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Right of Possession 

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Article I of the Constitution of the State of California still recognizes as among inalienable rights, the rights of "acquiring, possessing and protecting property."

State law determines the rules of "property."  "Western" State (west of the Mississippi) common law and natural equity provided that an individual could establish a right of possession to otherwise unappropriated resources under "color of title" good against rival individual claimants through first discovery, location or occupancy and continued use - or "first in time, first in right." This  right of possession was given recognition by the State Courts as a property right in regard to disputes of individual use-rights in the land and resources of the public domain.

As stated by Justice Brewer in Union Pac. Pac. R. Co. v. Harris, 215 U.S. 386 (1910):

"...While the power of Congress over lands which an individual is seeking to acquire under either the pre-emption or the homestead law remains until the payment of the full purchase price required by the former law or the full occupation prescribed by the latter, yet, under the general land laws of the United States, one who, having made an entry, is in actual occupation under the preemption or homestead law, cannot be dispossessed of his priority at the instance of any individual. Hastings & D. R. Co. v. Whitney, 132 U.S. 357, 363, 364 S., 33 L. ed. 363, 366, 367, 10 Sup. Ct. Rep. 112. In other words, one who has taken land under the pre-emption or homestead law acquires an equity of which he cannot be deprived by any individual under the like laws."

In other cases, the court ruled that although the possessory right of an occupant of public land, (such as in a grazing parcel,) is a valuable property right that he can legally transfer and convey to his vendee, or which may be the subject or consideration of a contract, (Neal v. Kayser, 100 P. 439, 12 Ariz. 118,); the purchaser acquires no rights as against the United States, (Gozales v. French, Ariz. 17 S.Ct. 102, 164 U.S. 338, 41 L.Ed. 458.)

Under English common law, open and notorious possession and use could create "prescriptive" property rights adverse to the ownership claims of another individual, but were ineffectual against superior ownership asserted by the sovereign/king, the federal government assumed a legal position of "true owner" as regarded State-ceded lands east of the Mississippi.

In the matter of "sovereign lands" underlying tidal and navigable streams, however, it was held under the "Equal Footing Doctrine" that the "federal government" (Congress) maintained these lands in trust, while in a territorial state, to be ceded to the newly created States. "Public lands" in these new eastern States, however, were retained by the "federal Congress" in mutual ownership after statehood for disposal by virtue of specific cession of title from the original 13 States.

Title was ceded to the nation through treaties by Spain, England and France for areas west of the Mississippi, but not to the "federal" government (Congress.) There remains considerable dispute in the West over the Constitutional capacity of the federal government to retain these lands as "federally owned" properties within the boundaries of a Western State without specific pre-statehood "reservation" for the legitimate purposes of discharging international and domestic treaty obligations, or for forts, arsenals, etc. Westerners question why these "unappropriated lands" were never passed to the sovereign people of the States for their disposal - to be held in trust as "commons" or as "wastelands" subject to appropriation.  Absent a federal deed of cession as in the east, did the agency of the federal government not shift from that as trustee for the existing States to that of trustee for the sovereign people of the new States? Did the "federal" government violate its fiduciary responsibility as trustee for the future people of new States under the "Equal Footing Doctrine," by essentially appropriating these "public lands" to itself by permanently withdrawing them from disposal and asserting sole control of their use?

Throughout U.S. history of frontier settlement, the question as to whether the federal government, in the manner of the English monarchs as if sovereign, is entitled to claimed immunity from prescription has remained a gray area of the law. The priority of individual possession and use as a basis for the disposal of public land and resources has been recognized in many Acts of Congress, such as pre-emption, homestead and mining/water acts.

Under the Color of Title Act, the Secretary of the Interior may be required to issue a patent if certain conditions have been met, (43 U.S.C.A. Section 1068-1068b,) such as that a tract of public land has been held in good faith and in peaceful adverse possession under claim of color of title for more than a specified period; (Beaver v. U.S., C.A.Cal., 350 F.2d 4, certiorari denied 86 S.C. 1067, 383 U.S. 932,15 L.Ed.2d. 854; U.S. v. Wharton, C.A.Or., 514 F.2d 406; Day v. Hickel, C.A.Alaska, 481 F.2d 473.)

The question arises after Statehood, as to whether the "rights" of the United States extend beyond the necessity of discharging responsibilities under treaties and in regard to the extinguishment of "Original Indian Title."

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