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Neither grant provided terms for revocation or termination. Supreme Court has said that a grant “is a contract executed,” (Fletcher v. How does one modify what by clear and plain words appears to be a “contract executed” such that it then appears to be something short of “executed” and, therefore, less than an actual grant?
Few if any would argue that Congress might possess authority to revoke or terminate the trust land grant, but no one has contested the alleged revocation of the RS 2477 grant. ” Enter the notion of “perfection.” It is now maintained that a prospective beneficiary under RS 2477 must actually construct a “highway” in order to “perfect” the grant.
If the subject lands happened to lie within a particular federal land reservation, “in lieu” lands were to be taken.
Federal reservations were not allowed to alter the quantum of land authorized under the grant and, thus, claimed by the grantee State.
But RS 2477, in its spare nineteen words, did not initiate a process. That question is simply this: Does Congress possess the authority to strip the States of a granted sovereign right to build and declare public highways as the public need requires upon unreserved public lands? It is a question that goes to the heart of independent State sovereignty and constitutional federalism: “Clearly, Congress could exact of the new State the surrender of no attribute inherent in her character as a sovereign independent State, or indispensable to her equality with her sister States, necessarily implied and guarantied (sic) by the very nature of the Federal compact.
For this reason, the statute did not require future action by a claimant in order to “perfect” the grant. Obviously, and it may be said primarily, among the incidents of that equality, is the right to make improvements in the rivers, water-courses, and highways, situated within the State.” Withers v.
Rather, “perfection” means, paradoxically, that a grant issues only after a “highway” is actually constructed.
The words of the grant alone establish the State’s claim.
And yet, no one has suggested that trust land grants require “perfection” in order to establish the grantee’s claim to the authorized sections.
The words of the trust land grant in the Utah enabling act, by way of illustration, are “That upon the admission of said State into the Union, sections numbered two, sixteen, thirty-two, and thirty-six in every township of said proposed State, …, are hereby granted to said State for the support of common schools, ….” It was only necessary that those particular sections be located by survey.
If and when the conditions of the “offer” were met, a land patent was granted. In so doing, it revoked only the “offer.” No federal grant or other non-federal right in the land was affected. A San Juan County, Utah, commissioner and one county resident have recently been convicted of violating a road closure decision issued by the Bureau of Land Management.
The same cannot be said for Congress’s presumed revocation of the RS 2477 grant. The road at issue is claimed by the County, a subdivision of the sovereign State, as a public highway.