While not a common scenario within the PLSS, this is one of several "adverse possession" related Patents I have encountered in Utah.
Obviously certain conditions had to be met, and a "land court" (see reference in Patent) actually rules on each "claim." It IS however an "adverse possession claim" against the sovereign. Granted it is somewhat unique in the underlying authority, and also unique as to the States affected, but never say never...
Check out the first paragraph in the Field Notes.
I researched this Act about 10 years ago, but don't remember too much about the particulars.
Loyal
Loyal, post: 394552, member: 228 wrote: While not a common scenario within the PLSS, this is one of several "adverse possession" related Patents I have encountered in Utah.
Obviously certain conditions had to be met, and a "land court" (see reference in Patent) actually rules on each "claim." It IS however an "adverse possession claim" against the sovereign. Granted it is somewhat unique in the underlying authority, and also unique as to the States affected, but never say never...
Check out the first paragraph in the Field Notes.
I researched this Act about 10 years ago, but don't remember too much about the particulars.
Loyal
That is pretty interesting.
I cannot locate it now, but there was a similar case down here. One Indian Boundary had been ran in the 1850s. The rectangular survey notes in 1870 appeared to "close" on the original boundary but fell miserably short of locating the original boundary. An 1890 USGS "Resurvey" actually restored the line and found a good sized (20 acres or so) hiatus between the junior "closing line" and the original boundary. Since the US government retained no interests on either side of the boundary, a new (around 1930 I think) survey designated some irregular lots and awarded them to the adjoining owner that had been occupying and farming the land for a number of years.
Loyal, post: 394552, member: 228 wrote: It IS however an "adverse possession claim" against the sovereign.
Only because they used the term "adverse possession" in the notes (and possibly in the enabling legislation, which I haven't seen). The sovereign agreed to give up the land, which makes the acquisition something other than adverse in my book.
Jim Frame, post: 394563, member: 10 wrote: Only because they used the term "adverse possession" in the notes (and possibly in the enabling legislation, which I haven't seen). The sovereign agreed to give up the land, which makes the acquisition something other than adverse in my book.
I agree. To me it appears as though the notes (and survey) were possibly performed after the case was decided.
For those that have never run into this, here is the statute. It has been revised.
43 U.S. Code å¤ 1068 - Lands held in adverse possession; issuance of patent; reservation of minerals; conflicting claims
https://www.law.cornell.edu/uscode/text/43/1068
The Secretary of the Interior (a) shall, whenever it shall be shown to his satisfaction that a tract of public land has been held in good faith and in peaceful, adverse, possession by a claimant, his ancestors or grantors, under claim or color of title for more than twenty years, and that valuable improvements have been placed on such land or some part thereof has been reduced to cultivation, or (b) may, in his discretion, whenever it shall be shown to his satisfaction that a tract of public land has been held in good faith and in peaceful, adverse, possession by a claimant, his ancestors or grantors, under claim or color of title for the period commencing not later than January 1, 1901, to the date of application during which time they have paid taxes levied on the land by State and local governmental units, issue a patent for not to exceed one hundred and sixty acres of such land upon the payment of not less than $1.25 per acre: Provided, That where the area so held is in excess of one hundred and sixty acres the Secretary may determine what particular subdivisions, not exceeding one hundred and sixty acres, may be patented hereunder: Provided further, That coal and all other minerals contained therein are reserved to the United States; that said coal and other minerals shall be subject to sale or disposal by the United States under applicable leasing and mineral land laws, and permittees, lessees, or grantees of the United States shall have the right to enter upon said lands for the purpose of prospecting for and mining such deposits: And provided further, That no patent shall issue under the provisions of this chapter for any tract to which there is a conflicting claim adverse to that of the applicant, unless and until such claim shall have been finally adjudicated in favor of such applicant.
(Dec. 22, 1928, ch. 47, å¤Ûø1, 45 Stat. 1069; July 28, 1953, ch. 254, å¤Ûø1, 67 Stat. 227.)
Part (a) requires action, but part (b) is discretionary. Only (b) has the requirement that the possession commenced on or before January 1, 1901.
On the GLO Records web site, if one downloads the bulk data for all patents issued for a given state, one of the 10 relational databases is a land disposition authorization database. This file contains 1039 records listing the authorities for the disposal or [re]acquisition of land by the U.S., (e.g. the authority to issue a patent for a lode or placer mining claim is established in the Mining Act of July 26, 1866).
I conducted a search on U.S. patents issued in Colorado under the authority of 45 Stat. 1069 (Act of Dec. 22, 1928; 43 U.S. Code å¤ 1068). There are two entries listed under 45 Stat. 1069: "COT - Class 1 and 2", and "COT - Color of Title". Seventeen patents were issued under, COT - Class 1 and 2 and zero patents under, COT - Color of Title. The link is to the search page on BLM's GLO Records web site.
Contrary to the text of the statute, there are examples where both the surface and mineral estate were conveyed. File name, "SER_Patent_05-2015-0001.pdf"
Compare that with this patent showing the mineral were reserved by the U.S. File name, "SER_Patent_05-88-0003.pdf"
Oops, nevermind.
Sorry, Loyal. My previous post is not related to your case, but rather to a 1928 Congressional act. A little after Teddy's time. It is however, related to Gavin's post regarding color of title and another oddity of adversely possessing the Sovereign.
paden cash, post: 394562, member: 20 wrote: That is pretty interesting.
I cannot locate it now, but there was a similar case down here. One Indian Boundary had been ran in the 1850s. The rectangular survey notes in 1870 appeared to "close" on the original boundary but fell miserably short of locating the original boundary. An 1890 USGS "Resurvey" actually restored the line and found a good sized (20 acres or so) hiatus between the junior "closing line" and the original boundary. Since the US government retained no interests on either side of the boundary, a new (around 1930 I think) survey designated some irregular lots and awarded them to the adjoining owner that had been occupying and farming the land for a number of years.
"An 1890 USGS "Resurvey"... " USGS? Never heard of them having authority to survey Federal Lands...
Jim in AZ, post: 394588, member: 249 wrote: "An 1890 USGS "Resurvey"... " USGS? Never heard of them having authority to survey Federal Lands...
Thousands of acres in Oklahoma were "surveyed" by the USGS in 1898-1901 (+/-). In reality they technically "dependent resurveys" but not filed as such. They rolled through 'destroying' the earlier 1870-ish evidence and supposedly resetting everything. They fell miserably short and it was after a good amount of the lands were already in private hands. I can show you a stack of townships with 1870s monumentation and occupation with little or no evidence of the latter USGS survey.
I believe the theory was that the original surveys were somehow flawed simply due to the fact they were actually performed by contracts and not government employees. Someone at the USGS felt they could do a better job and completed some of the original work and totally fubared that which had already been surveyed.
You're in good company too. Keith Williams always held they had no "authority".
Loyal, That patent was not approved by the local planning department. Sorry illegally created unit of land. 🙂 Jp
Jim in AZ, post: 394588, member: 249 wrote: "An 1890 USGS "Resurvey"... " USGS? Never heard of them having authority to survey Federal Lands...
They "resurveyed" a big area of forest lands, they made nice large brass caps and set them, they look like the old military monuments. The way they did the surveys makes them to be not very "official", but they are in the database at the BLM. They set line points and would offset their monuments from the real ones; xx chains from them. So you go find the big brass cap, then look for the real monument 10-20 maybe 30' away. It's like a reference survey, but they are easy to find and sometimes they occupied the original position, you just need to be very careful and read the notes. The plat is signed by the director of the Geological survey........
Never been all that sure how "official" those surveys are. I do use the GLO stones and not the USGS brass caps if there is any kind of conflict.
Although the term averse possession is used, this is not averse possession as we think about it under state law. The clamient had express pemission to occupy the land , as did every other citizen at the time.
What happened here was the land was settled before it was surveyed. This may be uncommon in Utah, but it is very common in some states (New Mexico and Alaska). The land court was responsible for ensuring the claim met all the requirements to go to patent and was not claimed by anyone else.
The act posted up thread is known as the color of title act, and again it is not what we think of as averse possession. Congress wanted to give people who met certain requirements a way to buy public land that they had beloved was theirs through no fault of the own. It is still on the books and is still used. Unlike averse possession it only gives the clamient the right to buy land. The cost can be significant when administrative and survey costs are added to the $1.25 per acre.
Is averse possession anything like adverse possession? How badly must you dislike your property before it becomes averse possession?:);):)
aliquot, post: 394619, member: 2486 wrote: Although the term averse possession is used, this is not averse possession as we think about it under state law. The clamient had express pemission to occupy the land , as did every other citizen at the time.
What happened here was the land was settled before it was surveyed. This may be uncommon in Utah, but it is very common in some states (New Mexico and Alaska). The land court was responsible for ensuring the claim met all the requirements to go to patent and was not claimed by anyone else.
The act posted up thread is known as the color of title act, and again it is not what we think of as averse possession. Congress wanted to give people who met certain requirements a way to buy public land that they had beloved was theirs through no fault of the own. It is still on the books and is still used. Unlike averse possession it only gives the clamient the right to buy land. The cost can be significant when administrative and survey costs are added to the $1.25 per acre.
Excellent synopsis aliquot!
That is pretty much as I remember my take on the research I did a decade ago (or so).
As we all know (at some point), terminology is important, and certain terms/phrases mean different things at different times, and under different circumstances.
Loyal
MightyMoe, post: 394618, member: 700 wrote: They "resurveyed" a big area of forest lands, they made nice large brass caps and set them, they look like the old military monuments. The way they did the surveys makes them to be not very "official", but they are in the database at the BLM. They set line points and would offset their monuments from the real ones; xx chains from them. So you go find the big brass cap, then look for the real monument 10-20 maybe 30' away. It's like a reference survey, but they are easy to find and sometimes they occupied the original position, you just need to be very careful and read the notes. The plat is signed by the director of the Geological survey........
Never been all that sure how "official" those surveys are. I do use the GLO stones and not the USGS brass caps if there is any kind of conflict.
I wish we were that lucky down here. The USGS "resurveys" are listed as "original surveys" and the BLM, when formally asked, has officially (on paper anyway) acknowledge that the latter survey of record is the official survey. And they set their iron posts and caps for township corners not just reference corners. I can only think of one instance where an earlier corner existed within shouting distance of a USGS pipe post...all the surveys around there actually were tied to the old stone and not the USGS pipe...as it should be. 😉
paden cash, post: 394632, member: 20 wrote: I wish we were that lucky down here. The USGS "resurveys" are listed as "original surveys" and the BLM, when formally asked, has officially (on paper anyway) acknowledge that the latter survey of record is the official survey. And they set their iron posts and caps for township corners not just reference corners. I can only think of one instance where an earlier corner existed within shouting distance of a USGS pipe post...all the surveys around there actually were tied to the old stone and not the USGS pipe...as it should be. 😉
Some are references, some occupy the old stone position, it's very confusing,,,,,,,,,,:cool:
paden cash, post: 394599, member: 20 wrote: Thousands of acres in Oklahoma were "surveyed" by the USGS in 1898-1901 (+/-). In reality they technically "dependent resurveys" but not filed as such. They rolled through 'destroying' the earlier 1870-ish evidence and supposedly resetting everything. They fell miserably short and it was after a good amount of the lands were already in private hands. I can show you a stack of townships with 1870s monumentation and occupation with little or no evidence of the latter USGS survey.
I believe the theory was that the original surveys were somehow flawed simply due to the fact they were actually performed by contracts and not government employees. Someone at the USGS felt they could do a better job and completed some of the original work and totally fubared that which had already been surveyed.
You're in good company too. Keith Williams always held they had no "authority".
Most interesting! I was unaware that this ever occurred anywhere. Certainly have not seen it here. Perhaps this contributed to the BLM's paranoia and absolute refusal to allow the USFS to survey public lands in my State in the 1970's... They claimed for some time that the FS could only survey the "private side of the line".
T
Jim in AZ, post: 394667, member: 249 wrote: Most interesting! I was unaware that this ever occurred anywhere. Certainly have not seen it here. Perhaps this contributed to the BLM's paranoia and absolute refusal to allow the USFS to survey public lands in my State in the 1970's... They claimed for some time that the FS could only survey the "private side of the line".
I've heard the "private side of the line" before. It's a strange way to think about it. The forrest service has the same authority as any state licenced surveyor; however, their surveys are not official surveys and are open to attack by any other surveyor with a different opinion.
