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Generally, defenses available in an action involving a public land include estoppel, limitation, bona fide purchaser, laches, or unjustifiable delay.

The defense of estoppel is available against the government under the following circumstances[i]:

  • if the government’s wrongful conduct threatens to work a serious injustice; and
  • if the public’s interest would not be unduly damaged by the imposition of estoppel.


In public land issues and controversies, the U.S cannot escape from liability for acts or statements of its officers or agent.  Provided that such agent or officer acted within the scope of their authority.  Likewise, a patentee or entering person will lose his/her rights to public land by an act which the policy of the law will not permit him/her to deny.  Therefore, estoppel operates on both the U.S. and persons claiming rights or interests in public land[ii].

The defense of mere clerical mistakes from an administrative agency raised by claimants will not however prevent or prohibit the patentee of public land from using the property.  Similarly, a bona fide claimant under a grant cannot be prevented from using the public land that was actually granted to him/her for his/her mistake.  Hence, the bona fide purchase for value from the owner of a patent is an affirmative defense.  The defense of a bona fide purchase for value and without notice is effective in situations where the cancellation of the patent is sought solely on the grounds of fraud in securing the patent[iii].

In addition, a government patentee claiming land against a subsequent patentee who has exercised acts of ownership over such land cannot take the defense that the latter had failed to assert his/her title as against persons who never had possession or any title of record.

Generally, neither the U.S. nor a state acting as a litigant in its sovereign capacity in an action relating to public land is bound by the state statutes of limitation[iv].  Provided that, there should not be any congressional enactment clearly imposing such a limitation[v].  But they can take the statute of limitation as a defense in cases where they are only a nominal plaintiff with no real interest in the litigation.

Another defense available to a plaintiff in actions involving public land is the unexplained or unjustifiable delay.  In cases where the rights of innocent third parties will be intervened or where it would be inequitable to allow a right in public lands, the delay in initiating a claim serves as a good defense[vi].

Generally, the defense of laches will not act as a bar, if the government had a direct pecuniary interest in litigation relating to public lands. But, where the government had a reasonable opportunity to discover fraud relating to public lands, laches will operate as a bar.  Furthermore, just like the statute of limitation defense, where the government is only a nominal plaintiff with no real interest in the litigation, laches can be used as a defense.

[i] United States v. Wharton, 514 F.2d 406 (9th Cir. Or. 1975).

[ii] United States v. Murphy, 32 F. 376 (C.C.D. Mich. 1887).

[iii] Hennessy v. Blair, 107 Tex. 39 (Tex. 1915).

[iv] 51 Am Jur 2d Limitation of Actions § 82.

[v] United States v. Peoples Household Furnishings, 75 F.3d 252 (6th Cir. Mich. 1996).

[vi] St. Paul, S. & T. F. R. Co. v. Sage, 49 F. 315 (8th Cir. Minn. 1892).

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