Early Land Grants

A public land of a country is held in trust for the people of the whole country[i].  Congress determines how that trust must be administered.  Public lands are such lands subject to sale or other disposal under general laws, excluding those to which any claims or rights of others are attached.  The Federal Land Policy and Management Act (FLPMA) require an authorized person to prepare and maintain an inventory of all public lands[ii].

It is to be noted that the Supreme Court of the U.S. recognized that exclusive jurisdiction can be acquired with the consent of the state legislature by cession.  If a land is adopted by the U.S. for its grant, then the grant cannot be collaterally impeached.  However, property rights that vested prior to the cession of the land will be protected, even if the U.S. claims the granted land for purposes of national defense.  It was observed in Stockard v. McGary, 120 Tenn. 180 (Tenn. 1907) that an entry is not indispensably necessary to the validity of a grant.  It was also found that neither entry nor survey is necessary to the validity of a grant.

A confirmation of title protects only the asserted claim and does not recognize the validity of the whole grant, even if the claimed land is less than that covered in the original grant.  It is to be noted that a confirmation in the name of the original grantee, divesting the legal title of the U.S. is binding on the government and on the assignees[iii].  A grant may be made by a law, as well as a patent pursuant to a law.  It is to be noted that a patent is an instrument by which the U.S. conveys title to public lands.  Until the patent issues, the fee of the land is in the U.S.[iv].

An individual’s rights in land granted by a foreign government are determined by the laws of the foreign government as they existed at the time of the grant of lands.  Further, there is no principle of public law that prohibits a citizen of a conquering country from purchasing property in the territory acquired.  Similarly, the principles of the U.S. government cannot forbid it[v].

In Republic Aviation Corp. v. Lowe, 69 F. Supp. 472 (D.N.Y. 1946), it was observed that the territory of a foreign government can be acquired by cession or by conquest.  Cession of territory involves the transfer of sovereignty by means of an agreement between the ceding and the acquiring states.  Conquest is the taking of possession of territory of an enemy state by force.

Similarly, when the legislature of a state consent to the purchase of land by the U.S., its consent may be accompanied by such reservations or conditions that are not inconsistent with the free and effective use of the land for the public purposes intended.  However, in the absence of reservations in the consenting act, federal jurisdiction over land acquired by the U.S. by consent of the state is exclusive of state authority[vi].

It is to be noted that the intention of the grantor is to be considered in the interpretation of a land grant of a superseded government.  Similarly, the conduct of the government that succeeded to the territory may also be considered in order to determine the limits of an ambiguous grant of a predecessor government.

If a grant conveys a tract described by metes and bounds, the land under water as well as other land will pass if it is within the limits of the grant.  In other words, a grantee can acquire by his/her deed only the lands described in it by metes and bounds, and with sufficient certainty to enable a person of reasonable skill to locate it.  S/he cannot acquire lands outside of the description by way of appurtenance or accession[vii].

In United States v. Green, 185 U.S. 256 (U.S. 1902), the U.S. government promised to respect the property of Mexicans.  The cession will not increase rights.  There is no duty upon the U.S government to recognize the validity of a grant to any area of greater extent than was recognized by the government of Mexico.  If the Mexican government had a right to compel payment for an overplus or resell such overplus to a third party, then the U.S. government is under no moral or legal obligations to consider such overplus.  However, it may equitably treat the grant as limited to the area purchased and paid for.

[i] United States v. Gardner, 903 F. Supp. 1394 (D. Nev. 1995).

[ii] 43 USCS § 1711.

[iii] United States v. Covilland, 66 U.S. 339 (U.S. 1861).

[iv] Schell v. White, 80 Ariz. 156 (Ariz. 1956).

[v] Hart v. Gould, 119 Cal. App. 2d 231 (Cal. App. 1953).

[vi] Commonwealth v. King, 252 Ky. 699 (Ky. 1934).

[vii] Houston Bros. v. Grant, 112 Miss. 465 (Miss. 1916).


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