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
