Preemptive Rights have been bandied about in the news lately. Just exactly what are they in regards to property rights.
Wikipedia has the following reference:
Preemption was a term used in the nineteenth century United States to refer to a settler's right to purchase public land at a federally set minimum price; it was a right of first refusal. Usually this was conferred to male heads of households who developed the property into a farm. If he was a citizen or was taking steps to become one and he and his family developed the land (buildings, fields, fences) he had the right to then buy that land for the minimum price. Land was otherwise sold through auction, typically at a price too high for these settlers. Preemption is similar to squatter's rights and mining claims
> Preemption was a term used in the nineteenth century United States to refer to a settler's right to purchase public land at a federally set minimum price; it was a right of first refusal. Usually this was conferred to male heads of households who developed the property into a farm. If he was a citizen or was taking steps to become one and he and his family developed the land (buildings, fields, fences) he had the right to then buy that land for the minimum price. Land was otherwise sold through auction, typically at a price too high for these settlers. Preemption is similar to squatter's rights and mining claims
I certainly haven't studied the issue enough to respond, but I do wonder what they presently are calling the reservation of and/or the turning over of the "public lands" to private interests to be used for the solar power industry. Apparently it isn't exclusive of foreign corporate interests.
I don’t want to get into the politics of this issue. I am more interested in the individual’s (mis)understanding of property legal issues.
It seems a shame that the individual has put so many people, on both sides, to such great trouble over his misunderstanding of property legal issues.
We as a profession bear some responsibility.
Feds start rounding up Bundy’s cattle in northeastern Clark County
Fletcher v. Peck, 10 US 87 - Supreme Court 1810
Johnson's Lessee v. McIntosh, 21 US 543 - Supreme Court 1823
There are many cases listed on Google Scholar regarding preemptive rights. Until today, I thought this was a business practice only and didn't realize that it pertained to property rights as well.
Richard, thank you for furthering my education!
Preemption Act, statute passed (1841) by the U.S. Congress in response to the demands of the Western states that squatters be allowed to preempt lands. Pioneers often settled on public lands before they could be surveyed and auctioned by the U.S. government. At first the squatter claims were not recognized, but in 1830 the first of a series of temporary preemption laws was passed by Congress. Opposition to preemption came from Eastern states, which saw any encouragement of western migration as a threat to their labor supply.
A permanent preemption act was passed only after the Eastern states had been placated by the principle of distribution (i.e., the proceeds of the government land sales would be distributed among the states according to population). Distribution was discarded in 1842, but the preemption principle survived. The act of 1841 permitted settlers to stake a claim of 160 acres (65 hectares) and after about 14 months of residence to purchase it from the government for as little as $1.25 an acre before it was offered for public sale. After the passage (1862) of the Homestead Act Homestead Act, the value of preemption for bona fide settlers declined, and the practice more and more became a tool for speculators. Congress repealed the Preemption Act in 1891.
Full text (I think) of the 1841 Act.
I'm reading a book now that is all about Preemptive Rights. It was written in the 1870's by California Spanish Land Grant holder and is called "The Squatter and the Don" It gives an interesting perspective and I would recommend it to any land surveyor. It is available on amazon. Jp
Best I can tell Mr. Bundy's ancestors didn't have preemptive rights on all the land Cliven Bundy grazed. Nor, did Mr. Bundy's ancestors exercise their preemptive rights all the land Cliven Bundy grazed.
Congress repealed the Preemption Act in 1891, The Homestead act expired in Nevada in 1976.
Mr. Bundy paid grazing fees up to 1993. It seems that Mr. Bundy didn't exercise his rights in a timely manner.
Similar to squatters and mining claims?! That is Wiki for you.
Blacks Law Dictionary : "Pre-Emption - In the United States. A privilege accorded by the government to the actual settler upon a certain limited portion of the public domain, to purchase such tract at a fixed price to the exclusion of all other applicants."
A related definition to look up is "Entry" - Homestead, Mineral, Pre-emption, and Timber Culture Entry.
There is a distinct difference between a "Settler" and a "Squatter". The latter generally being considered a negative term.
"Settler - A person who, for the purpose of acquiring a pre-emption right, has gone upon the land in question, and is actually resident there.
"Squatter - One who settles on another's land, particularly on public lands, without legal authority...A person entering upon lands, not claiming in good faith the right to do so by virtue of any title of his own or by virtue of some agreement with another whom he believes to hold the title."
Are they claiming a pre-emptive right to the actual title of the land, or describing that fact that they were the first ones to purchase the water rights and grazing allotments prior to the permitting process that required annual fees?
In my County, grazing and water rights are essential to the way of life.
One of our Board of Supervisors put this website together. It does a great job in outlining where we started and how we got to where we are now as far as property rights go (including grazing and water rights). The web site could probably be considered as biased towards preservation of property rights, but that can't be a bad thing.
You might try reading the "Preemption Act, statute passed" post above and note that it doesn't disagree with the Wiki quote. Which BTW is footnoted.
