. 2d 24, Black's Law Sixth
Ed.
Records for land patents that issued to the colonies can be found
in the corresponding state archives. Some states archive the
patents in their Secretary of State's office, and in the territory
States, the
Bureau of Land
Management. Hawaii does not have United States land patents
because it was a conquered nation when it became a territory.
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