When this land was originally settled, the colonists brought themselves under the Crown of
England. Thereby, all of the land in the colonies was considered to be the
property of the Crown. This legal theory meant that the King could let anyone
he wished to live on the land and even may have granted an equitable title to
such a subject. However, in equity there is discretion, and at the discretion
of the King, the equitable title holder could be dispossessed and the land taken back for the Crown.
“Acting within its discretion, Congress determined that in order to promptly
dispose of public lands and bring about their PERMANENT occupation and
development, it was proper to create the designated exemption; and we are
unable to say that the conclusion was ill-founded or that the means were
either prohibited or not appropriate to the adequate performance of the high
duties which the legislature owed to the public.” (emphasis added)
“As we said in the case of Smelting Company v. Kemp; 'It is this UNASSAILABLE character [of the patent] which gives it its chief, indeed its only value, as a means of quieting its possessor in the enjoyment of the lands it embraces.'” (emphasis added)The validity of the patent could not be attacked except under fraud or clerical error and either of these circumstances has to be proven in a court of law, and the challenge must be brought within six months of the granting of the patent. In fact, in a court of law, the patent is the conclusive proof of legal title. Id. 452
“It is among the elementary principles of the law that in actions of ejectment the legal title must prevail. The patent of the United States passes that title. Whoever holds it MUST recover against those who have only unrealized hopes to obtain it, or claims which it is the exclusive province of a court of equity to enforce. However great these may be, they constitute no defense in an action at law based upon the patent. That instrument must first be got out of the way, or its enforcement enjoined, before others having mere equitable rights can gain or hold possession of the lands it covers. This is so well established, so completely embedded in the law of ejectment that no one ought to be misled by any argument to the contrary.” (emphasis added)
In an action of ejectment (now called eviction or forcible entry and detainer) the right to the possession of the property must be positively proven by a legal title. Fenn v. Home, 21 How. 481, 483 (1858).
“That the plaintiff in ejectment must in all cases prove a legal title to the premises in himself, at the time of the demise laid in the declaration, and that evidence of an equitable estate will not be sufficient for a recovery, are principles so elementary and so familiar to the profession as to render unnecessary the citation of authority in support of them… This legal title the plaintiff must establish either upon a connected documentary chain of evidence, or upon proofs of possession of sufficient duration to warrant the legal conclusion of the existence of such written title.”
In the case of lands granted under a Land Patent, a “connected documentary chain of evidence” is on public record at the Recorder of Deeds for the county in which the land is located. Even the sovereign States themselves do not have the power to overturn Land Patents and their effects upon the land, namely, the severance from the interference in them by the administration of government. Gibson v. Chouteau, 13 Wall. 92, 102 (1871).
“In the Federal Courts, where the distinction between legal and equitable proceedings is strictly maintained, and remedies afforded by law and equity are separately pursued, the action of ejectment can only be sustained upon the possession by the plaintiff of the legal title…in the action of ejectment in the Federal Courts, the legal title must prevail, and the patent, when regular on its face, is conclusive evidence of that title.
So also in the action of ejectment in the State courts, when the question presented is whether the plaintiff or the defendant has the superior legal title from the United States, the patent must prevail. For, as said in Bagnell v. Broderick, ‘Congress has the sole power to declare the dignity and effect of titles emanating from the United States; and the whole legislation of the Federal government in reference to the public lands declares the patent the superior and conclusive evidence of legal title…’” (emphasis added)
Furthermore, the states may not legislate a superior, or even an equal, instrument to the Land Patent. Bagnell et. al. v. Broderick, 13 Pet. 436, 451 (1839).
“…we deny that the states have any power to declare certificates of purchase of equal dignity with a patent. Congress alone can give them such effect.”
“No more can private property be so taken away by judicial decision and handed over, gratis, to the State. ‘The touchstone of due process is the protection of the individual against arbitrary action of the government.’” Hughes v. Washington, 389 U.S. 290, 294-298 (1967); California ex rel. State Lands Commission v. United States, No. 89 Original (June 18, 1982); Waterman v. Smith, 13 Cal. 373 (1859); Chipley v. Farris, 45 Cal. 527 (1873); Cassidy v. Carr, 48 Cal. 339 (1874); Los Angeles Farming & Milling Co. v. Thompson, 117 Cal. 594, 49 P. 714 (1897), aff’d sub nom. Thompson v. Los Angeles Farming & Milling Co., 180 U.S. 71 (1901); Leese v. Clark, 18 Cal. 535 (1861);
“It [the patent] passes whatever interest the United States may then have possessed in the premises. It operates in consequence as an absolute bar to all claims under the United States having their origin subsequent to the petition.
But the patent has a still further operation and effect. It is not merely a deed of the United States, conveying whatever interest they may have held in the premises at the institution of the proceedings before the Land Commission. It is also a record of the Government, showing its action and judgment with respect to the title of the patentees at the date of the cession…This instrument, as we have stated, is the record of the Government upon the title of the patentee to the land described therein, declaring the validity of that title and that it rightfully attaches to the land. Upon all the matters of fact and law essential to authorize its issuance, it imports absolute verity; and it can only be vacated and set aside by direct proceedings instituted by the Government, or by parties acting in the name and by the authority of the Government. Until thus vacated it is conclusive, not only between the patentee and the Government, but between parties claiming in privity with either by title subsequent.” 18 Cal. 571-572 (citation omitted).
Leo Sheep Co. v. United States, 440 U.S. 668, 687 (1979).
United States v. Title Insurance & Trust Co., 265 U.S. 472 (1924).
“Where questions arise which affect titles to land it is of great importance to the public that when they are once decided they should no longer be considered open. Such decisions become rules of property, and many titles may be injuriously affected by their change. Legislatures may alter or change their laws, without injury, as they affect the future only; but where courts vacillate and overrule their own decisions on the construction of statutes affecting the title to real property, their decisions are retrospective, and may affect titles purchased on the faith of their stability. Doubtful questions on subjects of this nature, when once decided, should be considered no longer doubtful or subject to change.” 265 U.S. at 486-487. (citations omitted)
As early as 1898 this Court was able to say:
“[I]f there is any one thing respecting the administration of the public lands which must be considered as settled by repeated adjudications of this court, it is that the decision of the land department upon mere questions of fact is, in the absence of fraud or deceit, conclusive, and such questions cannot thereafter be relitigated in the courts.” Johnson v. Drew, 171 U.S. 93, 99 (1898). More v. Steinbach, 127 U.S. 70, 83 (1888). Stewart v. United States, 316 U.S. 354 (1942). [ambiguity] Heath v. Wallace, 138 U.S. 573 (1891); French v. Fyan, 93 U.S. (3 Otto) 169 (1876); Steel v. St. Louis Smelting & Refining Co., 106 U.S. (16 Otto) 447 (1882);
Interpretation of a federal land conveyance is determined by federal law.
Shively v. Bowlby, (1894) 152 U.S. 1, 9-10; 38 L.Ed. 331. 335; 14 S.Ct. 548. Borax, Ltd. v. Los Angeles, 296 U.S. 22, [80 L.Ed. 17-18. United States v. o’Donnell, 303 U.S. 509.
Settlement of titles:
Knight v. U.S. Land Association, 142 U.S. 184, [35 L.Ed. 982;] Beard v. Federy, 70 U.S. 489, [18 L.Ed.]
The patent serves to protect the patentee’s land from all incursions of administrative power. United States v. Stone, 2 Wall. 525, 535 (1864).
“A patent is the highest evidence of title, and is conclusive as against the Government, and all claiming under junior patents of titles, until it is set aside or annulled by some judicial tribunal [because of fraud or other ministerial impropriety at the time of the patenting].”
See also United States v. Creek Nation, 295 U.S. 103, 111 (1935).Finally, these doctrines concerning the Land Patent are still effective. Summa Corp. v. California ex rel. State Lands Commission & City of Los Angeles, 466 U.S. 198, 80 L.Ed. 2nd 237, 104 S.CT. 1751; USSC 82-708, US Law Week, 4/17/1984.
“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 easement in proceedings taken pursuant to the Act of 1851. The interest claimed by California…must have been presented in the patent proceeding or be barred.”
The “petitioner’s predecessors-in-interest” are, of course, the original patentee of the land and all of the assignees of that patent through the intervening time.
In summary, the intent of the Land Patent was to forever sever any control, over the land so patented, by any agency of government. Congress passed legislation on several occasions to fulfill that intent and the courts have concluded that it was well within its power to do so. All other interest, equitable in nature, is presumed inferior to that of a Land Patent and, so, in any action to recover as against patented land, the holder of the patent must prevail. In demonstration of which we refer to the statutes of the State of Illinois as an example, at 110 pp. 8-1208, and 1120 pp. 8-1209 which read as follows, to wit:
“8-1208. Official Certificate-Land Office.
pp. 8-1208. Official Certificate-Land Office. The official certificate of any register or receiver of any land office of the United States to any fact or matter on record in his or her office, shall be received in evidence in any court in this State, and shall be competent to prove the fact so certified. The certificate of any such register, of the entry or purchase of any tract of land within his or her district, shall be deemed and taken to be evidence of title in the party who made such entry or purchase, or his or her legatees, heirs or assigns, and shall enable such party, his or her legatees or assigns, to recover or protect the possession of the land described in such certificate, in any action of ejectment or forcible entry and detainer, UNLESS A BETTER LEGAL AND PARAMOUNT TITLE BE EXHIBITED FOR THE SAME. The signature of such register or receiver may be proved by a certificate of the Secretary of State, under his or her seal, that such signature is genuine.” Amended by P.A. 83-707, pp. 1, eff. Sept. 23, 1983. (emphasis added)
“8-1209. Patents for land.
pp. 8-1209. Patents for land. A PATENT FOR LAND SHALL BE DEEMED AND CONSIDERED A BETTER LEGAL AND PARAMOUNT TITLE IN THE PATENTEE, HIS OR HER LEGATEES, HEIRS OR ASSIGNE, THAN THE OFFICIAL CERTIFICATE OF ANY REGISTER OF A LAND OFFICE OF THE UNITED STATES, OF THE ENTRY OR PURCHASE OF THE SAME LAND.” (emphasis added)
Amended by P.A. 83-707, pp. 1, eff. Sept. 23, 1983.
Property tax – Unconstitutional – Land Untaxable by State.
The original constitution of Wisconsin provided that the lands of Wisconsin are untaxable. Article II, Section 2, reads as follows:
“Sec. 2. The propositions contained in the act of Congress, are hereby accepted, ratified and confirmed, and shall remain irrevocable without the consent of the United States, and it is hereby ordained that this state shall never interfere with the primary disposal of the soil within the same, by the United States, nor with any regulations congress may find necessary for securing the title in such soil to bona fide purchasers thereof; AND NO TAX SHALL BE IMPOSED ON LAND,” (emphasis added)
Sargent v. Herrick & Stevens, 221 U.S. 404, 55 L.Ed. 787;
Northern P.R. Co. v. Truitt County, 115 U.S. 600, 29 L.Ed. 477;
Town of St. John v. State Board of Tax Commissioners, 665 NE 2d 965 (1996).
Texas Court Case Cites
Severance v. Patterson Texas Property Rights Case on a beachfront property (46 page PDF)
The Republic could have reserved the right of the public to use the beachfront property, “but the plain language of the grant shows the Republic of Texas did not do so.”
Koch V. Texas General Land Office, No. 03-07-00108-CV. December 2008: defining the term "minerals" reserved and retained by the state in 1926 land patent, that "minerals" contemplated under original patent and applicable statutes, did not include dirt, soil, sand, gravel, caliche, and limestone. [Reservations to be Specifically Stated]City of Houston v Morgan Guarantee (15 page PDF) "located in this state" defined in this Texas Court Case.
Key Supreme Court Cases on Obligations of Contracts
Chief Justice Marshall stated:
"A contract is a compact between two or more parties, and is either executory or executed. An executory contract is one in which a party binds himself to do, or not to do, a particular thing; such was the law under which the conveyance was made by the Governor. A contract executed is one in which the object of contract is performed, and this, says Blackstone, differs in nothing from a grant. The contract between Georgia and the purchasers was executed by the grant. A contract executed, as well as one which is executory, contains obligations binding on the parties. A grant, in its own nature, amounts to an extinguishment of the right of the grantor, and implies a contract not to reassert that right. A party is therefore always estopped by his own grant."
He recognized that an obligatory contract was one still to be performed—in other words, an executory contract, also that a grant of land was an executed contract—a conveyance. But, he asserted, every grant is attended by “an implied contract” on the part of the grantor not to claim again the thing granted. Thus, grants are brought within the category of contracts having continuing obligation.
"When a law is in the nature of a contract, when absolute rights have vested under that contract, a repeal of the law cannot divest those rights.
A party to a contract cannot pronounce its own deed invalid, although that party be a sovereign State. A grant is a contract executed.
A law annulling conveyances is unconstitutional because it is a law impairing the obligation of contracts within the meaning of the Constitution of the United States."
Chief Justice Marshall in his controlling opinion appealed to the obligation of contracts clause directly- the contract still continued in force between the State of New Hampshire, as the successor to the Crown and Government of Great Britain, and the trustees, as successors to the donors. The charter, in other words, was not simply a grant-rather it was the documentary record of a still existent agreement between still existent parties.
"Held: 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 the federal patent proceedings. 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 must have been presented in the patent proceedings or be barred." (Privity principle)
Keag Family Limited Partnership v. State Board of Tax Commissioners; Cause No. 02T10-TA-145. (Not published, September 2001)
A patent is intended to quiet title to, and secure the enjoyment of, the land for the patentees and their successors…Thus, as a quitclaim deed, a land patent conveys whatever interest the government has in the soil and the land.
“A patent certificate, or patent issued, or confirmation made to an original grantee or his legal representatives…embraces representatives of such grantee by contract, as well as by operation of law.” Hogan v. Page, 69 US 605, 171 Ed. 854.
The courts held that the operation of a patent as a deed was of the nature of a quitclaim to any interest as the United States possessed in the land; Beard v. Federy, 70 U.S. 478, 3 Wall, 478, 18 L.Ed.88. A patent to land of the United States constituted a full conveyance of title out of the United States; McArthur v. Brue, 67 So. 249, 250, 190 Ala. 563. The issuance of a patent divested the government of all authority and control over the land; Moore v. Robbins, Ill. 96 U.S. 530, 24 L.Ed. 848.Take a look at the patent your abstract is from, and any reservations stipulated on it. Also look at any enabling laws in state's entry into the U.S., or in Texas's situation, the 1845 Organic Constitution entering into the U.S…. United States v. Arredondo, 31 U.S. 6 Pet. 691 691 (1832)
What Is, or what is not granted.
See: Page 31 U. S. 741
It became, then, all-important to ascertain what was granted by what was excepted. The King of Spain was the grantor, the treaty was his deed, the exception was made by him, and its nature and effect depended on his intention, expressed by his words, in reference to the thing granted and the thing reserved and excepted in and by the grant. The Spanish version was in his words and expressed his intention, and though the American version showed the intention of this government to be different, we cannot adopt it as the rule by which to decide what was granted, what excepted, and what reserved; the rules of law are too clear to be mistaken and too imperative to be disregarded by this Court. We must be governed by the clearly expressed and manifest intention of the grantor, and not the grantee in private a fortiori in public grants. That we might not be mistaken in the intention or in the true meaning of Spanish words, two dictionaries were consulted, one of them printed in Madrid, and two translations were made of the eighth article, each by competent judges of Spanish, and both agreeing with each other, and the translation of each agreeing with the definition of the dictionaries. "Quedan" in Spanish, correctly translated, means "shall remain" -- the verb "quedan" is in French "reste," Latin, "manere" "remanere," and English, "remain," in the present tense. In the English original, the words are "shall be" -- words in the future. The difference is all-important as to all Spanish grants, if the words of the treaty were that all the grants of land "shall remain confirmed," then the United States, by accepting the cession, could assert no claim to these lands thus expressly excepted. The proprietors could bring suits to recover them without any action of Congress, and any question arising would be purely a judicial one. "Shall be ratified," makes it necessary that there should be a law ratifying them or authorizing a suit to be brought, otherwise the question would be a political one, not cognizable by this Court, as was decided in Foster and Elam v. Nelson.
Greenleaf v. Birth (1832)
It is observable that the granting part of the deed begins by excepting from its
operation all the lots, squares, lands and tenements which are within the
exceptions. The words are, 'doth grant, &c. except as is hereinafter excepted,
all those hereinafter mentioned and described lots, squares, lands and
tenements,' &c. In order, therefore, to
ascertain what is granted, we must first ascertain what is included in the
exception, for whatever is included in the exception is excluded from the grant
according to the maxim laid down in Co.Lit. 47a (4 Com.Dig. 289, Fait. E. 6).
Si quis rem dat, et partem retinet, illa pars quam retinet semper cum eo est
et semper fuit. Greenleaf v. Birth, January 1832, opinion of this Court by STORY, JUSTICE, the other judges
concurring unanimously on this point.
Sanford v. Sanford, 139 U.S 642, 35 L.Ed. 290 Right to Possess in Patentee
Gibson v. Chouteau, 80 U.S. 92, 20 L.Ed. 534 Evidence of Title
U.S. v. Stone, 2 U.S. 525, 17 L.Ed. 768 Patent as Legal Title
Minter v. Crommelin, 18 U.S. 87, 15 L.Ed. 279
Johnson v. Christian, 128 U.S. 374, 32 L.Ed. 412
Doe v. Aiken, 31 Fed 393
Wilcox v. Jackson, 13 Peters (U.S.) 408, 10 L.Ed. 264 Patent as Estopple
Beadles v. Smyser, 209 U.S. 393, 52 L.Ed. 849 Priority in general, for liens see;
S. & S. Gasket Co. Inc. v. U.S., 635 F.2d 568
Mantovani v. Fast Fuel Corp., 494 F. Supp. 72
MDC Leasing Corp. v. New York Property Ins. Underwriting Ass’n., 450 F. Supp. 179, affirmed 603 F. 2d 213
U.S. v. Hage, 417 F. Supp. 74
Matter of Fisher, 7 B.R. 490
26 U.S.C.A. § 7426
Peterson v. U.S., 511 F. Supp. 250
Angelos v. Maryland Cas. Co., 380 A. 2d. 646, 38 Md. App. 265
United States v. Champaign County, Fed. Supp. 474, 1958
Cent. Dig. 119, 121, 314, 316, 322, 324, 332-335, 461-465, 481, 720
Cases of attack on United States Land Patents and the land so covered have been appealed to the U.S. S. Ct. 139 times and it has held each time, that, if a claim against the land is not made before the patent is issued, no claim made thereafter may be recognized by a court and no Act of Congress can place such land in jeopardy to the owner.
The above case cited is: Summa Corporation v. California ex rel. State Lands Commission & City of Los Angeles.
“When Government becomes a lawbreaker, it breeds contempt for the law, …”
Olmstead v. United States, 277 U.S. 438, 485; 48 S. Ct. 564, 575; 72
L.Ed. 944 (1928) (dissenting opinion).
Interests by states must have been presented in the patent proceedings or be barred
Barker v. Harvey, 181
U.S. 481, 21 S.Ct. 690, 45 L.Ed. 963
Title 43 U.S.C. 59, established that duly certified copies of Federal Land Patents shall be evidence in all cases where the originals would be evidence. Section 83 of Title 43, covers the evidentiary effect of Certified Federal Land Patents for all States and all the courts in the United States must take Judicial Notice of the Federal Patents and their evidentiary effect under these Federal Statutes. All judges in all States shall be bound as to the power and validity of the patents.
U.S. v. Debell, (1915 CA8 SD) 227 F. 760
Collins v. Bartlett, 44 Cal 371
Wright v. Roseberry, 121 U.S. 488, 30 L.Ed. 1039 USCT
Gibson v. Chouteau, 80 U.S. 92, 20 L.Ed. 534
Ejectment against a defendant in possession cannot be maintained in Federal court on an equitable title, gained by entry made with the register and receiver, though the State statutes otherwise provide.
Langdon v. Sherwood, 124 U.S. 83, 84. 8 S.Ct. 431
Kircher v. Murray, 60 Fed. 52, 23 U.S. App. 214
Beadle v. Smyser, 209 U.S. 393, 52 L.Ed. 849
Am. Ins. Co. v. Canter, 1 Pet. (26 U.S.) 511
Norton Grocery Co. v. Peoples Nat’l Bank, 144 SE 501
Federal Intermediate Credit Bank v. L. Herisson, 33 F.2d. 841
Am. Exp. Co. v. Cit. St. Bank, 194 NW 427
Ashley v. Southwestern Bell Telephone Co., 410 F. Supp. 1389
Blackburn v. Portland Gold Mining Co., 175 U.S. 571, 44 L.Ed. 20 S.Ct. 222
Davidson v. Lovett, 446 F. Supp. 1171
Florida Cent. & Pen. R.R. v. Bell, 176 U.S. 321, 44 L.Ed. 486, 20 S.Ct. 399
Hanford v. Davies, 163 U.S. 273, 41 L.Ed. 157, 16 S.Ct. 1051 (1896)
Joy v. St. Louis, 201 U.S. 273, 41 L.Ed. 157, 16 S.Ct. 478 (1906)
Kirklin v. Ellerbe, 225 F. 168
Shulthis v. McDougal, 225 U.S. 561
Nolan v. Cal. Coast. Comm., 177 Call. App. 3d 719, 722 (1986) 55 U.S.L.W. 5145
First English Evan. Luth. Church of Glendale v. Co. of L.A. 55 U.S.L.W. 4781
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393
Agins v. City of Tiburon, 24 Cal. 3d. 266
Davis v. Pima County, 590 P. 2d. 459 (1978)
Corrigan v. City of Scottsdale, 720 P. 2d. 513 (1986)
Fred F. French Investing Co., Inc. v. City of New York, 39 N.Y. 2d. 587 (1976)
San Diego Gas & Electric Co. v. San Diego, 450 U.S. 621
U.S. v. Pewee Coal Co., 341 U.S. 114
Moore v. East Cleveland, 431 U.S. 494 (1977)
Loretta v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982)
Norwood v. Baker, 172 U.S. 269 (1898)
Candid Ent. Inc., v. Grossmont Union H.S. Dist., 39 Cal. 3d. 878, 890 (1985)
Trent Meredith, Inc. v. City of Oxnard, 114 Cal. Ap. 3d. 317, 325 (1981)
Selby Realty Co. v. City of San Buenaventura, 10 Cal. App. 3d. 110, 128 (1973)
Strumansky v. San Diego Co. Emp. Tetirement Assoc., 11 Cal. 3d. 28, 32 (1974)
Avco Community Dev. Inc. v. South Caost Regional Comm., 17 Cal. 3d. 785 (1976)
Kaiser Aetna v. U.S., 444 U.S. 164, 179 (1979)
Matthews v. Eldridge, 424 U.S. 319, 334 (1976)
Pfeiffer v. City of La Mesa, 69 Cal. App. 3d. 74, 78 (1977)
PennCentral, 438 U.S. 124
Armstrong v. U.S., 364 U.S. 40, 49 (1960)
Northern Pipeline v. Marathon, U.S. 102 Reporter, p. 2858, 28 June, 1982. Art. I v. Art. 3 usage, Does not have force of law. V 104, Supra Reporter, 175-1, April 17, 1984.
31 Cal. 3d. 288; 182 Cal. Rptr. 599, 644 p. 2d. 792, 104 S.Ct. 1751 (1984)
State v. Hewit Land Co., 134 Pac. Rep. 474
Hogan v. Page, 2 S.Ct. 605, 69 U.S. 605, 17 L.Ed. 854 98 Stat. 1671
Wisconsin Central Railroad Co. v. Price County
Bagnell et al. v. Broderick, 13 Pet. 450
Raestle v. Whitson, 582 P.2d. 170
Walliker v. Escott, 608 P.2d. 1272
Litchfield v. Register and Receiver, 9 Wall. (U.S.) 575, 19 L.Ed. 681
U.S. v. Steenerson, et al, 50 Fed 504, CCA 552, 4 US App. 332
Jenkins v. Gibson, 2 La. Ann. 203, Louisiana 18 How. 87
Minter v. Crommelin, 18 U.S. 87, 15 L.Ed. 279
King v. McAndrews, 11F 860, 50 CCA 29
Davis v. Fell, 211 P. 30, 59 Call. App. 438
Thompson v. Thompson, 155 P. 1190, 79 Or. 513
Vanderheyden v. Crandall, 2 Denio (N.Y.) 21
Backus v. McCoy, 3 Ohio 221, 17 Am. Dec. 585
Tate v. Jay, 31 Ark. 579
Wallace v. Harmstad, 44 Pa. 492
Barker v. Dayton, 28 Wis., 367
Wilcox v. Jackson, 13 Pet. (U.S.) 498, 10 L.Ed. 264
Wineman v. Gastrell, 54 Fed. 810
U.S. v. Cherokee Nations, 474 F.2d. 628 (1973)
Ruddy v. Rossi, 248 U.S. 104 (1918)
Desenroth v. Dodge, 350 Il. App. 20, 11 NE 2d. 575 (1953)
Lomax v. Pickering, 173 U.S. 26, 43 L.Ed. 601
“Jurisdiction of court may be challenged at any stage of the proceeding, and also may be challenged after conviction and execution of judgment by way of writ of habeas corpus.”
"Jurisdiction, once challenged, cannot be assumed and must be decided."
When a judge knows that he lacks jurisdiction, or acts in the face of clearly
valid statutes expressly depriving him of jurisdiction, judicial immunity is
CRUDEN vs. NEALE, 2 N.C. 338 2 S.E. 70
City of Dallas v Mitchell, 245 S.W. 944 "Acts of Congress making the notes (paper) of the United States a legal tender do not apply to EXACTIONs (taxes) made under state law”
HAGAR v. RECLAMATION DIST. NO. 108, 111 U.S. 701 (1884). HALE v. HENKEL 201 U.S. 43 at 89 (1906)
Hale v. Henkel was decided by the united States Supreme Court in 1906. The opinion of the court states:
"The "individual" may stand upon "his Constitutional Rights" as a CITIZEN. He is entitled to carry on his "private" business in his own way. "His power to contract is unlimited." He owes no duty to the State or to his neighbors to divulge his business, or to open his doors to an investigation, so far as it may tend to incriminate him. He owes no duty to the State, since he receives nothing there from, beyond the protection of his life and property. "His rights" are such as "existed" by the Law of the Land (Common Law) "long antecedent" to the organization of the State", and can only be taken from him by "due process of law", and "in accordance with the Constitution." "He owes nothing" to the public so long as he does not trespass upon their rights." Hale v. Henkel is binding on all the courts of the United States of America until another Supreme Court case says it isn’t.
No other Supreme Court case has ever overturned Hale v. Henkel.
None of the various issues of Hale v. Henkel has ever been overruled.
Since 1906, Hale v. Henkel has been cited by the Federal and State Appellate Court systems over 1,600 times! In nearly every instance when a case is cited, it has an impact on precedent authority of the cited case.
Compared with other previously decided Supreme Court cases, no other case has surpassed Hale v. Henkel in the number of times it has been cited by the courts.
Basso v. UPL, 495 F. 2d 906
Brook v. Yawkey, 200 F. 2d 633
Elliot v. Piersol, 1 Pet. 328, 340, 26 U.S. 328, 340 (1828)
Under federal Law, which is applicable to all states, the U.S. Supreme Court stated that "if a court is without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void, and form no bar to a recovery sought, even prior to a reversal in opposition to them. They constitute no justification and all persons concerned in executing such judgments or sentences are considered, in law, as trespassers."Griffin v. Mathews, 310 Supp. 341, 423 F. 2d 272
Hagans v. Lavine, 415 U.S. 528
Howlett v. Rose, 496 U.S. 356 (1990)
Carlisle v. United States, 83 U.S. 147, 154 (1873), 'The rights of sovereignty extend to all persons and things not privileged, that are within the territory. They extend to all strangers resident therein: not only to those who are naturalized, and to those who are domiciled therein, having taken up their abode with the intention of permanent residence, but also to those whose residence is transitory. All strangers are under the protection of the sovereign while they are within his territory and owe a temporary allegiance in return for that protection.' "In Leiberg v. Vitangeli, 70 Ohio App. 479, 47 N.E. 2d 235, 238-39 (1942) "These constitutional provisions employ the word 'person,' that is. anyone whom we have permitted to peaceably reside within our borders may resort to our courts for redress of an injury done him in his land, goods, person or reputation. The real party plaintiff for whom the nominal plaintiff sues is not shown to have entered our land in an unlawful manner. We said to her, you may enter and reside with us and be equally protected by our laws so long as you conform thereto. You may own property and our laws will protect your title. "We, as a people, have said to those of foreign birth that these constitutional guaranties shall assure you of our good faith. They are the written surety to you of our proud boast that the United States is the haven of refuge of the oppressed of all mankind."
Court will assign to common-law terms their common-law meaning unless legislature directs otherwise. People v. Young (1983) 340 N.W.2d 805,418 Mich. 1.
Arthur v. Fry, 300 F.Supp. 622 “Knowing failure to disclose material information necessary to prevent statement from being misleading, or making representation despite knowledge that it has no reasonable basis in fact, are actionable as fraud under law.”
Rubinstein v. Collins, 20 F.3d 160, 1990 [a] “Party in interest may become liable for fraud by mere silent acquiescence and partaking of benefits of fraud.”
Bransom v. Standard Hardware, Inc., 874 S.W.2d 919, 1994 Ex dolo malo non oritur actio. Out of fraud no action arises; fraud never gives a right of action. No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act.
As found in Black's Law Dictionary, Fifth Edition, page 509. “Fraud destroys the validity of everything into which it enters,”
Nudd v. Burrows, 91 U.S 426. “Fraud vitiates everything”
Boyce v. Grundy, 3 Pet. 210 "Fraud vitiates the most solemn contracts, documents and even judgments."
U.S. v. Throckmorton, 98 US 61 When a Citizen challenges the acts of a federal or state official as being illegal, that official cannot just simply avoid liability based upon the fact that he is a public official. In United States v. Lee, 106 U.S. 196, 220, 221, 1 S.Ct. 240, 261, the United States claimed title to Arlington, Lee's estate, via a tax sale some years earlier, held to be void by the Court. In so voiding the title of the United States, the Court declared:
"No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives.See Pierce v. United States ("The Floyd Acceptances"), 7 Wall. (74 U.S.) 666, 677 ("We have no officers in this government from the President down to the most subordinate agent, who does not hold office under the law, with prescribed duties and limited authority"); Cunningham v. Macon, 109 U.S. 446, 452, 456, 3 S.Ct. 292, 297 ("In these cases he is not sued as, or because he is, the officer of the government, but as an individual, and the court is not ousted of jurisdiction because he asserts authority as such officer. To make out his defense he must show that his authority was sufficient in law to protect him... It is no answer for the defendant to say I am an officer of the government and acted under its authority unless he shows the sufficiency of that authority"); and Poindexter v. Greenhow, 114 U.S. 270, 287, 5 S.Ct. 903, 912 WHEREAS, officials and even judges have no immunity (See, Owen vs. City of Independence, 100 S Ct. 1398; Maine vs. Thiboutot, 100 S. Ct. 2502; and Hafer vs. Melo, 502 U.S. 21; officials and judges are deemed to know the law and sworn to uphold the law; officials and judges cannot claim to act in good faith in willful deprivation of law, they certainly cannot plead ignorance of the law, even the Citizen cannot plead ignorance of the law, the courts have ruled there is no such thing as ignorance of the law, it is ludicrous for learned officials and judges to plead ignorance of the law therefore there is no immunity, judicial or otherwise, in matters of rights secured by the Constitution for the United States of America. See: Title 42 U.S.C. Sec. 1983. "When lawsuits are brought against federal officials, they must be brought against them in their "individual" capacity not their official capacity. When federal officials perpetrate constitutional torts, they do so ultra vires (beyond the powers) and lose the shield of immunity."
Williamson v. U.S. Department of Agriculture, 815 F.2d. 369, ACLU Foundation v. Barr, 952 F.2d. 457, 293 U.S. App. DC 101, (CA DC 1991). "Personal involvement in deprivation of constitutional rights is prerequisite to award of damages, but defendant may be personally involved in constitutional deprivation by direct participation, failure to remedy wrongs after learning about it, creation of a policy or custom under which unconstitutional practices occur or gross negligence in managing subordinates who cause violation." (Gallegos v. Haggerty, N.D. of New York, 689 F. Supp. 93 (1988). "The law requires proof of jurisdiction to appear on the record of the administrative agency and all administrative proceedings."
Hagans v. Lavine, 415 U. S. 533 “If you’ve relied on prior decisions of the Supreme Court you have a perfect defense for willfulness.”
U.S. v. Bishop, 412 U.S. 346
"All lands within the state are declared to be allodial, and feudal tenures are prohibited. On this point counsel contended, first, that one of the principal elements of feudal tenures was, that the feudatory could not independently alien or dispose of his fee; and secondly, that the term allodial describes free and absolute ownership, ... independent ownership, in like manner as personal property is held; the entire right and dominion; that it applies to lands held of no superior to whom the owner owes homage or fealty or military service, and describes an estate subservient to the purposes of commerce, and alienable at the will of the owner; the most ample and perfect interest which can be owned in land." MEMORANDUM OF LAW ON RIGHTS, PRIVILEGES AND IMMUNITIES
Transfer by patentee…. “Title and rights of bona fide purchaser from patentee….. will be protected.”AN ASSIGNEE, WHETHER HE BE THE FIRST, SECOND OR THIRD PARTY TO WHOM TITLE IS CONVEYED SHALL LOSE NONE OF THE ORIGINAL RIGHTS, PRIVILEGES OR IMMUNITIES OF THE ORIGINAL GRANTEE OF LAND GRANT. The U.S. Constitution says in Article 1, Section 10: “No State shall….. impair the obligation of Contracts.”
In cases of ejectment, where the question is who has the legal title the patent of the government is unassailable. Sanford v. Sanford, 139 U.S. 642, 35 L Ed 290.
In Federal courts the patent is held to be the foundation of title law, Fenn v. Holmes, 21 Howard 481. IMMUNITY FROM COLLATERAL ATTACK: Collins v. Bartlett, 44 Cal 371; Webber v. Pere Marquette Boom Co. 62 Mich. 626, 30 NW 469; Surget v. Doe, 24 Miss 118; Pittsmont Copper Co. v. Vanina 71 Mont 44, 227 Pac 46; Green v. Barker, 47 Neb 934 66 NW 1032. The attitude of the Courts is to promote simplicity and certainty in title transactions, thereby they follow what is in the chain of title and not what is outside.
Sabo v. Horvath, 559 P.2d 1038, 1044 (1976). However, in equity courts, title under a patent from the government is subject to control, to protect the rights of parties acting in a fiduciary capacity.
Sanford v. Sanford, 139 U.S. 290 (1891). This protection however does not include the invalidation of the patent. The determination of the land department in matters cognizable by it, in the alienation of lands and the validity of patents, cannot be collaterally attacked or impeached. Id. Therefore the courts have had to devise another means to control the patentee, if not the patent itself, as stated in Raestle v. Whitson, 582 P.2d 170, 172 (1978), “The land patent is the highest evidence of title and is immune from collateral attack. This does not preclude a court from imposing a constructive trust upon the patentee for the benefit of the owners of an “equitable interest”. This then explains the most equitable way a court may effectively restrict the sometimes harsh justice handed down by a strict court of law. Equity courts will impose a trust upon the patentee until the debt has been paid. As has been stated, a patent can not be collaterally attacked, therefore the land can not be sold or taken by the courts unless there is strong evidence of fraud or mistake. However, the courts can require the patentee to pay a certain amount at regular intervals until the debt is paid, unless of course, there is a problem with the validity of the debt itself. This is the main purpose of the patent in this growing epidemic of farm foreclosures that defy the public policy of Congress, the legislative intent of the Statutes at large, and the legal authority as to the type of land ownership possessed in America. Why then is the rate of foreclosures on the rise?
Legitimate national obligations (compliance with international treaties and
extinguishment of Indian occupancy) have been discharged so that national
"interest" in the property can be quitclaimed;
For example, Section 34 of the Mining Act of May 10, 1872 (concerning challenges to an application for patent) states:
"It shall be the duty of the adverse claimant, within thirty days after filing his claim, to commence proceedings in a court of competent jurisdiction, to determine the question of the right of possession, and prosecute the same with reasonable diligence to a final judgement; and a failure so to do shall be a waiver of his adverse claim. After such judgement shall have been rendered, the party entitled to the possession of the claim, or any portion thereof, may, without giving further notice, file a certified copy of the judgement roll with the register of the land office, together with the certificate of the Director of the Bureau of Land Management [that federal statutory requirements for labor, description and fees have been met] whereupon the whole proceedings and the judgement roll shall be certified by the register to the Director of the Bureau of Land Management, and a patent shall issue thereon for the claim, or such portion thereof as the applicant shall appear, from the decision of the court, to rightly possess..." That any statutory requirements of "proving up" and paying any claim fees have been met. Once requirements are met by the claimant, issuance of a patent is not discretionary.
Once the federal patent requirements are satisfied, and there is no question of legitimate national interest in respect to treaties or trusts, the BLM is compelled to issue a patent to a claimant in rightful possession. For instance, Pittsburgh-Pacific Corporation applied for patents to a dozen claims in the Black Hills National Forest, upon which it asserted a discovery of iron ore. At the request of the Forest Service, the Bureau of Land Management challenged the existence of a discovery. When the contest came before the Interior's Board of Land Appeals, the State of South Dakota participated and argued that the Bureau must prepare and environmental impact statement on the patent application. The board held the EIS was not required because patent issuance is not discretionary once Mining Law requirements have been met. [United States v. Pittsburgh-Pacific, 84 I.D. 282, (1977); Confirmed South Dakota v. Andrus, 462 F. Supp. 905, D.S.D.(1978); aff'd. 614 F.2d 1190, 8th Cir, cert. denied 449 U.S. 222 (1980.)] Once a land patent is issued, it stands as the highest evidence of legal title.
A patent to land is the judgment of the Land Department and the conveyance of the title in execution of it to the party adjudged entitled, and, when the land described was in the jurisdiction and subject to the disposition of the Land Department, it is impervious to collateral attack; Neff v. United States, 165 F. 273, 277, 91 C.C.A. 241.
A patent is recognized as the highest evidence of title, conclusive against the government and all claiming under junior patents or treaties until it set aside or annulled by some judicial tribunal; United States v. Mullan, 10 F. 785, 792; Bayner v. Stanly, 13 F. 217, 223.
If other parties possess equities superior to those of the patentee, a court of equity will, on proper proceedings, enforce such equities; but in an action in the federal court in which the legal title is involved, the patent when regular on its surface is conclusive; Redfield v. Parks, 10 S.Ct. 83, 88, 132 U.S. 239, 33 L.Ed.327.
After issuance of a patent, any subsequent claim of the United States to titles therein or other disputes between private claimants must be determined by the courts; U.S. v. McKenzie County, North Dakota, D.C.N.D., 187 F.Supp., 470 affirmed Murray v. U.S., 291 F.2d 161.
Suits to cancel a patent could only be brought within the statute of limitations, except for actions brought by the U.S. government (1) to recover the value of lands fraudulently obtained; (2) to construe and enforce a patent as construed; and (3) to impress a trust of the lands for the rightful owner - U.S. v. Whited, 38 S.Ct. 367, 246 U.S. 552, 62 L.Ed. 879; Issac Walton League of America v. St. Claire, D.C. Minn, 55 F.R.D. 139, affirmed 497 F 2d. 849, certiorari denied 95 S.Ct. 329, 419 U.S. 1009, 42 L.Ed.2d 284.
The expression "patent," used in Act of March 3, 1891, Section 8, 43 U.S.C.A. Section 1166, requiring suits to annul patents to be brought within six years after issuance, means a grant of land from the government. (United States v. La Roque, 198 F. 615, 648, 117 C.C.A. 349.)
A suit to cancel a patent must be brought by the United States, and, unless by virtue of an act of Congress, no one but the attorney general or someone authorized to use his name, can initiate the proceeding, (U.S. - U.S. v. Throckmorton, Cal. 98 U.S. 61, 25 L. Ed. 93.)
A patent conveying land which was a part of the public domain cannot be attacked or impeached by a person having no interest in the land, (U.S. - Roberts v. Southern Pacific Co., 185 P. 934, affirmed 219 1022, 134 C.C.A. 685; see also Issac Walton League v. St. Claire.) Such a patent is subject to impeachment only by the United States, or its grantee, (Idaho - Johnson v. Hurst, 77 P. 784, 10 Idaho 308,) or a person who has succeeded to its rights, (Utah - Ferry V. Street, 7 P. 712, 11 P. 571, 4 Utah 521,) or by a person who was defrauded or deprived of his rights by the issuance of a patent to another, (Cal. - Mery V. Brodt, 53 P. 818, 121 Cal. 332.).
(It is suggested that the reader familiarize himself with the property concepts of "natural law" or "natural equity" presented in Part I and the sections on "western wastelands" and "equal footing" in Part II. ) With the 1848 signing of the Treaty of Guadalupe Hidalgo between the United States and the Republic of Mexico, the U.S. claimed the lands within much of the West as "Territory" of the United States. In implementing the provisions established under the U.S.- Mexico Treaty, U.S. land patents would first be awarded in validation of claims of those who could prove ownership under prior Spanish/Mexican land grants.
The California Land/Boundary Commission established under the Federal Land Act adjudicated these claims. (No claims were made for lands located within Siskiyou County.)
"A patent of the United States issued to a confirmance of a Spanish or an grant under the act of Congress of March 3, 1851, 9 Stat. 633, treated simply as the deed of the United States, is in its operation, like the deed of any other grantor, and passes only such interest as the United States possessed; the deed taking effect by relation at the date of the presentation of the petition of the patentee to the board of land commissioners. But such patent is not merely a deed of the United States. It is a record of the government - of its action and judgment with respect to the title of the patentee existing at the date of the cession of California - and as such record is conclusive evidence of the title of the patentee at the time the jurisdiction of the subject passed from the Mexican government to the United States." ( Leese v. Clark, 20 Cal. 387, 412.) In addition to obligations under international treaties, land disposal was effected by national obligations to native Amercan tribes.In the first Trade and Intercourse Act, ch. 33 1 Stat. 137 (1790) Congress provided that non-Indians could not acquire lands directly from Indians. In the 1823 Supreme Court case of Johnson v. McIntosh it was established that continued Indian "right of occupancy" and use of land could only be extinguished by the federal government through conquest, purchase or appropriation.
Until the United States extinguished "original Indian title," a cloud of Indian occupancy right remained on the individual's title. The national authority of the "federal land patent" became the vehicle by which the individual's legal title in the lands became perfected. The authority of the federal patent, by necessity, could not be challenged by competing State authority to determine what qualified as property without leaving original Indian title unextinguished. In this manner, the federal government has strategically retained control over the recognition of any legal title ripening through possessory interest.
[Primary references: Henry Maine, Ancient Law, H.S.M., January, 1861; John Crook, Law and Life of
Rome, Cornell University Press, c1967; Will Durant. The Story of
Civilization, Part III, Caesar and Christ, A history of Roman Civilization and
Christianity from their beginnings to AD 325, Simon and Schuster, NY,
"Even though a possessor does not own the property and is subject to ejectment by the owner, nevertheless as against the rest of the world the possessor is entitled to maintain that possession... If a stranger appears and dispossesses him, he may bring ejectment against the stranger to be restored to possession. And it is no defense for the stranger to show that the former possessor was not in fact the owner (unless the stranger can also show that he himself is the owner or claims through the owner.)" [at page 3.]
From this doctrine arose the
maxim "possession is nine points of the law."
The time allowed to bring a cause of action to eject a wrongful possessor lapses
after a certain time (according to the applicable statute of limitations.) The
possessor becomes the successful adverse possessor. "Adverse possession does
not transfer the former owner's title to the possessor, rather, by eliminating
the one defect which previously existed in the possessory title it operates to
create a new and complete title in the possessor." (at pg. 5)
[* "The words 'public lands' are habitually used in our legislation to describe such as are subject to sale or other disposal under general laws." Newhall v. Sanger, 92 U.S. 761; See also Leavenworth, etc., R. Co. v. U. S., Id. 733; Doolan v. Carr, 125 U.S. 618, 8 Sup. Ct. 1228.
See also, Union Pac. R. Co. v. Harris, 215 U.S. 386 (1910): "What is meant by 'public lands' is well settled. As stated in Newhall v. Sanger, 92 U.S. 761, 763, 23 S. L. ed. 769, 770: 'The words 'public lands' are habitually used in our legislation to describe such as are subject to sale or other disposal under general laws.' See also Barker v. Harvey, 181 U.S. 481-490, 45 L. ed. 963-968, 21 Sup. Ct. Rep. 690; Minnesota v. Hitchcock, 185 U.S. 373-391, 46 L. ed. 954-964, 22 Sup. Ct. Rep. 650."]
In 1846, Congress abandoned the leasing policy for federal minerals used in the Midwest and offered mineral lands for sale by means of various statutes applying selectively to particular geographic areas.
About the same time,Congress began to divide public domain lands into two categories - mineral and non-mineral lands. Only non-mineral lands were opened to various general land disposal policies. Because a homestead claimant would take title to full property ownership, including any minerals subsequently discovered, a determination of whether lands were mineral or non-mineral in character was called for when a nonmineral claimant asserted a right under disposal laws. (See 1914, Burke v. Southern Pac.)
With GLO (BLM) inefficiency in facilitating the settlement of public lands in California and the absence of clear federal direction, the California Supreme Court in 1864 ruled that whether public land could be considered closed to settlement would be based on whether, on the whole, the lands appeared better adapted to mining than other uses.
Although the disposal of mineral lands were debated in 1850-51 and 1858-60, it was not until the Civil War was drawing to a close that a generic policy was developed with the Act of 1866, which stated: "In all cases lands valuable for minerals shall be reserved from sale, except as otherwise expressly directed by law." (See 1918, United States v. Sweet.) As populations poured into western regions in advance of land sales, from one half to two thirds of settlers "squatted," unauthorized on public domain not officially opened as public lands for settlement. Possessory property rights were recognized and defended under natural equity - "good against all but the 'true' owner."
SECTION 5: "POLICE POWERS" - ORGANIC LIMITATIONS ON THE RIGHT TO REGULATE
A right vested cannot be divested, resumed, annulled or modifies by the grantor; grant as executed contract, extinguishing the interest of the grantor; prohibition against impairment of obligation of contracts; importance of stability of title.TRESPASS
Saxon law framed as injury to persons (physical and psychological) and property; natural law right to secure rights against aggression; trespass as force or violence with consequence of injury to liberty, security, property and relative equality of rights; "trespass on the case" and nonforcible acts.DOCTRINE OF STANDING PRIVATE NUISANCE
Unreasonable and substantial interference with another's real property without trespass or physical invasion; equitable relief (injunction and abatement); customary usagePUBLIC NUISANCE
Magnitude of effect to persons of interference or annoyance; purprestures (encroachment on common right); indictment and trial against person; injunction and abatement against property use.JUS REGIUM
"Each one must so use his own as not to injure his neighbor"; the "police" (or "municipal") powers - substantial injury to human peace, health, safety or morals; the right to prohibit and the power to regulate; the concept of "liberty"; the integrity of private property; the retained powers of the 10th Amendment.POLICE OR MUNICIPAL POWERS POWER TO REGULATE PROXIMATE CAUSE DANGEROUS OR INJURIOUS USE - NUISANCE PER SE
Malum in se; nuisance per se; prohibition/regulation of "unwholesome trades," operations offensive to the senses; dangerous (explosive, combustible);.nuisance per accidens; nuisance in fact; malum prohibitum; nuisance in law; statutes; licenses; the limits of nuisance in law;NUISANCE IN LAW
Statutory nuisances declared by a legislative body based on "nuisance in fact" as pertains to compatible use in a particular locality; zoningLEGITIMACY OF LEGISLATIVE DECLARATIONS OF NUISANCE IN LAW
Judicial review as to possible invasion of rights secured by the fundamental law; substantial and rational relation to police powers; in interests of public and not a single class; reasonable and necessary and not unduly oppressive; unwarranted interference or inhibition of harmless occupations; unnecessary or arbitrary invasion of rights of property; unusual and unnecessary restrictions on lawful occupations.ARBITRARY REGULATION BY THE "COMMUNITY" ENLARGEMENT PRIVATE USE "CLOTHED WITH PUBLIC INTEREST
Expansion of the Munn decision to included new categories of business and circumstance considered "clothed with a pubic interest"; distinction between private business intentionally engaged in "public service" and one unintentionally providing a service in which public has interest."UNCONSTITUTIONAL CONDITIONS" ENLARGEMENT OF THE "POLICE POWERS"
Broadening of the "police powers" of regulation to include public burdens on private property; blurring of the wall between private property and public franchise (juris privati and jus publicum); promotion of the general welfare and prosperity - promotion of industry, development of resources and economic welfare, public convenience or enjoyment."GENERAL WELFARE" and "GENERAL PROSPERITY"
Wisdom of the legislature; legitimization of regulation beyond the confines of "public nuisance" in zoning through general planning; shift of burden of proof to the property owner that regulation is arbitrary, unreasonable or without nexus in the traditional "police powers; "general welfare" to include aesthetics, public comfort and convenience.PERMIT CONDITIONS - "ESSENTIAL NEXUS"
The power of regulation rests on the legitimate power to forbid under the police powers; conditions must have an "essential nexus" with the public harm or dangers that are intended to be addressed by the regulation; unnecessary conditions; doctrine of "unconstitutional conditions" - requirements to give up a right for a discretionary privilege or benefit conferred by government (e.g. just compensation in exchange for a permit.)PERMIT CONDITIONS - "ROUGH PROPORTIONALITY"
Degree or extent of "exactions" as a condition of permit must bear relationship impact of activity or use
"It is a principle of law, that the king is bound by his own and his ancestors' grants; and cannot, therefore, by his mere prerogative, take away vested rights, immunities or privileges."
Barring specific reservation and subject to pre-established servitudes, a government land patent to an individual vests legal title and right to the located property to the extent it was held by the State or United States. It is considered in the nature of a compact and is an executed contract. It is a covenant that cannot be resumed, annulled or later modified by the grantor through legislation or otherwise. (A right vested, cannot be divested. Cited, 2 Dall. 297, 304; 9 Cranch 52; Green v. Biddle, 8 Wheat. 1; Fletcher v. Peck, 6 Cranch 136.)
By such grant, the property interest of the grantor is extinguished. The title passed through land patents is "absolute," (e.g. Roman - absolutum et directum dominium,) subject or subordinate only to the legitimate exercise of the police and eminent domain powers delegated by the body politic to government.
The early cases of Fletcher v. Peck, New Jersey v. Wilson, and Dartmouth College v. Woodward established that the States could not "impair the obligation of contracts" by attempting to repeal or modify private acts, such as land patents or corporate charters, which had already created vested rights. (It should be noted that the "privileges and immunities" of public franchises, as an authorized encroachment upon public right, were construed strictly to the limits of the charter, subordinate to eminent domain and police powers of government - See Proprietors of Charles River Bridge v. Proprietors, 36 US 420 (1837).
In U S v. TITLE INSURANCE & TRUST CO., 265 U.S. 472
(1924,) the Court cited the case of Minnesota Co. v. National Co., 3
Wall. 332, (page 334 [18 L. Ed. 42]) as ruling in matters of patented title:
"...The general rule of law is thus laid down in Co. Litt. 56 a, 'When the law doth give anything to one, it giveth impliedly whatsoever is necessary for the taking and enjoying the same.' Case of the Mines, 1 Plowd. 317. 'For the ore of gold and silver is the king's; and if it is, the law gives him means to come to it, and that is by digging; so that the power of digging is incidental to the thing itself.' If one grant to another all the minerals in a certain parcel of land; the grantee has a right to go upon the land, and dig, and carry away the ores.
"In one thing, all things following shall be included: lessee of land has a right of way on lessor's land; grantee of trees, growing in a close, may come upon the land to cut them, etc.. Finch 45, Rule 100. The grant of a thing carries all things included, without which the thing granted cannot be had. Hob. 234; also Saunders's Case, 5 Co. 12; Lifford's Case, 11 Ibid. 52; and 1 Wms. Saund. 322."
The following court cases illustrate some of the known benefits that have materialized by using law against the perhaps otherwise unscrupulous, and of course with favorable letter patent and current valid property assignments in hand. There are many more such winning cases.
ALLODIAL TITLE/ LAND PATENT RELATED CASE CITES
MATTHEWS v., 10 GILL & J (MD) 443
WALLACE v. HARMSTEAD, 44 PA. 492
WENDELL v. CRANDALL, 1 N.Y. 491
STANTON v. SULLIVAN 7A. 696
McCARTEE v. ORPHUM’S ASYLUM. 9 COW N.Y. 437,18 AM. DEC. 516
PEOPLE v. RICHARDSON, 269 M. 275,109 N.E. 1033
SANFORD v. SANFORD 139 US 642 -
FENN v. HOLME, 21 HOWARD 481
LOMAX v. PICKERING, 173 US 26
GIBSON v. CHOUTEAU, 80 US 92
WILCOX v. JACKSON 13 PETER (US) 498
UNITED STATES v. STONE, 2 US 525
MINTER v. CROMMELIN, 18 US 87
JOHNSON v. CHRISTIAN 128 US 374
DOE v. AIKEN 31 FED. 393
SARGEANT v. HERRICK & STEVENS 221 US 404
NORTHERN R.R. CO. v. TRAIL COUNTY, 115 US 600
HUGHES v. WASHINGTON, 389 U.S. 290 (1967)
BEADLE v. SMYSER, 209 US 393
BAGNELL v. BRODERICK, 13 PETER (US) 436
STEEL v. ST. LOUIS SMELTING & REFINING CO. 106 US 417
HOGAN v. PAGE 69 US 605
LANGDON v. SHERWOOD 124 US 74
CARTER v. RUDDY 166 US 493
RUDDY v. ROSSI 248 US 104
GOLDING v. SCHUBAC 93 US 32
SAVILLE v. CORLESS 46 US. 495
ECHART v. COMMISSIONERS, C.C.A. 42 F2d 158; 283 US 140
CLEVELAND v. SMITH 132 US 318
PEOPLE v. HINES, 89 P. 858,5 CAL. APP. 122
MITCHELL v. CITY OF ROCKLAND, 45 ME. 496
STATE TREASURER v. WRIGHT 28 ILL 509
WHITAKER v. HALEY 2 ORE. 128
TOWN OF FRANKFORT v. WALDO 128 ME. 1
McCARTHY v. GREENLAWN CEM. 158 ME. 388
CASSIDY v. AROOSTOCK 134 ME. 34
BARKER v. BLAKE, 36 ME. 1
MARSHALL v. LADD 7 WALL 74 US 106
UNITED STATES v. CREEK NATION 295 US 103
UNITED STATES v. CHEROKEE NATION 474 F 2d 628
MARSH v. BROOKS 49 U. S. 223
HOOPER v. SCHEIMER 64 U.S. 23 HOW 235
GREEN v. BARBER 66 N.W. 1032
WALTON v. UNITED STATES 415 F 2d 121,123 (10th CIR.)
UNITED STATES v. BEAMON 242 F. 876
FILE v. ALASKA 593 P. 2d 268
LEADING FIGHTER v. COUNTY OF GREGORY, 230 N.W. 2d 114, 116
CHISHOLM v. GEORGIA, 2 DALL (U.S.) 419
WILCOX v. CALLOWAY [I WASH. (VA.) 38-41]
STATE v. CRAWFORD 441 P. 2d 586590
YOUNG v. MILLER 125 SO. 2d 257,258
BEAVER v. UNITED STATES, 350 F 2d 4 dert. denied 387 U.S. 937
STOLL v. GOTTBREHT 176 N.W. 932,45 N.D. 158
REICHERT v. JEROME H. SHEIP. INC 131 SO. 229, 22E ALA 133
SUMMA CORPORATION v. CALIFORNIA ex. rel. STATE LANDS COMMISSION, 80 L.ED 2d 237
OLIPHANT v. FRAZHO 146 N.W. 2d 685
UNITED STATES v. SPRAGUE 282 U. S. 716
UNITED STATES v. REYNES, 9 HOW (U.S.) 127
WISCONSIN v. C.R. CO. 124 U.S. 74, 81
PUTNUM v. ICKES, 78 F.2d 233, CERT. DENIED 296 U.S. 612
KALE v. UNITED STATES 489 F2d 449,454
HOOFNAGLE v. ANDERSON, 20 U. S. (7 WHEAT) 212
THOMAS v. UNION PACIFIC RAILROAD CO. 139 F.SUPP. 588596
STATE v. CRAWFORD 441 P.2d 586590 (ARIZ.APP )
WINEMAN v. GASTREL 54 FED, 819,4 CCA 596,1 US APP 581
CAGE v. DANKS, 13 LA ANN 128
U.S. v. STEENERSON, 50 FED 504,1 CCA 552,4 U.S. APP 332
JENKINS v. GIBSON, 3 LA ANN 203
LITCHFIELD v. THE REGISTER, 9 WALL US 575,19 LED 681
UNITED STATES v. DEBEL, 227 F 760 (C8 sd, 1915)
STANEK v. WHITE, 172 MINN. 390,215 N.W.R. 781,784
WARE v. HYLTON, 3 DALL 3 US 199
LOMAX v. PICKERING, 173 US 26 43 L. ED. 601
EHLE v. QUACKENBOSS, 6 HILL NY 537
OAKLEY v. COOK, 41 N.J. EQ. 350A.2d 496
DONOVAN v. PITCHER, 53 ALA 411
BIRGE v. BOCK, 44 MO APP 69
CONVERSE v. KELLOGG, 7 BARB N.Y. 590
BLOCH v. RYAN, 4 AOO CAS, 283
RYNOLDS v. BOREL, 86 CAL. 538
MOORE v. WILLIAMS, 115 N.Y. 586,22N.E. 253
ROBERTS v. BASSETT, 105 MASS 409
WRIGHT v. MATTISON, 18 HOW. (U.S.) 50
JOPLIN BREWING CO. v. PAYNE, 197 NO.422 94 S.W. 896
ST. LOUIS v. GORMAN, 29 MO 593
RAWSON v. FOX, 65 ILL 200
DAVID v. HALL, 92 R.I. 85
MORRISON v. NORMAN, 47 ILL 477
McCONNELL v. STREET, 17 ILL 253
MAHRENHOLZ v. COUNTY BOARD OF SCHOOL TRUSTEES OF LAWRENCE COUNTY etal, 93 ILL APP 3d 366
DEMPSEY v. BURNS, 281 ILL 644
DRYDEN v .NEWMAN, 116ILL 186
HINCKLEY v. GREEN, 52 ILL 223
BUSCH v. HUSTON, 75 ILL. 343
CHICKERING v. FAILES, 26 ILL. 508
SAFFORD v. STUBBS, 117 ILL. 389
HOOWAY v. CLARK, 27 ILL. 483
McCELLAN v. KELLOGG 17 ILL 498
GRANT v. BENNETT, 96 ILL. 513
MORGAN v. CLAYTON, 61 ILL 35
BRADY v. SPURCK, 27 ILL 478
BUTTERFIELD v. SMITH, ILL. 111
KENDRICK v. LA TRAM, 25 FLA. 819
HULS V. BUNTIN, 47 ILL. 396 (1868)
WALKER v. CONVERSE, 148 ILL. 622
PEADRO v. CARRIKER, 168 ILL 570
CHICAGO v. MIDDLEBROOKE, 143 ILL 265
PIATT COUNTY v. GOODEN, 97 ILL 84
STUBBLEFIELD v. BORDERS, 89 ILL 570
THOMAS v. ECKARD, 88 ILL 593.
COLEMAN v, BILLINGS, 89 ILL 183
WHITNEY v. STEVENS, 89 ILL. 53
HOLLOWAY v. CLARKE, 27 ILL. 483
BALDWIN v. RATCLIFF, 125 ILL. 376
BRADLEY v. REES, 113 ILL 327
COOK v. NORTON, 43 ILL 391
COUNTY OF PIATT v. GOODELL, 97 ILL 84
SMITH v. FERGUSON, 91 ILL 304
HASSETT v. RIDGELY, 49 ILL 197
BROOKS v. BRUYN, 35 ILL. 507
McCLAGG v. HEACOCK, 34 ILL. 476
BRIDE v. WATT, 23 ILL 507
WOODWARD v. BLANCHARD, 16 ILL 424.