How does one gain mineral rights if they’re not granted in a land title?

[mofugly13]

One day, I would like to buy a spot of land in gold country. How would I know if mineral rights come with the property? If mineral rights are not conveyed with the property, how does someone go about finding out who owns the rights and what could be done about getting them?

 

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[Clay Diggins]

If mineral rights are included in a property purchase it will be spelled out in the title. If mineral rights (subsurface estate) are not described you don't have any mineral rights.

Most patents didn't transfer the mineral rights. Look at the original patent to determine if the land was granted with mineral rights. If the rights were retained by the United States there is a way, with many types of patents, to purchase the mineral rights for a nominal amount from the United States.

If the mineral rights were granted in the patent then someone owns them. First look in your title insurance search to see if that mineral sale is listed, if not you will have to go back and search the County Recorder's for past sales, title transfers and assigns. It will be somewhere in there.

If you are buying real estate in a subdivision the mineral rights are probably locked away from subdivision lot owners. Even if you could purchase the mineral rights to a subdivision lot it's unlikely you could ever actually take any minerals due to the zoning.

Hope that helps!

Heavy Pans

 

[mofugly13]

It sure does, thank you Clay. I am assuming that all mineral patents came with mineral rights. I live in a house my Grandpa bought new in San Francisco in 1949. I’m gonna assume I don’t own the mineral rights. But that wouldn’t stop me from “washing” the sand that makes up my backyard under the thin layer of topsoil. My backyard isn’t what this was about anyway.

A dream would be to buy a few acres in gold country with placer deposits on it or nearby. Would a realtor know if a property they were selling included mineral rights? I don’t know how real estate dealings work.

 

[buck8point]

in Louisiana, if mineral rights werent purchased with the property, and no minerals/Oil/Gas Etc are found or extracted within 10 years, then those rights are returned to the current property owner.

 

[Nitric]

Cool topic...I haven't even looked into this yet but was wondering the same thing for Alabama. My concern would be Gas/oil. I was told that the coal rights were sold, but I have no idea of where someone would start with that kind of thing or if I can even get them back. I'm the 3rd owner of the land so you would think it would be easy to find info...I couldn't find a thing at the court house.

I was told that a search can be done. But.....A lot has gone on since then and I can't remember who it was that does that search, an attorney maybe? But I'll bet that's not cheap! I'm not sure that a realtor would even know.

 

[russau]

In Misery I looked into this 20 years ago when I wanted to buy some property. Here in Misery ALL the mineral rights were sold off and aren't ava. to the property owners anymore. All I had to do is call the Missouri Department of natural Resources and ask !

 

[IMAUDIGGER]

If mineral rights are included in a property purchase it will be spelled out in the title. If mineral rights (subsurface estate) are not described you don't have any mineral rights.

Respectfully, I disagree with that statement.
The following represents my limited understanding here in the US. Obviously it's not black and white...

Generally speaking there needs to be some act that severs the mineral estate from the land. This can be in the form of Congressional action, an exception/reservation or condition in the body of the patent or deed, or a specific mineral transfer.

Lacking some mechanism which severed the mineral estate, I think it's assumed that fee simple title includes enjoyment of ALL rights and uses that go along with land ownership, including utilization of sub-surface minerals.

Here is some language from the patent to my land (fee simple patent issue).. “...that there is therefore granted...TO HAVE AND TO HOLD the said land with all the rights, privileges, immunities, and appurtenances, of whatsoever nature, thereunto belonging, unto said claimant, his/her heirs and assigns, forever...” This exact language has been used in many patents from late 1800’s until recent times. IF some right was not being transferred, it typically gets excepted/reserved from this grant. That may be relating to canals, ditches, rights-of-ways, and known lode veins.

Silence in a simple fee title description means you get everything that was not previously transferred or reserved prior. Of course there are many various historical events that may have affected what the Federal Gov. actually held in trust at the time of patent.

The difficulty occurs when the mineral estate is reserved somewhere in the chain of title and never appears again. I would be interested to read about instances where a person was able to obtain clear title to the mineral estate in a situation like this. I would assume it would be limited to some sort of quit claim deed and even then, I'm not sure you would ever have clear title.

To throw gasoline on fire, many attorneys will insert reservations/exceptions to the mineral rights (eluding to their existence), even though they were never transferred to the original patentee.

Maybe some states have reversionary laws?

 

[mikep691]

I believe all land that was originally conveyed from the government as a land grant, included all rights, water and mineral included. But once the grantee starts selling parcels of that land grant, the buyer only has the surface rights. That is unless it was specifically stated on the deed. Cities and towns, farmland in California was all at one time all land granted. Farmers and city dwellers alike do not own their own water rights. That's why municipalities pipe in water. You just can't sink your own well in the middle of San Fransisco or Sacramento on your owned 100'X150' lot. It's also why some old fat dude in Florida can own the water rights to the largest almond grower in the state. It's not fact, but it could be as water rights, and the mineral estate can be traded as a commodity.

That's my thought. It may not be right and I'm sure if it's not, someone will be sure to correct it. Point is when granted land is parceled and sold, it will likely be sold without the mineral and water rights.

 

[Clay Diggins]

More than half the land in the western United States was patented without mineral rights. They were specifically excluded in the laws enabling the patents. Here's just a sample of the many different land patent laws restricting the patent to the surface estate:

Stock Raising Homestead Act

SECTION. 9. That all entries made and patents issued under the provisions of this Act shall be subject to and contain a reservation to the United States of all the coal and other minerals in the lands so entered and patented, together with the right to prospect for, mine, and remove the same. The coal and other mineral deposits in such lands shall be subject to disposal by the United States in accordance with the provisions of the coal and mineral land laws in force at the time of such disposal.

Desert Land Act

SECTION 2. That all lands exclusive of timber lands and mineral lands which will not, without irrigation, produce some agricultural crop, shall be deemed desert lands, within the meaning of this act, which fact shall be ascertained by proof of two or more credible witnesses under oath, whose affidavits shall be filed in the land office in which said tract of land may be situated.

Railroad Grants

SEC. 6. And be it further enacted, That any and all lands reserved to the United States by any act of congress for the purpose of aiding in any internal improvement, or in any manner for any purpose whatsoever, and all mineral lands be and the same are hereby reserved and excluded from the operation of this act, except so far as it may be found necessary to locate the route of such railroads through such reserved lands, In which case the right of way only shall be granted, subject to the approval of the President of the United States.

Preemption Act

SEC 10. No person shall be entitled to lands on which are situated on any known salines or mines for entry under and by virtue of the provisions of this act.

Donation Land Claim Act (Oregon Lands Act)

SEC 5. That no mineral lands shall be located or granted under the provisions of this act.

Enlarged Homestead Act

SEC 1. That any person who is a qualified entryman under the homestead laws of the United States may enter, by legal subdivisions, under the provisions of this Act, in the States of Colorado, Montana, Nevada, Oregon, Utah, Washington, and Wyoming, and the Territories of Arizona and New Mexico, three hundred and twenty acres, or less, of nonmineral, nonirrigable, unreserved and unappropriated surveyed public lands which do not contain merchantable timber, located in a reasonably compact body, and not over one and one-half miles in extreme length

More to follow...

Heavy Pans

 

[mikep691]

Like I said, I would be corrected

 

[IMAUDIGGER]

The Congressional actions provided above should help answer the original question. Indian Allotment Acts are another way land was transferred. Many tribes were made very wealthy due to the fact that the mineral estate was not severed at the time of initial transfer.

Until a separation occurs, the mineral estate is presumed to run with the land (regardless of the configuration of the boundaries).

 

[mofugly13]

Is it possible that I could purchase the mineral rights to a piece of land from some previous owner of the parcel who retained the rights when it was sold, and then trespass and help myself to any placer deposits, or whatever, on said land?

“Don’t worry, bro, I’m just panning here in your duck pond. It’s ok, I own the minerals here....”

 

[IMAUDIGGER]

Getting into an area I’m not that familiar with.
The concept of being able to seperate the mineral estate from the surface estate implies the owner of the mineral estate would have aquired some access rights across the surface in order to reasonably access the minerals.
I’m sure it’s settled law as to what is reasonable and necessary. It sure seems to be when federally managed lands are involved.

Here is a decent article that goes into this, although biased towards oil/gas.

https://www.aogr.com/web-exclusives/exclusive-story/changing-times-bring-conflict-with-surface-owners

 

[IMAUDIGGER]

Getting into an area I’m not that familiar with.
The concept of being able to seperate the mineral estate from the surface estate implies the owner of the mineral estate would have aquired some access rights across the surface in order to reasonably access the minerals.
I’m sure it’s settled law as to what is reasonable and necessary. It sure seems to be when federally managed lands are involved.

Here is a decent article that goes into this, although biased towards oil/gas.

https://www.aogr.com/web-exclusives/exclusive-story/changing-times-bring-conflict-with-surface-owners

The mineral estate is considered the dominant estate, the surface estate being the servient estate.

This means the mineral estate has an easement over the surface estate.

Very interesting stuff once you start looking into it.

The following article briefly describes a situation where the gov. will allow access to the mineral estate related to private ground where the mineral rights were not transferred in the patent, rather they were held in trust for the public. Kind of blows my mind to think about this happening. They don’t seem to address minerals other than gas and oil.

https://www.blm.gov/programs/energy-and-minerals/oil-and-gas/leasing/split-estate

 

[Clay Diggins]

Respectfully, I disagree with that statement.
The following represents my limited understanding here in the US. Obviously it's not black and white...

Generally speaking there needs to be some act that severs the mineral estate from the land. This can be in the form of Congressional action, an exception/reservation or condition in the body of the patent or deed, or a specific mineral transfer.

Lacking some mechanism which severed the mineral estate, I think it's assumed that fee simple title includes enjoyment of ALL rights and uses that go along with land ownership, including utilization of sub-surface minerals.

Here is some language from the patent to my land (fee simple patent issue).. “...that there is therefore granted...TO HAVE AND TO HOLD the said land with all the rights, privileges, immunities, and appurtenances, of whatsoever nature, thereunto belonging, unto said claimant, his/her heirs and assigns, forever...” This exact language has been used in many patents from late 1800’s until recent times. IF some right was not being transferred, it typically gets excepted/reserved from this grant. That may be relating to canals, ditches, rights-of-ways, and known lode veins.

Silence in a simple fee title description means you get everything that was not previously transferred or reserved prior. Of course there are many various historical events that may have affected what the Federal Gov. actually held in trust at the time of patent.

The difficulty occurs when the mineral estate is reserved somewhere in the chain of title and never appears again. I would be interested to read about instances where a person was able to obtain clear title to the mineral estate in a situation like this. I would assume it would be limited to some sort of quit claim deed and even then, I'm not sure you would ever have clear title.

To throw gasoline on fire, many attorneys will insert reservations/exceptions to the mineral rights (eluding to their existence), even though they were never transferred to the original patentee.

Maybe some states have reversionary laws?

I can see why you would think that IMAUDIGGER. In essence you are right about patents. Patents only list restrictions on the grant. If the restriction isn't listed in the grant (including the law and treaties enabling the grant) then the patentee owns the rights. There is no need to "sever" the right because it was never a part of the grant.

The misunderstanding comes in when a patent owner sells some portion of the rights they were granted. To understand this next part, and what I wrote previously you need to understand the language of land ownership. A patent can be referred to as a patent, land patent, grant, first title deed or final certificate. Notice that fee title, title and warranty deed aren't in there? That's because those are terms for "real estate". Real estate are the attachments to the land. That bundle of rights that came with the with the patent can be sold, leased, rented, bargained, mortgaged and exchanged individually. Those individual rights in the patent that have been sold or portioned out are no longer a part of the original patent they have become simply real estate.

A real estate sale requires that the owner be issued a title that lists what they bought. Once the right that has been sold etc. it is separated from the bundle of rights in the patent it needs to be given it's own title and recorded (announced to the public) by law. You can't sell part of your patent rights and keep it a secret because the tax man wants his due and without a record that you transferred the property there is no proof that your patent rights are not still whole and complete. Fraud could easily be the result and the law abhors a fraud.

As an example let's say you have been granted a land patent. You decide to sell 5 acres to your friend to build a house. That sale of the 5 acres reduces your patent rights by exactly the same amount as the land you transferred. That has to become a part of the public patent record. If it weren't you could get in a fight with your friend and decide to act like you had never sold them part of your patent rights. That's why your friend gets a title with a full description of all the rights you sold him. If the title description doesn't have a right in the description then you didn't sell them that right. See how we got there?

Each portion of the patent that you transfer or sell will have a new title generated with a full description of just what was transferred in the sale and nothing else. That's the basis of real estate title today - a full description of what was purchased. It's kind of like your receipt at the store. If an item in your basket isn't listed on the register receipt then you have no evidence of what you bought. It would be silly to list everything in the store you didn't buy and it would be silly on a real estate title to list everything you didn't buy from the patent owner.

Here is where the title company comes in. When you are ready to buy real estate the State, the bank, and you want to know exactly what you are buying. The title company does a search of all the titles transferred after the patent was granted to see what rights are still included with the property you are buying. If they find that the mineral rights or the rights to surface water were sold those will not be included on your title description. If there is an easement across your land for a road, sidewalk, utilities etc. that will be included in your title description. In the end the title company produces a title description that includes only those rights you are buying - no matter what the original patent grant was.

If a buyer wanted to obtain all the patent rights, and the patentee still owns the complete patent bundle and has not transferred any rights, then the only legal way to get that patent is by assignment. Not title, not a mortgage, not fee simple but a direct conveyance by assignment of the whole thing. Patents can only be transferred (conveyed) complete by two methods assignation and descent. Descent is when a legal heir(s) inherits the entire patent. Assignation is when the owner of the complete patent signs the patent over to a new owner. In both those types of transfer there is no title and no need to describe what rights are being assigned because they are the rights as originally patented.

A patent, when it's kept complete, will be the original patent grant and any subsequent assignments or descents. It forms a physical bundle of documents of every transfer over time right up to the present time with no gaps or exceptions in ownership. If that is what you received when you obtained your patent then you have the real thing. If you don't have a full uninterrupted lineal history signed at each turn by the previous complete patent owner all you have is an interesting historical document.

Patents rights do not automatically belong to the real estate that was sold from the patent. Only those rights described in the title sold to the real estate purchaser are a part of that title.

Heavy Pans

 

[Clay Diggins]

The mineral estate is considered the dominant estate, the surface estate being the servient estate.

This means the mineral estate has an easement over the surface estate.

Very interesting stuff once you start looking into it.

The following article briefly describes a situation where the gov. will allow access to the mineral estate related to private ground where the mineral rights were not transferred in the patent, rather they were held in trust for the public. Kind of blows my mind to think about this happening. They don’t seem to address minerals other than gas and oil.

https://www.blm.gov/programs/energy-and-minerals/oil-and-gas/leasing/split-estate

As of 2015 there were 57 million acres of federal subsurface mineral rights in private lands in the United States. Many of those acres can be prospected, claimed and mined. Stock Raising and Homestead lands are probably of most interest to valuable mineral miners because you can prospect, claim and mine these patented private lands with 30 days notice and the posting of a bond.

Heavy Pans

 

[Clay Diggins]

Like I said, I would be corrected

Most of what you wrote was right on Mike.

You just misunderstood that not all patents include mineral rights. That's obviously a pretty common misunderstanding.

Heavy Pans

 

[IMAUDIGGER]

Clay,

Bear with me here…
Let's narrow the discussion down to one scenerio.


* YOU receive a grant deed patent whose authorizing congressional act includes an unconditional transfer of the mineral estate.

* YOU immediately sell 1/2 of the patent land to MYSELF via. an ordinary fee simple title deed, which is recorded in the county courthouse. That’s the extent of the transaction.

* The deed does not include any reference relating to the transfer of any specific mineral rights.

* The deed does not include any exclusions or reservations.

END OF THE CHAIN OF TITLE.

I begin extracting minerals from the land I just bought.

Your position is that I do not have rights to the minerals kbecause YOU did not specifically reference them in the deed? Also that it would be fraudulent for ME to attempt to claim title to mineral rights based solely upon the deed which was silent as to mineral rights?

Consider the following:
"When the owner of the entire estate in land conveys it by ordinary form of deed containing no exception or reservation, his grantee acquires the same title which his grantor had, and such title includes all minerals."
(Harris v. Currie Tex. 1943)

This runs along the same basic principle that deeds are to be construed in favor of the grantee. What a mess we would have if all rights not mentioned in a conveyance were assumed to be retained by the grantor??!

1.) Would you agree with the principle quoted from Harris V. Currie?
2.) What common law supports your assertion that "patent rights" do not get transferred unless specifically described in the conveyance instrument? Is this first transfer out of the patent different than subsequent transfers of title?

By the way, I totally agree that once the mineral estate has been severed from the surface estate, it needs to be treated as separate real property as a matter of public record.

This is all presented in the spirit of educational debate, if you care to continue.

 

[okbasspro]

In Oklahoma mineral rights are bought and sold on the open market just like beef. Oil companies lease buy and sell rights daily. I have all the rights to my land along with the original grant signed by the president in 1842. Most land owners here don’t own the minerals they were sold long before they bought their land. I also have the rights to 2400 acres but don’t own the land or waters just the minerals.

 

[IMAUDIGGER]

In Oklahoma mineral rights are bought and sold on the open market just like beef. Oil companies lease buy and sell rights daily. I have all the rights to my land along with the original grant signed by the president in 1842. Most land owners here don’t own the minerals they were sold long before they bought their land. I also have the rights to 2400 acres but don’t own the land or waters just the minerals.

I think many of the case precedence for mineral rights come from oil and gas states like yours.
The federal government says all water is held in trust for the public. You cannot own the water, you only obtain conditional rights to use it (reasonably and beneficially).