THE RELATION BACK RULE

In the late 1800’s, settlers, whether by Homestead or by Cash Purchase - applied to the local General Land Office (GLO) for their U.S. Patents. However, the U.S. Patents were not issued by the local GLO but, instead, by the U.S. Department of Interior in Washington, D.C. Due to slow U.S. mail and administrative inertia there was always a lag time between the date when the settler qualified for a Patent and the date the U.S. Patent was actually issued (let alone got back to the settler!). The delay could be six months or over one year.

“Relation back” the, is a long-standing legal rule holding that title to public lands passes to the citizen from the federal government on a date preceding the date the U.S. Patent is actually issued. The Relation Back legal principle has three parts.

Which Law Governs? Any dispute over title to public lands is governed by federal and not state law. Hughes v. State of Washington 389 U.S. 290, 292 (1967), quoting from Borax Consolidated, Ltd. v. City of Los Angeles 396 U.S. 10, 22 (1935). Both federal and state courts have defined “public land” as meaning all “…land as is open to sale or other disposition under general laws….”. Bardon v. Northern Pac. R. Co. 145 U.S. 535, 538 (1892); Board of County Commissioners of Cheyenne County v. Ritchey 888 P.2d. 298, 300 (Colo. App. 1994) Public lands are lands owned by the federal government and available to citizens for purchase, mining or homesteading.

The application of federal law to the title to public lands is not in conflict with the long-standing rule that the public highway status of a land route created under R.S. 2477 is determined by state law. The distinction is “title” vs. “use”. Federal law determines when fee ownership of public land has moved from the federal government to a private person or entity. By contrast, state law determines whether a road across that public land is a public highway, even though title to the land underlying the road may remain in the federal government.

The priority of federal over state law on the issue of federal ownership is an important distinction. Under the Supremacy Clause (Article 6, Sec. 2, U.S. Constitution) the federal law pre-empts a state law or rule in conflict with the federal rule or law.

Equitable vs. Legal Title: There are three classes of title to public lands: (a) title by possession alone, which confers no right to a patent; (b) equitable title, occurring when the conditions of homestead or other appropriation laws (e.g. Pre-Emption; Cash Purchase) have been completed to the satisfaction of the federal government but a U.S. Patent has not technically been issued (i.e., a Certificate of Entry has been issued but not a Patent); and, (c) actual legal title when the U.S. Patent is delivered to and received by the claimant. Benson Min. & Smelting Co. v. Alta Min. & Smelting Co. 145 U.S. 428, 429 (1892) The status of “equitable title” was best described in United States v. Etcheverry 230 F.2d. 193, 196-197 (10th Cir. 1956):

“A patent from the United States operates to transfer the title, not merely from the date of the patent, but from the inception of the equitable right upon which it is based. Sheply v. Cowan 91 U.S. 330 … Indeed, this is generally true in case of the merging of an equitable right into a legal title….” (Emphasis Supplied)

Under Benson and Etcheverry , then, the relation back on a patent requires us to determine when the ultimate patentee complied with the statute governing his right to a patent: e.g., the Homestead Act of 1862, or the Pre-Emption Act of 1841.

Cash Entry / Outright Purchase: So long as the public land was surveyed, all public land was available for cash sale or homesteading. A federally conducted survey was necessary since the land could not be identified without a valid survey. These surveys were conducted under the auspices of the GLO, and reviewed by the U.S. Surveyor General. They are commonly known as the “GLO Surveys”. They are the basis for all surveying in the American West. They are available on the BLM website (blm.gov) as well as from any licensed land surveyor.

The procedures for Cash Entry were simple. The buyer registered with the local GLO to purchase a parcel of land identified by aliquot description int he GLO Survey. Such parcels were, for example, the SW 1/4 of Sec. 1, Township 7S, Range 100W, 6th Principal Meridian or Lot 1 of Sec. 1 Township 7S, Range 100W, 6th P.M. Generally, public lands were sold for $1.25 per acre, with some limitations on the number of acres allowed per purchaser. Parcels sold under the Mining Act of 1872 sold for a higher amount such as $2.50 per acre. To qualify for a U.S. Patent, then, the Cash Entrant registered and then paid the purchase price. No more was necessary for Relation Back.

This same principle applies to patents issued under the Timber & Stone Act of 1878 (U.S. Stats at Large 20:89 and 27:38) After the GLO declared certain public lands “unfit for farming”, an application could acquire up to 160 acres of timber land for $2.50 per acre. Payment of the purchase price was a pre-condition to qualification for a patent.

Cash Entry / Pre-Emption Act of 1841: Many people settled on public land before the GLO had surveyed those lands. Under the Pre-Emption Act of 1841 (5 Stat. 453, September 4, 1841) such persons could apply for a Cash Entry U.S. Patent once the land was surveyed by the GLO. Before the land was offered to the public for sale or homestead, the claimant had to file with the GLO a declaration that he had initially intended to reside upon and improve the property when he first settled. In addition - and as a mandatory requirement - the claimant had to pay the purchase price of $1.25 per acre for the land occupied by him or her. There is a limitation to the right of pre-emption:

“When all these prerequisites are complied with, and the claimant has paid the price of the land, he is entitled to a certificate of entry from the registrar and receiver; and after a reasonable time, to enable the land officer to ascertain if there are superior claims, and if in other respects the claimant has made out his case, he is entitled to receive a patent, which for the first time invests him with the legal title to the land. Frisbie v. Whitney 76 U.S. 187, 194 (1869) (Emphasis Supplied)

The above-quoted ruling follows the language of Sec. 10, Pre-Emption Act, allowing an applicant to claim as much as 160 acres of surveyed, unoffered land, “…upon paying … the minimum price of such land…”. It follows Sec. 14 of the Act which states that the Act will “…not be available to any person or persons who shall fail to make the proof and payment…”. In other words, the operative criteria for a pre-emption claim is the payment of the purchase price to the GLO registrar. From and after that date, the applicant is entitled to a patent if the registrar and receiver confirm the validity of the claim and that the land has not previously been claimed.

Homestead Entry: Under the Homestead Act of 1862 (Public Law 37-64; 12 Stat. 392; May 20, 1862), a homesteader appeared at the local GLO office and registered his or her intent to enter, and prove up, a claim to a parcel identified in a GLO survey by aliquot description. After such “registration of entry”, the homesteader had five years to reside upon the property, install improvements and cultivate a crop. Many homestead claims, of course, were unsuccessful. Weather, bad soil and any number of natural calamities could defeat the “proving up”. (The homesteader could even relinquish his claim during the five years.) After at least five years of residence, the homesteader offered the local GLO his proof of improvement and cultivation. If accepted, the homestead was then issued a Certificate of Entry under Sec. 8, Homestead Act.

A “Registration of Entry” must not be confused with a “Certificate of Entry”. Sec. 2, Homestead Act, provided: “…No Certificate (of Entry) shall be given or patent issued therefor until the expiration of five years form the date of (actual) entry (to the federal land)….”. 12 Stat 392 (May 20, 1862) A homestead applicant was required, in advance of occupation, to register his intent to so occupy the land. This was a “Certificate of Registration” and gave the homesteader freedom from subsequent-in-time claimants who might attempt to claim the same land. The two documents, then, are separate and distinct from each other. A Certificate of Entry conferred equitable title upon the homesteader and a right to a U.S. Patent for the land. A Registration of Entry conferred no right to a U.S. Patent.

Under the Homestead Act, then, equitable title was achieved when the local GLO office had determined, from affidavits, that the homesteader had in good faith resided upon the property for five years and cultivated crops. Only then would he be issued a Certificate of Entry. This would be the date of “equitable title”.

This same rule would apply to patents issued under the Desert Lands Act (March 3, 1877) which is still effective. Under the Act, a claimant can obtain 320 acres of desert land upon residency and bringing water to the property. It would also apply to the Stock Raising Homestead Act of 1916 (Public Law 64-290; 390 Stat. 862; December 29, 1916). Under this Act, the GLO declared certain property unfit for any use except livestock grazing and growing of forage. The land could not contain merchantable timber nor be susceptible to irrigation from any known source. The amount of acreage (640) had to be required to sustain a family. The claimant registered his intent to enter; residence upon the property not less than three years; and was required to improve the value of the 640 acres above the value of $1.25 per acre.

Mining Claims: A miner seeking to develop the extraction of valuable minerals from federal public lands was not controlled by a Homestead Act but, instead, the Mining Act of 1872. It is still in effect today and can be found at 30 U.S.C. 40-49. The Act left it to each Territory and State to adopt procedures for perfecting a mineral claim. The Colorado Mining Act was adopted in 1874 and can be found today at C.R.S. 34-48-101, Et. Seq. There were two types of mining claims: lode and placer.

Lode Claims: A lode claim is one involving tunneling and development of shafts. To perfect such a claim a miner recorded a Location Certificate. By legal requirement, a Location Certificate could not be filed until after an actual discovery of a valuable mineral deposit (excluding coal) had occurred in the area of the applicable lode. The physical activities necessary for a discovery were not insignificant. C.R.S. 34-43-101, Et. Seq. The miner first had to “prospect” for “good color”. This involved walking or riding horseback over terrain to scout for surface ore that might contain valuable minerals. It also included collecting both surface and sub-surface samples for assaying or other field testing. There might be more than one location at which rocks were retrieved and studied. Having found “good color” the miner then engaged in digging a discovery shaft on the lode not less than ten feet in depth. The shaft had to show a well-defined “crevice”. C.RS. 34-43-106(1)(a) It was entirely probable that the miner might dig more than one shaft before finding a lode or vein upon which to predicate a claim. Such excavation was arduous and time consuming particularly in high mountain rocky ground often frozen from harsh winters. The miner then posted his discovery shaft with notice of his discovery and marked the boundaries of his lode claim: 1,500 along the vein and 30 ft. on each side of the vein (600 ft. total). C.R.S. 34-43-101, 102. The miner had three months from the date of discovery in which to record his Location Certificate with the County Recorder.

Miners were entitled to patent their claims. There were three major predicates to patenting a mining claim: (a) verification that the miner had expended not less than $500 worth of work and materials on the claim (which could include road construction costs); (b) federal approval of a mineral survey performed by a licensed surveyor; and, (c) the payment of $5.00 per acre for the claim. The date of equitable title to a lode claim, then, was the date on which all three of these predicates - including the payment of the purchase price - had been made and approved by the local GLO or Mining Office.

Placer Claims: A place claim is one involving surface mining, such as pits or gathering of materials on the surface. Placer claims are recognized under 30 U.S.C. 35. Perfection of the place claim was under the same procedure applied to vein or lode claims. 30 U.S.C. 28 (“…placers … shall be subject to entry and patent under like circumstances and conditions, and upon similar proceedings, as are provided for vein or lode claims … (under 30 U.S.C. 28)….”.) See also: C.R.S. 34-43-112. The discovery was made; the property was “staked” by inserting posts within the ground; the discoverer then posted the property with notices of the discovery; and, the discoverer(s) recorded his/their Location Certificate. (Id.) The Location Certificate had to contain a description of the placer claim. This description, however, only needed to refer to permanent monuments and to state the number of acres or feet claim by the locator. C.R.S. 34-43-112(1)(d) and (e) Where placer claims were located on surveyed land (e.g. GLO surveys) then a separate survey and plat were not required. 30 U.S.C. 35 The Location Certificate could properly refer to aliquot areas from GLO surveys: which were considered “natural monuments”. Clark v. Pueblo Quarries, Inc. 86 P.2d. 602 (Colo. 1939) Placer claims were limited in size to twenty acres for each individual claimant. 30 U.S.C. 35 Obviously, the larger the number of claimants or “locators” there were, the larger the area that could be included within the claim.

The placer claimant was required to expended each year not less than $100 in value of labor and/or materials on his/her claim. 30 U.S.C. 28b Like lode claims, a placer claimant could patent the land included within his claim by compliance with 30 U.S.C. 29, involving affidavits of work; review and acceptance by the GLO/BLM; and, ultimately, payment of $5.00 per acre for the acreage requested.

The date of equitable title on placer claims was thus the date on which all paperwork was field and approved by the local GLO office and, most importantly, the date the purchase price was paid.

Summary: Under governing federal law title to public land related back to the date(s) on which the applicant had established equitable title: i.e., satisfaction of the specific requirements for patents set forth in the Homestead, Cash Purchase, Lode and Placer Mining, Timber & Stone, Stock Grazing Homestead and Desert Lands statutes. None of these statutes applied relation back to the date on which a physical entry of the property was made. Each of these statutes required either residency or providing up (Homestead; Stock Grazing; Desert Lands) direct payment of a specified price per acre (Cash Purchase; Timber & Stone) or a combination of mineral extraction, survey and payment of the purchase price (Lode and Placer Mining).

James A. Beckwith

Copyright January, 2022