REMOVAL OF LAND FROM THE PUBLIC DOMAIN

An important and critical step in the analysis of an RS 2477 roadway is whether the public lands have, or have not, been removed from the public domain prior to the time the land route was created. RS 2477 only applies to public lands that have not been removed from the public domain. State court decisions on this issue are not helpful, as they do not cite any legal authority for their rulings. Since the public lands are lands owned by the U.S. government, then federal, not state, decisions control on this issue. A review of federal decisions was made in the context of mining claims under the Mining Act of 1872, and the Colorado Mining Law. The conclusion is clear. Until a U.S. Patent is issued for a mining lode, the U.S. government continues to own the land within the mining claim. The mining claim is not removed from the public domain until the Patent is issued.

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 land has moved from the federal government to a private person or entity. By contrast, state law determines whether the use of road has created a public highway.

The priority of federal over state law on the issue of federal ownership is an important distinction. Colorado state decisions conflict with federal decisions regarding what act(s) constitute removal of federal land from the public domain. Under the Supremacy Clause (U.S. Constitution, Article 6, Sec. 2), the federal rule pre-empts a state rule in conflict with the federal rule regarding what constitutes removal from the public domain, and any rights of the general public prior to such removal.

State Decisions on Public Domain:
Two Colorado state court decisions have held that the recording of a Location Certificate removed the mining claim from the public domain. Camp Bird Colorado, Inc. v. Board of County COMSYS of the County of Ouray 15 P.3d. 1277, 1283-84 (Colo. App. 2009); Gold Hill Development Company, L.P. v. TSG Ski & Golf, LLC 378 P.3d. 816, 828 (Colo. App. 2015) These decisions involved mining claims under the 1872 Act. However, neither of these decisions cite any authorities – federal or state – for this holding.

Other Colorado decisions have dealt with public domain removal in the context of the Homestead Act. Leach v. Manhart 77 P.2d. 762 (Colo. 1938); Lee v. Masner 45 P.3d. 749, 795 (Colo. App. 2001). In Masner a public road, under R.S. 2477, was claimed to have existed over land homesteaded by John Bear. The opponents argued that the road pre-dated any time at which the land had been removed from the public domain. The court cited Korf v. Itten 64 Colo. 3, 9, 169 P. 148, 151 (1917) for the proposition that a Certificate of Entry removed the land from the public domain.

“The term ‘entry’ as used in the context of acquisition of rights in land under federal homestead law, means: ‘An entry under the United States land laws for the purpose of acquiring title to a portion of public domain under the homestead laws, consisting of an affidavit of the claimant’s right to enter, a formal application for the land, and payment of the money required. Black’s Law Dictionary 627 (4th ed. 1957)”.

Masner (Supra) at 796

The appellate court also cited to Witherspoon v. Duncan 71 U.S. (4 Wall.) 210, 210, 18 L.Ed. 339, 342 (1866), where the Court said:

“In no just sense can lands be said to be public lands after they have been entered at the land office and a certificate of entry obtained. If public lands before the entry, after it they are private property …. [I]f the party is entitled by law to enter the land, the receiver gives him a certificate of entry reciting the facts, by means of which, in due time, he receives a patent. The contract of purchase is complete when the certificate of entry is executed and delivered, and thereafter the land ceases to be a part of the public domain.” (Emphasis Supplied)

Unfortunately, even Supreme Court justices can misapply terms clearly defined by a governing federal statute. As set forth in the 1862 Homestead Act:

Sec. 2:…No certificate (of entry) shall be given or patent issued therefore until the expiration of five years from the date of (actual) entry (to the federal land)…..”.

12 Stat 392 (May 20, 1862)

Various state and federal decisions appear to equate the Certificate of Entry with the Registration for Entry.

“…if the party is entitled by law to enter the land, the receiver gives him a certificate of entry reciting the facts, by means of which, in due time, he receives a patent. … (A)s soon as (the settler) gets the certificate of entry, (he) is protected in his proprietary interest, can take possession, and make valuable and lasting improvements, which it would be difficult to separate from the freehold for the purpose of taxation….”. (Emphasis Supplied)

Witherspoon v. Duncan 71 U.S. 210, 218 (1866)

A Registration of Entry under the Homestead Act authorized the initial physical entry, the installation of improvements, and protected the homesteader from intrusion by other homesteaders during the proving up period. By contrast, the Certificate of Entry came after all these improvements were made or installed, with the Certificate stating that all statutory conditions had been satisfied.

The correct interpretation of Witherspoon, then, is that initial physical entry (though registered with the GLO) does not remove the land from the public domain. Removal from the public domain does not occur until all pre-patent requirements have been met and the patent issued.

Federal Decisions on Public Domain:
In Benson Min. & Smelting Co. v. Alta Min. & Smelting Co. 145 U.S. 428, 429 (1892), the court dealt with mining claims and held that there were three classes of title: (a) title by possession alone, which conferred no right to a patent; (b) equitable title, occurring when the conditions of homestead or mining acts had been completed to the satisfaction of the federal government but a U.S. Patent had not technically been issued (i.e., a Certificate of Entry had been issued); and, (c) actual title, when the U.S. Patent is delivered to and received by the claimant. The court specifically held that:

“(Title by possession)…being a mere right of possession and enjoyment of profits without purchase and upon condition, may be defeated at any time by the failure of the party in possession to comply with the condition(s)….”.

In Teller v. United States 113 F. 273, 280 (8th Cir., Wyoming 1901) Teller entered property under a mining claim but cut down trees on the claim for sale as railroad ties. The court upheld his conviction for trespass. The court ruled that the mineral claim;

“…withdrew the land from the public domain (so) that no rival claimant could successfully initiate any right to it until (Teller’s) location was avoided and his entry canceled…but it gave him nothing but the right of present and exclusive possession for the purpose of mining. It did not divest the legal title of the United States or impair its right to protect the land and its product…from trespass or waste…(The lands)…were still ‘lands of the United States…..”. (Emphasis Supplied)

In Union Oil Co. of California v. Smith 249 U.S. 337, 346-349 (1919) “…upon the public domain a miner may hold the place in which he may be working against all others having no better right, and while he remains in possession, diligently working towards discovery, he is entitled – at least for a reasonable time – to be protected against forcible, fraudulent and clandestine intrusions upon his possession.” (346-47)

In United States v. Etcheverry 230 F.2d. 193, 195 (10th Cir., 1956) Etcheverry entered under a mining claim and then leased a portion of the claim for grazing. The court upheld Etcheverry’s conviction for criminal trespass, holding that “….the land (comprising the mining claim) is no longer a part of the public domain so far as the minerals are concerned….The mere location of a mining claim gives to the locator only the right to explore for and develop minerals: particularly as against third party interlopers. But as to the United States, his right is conditional and inchoate.”

In United States v. Curtis-Nevada Mines, Inc. 611 F.2d. 1277, 1283 (9th Cir.; 1980) The United States has historically allowed the general public to use the public domain for recreation and other purposes without ever requiring a specific, formal permit. This case was decided under the Multiple Use Act (Publ L. No. 84-167, 69 Stat. 367; codified at 30 U.S.C. 611-612) but the Court determined that the Act merely codified what had been long-standing and pre-existing policy of the United States.

In Bales v. Ruch 522 F.Supp. 150, 153 (E.D., California; 1981) a mining claimant who has recorded his Location Certificate acquires only a possessory interest. He has become a licensee or a tenant at will so long as good faith exploration continues. Title remains in the United States, even though the land has been appropriated for a mining purpose.

Conclusion:
The federal rule – the dominant rule of titles to public lands – limited the effect of entry on to public lands to the express purposes of the entry (mining; homesteading) and not more. The protection during the proving up period was for such specific use, and not more. Until the issuance of a U.S. Patent, the miner has only a possessory, and defeasible, tenancy subordinate to the overriding policies of the United States. The federal government’s rights included, inter alia, the power to sell surface products (timber) to third parties. Teller; Etcheverry They included the license granted to the general public to traverse the mining claim for fishing, hunting, access to National Forest, as well as access to other public lands available for mining or homesteading. Curtis-Nevada Mines; Camfield v. U.S. 167 U.S. 518 (1897)

© Copyright James A. Beckwith 2020