This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
The territory ceded to the confederation by individual states, and that acquired by the present government from foreign powers, was, for the most part, free from any claims of ownership by individuals, and was therefore open to disposition by the government in such a way as seemed expedient. The land thus owned and controlled by the government, known as "public land," has been gradually disposed of to individuals and corporations by various methods, intended, and usually adapted, to aid in the settlement and industrial development of the country. The more important methods of disposition which have been adopted will be briefly described.
- Public sales. In the early period of the land system it was the custom to offer lands, as soon as surveyed, at public sale, in accordance with a proclamation by the president, and at a minimum price.2 This system of disposing of public lands gave room for much abuse and oppression, it often occurring that the land had been improved by actual settlers, who would be dispossessed by purchasers at these sales, and it gradually fell into disuse. It is now to some extent abolished by statute.3 The amount of land held under title thus acquired from the government is not large.
- Pre-emption. In consequence of the evils resulting from the system of public sales, the "pre-emption" system was instituted, by which one who settled on one hundred and sixty acres of land, improving it and erecting a dwelling thereon, was entitled to purchase the land in preference to any other person. After settling on the land, he was required to file a statement or "entry" in the land office within a certain time, declaring his purpose to claim the right of pre-emption, and also to file proof that he was entitled to the right",
Presumably increased in value, the government thereafter holds at an increased price. In many cases these grants to aid in the building of railroads have been made to the state in which the railroad was to be built, instead of to the corporation building it. In such cases the state takes merely the legal title, in trust for the railroad.9
2. See Rev. St. U. S. Sec.Sec. 235.°., 9, 10; 1 Dembitz, Land Titles, p. 2357-2360. 620, note.
3. See 26 U. S. Slat. 1099, Sec.Sec. and to pay the sum fixed by law as the purchase price. He then received a certificate of entry.4 Before making such proof and payment, the claimant was regarded as having merely a privilege to purchase the land, of which he might be deprived by the government by a grant or sale to others.5 And such privilege or right of preemption could not, by the express provision of the statute, be assigned to another person, though the pre-emptor could transfer his interest after payment and issue of the certificate.6 The pre-emption law has now been repealed.7
- Homestead entry. Since the repeal of the laws allowing public sales and of the pre-emption law, the only system of general application for the acquisition of public lands is under the "homestead" law. By this law, any citizen, or intending citizen, who is an adult or head of a family, who does not owm one hundred and sixty acres of land in any state or territory, and who has not previously exercised the homestead right, may make application for the benefit of the law, and this, if followed by bona fide occupation and cultivation of the land for five years, entitles him to a certificate and patent for the land, without making any payment other than the land-office fees.8
- Railroad grants. Great quantities of land have been granted out of the public domain of the United States to aid and stimulate railroad construction through the territory in which the land lay. These grants usually consist of the odd-numbered sections on both sides of the railroad to a certain distance, frequently five miles, and the even-numbered sections, thereby
4. Rev. St. U. S. Sec.Sec. 2257-2288
5. Frisbie v. Whitney, 9 Wall. (U. S.) 187, 19 L. Ed. 668; Yo-semite Valley Case, 15 Wall. (U. S.) 77, 21 L. Ed. 82.
6. Rev. St. U. S. Sec. 2203; Myers v. Craft, 13 Wall. (U. S.) 291, 20 L. Ed. 562.
7. Act March 3, 1891 (26 Stat. 1097).
8. Rev. St. U S. Sec.Sec. 2289. 2302.
These grants to the railroads are subject to any previous rights which may have been acquired by others in the lands granted, under the pre-emption, homestead, or other laws. To compensate for any loss to the railroad corporation through such causes, the statute making the grant usually provides for "indemnity lands" at a greater distance from the railroad, these being lands which the railroad company is authorized to take in lieu of those in its original grant already taken up by others.10 A railroad grant almost invariably takes effect so soon as the survey or location of the proposed railroad through the public land has been approved by the land office, and the title to the alternate sections, as named in the act constituting the grant, then vests in the railroad company as of the date of the grant.11
- Grants to states. Congress has, at various times and for divers purposes, granted parts of the land to states. Among the most important of these grants are those for educational purposes. Usually, section sixteen in every township, and sometimes also section thirty-two, has been granted to the state or territory for the support of schools; besides which, grants have been made for state universities, agricultural colleges, and similar purposes.
9. Rice v. Minnesota & N. W. R. Co., 1 Black (U. S.) 358, 360, 17 L. Ed. 147; Wolsey v. Chapman, 101 U. S. 755, 25 L. Ed. 915; Schulenberg v. Harriman, 21 Wall. (U. S.) 60, 22 L. Ed. 554.
10. Leavenworth, L. & G. R. Co. v. United States, 92 U. S. 733, 23 L. Ed. 634; Broder v. Na-toma Water & Mining Co., 101 U. S. 274, 25 L. Ed. 790; Winona & St. P. R. Co., v. Barney, 113 U. S. 618, 28 L. Ed. 1109; Sioux City &
Iowa Falls Town Lot & Land Co. v. Griffey, 143 U. S. 32, 36 L. Ed. 64.
11. Van Wyck v. Knevals, 106 U. S. 360, 27 L. Ed. 201; Sioux City & Iowa Falls Town Lot & Land Co. v. Griffey. 143 U. S. 32, 36 L. Ed. 64; Curtner v. United States, 149 U. S. 672, 37 L. Ed. 893; St. Paul & S. C. R. Co. v. Winona & St. P. R. Co., 112 U. S. 720, 28 L. Ed. 872.
To each state, also, in which there were then public lands, five hundred thousand acres were, by act of congress, granted for internal improvements, and this grant extends to each new state as it is admitted.12
By the "swamp land" grant of 1850, all swamp and overflowed lands unfit for cultivation on that account were granted to the several states in which they were situated, subject to certain restrictions, for the purpose of aiding in the reclamation of such lands.13
- Townsites. The statutes of the United States specify three methods by which public lands may be acquired for townsites: (1) The president may reserve land for townsite purposes on harbors or rivers, or at other possible centers of population, and lots therein may be sold at public outcry. (2) Persons desiring to found a city or town on public land may locate a town-site not over six hundred and forty acres in extent, and lay off lots therein, and the president may then authorize the sale of such lots at a minimum price of ten dollars per lot. (3) Public land which has actually been settled upon and occupied as a townsite may be entered in the office as a townsite by the municipal authorities thereof, or by the county judge.14
- Mineral lands. Lands belonging to the United the ground, and in some states, by local requirements, by posting notice of the claim, and recording a certificate of the location.18 The extent of the claim is, in the case of a lode or vein, limited by the United States statute to fifteen hundred feet in the direction in which the lode or vein runs, and three hundred feet on each side of the vein; the boundaries running in the direction of the vein being known as "side" lines, and those running across the vein as "end" lines. The locator is entitled to any ore within the space marked by these surface lines extended downward vertically, and may follow the vein across his side lines, even though, in so doing, he takes ore from beneath the surface claim of another, but he cannot follow the vein across his end lines.
Mineral lands were merely leased by the government for the purpose of working. After the discoveries of precious metals in the western territory, the mineral deposits on the public lands were worked by the immigrants under mining regulations established by themselves, and without any permission from the government, and the courts adopted the fiction that the first appro-priator, in accordance with the local mining regulations, had a license from the government to work the mines.15 It was not until 1866 that congress passed an act providing for the acquisition of mineral lands within the public domain by individuals at nominal prices. This statute adopted the essential features of the local miners' regulations in regard to the acquisition or "location" of claims, and all legislation by congress on the subject has recognized the validity of such regulations, as well as of state statutes, when not in conflict with the acts of congress.16
States which contain valuable deposits of minerals have usually been excepted from the operation of general laws for the acquisition of land by individuals, such as the pre-emption and homestead laws. For many years,
12. Act Sept. 8, 1841 (Rev. St. U. S. Sec. 2378).
13. Rev. St. U. S. Sec. 2479.
14. Rev. St. Sec.Sec. 2380-2389; 2 Copp, Pub. Land Laws (1890) 1010-1013.
The statutes on the subject of the acquisition of claims make a distinction between mineral deposits in "lodes" or "veins," these being equivalent terms, and "placer" deposits. A "lode" or "vein," as the terms are used in the statute, is a "line or aggregation of metal imbedded in quartz or other rock in place," while the term "placer" is applied to ground which "contains mineral in its earth, sand, or gravel; ground that includes valuable deposits not in place, - that is, not fixed in rock, - but which are in a loose state, and may, in most cases, be collected by washing or amalgamation without milling."17
Any citizen or intending citizen, upon discovering a vein or lode of minerals on public land, may "locate" a claim thereto by marking the limits of his claim on
15. Sparrow v. Strong, 3 Wall. (U. S.) 97, 18 L. Ed. 49; 1 Bar-ringer & Adams, Mines & Mining, 196.
16. The United States statutes on the subject are to be found in Rev. St. Sec.Sec. 2318, 2352.
17. Mr. Justice Field in United States v. Iron Silver Min. Co., 128 U. S. 673, 32 L. Ed. 571.
A placer claim or location is limited to one hundred and sixty acres in case the location is made by an association of not less than eight bona fide locators, and to twenty acres in the case of a location by an individual.
In order that one who has located a claim may continue to hold it, he must do work or make improvements thereon to the value of at least one hundred dollars in each year, and, in case of his failure so to do, the claim is forfeited, and open to location by another person.19