Land laws

Definition Statutes, ordinances and treaties enacted by the U.S. Congress and state legislatures governing the acquisition, ownership, distribution, development, and conservation of the vast lands under U.S. sovereignty

Land laws helped determine the development and distribution of perhaps the United States’ greatest economic resource—its land. They were designed to encourage settlement and farming of the North American continent; raise revenue and reduce the public debt; extract resources; reward key constituencies and populations; promote education, business, and economic growth; and conserve wilderness for future generations.

Great Britain claimed sovereignty over part of the eastern seaboard of North America by right of discovery and conquest, despite the presence of Native Americans. In charter and grants, England divided this land among thirteen colonies, although the western boundaries of the colonies were not clearly defined. In the Proclamation of 1763, Parliament forbade settlement of the lands west of Appalachia, and the Quebec Act of 1774 redrew several of the boundaries of the larger colonies. By purchases, statutes, and treaties, the American colonies—and subsequently the United States—took away the rights of the Native Americans to occupy much of what had been their traditional homelands and confined or relocated them to reservations.

The New Nation

The destiny of the new nation, as well as its economy and wealth, was inextricably linked with its land laws, policies, and politics. Real property has traditionally been the greatest source of wealth in human affairs. After gaining its independence, the United States inherited sovereignty over a portion of the North American lands claimed by England. The disposition of those lands, as well as the then-foreign lands stretching to the Pacific, would play a critical role in the economic development of the new nation. The states of South and North Carolina, Georgia, New York, Connecticut, Virginia, and Massachusetts ceded their lands west of Appalachia to the newly formed federal government under the Articles of Confederation. The Confederation was desperate for revenue as it lacked the power to tax and was liable for the debts of the Revolutionary War. Therefore, the goal of the first of the Confederation’s land laws was simply to sell public lands to private citizens to raise revenue. The first major land ordinance in 1785 created the rectangular survey system of townships and sections that remained in the twenty-first century. The ordinance also preserved the Confederation’s ownership of one-third of the precious metal mines on the lands it sold. The Northwest Ordinance of 1787 authorized the lands that had been ceded to the central government by the states to be settled in an orderly fashion, to be organized into territories, and to be admitted into the Union as new states.

With the enactment of a constitution in 1789, Congress had the means to make land laws with a more sophisticated purpose than retiring the public debt. Thomas Jefferson proposed selling public lands in compact units to create a democratic bedrock of small farmers. Secretary of the Treasury Alexander Hamilton favored selling the land wholesale to investors and manufacturers to promote rapid growth and industrialization. The Land Act of 1796, steered by Senator Albert Gallatin, further regularized the rectangular survey system in an attempt to promote land sales to individual settlers and discourage land speculators. It also created the office of surveyor general. The Frontier Land Bill of 1800 aimed at making lands on the western frontier more attractive to productive settlement.

Expansion

In the nineteenth century, although the federal government converted many of its public lands to private ownership, it added vast new tracts to its holdings. Over the course of the century, the United States acquired lands from Spain, France, Mexico, and Russia, extending the country’s borders to the Pacific Ocean and multiplying its size more than fourfold. The largest addition came in 1803, when by treaty with France, the United States purchased the Louisiana Territory. Its 530 million acres doubled the size of the country. In 1812, Congress created the General Land Office to superintend the acquisition, maintenance, and disposition of federal lands. From its start to 1946, when it became the Bureau of Land Management, this office sold more than 1 billion acres of public land for settlement, development, and other purposes.

Florida was purchased from Spain in 1819. Texas was annexed in 1845. By the 1848 Treaty of Guadalupe-Hidalgo (which ended the war with Mexico), California, Nevada, Utah, New Mexico, and other territories were added to the United States. The Oregon territories were acquired in 1846, and Alaska was purchased in 1867. Federal laws arranged for these lands to pass into private hands in myriad ways, accomplishing numerous objectives. The overriding objective was to foster ownership by small farmers, who would productively cultivate the lots. In the Land Act of 1820, the price of federal land was reduced to $1.25 an acre, but purchases on credit were eliminated, which had been a device used by land speculators. The Preemption Act of 1841 gave preferential rights to settlers on public lands, despite public ambivalence toward “squatters.” With land sales having greatly reduced the public debt, Congress could undertake more ambitious land policies. Military veterans were given bounties of land, amounting to some 61 million acres. Territories were given federal lands on admission to statehood. In the first half of the nineteenth century, Congress gave hundreds of millions of acres to states, entrepreneurs, and commercial interests to promote the construction of roads, canals, railroads, and other infrastructure.

In 1862, Congress enacted perhaps the two most significant land laws in U.S. history. The Homestead Act allowed any family to gain ownership of 160 acres of land if the family would settle on and cultivate it for at least five years. This historic act opened up the western United States to a wave of settlement and farming. The Morrill Land-Grant Act (also known as the Agricultural College Act) gave every state hundreds of thousands of acres to endow colleges of agricultural and mechanical arts. This act helped spur the creation of state universities devoted to the improvement and promotion of state economies.

Similar legislation followed these two historic laws. The Timber Culture Act of 1873 granted 160 acres of land to settlers who planted and grew trees on 40 acres of the land for ten years. The Desert Land Act of 1877 made available lots of 640 acres to settlers who constructed irrigation systems in the desert. The Timber and Stone Act of 1878 allowed people to purchase 160-acre blocks of land deemed fit for logging and mining, not farming, for $2.50 per acre. The Dawes General Allotment Act of 1887 brought the theory of private division and disposition of public land to the Native American reservations. Land that had been held by tribes in common was allotted to Native American families in 160-acre tracts, with the title to vest after five years of occupancy. Under the Alaska Statehood Act of 1958, the Bureau of Land Management was directed to begin the process of transferring 104.5 million acres of land to Alaska. The Alaska Native Claims Settlement Act of 1971 transferred the title of lands in Alaska to thirteen Alaska Native regional corporations and more than two hundred local village corporations.

Resources and Conservation

Whereas the nineteenth century was characterized by disbursement of public land and associated resources to private hands, the twentieth century saw a welter of laws designed to conserve the public endowment. The initial policy of the United States toward resources, as with land, was to see them developed by private interests. The 1785 reservation of mining rights had been allowed to expire. The General Mining Law of 1872 allowed miners to stake claims to hardrock minerals on federal lands. The Taylor Grazing Act of 1934 legalized putting cattle and sheep to pasture on federal land.

By the end of the nineteenth century, with the fixing of America’s borders and the closing of the frontiers, there was increasing concern about loss of public lands and the riches they contained. Presidents Benjamin Harrison and Grover Cleveland reserved 33 million acres for national timber. However, it was during the administration of Theodore Roosevelt, spurred by conservationists and naturalists such as Gifford Pinchot and John Muir, that federal conservation began in earnest. President Roosevelt signed the Newlands Reclamation Act of 1902 to support the creation of dams and irrigation works. The Act for the Preservation of American Antiquities of 1906 (known as the Antiquities Act) allowed Roosevelt to reserve 132 million acres of forest land and create national wildlife refuges and monuments. The Weeks Act of 1911 permitted the buying of land to enlarge the National Forest System, and the Clarke-McNary Act of 1924 expanded this act. The Bankhead-Jones Farm Tenant Act of 1937 allowed the government to purchase land to rehabilitate it. Numerous laws governing development of water resources have been enacted since 1974 to promote the effective use of water, river, and lake resources. The Alaska National Interest Lands Conservation Act of 1980 set aside 79.54 million acres in Alaska as wilderness areas and national parks.

State Land Laws

As the United States expanded, federal law determined the acquisition, organization, use, and disposition of the new territories. However, state laws have always been most important in determining the uses of local real estate, usually by common, or judge-made, law. State common law determines the process of buying, selling, donating, and transferring real property and the attached structures. It also determines contracts of sale, the obligations and rights of landlords and tenants, and the doctrines of caveat emptor and caveat lessee, which ascertains the quality of the land and buildings that are purchased or leased. State law determines whether a state follows a community or common law property system. Likewise the law of fixtures—structures attached to the land—has traditionally been part of state common law. The technical aspects of land law are usually governed by state statute. For example, most states have statutes governing the maintenance of public records that reflect ownership of land (“recording systems”), requirements for a valid deed, and the warranties, registration, and marketability of titles. Likewise, the law of mortgages has been a matter of state law, although modern economic forces have seen the federalization of the mortgage system, with the creation of the federal home loan corporations Fannie Mae (Federal National Mortgage Association) and Freddie Mac (Federal Home Loan Mortgage Corporation).

Large-scale regulation of land use by the states is by and large a phenomenon of the twentieth century. In the nineteenth century, states implemented some laws controlling nuisances on land and regulating such private land controls as easements, covenants, and servitudes. However, comprehensive regulation of land use by state government has resulted from four modern areas of land law: zoning, landlord-tenant law, antidiscrimination statutes, and the law of eminent domain.

States, cities, and towns have used their regulatory power to zone land by industrial use, also known as Euclidean zoning, since 1916, when New York City divided the city into different use zones. Probably no system of land laws has had as pervasive an effect on the shape of modern economic life and its relation to the living patterns of workers as zoning laws. With zoning well established by the 1920’s, states began regulating private landowners’ use of their properties for health concerns, aesthetic and historic preservation considerations, noise control, and demographic mix.

The 1960’s and 1970’s saw a revolution in landlord-tenant law as the old rules gave way to a consumer-oriented movement that aimed to guarantee tenants habitable and enjoyable premises. The wholesale revisions in landlord law were again largely the work of the state judiciary. However, for political reasons, it was the federal government that took the lead in antidiscrimination land law. The historic Fair Housing Act of 1968, as subsequently amended, prohibits discrimination in the sale, purchasing, or leasing of land on the basis of race, national origin, religion, sex, disability, or familial status. Many states have extended antidiscrimination prohibitions in their own laws.

The power of eminent domain—to take the property of private landowners—has always been an inherent power of state government, although circumscribed by the U.S. Constitution. The Fifth Amendment limits the exercise of eminent domain to circumstances of public use and for just compensation. In recent years, in response to the controversial Supreme Court case of Kelo v. City of New London (2005), numerous states have enacted legislation to further limit the ability of local governments to exercise their powers of eminent domain.

Bibliography

Berry, Wendell. Home Economics. New York: North Point Press, 1987. Fourteen essays in which novelist and nature writer Berry pleads for protection of land and the lifestyles associated with it.

Dombeck, Michael, Christopher Wood, and Jack Williams. From Conquest to Conservation: Our Public Lands Legacy. Washington, D.C.: Island Press, 2003. Argues for increased conservation based on the legacy of public land laws and policies.

Friedman, Lawrence. A History of American Law. 3d ed. New York: Touchstone Books, 2005. An outstanding survey of American legal history, with diverse sections on land law in the eighteenth, early and late nineteenth, and twentieth centuries.

Gates, Paul. History of Public Land Law Development. Washington, D.C.: Government Printing Office, 1968. The official history of federal lands, authorized by the Public Land Review Commission. Scholarly, immense, and definitive.

Hall, Kermit. The Magic Mirror: Law in American History. New York: Oxford University Press, 1989. A history of American legal culture that argues that the variety of American land laws acted both to encourage and to arrest economic development.

Lehman, Scott. Privatizing Public Lands. New York: Oxford University Press, 1995. Study of public lands and the effects of selling them into private hands.

Turner, Frederick Jackson. The Frontier in American History. Tucson: University of Arizona Press, 1994. Reprinting of Turner’s famous 1893 essay on the closing of the American Frontier as well as his other essays relating to American land history, policy, and law.

Wolf, Michael, ed. Powell on Real Property. Albany, N.Y.: Matthew Bender, 2000. Thorough and respected summary of property law.