Land patent

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A land patent is evidence of right, title, and/or interest to a tract of land, usually granted by a government (or in the US the federal, state) 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 document titles for land originally owned by France , Spain, United Kingdom, Mexico, or Russia.

A land patent is known at law as "letters patent" and usually issues to 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.

[edit] 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, 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 asume that duty.

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 parcel was located. The claimant filled out "entry" papers to select the parcel, and the land office register (clerk) checked the local books to make sure the parcel 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.^{[citation needed]} 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 Hidago which [at law] governs a proportional amount of jurisdictional dicta relative to large amounts of land in California and adjoining territories (if envoked).

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 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.

The Land Patent is permanent and cannot be changed by the government after its issuance except in case of fraud or clerical error, and a statute of limitations apply.

The following court cites 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, 466 US 198 the 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.

Contrasted with Warranty Deeds; most people today obtain Real Estate by contract, then on fulfillment of the contract they transfer control of land by Warranty or some other form of Deed.

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 the Secretary of States office, and in the territory States, the Bureau of Land Management. Hawaii does not have United States land patents because it was a country when it became a territory.