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 .
Of the lauds within the original thirteen colonies, the larger part had, at the time of the American Revolution, been granted to individuals or to associations, to hold in private ownership, and their rights, except in so far as the lands were confiscated for disloyalty, were not affected by the transfer of the sovereignty to the state. Those lands, however, which had not been granted away by the crown, passed to the respective state governments as successors to the crown, and as representatives of the public. Such lands, the title to which was thus vested in any of the original states, have been disposed of either by special legislative grants, or in accordance with a regular statutory system, established for the purpose, providing for their survey and sale to persons making formal application to the state authorities.
18. Barringer & Adams, Mines & Mining, c. 7.
19. Rev. St. U. S. Sec. 2324; Burringer & Adams, Mines & Mining c. 9.
The territory ceded by certain states to the general government was, to some extent, incumbered by grants previously made to individuals by the ceding state, and these grants were usually, by the agreement for cession, recognized by the United States. Of the lands of which the title thus became vested in the states, the most important were those under tidal and navigable waters, over which the state governments have always exercised control, and which they have, as a general rule, not granted away to individuals, the policy of the states, however, differing among themselves in this regard.20
Within the territory ceded to the United States by foreign governments, the states formed therefrom have no rights to vacant lands except as these may have been granted to them by the United States government. Such grants have, however, as above stated, been made to a very considerable extent, and the lands so granted to the states they have disposed of to individuals and corporations in various ways.
The land under navigable waters within the limits of the territory ceded to the United States, either by one of the states or by a foreign country, passed to the United States for the benefit of the whole people, and in trust for the several states to be ultimately created out of such territory, and, upon the admission of any part of such territory as a state, such lands pass ipso facto to the state government, subject, however, to any grants of rights therein which may have been made for appropriate purposes by the United States government while holding the country as a territory. Consequently, the new states admitted into the Union since the adoption of the constitution have the same rights as the original states in the tide waters, and in the lands under them, within their respective jurisdictions, and they may accordingly grant rights therein to individuals, as it may seem most expedient, subject only to the paramount rights of navigation and commerce.21
20. Martin v. Waddell's Lessee, 16 Pet. (U. S.) 367, 10 L. Ed. 997; Shiveley v. Bowlby, 152 U. S. 1,
38 L. Ed. 331.
See ante, Sec.Sec. 300, 301.
The vacant lands which belonged to the state of Texas, lying within its limits, never became part of the public domain of the United States, there being an express provision to that effect in the resolutions passed by congress for its admission as a state.22 These lands have been gradually disposed of, usually by locations under "land certificates," these certificates having been issued for various purposes, as to encourage settlement, to reward participants in the War of Independence, or their heirs, and to promote the construction of railroads.23
The systems and regulations adopted by the various states in disposing of their public lands have been of the most diverse character. Usually, however, a warrant is issued, either to one entitled as a beneficiary by some legislative act, or in consideration of the payment of a sum fixed by law, this warrant authorizing him to "locate" or "enter" a certain number of acres in the public domain. The holder of the warrant then selects his land, and files with a designated official a description of the land, this being known as the "entry." The land so applied for is then usually surveyed by the public surveyor, and, after such survey, and his compliance with all the other requirements of the statute, the applicant is entitled to a "patent" or grant from the state.24
21. Shiveley v. Bowlby, 152 U. S. 1, 38 L. Ed. 331.
22. 5 U. S. Stat. 797.
23. The mode of disposal of
Texas lands is clearly stated in
1 Dembitz, Land Titles, 561 et seq.
24. See 2 Minor, Institutes,
898; 1 Dembitz, Land Titles, 500;