A land patent is an exclusive land grant made by a sovereign entity with respect to a particular tract of land. To make such a grant “patent”, a sovereign (proprietary landowner) must document the land grant, securely sign and seal the document (patent), and openly publish the documents for the public to see. An official land patent is the highest evidence of right, title, and interest to a defined area. It is usually granted by a central, federal, or state government to an individual or to a private company.
Besides patent, other terms for the certificate that grants such rights include first-title deed and final certificate. In the United States, all claims of land ownership can be traced back to a land patent, first-title deed, or similar document regarding land originally owned by France, Spain, United Kingdom, Mexico, Russia, or Native Americans.
A land patent is known in law as "letters patent", and usually issues to the original grantee and to their heirs and assigns forever. The patent stands as supreme title to the land because it attests that all evidence of title existent before its issue date was reviewed by the sovereign authority under which it was sealed and was so sealed as irrefutable; thus, at law the land patent itself so becomes the title to the land defined within its four corners.
History of land patents in the United States of America
As Great Britain began to colonize colonial America, the Crown made large grants of territory to individuals and companies. In turn, those companies and 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 (e.g., the United Kingdom). Most such patents were permanently granted. Those patents are still in force; the United States government honors those patents by treaty law, and, as with all such land patents, they cannot be changed.
After the American Revolution and the ratification of the Constitution of the United States, the United States Treasury Department was placed in charge of managing all public lands. In 1812, the General Land Office was created to assume that duty.
In accord with specific Acts of Congress, and under the hand and seal of the President of the United States of America, the General Land Office issued more than 2 million land grants made patent (land patents), passing the title of specific parcels of public land from the nation to private parties (individuals or private companies). Some of the land so granted had survey or other costs associated with it. Some patentees paid those fees for their land in 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 public land was located. The claimant filled out entry papers to select the public land, and the land office register (clerk) checked the local registrar records to make sure the claimed land 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. Finally, the General Land Office issued a land patent for the claimed public land and sent it on to the President for his signature.
Usage restrictions (e.g., oil and mineral rights, roadways, ditches and canals) placed on the land are spelled out in the patent. Such private property rights can also be thereafter negotiated in accord with the terms of private contracts. The rights inherent in patented land are carried from heir to heir, heir to assignee, or assignee to assignee, and cannot be changed except by private contract (warranty deed, quitclaim deed, 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. For example, in the United States the laws governing the land may involve the Homestead Act or reservations placed on the face of the patent, or the Treaty of Guadalupe Hidalgo, which governs certain jurisdictional dicta relating to large amounts of land in California and adjoining territories.
Because most people become familiar with land rights only when they acquire real estate either by inheritance or through the process of a purchase contract, they never learn the difference between land and the property appurtenant to it. Accordingly, their familiarity with land law remains virtually non-existent; and, they only become accustomed to State statutory regulations relative to the property appurtenant to the land, that is to say: property taxing, zoning and building codes, etc.
Former U.S. territories
When a territory agreed to enter the Union of the United States of America, an Enabling Act was agreed to as a condition precedent of statehood. The Enabling Act requires that all unappropriated (not yet privately owned) lands be forever disclaimed by the territory and the people of the territory, and the title ceded 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 improving the homestead parcel for a certain period of time. Once a proper claim has been filed, the General Land Office (now the Bureau of Land Management) certifies that the claimant has paid for a survey, as well as depositing another sum of money. Then, pursuant to the various land acts of Congress, the land is granted to the private owner by letters patent under the signature and seal of the President of the United States of America.
An excerpt from the Homestead Act of 1862 - “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.
Over 100 years of unanimous U.S. Supreme Court cases speak for themselves:
WRIGHT v. MATTISON 18 HOW (1856)(9-0) The courts have concurred, it is believed, without an exception, in defining "color of title" to be that which in appearance is title, but which in reality is no title. yet a claim asserted under the provisions of such a deed is strictly acclaim under color of title, Hence, color of title, even under a void and worthless deed, has always been received as evidence that the person in possession claims adversely to all the world. Color of title may be made through conveyances, or bonds, or contracts, or bare possession under parol agreements. We can entertain no doubt in this case that the auditor's deed to the purchaser at the tax sale is color of title in Woodward, in the true intent and meaning of the Statute, and without regard to its intrinsic worth as a title.
STONE v. UNITED STATES 69 U.S. (1865)(10-0) A patent is the highest evidence of title, and is conclusive as against the government, and all claiming under junior patents or titles, until it is set aside or annulled by some judicial tribunal. The patent is but evidence of a grant, and the officer who issues it acts ministerially and not judicially.
SANFORD v. SANFORD 139 U.S. (1891)(9-0) In ejectment the question always is who has the legal title for the demanded premises, not who ought to have it. In such cases the patent of the government issued upon the direction of the land department is unassailable. A Court of equity has jurisdiction in such a case to compel the transfer to the plaintiff of property which, but for such fraud and misrepresentation, would have been awarded to him, and of which he was thereby wrongfully deprived.
CHANDLER v. CALUMET & HECLA 149 U.S. (1893)(7-0) It is well settled that the state could have impeached the title thus conveyed to the canal company only by a bill in chancery to cancel or annul it, either for fraud on the part of the grantee, or mistake or misconstruction of the law on the part of its officers in issuing the patent. But whether there is any technical estoppel, in the ordinary sense, or not, it cannot be maintained that the state can issue two patents, at different dates to different parties, for the same land, so as to convey by the second patent a title superior to that acquired under the first patent. Neither can the second patentee, under such circumstances, in an action at law, be heard to impeach the prior patent for any fraud committed by the grantee against the state, or any mistake committed by its officers acting within the scope of their authority and having jurisdiction to act and to execute the conveyance sought to be impeached. Neither the state nor its subsequent patentee is in a position to cancel or annul the title which it had authority to make, and which it had previously conveyed to the canal company.
SARGEANT v. HERRICK 221 U.S. (1911)(9-0) It is apparent that the validity of the tax title depends upon the question whether the location of the warrant in 1857, without more, gave a right to a patent. Among the conditions upon compliance with which such a right depends, none has been deemed more essential than the payment of the purchase price, which, in this instance, could have been made in money or by a warrant like the one actually used.
UNITED STATES v. CREEK NATION 295 U.S. (1935)(9-0) They were intended from their inception to effect a change of ownership and were consummated by the issue of patents, the most accredited type of conveyance known to our law.
SUMMA CORP v. CALIFORNIA STATE EX REL. LANDS COM'N 466 U.S. (1984)(8-0) The final decree of the Board, or any patent issued under the Act, was also a conclusive adjudication of the rights of the claimant as against the United States, but not against the interests of third parties with superior titles. Finally, in UNITED STATES v. CORONADO BEACH CO. 255 U.S. (1921) The Court expressly rejected the Government's argument, holding that the patent proceedings were conclusive on this issue, and could not be collaterally attacked by the Government. The necessary result of the Coronado Beach decision is that even "sovereign" claims such as those raised by the State of California in the present case must, like other claims, be asserted in the patent proceedings or be barred. These decisions control the outcome of this case. We hold that California cannot at this late date assert its public trust easement over petitioner's property, when petitioner's predecessors-in-interest had their interest confirmed without any mention of such an easement in proceedings taken pursuant to the Act of 1851. The interest claimed by California is one of such substantial magnitude that regardless of the fact that the claim is asserted by the State in its sovereign capacity, this interest, like the Indian claims made in BARKER and in UNITED STATES v. TITLE INS. & TRUST CO., must have been presented in the patent proceeding or be barred.
Fictitious entities, like trusts, corporations, etc., cannot obtain land patents except by express act of the United States 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.
A land patent is permanent and cannot be changed by the government after its issuance except in case of fraud, clerical error, or failure to pay the initial administrative fees. A statute of limitations applies.
- U.S. Department of the Interior, Bureau of Land Management, General Land Office Records
- The Republic of Texas, however, retained its unappropriated lands, and Hawaii was a conquered territory.