A homesteader receives a land patent in 1902. It is for 160 acres agricultural land and classified by the U.S. Land Office as non-mineral. In receiving the land patent the homesteader, patentee, signs an affidavit stating that he has no knowledge of minerals in this land and is not getting this land fraudulently for any minerals that may be there. There is no mention of minerals on the issued patent. The U.S. did not reserve the minerals. He homesteads, works the land for crops and even leases the land for someone to stay there and work the crops. Then subsequently, throughout the years, the non-mineral land is conveyed, sold, a handful of times. Looking at all the deeds there was never a mention about the minerals. There are no mineral deeds. Now oil and gas deposits have been found in this non-mineral land. The question is who owns the rights to those minerals?
You may need to refer to the laws of your state. This post is too generic at this time.
Thank you for your response. I am a layperson in this subject matter. I believe my question is pretty specific. I have read about some of the land grant Acts and searched for an answer to this scenario. I would like to get some thoughts, ideas and direction to find the answer. I will add that the land is in Colorado and the homesteader was given the land after meeting the requirements of the 1862 Homestead Act and him signing the non-mineral land affidavit. The United States did not reserve the minerals. As I stated in my original post the land was conveyed and in those conveyances there is no mention of minerals. Looking at all the transfer deeds and a 1943 abstract there is no mention of minerals in any of those. There are no mineral deeds. The homesteader no longer owns the described land, but does he still retain the rights to the minerals if any are to be subsequently found? This non-mineral agricultural land, as classified by the United States land office. So was it just non-mineral agricultural land that was conveyed down through the deeds? Who now owns the minerals that are now known to exist? The Patentee? The current owner of the non-mineral land? I am looking for thoughts and answers from those that have knowledge in U.S. land patents, the acts in granting those patents, and specifically how conveyances are treated when conveying land grant non-mineral land. I thought this forum would be a good place to find some help and answers.
You need to hire a professional, ie attorney, that practices in Colorado oil & gas law.
Very very general rule. In Colorado, prior to 1909, the USA did not reserve the mineral rights. The absence of the mention of minerals is not important. But, there are different US acts, so this land may not apply. It is universal in all states that if the grantor wants to reserve or retain any rights, whether it be mineral or otherwise, they have to specifically state it. In other words, he doesn’t have to say I deed the surface and the minerals. If he deeds the nw/4 of a section, all rights that the grantor owned is deeded to the grantee. So, if the homesteader or patentee owned some mineral rights, but didn’t specifically reserve them, then they were conveyed to their grantee. If the homesteader or patentee owned no mineral rights, then there wouldn’t be any rights to reserve. But, keep in mind you are asking for a legal opinion that may be fact specific on a free website.
@Tim_dowd, thanks for your always well thought out and thought provoking posts. Your answer prompted me to read further, and the following reference was a good summary of the various government acts that might apply: https://www.alta.org/title-news/1956/v35i03.pdf @rtg, thanks for the challenging post. The reference from 1956 above, may be helpful.
Giving a lay answer, while echoing not having all the facts, there could have been a prior patent that granted the minerals and for whatever reason the surface went back to the US and then a non-mineral patent was issued. The statement that the patent was specifically non-mineral, but there was no mineral reservation is conflictory. For futher research, try the Colorado State Land Board or US BLM websites.
To all of you that have responded and added to this discussion I thank you. I want to reiterate I am not seeking legal counsel or legal advice, I want to learn the mechanisms inherent within patents and conveyance of deeds to give me an understanding about who in this scenario may own the mineral rights. Yes, prior to my post, I looked at the 1909 Coal Lands Act where the U.S. government began to not grant the mineral rights to homesteaders. This land grant patent was issued in 1902. The specific Act of Congress used was the Homestead Act of 1862. Yes, It is my understanding that in conveying a deed all the rights the grantor owns is conveyed to the grantee. I don’t know that if the grantor, in this case the patentee, necessarily has to specifically state it. In this case the government essentially said there are no minerals, but we are going to grant this land to you anyway when you sign this affidavit that you have no knowledge of minerals. So when the patentee conveyed the land how is it possible he conveyed the minerals if he was told there were none. I don’t think this is a legal opinion I think maybe there is an answer somewhere that explains the mechanisms involved in a conveyance of this type. I have a hard time believing that this scenario is unique. What is a non-mineral affidavit? What does it mean and why was it used? I would certainly think it affects something in the way deeds are conveyed. When searching for information about non-mineral affidavits all I find are examples but no concise explanation about how they work. Could one possible workings of a non-mineral affidavit be that once it is signed it essentially separates the minerals from the surface land until if or possibly when minerals are found? I referenced the March 1956 “Official Publication American Title Association Title News” prior to my initial posting. In this I found: See “Exceptions and Reservations in United States Patents to Public Lands”:
“No exceptions or reservations will appear in these patents unless the entry was also subject to the mineral exceptions of the Acts of 1909, 1910, 1914 and 1916 and heretofore discussed. These later acts authorized agricultural entries upon mineral lands provided the minerals were reserved. However in all patents issued before March 3, 1909 and all those patents issued subsequently to lands that had not been classified or withdrawn as minerals passed to the patentee, and the subsequent discovery of minerals on the lands did not divest the patentee of the minerals; change the classification of the lands to mineral, nor invalidate the patent. Hense, in most patents issued prior to 1909, and many patents issued since, no reservation of minerals will be found in the patent and none are required because the land was classified by the Bureau of Land management as non-mineral in character.”
Also mentioned in a post “there could have been a prior patent that granted the minerals and for whatever reason the surface went back to the US and then a non-mineral patent was issued”
Looking at the abstract the land in question was deeded to the Union Pacific Railway Company which was the consolidation of the UPRR, Kansas Pacific RR and Denver Pacific RR, awarded by the U.S to the UPRR in 1874. A Receiver’s Receipt to the homesteader in 1897 when he signed the non-mineral affidavit and the patent issued to the homesteader in 1902 when he again signed the non-mineral affidavit. This land is on an odd numbered section. It is my understanding that minerals were separated and reserved by the U.S. when granting the odd number sections for a railroad right-of-way. So if the land was granted to the RR and then somehow taken back by the U.S. are the minerals separated at this point by the way deeds work? I believe they were at that point reserved by the U.S. So when it was then granted to the homesteader are the minerals and the surface agricultural land separate when the U.S granted the land to him? I am asking is this how deeds work? Also, in the quote above from the “Exceptions and Reservations in United States Patents to Public Lands” it states: “In all Patents issued prior to 1909”,“the subsequent discovery of minerals on the lands did not divest the patentee of the minerals”,“no reservation of minerals will be found in the patent and none are required” because “the land was non-mineral in character”. Divest definition: “deprive someone of power, rights or possessions” So it did not deprive him the rights of possession of the minerals of subsequent discovery of minerals on the lands. So in essence they are reserved to him with no need to state that because it is not required because it is classified as non-mineral land by the U.S. government is they way I read it.
I think you just answered your question: see map of UPRR. These were owned by Union Pacific Resources that got bought by Kerr McGee then Anadarko and are currently owned by a KRR backed entity that helped facilitate the Oxy merger.
UPRRC_Land_Map.pdf (5.1 MB)
I have several questions within my posted reply. Are you saying that all the minerals in all the land sections depicted within that UPRRC Land Map are owned by a “KRR backed entity” ? If so, I honestly cannot believe that. Or maybe I am misunderstanding what you are saying.
Your first statement said that the patentee stated that he had no knowledge of minerals, not that there are no minerals.
Thank you for pointing that out. Yes, the non-mineral affidavit the patentee signed was a statement that he has no knowledge of minerals on the land that was going to be granted to him and also that his purpose of getting the homestead wasn’t to fraudulently get it for any minerals that may be there. Where I stated “the government essentially said there are no minerals” that was emphasis on my part to make a point. I don’t know if the government in granting this land knew, or if anyone knew for that matter, if there were minerals there or not. What is known is the government classified the characterization of the land as non-minerals. At that point in time maybe they determined there was no coal there, or gold deposits or whatever type of mineral. I don’t know why the government classified land as non-mineral. But then in the 1950’s oil and gas were discovered in the area.
Im going to venture to say the terminology of “no minerals” meant that no minerals were being granted &/or the government didn’t claim any minerals were being conveyed. There are “minerals” under every piece of land, period. As stated/shown by nop_llc, IMHO, the minerals are owned by the RR.
Semantics. I understand there are minerals under every piece of land. Thank you for the answer as to who may own the minerals in your opinion.
Are there any other thoughts, ideas or theories, anyone?
Does anyone have any information about non-mineral affidavits within a homestead patent? Is the 1956 “Official Publication American Title Association Title News” a guide book that a Landman would use? Is there a current version?
I will add this to my initial posting. It has been acknowledged that the patentee in this scenario has reserved the mineral rights. Yet there are no mineral reservations noted in any of the deeds conveyed. From patent to current. There are no known mineral deeds. We have searched.
@rtg, thanks again for the interesting history your post and subsequent research has brought out. As you noted, the non-mineral patent appears to mean that the government did not know of any minerals associated with the land, but I think it is important to note that someone was very insistent on affidavits to show the new owner did not know of any valuable minerals either. If there was no possibility of the patent recipient obtaining mineral rights, then why bother with not one, but two, affidavits saying basically that the recipient did not secretly know of the presence of valuable minerals? My suspicion would be that is because if minerals were later found, they would be the property of the person who received the patent. The previous railroad ownership does throw an interesting twist into the situation, but from the 1956 article, it seems that sometimes the railroad claims were disallowed, and again, why bother with the affidavits if it was known that the railroad held the minerals? Just answering your question with another question, but hoping it makes things a little clearer.
You have some very interesting subject matter. My guess is your issue is not unique and there is most likely CO case law on the issue that may provide some guidance. If there is a significant value associated with these minerals, then you should consider getting an opinion from a very good title attorney. If you are looking at oil and gas development in the future, then the company leasing the interest may help in resolving the issue. I hope you post the final determination on this website in order to provide all of us with a bit more education. Good luck.
Thanks all for the interest in this subject matter.
I would like to add more information.
This scenario is actually playing out. The homesteader is my great grandfather David McDermott Graham. There is a copy of the patent handed down in the family. The location is T2S, R67W, NW 1/4 of section 23. The current owner (surface and so they say minerals) is the U.S. The east half of this 160 acres was sold to the U.S. by Ernest and Myra Tiedeman in 1942, the owners of the agricultural land at the time and was still classified as non-mineral. The Tiedeman’s deed does say subject to mining rights.
The west half was taken by “a declaration of taking” in 1943 from Wardislaw Nowacki, the owner at the time of the agricultural land classified as non-mineral.
The land was part of approximately 20,000 acres being acquired by the U. S. in order to create the Rocky Mountain Arsenal.
After acquiring the land the U.S. did an inventory of the lands it acquired. The Corps of Engineers Real Estate Division did an audit using an official government form, a 1019 tract register, recording the ownership in all the tracts of land that the U.S. acquired. On this register is listed Tract A-2 Wardislaw Nowacki, 79.83 acres “DT - Declaration of Taking”.
Also on the Register is Tract A-3 Tiedeman, Ernest L, et ux 80 acres “P - Purchase” “Mineral rights reserved by David McD Graham”.
Tract A-2 is the West half of T2S R67W NW1/4 of section 23. Tract A-3 is the East half of T2S R67W NW 1/4 of section 23.
The register lists all of the other tracts. The only other tracts of land that shows mineral rights reserved are to the State of Colorado which mostly are on Section 36 and on section 11 by the UPRR.
There is a document from the mid 1970’s from the Department of the Army with the subject being “Mineral Leasing on Acquired Land of the United States…”. In it, it states “A tract register prepared at the time of the final audit, apparently with the use of the abstracts and certificates of title lists this mineral reservation: E1/2NW1/4, Section 23 Minerals reserved to David McDGraham.”
There is a 1981 Audit done by the Real Estate Division of the U.S. Army Corps of Engineers that specifically states Tract A-3 80 acres Mineral Rights David McD Graham.
The 1019 tract register has been continually used by the U.S. when making real estate transactions and conveyances in reference as to who owns the interests in the lands.
In 2012 two federal government agencies and two state government agencies compiled a document “ Rocky Mountain Arsenal and Possible Oil and Gas Operations in the Surrounding Area” in response to recent inquiries about potential oil and gas drilling near the Rocky Mountain Arsenal. In it under the section of “ Who owns the mineral rights beneath the Rocky Mountain Arsenal, and who decides if oil and gas drilling will be allowed at the site?” “With just three exceptions, the Federal Government obtained all of the mineral rights under the Rocky Mountain Arsenal at the time of condemnation of tract in the early 1940s when the Arsenal was built. Other parties reserved the mineral rights in three areas. The State of Colorado under Section 36 and private entities under an 80 acre parcel in the NW quadrant of Section 23 and a 15 acre parcel in the northeast quadrant of Section 11.
We went to the Arsenal to inquire and were verbally told that there is a private interest on section 23 by a Graham and a Graham can come forward. I don’t think they were expecting anyone to come forward. My sister and I contacted the Bureau of Land Management and got the runaround. We also contacted the U.S. Army manager at the Arsenal and he in a phone call reaffirmed that David McD Graham owned the rights and we would need to contact the Fish and Wildlife Service, the current owners of the surface land, and also for us to establish heirship. We went through the process to establish heirship, sent out a public notice, and on the last day to respond to the notice the U.S. stepped in.
We are now currently in a legal battle with the U.S. government. (Some information about the case can be found online Graham et al v. USA, No. 1:2021cv03053) The U.S. is not denying that David Graham reserved the minerals but that a Graham should have known by the Tiedeman’s deed that the U.S. claimed the minerals and would have needed to challenge that claim within a 12 year period.
But there is no mention of minerals in that deed. I would think if the minerals are reserved there is no time frame or restriction on that. But that is what the U.S. government is using as their argument against us. The Tiedeman’s could sell to the government only what they owned in the land, the agricultural land classified by the U.S. government, that David McD Graham signed the affidavits about. It is my understanding that the rights to the minerals then, if any are subsequently found, belong to the patentee. I think the U.S. did the audit because oil and gas was being “discovered” on the lands after the creation of the Arsenal. The U.S. government concluded that David reserved them as indicated in all those documents by, I would assume, looking at the deeds, chain of conveyance, abstracts, Acts of Congress etc., just as we have done. There are no mineral deeds. The U.S. has not shown any documents that would disprove any of their documents that say David reserved them. Also, I believe, the reason it is 80 acres out of the total 160 is that the U.S. purchased the east half and “took” the west half.
Thoughts, ideas, comments that anyone can add to this discussion?
You have quite a bit of information. Since a lawsuit has been filed, I will assume that you have an attorney capable of litigating this complex issue. The claim will rest on the whether the reservation language of the Graham deed was sufficient to reserve the mineral rights to Graham. If the minerals were indeed severed by the Graham deed, then that can be a support of your claim. This of course is if there were any mineral rights for Graham to reserve. Again, this is a complex issue and you truly need excellent legal representation. Good luck.
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