Severed Estate

A severed estate is land in which the minerals have been legally separated from the surface, so the mineral estate and the surface estate are distinct interests that can be owned, conveyed, and inherited separately. The result is often called a split estate (see Split Estate for the mining claim procedure on Stock Raising Homestead Act land). This entry covers how the severance happens.

Severance by federal reservation

• Homestead-era patents. BLM notes that "Some Homestead Acts only reserved certain minerals, where the SRHA reserved all minerals." Under 43 U.S.C. 299(a), every Stock Raising Homestead Act entry and patent is "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."
• FLPMA conveyances. Since the Federal Land Policy and Management Act, 43 U.S.C. 1719(a) has provided that "All conveyances of title issued by the Secretary, except those involving land exchanges provided for in section 1716 of this title, shall reserve to the United States all minerals in the lands, together with the right to prospect for, mine, and remove the minerals under applicable law."

The BLM Glossary of Surveying and Mapping Terms defines a mineral reservation as "A clause in a patent which retains minerals in Federal ownership."

Severance by private deed

Private owners sever the minerals with a reservation or an exception in a deed, or by conveying the minerals alone. The BLM glossary defines an exception as "a clause used by the grantor to retain some part of the former estate by excluding it from the deed or grant." How a reservation or exception is read, and what words are enough to carry a particular mineral, is state law and differs between states. Severance can also be by depth (see Depth Severance).

Putting the estates back together

Federal minerals under private surface can sometimes be conveyed to the surface owner. Under 43 U.S.C. 1719(b), the Secretary may convey federally owned mineral interests where the surface is in non-federal ownership if there are "no known mineral values in the land," or if the federal reservation "is interfering with or precluding appropriate nonmineral development of the land and that such development is a more beneficial use of the land than mineral development." The conveyance may be made "only to the existing or proposed record owner of the surface, upon payment of administrative costs and the fair market value of the interests being conveyed."

Why it matters in mineral title research

• The severing instrument decides everything that follows. Its exact words say which minerals left the surface chain and who kept them.
• A federal reservation appears in the patent, not in later county deeds, so the patent has to be read even when the county chain is complete. BLM advises checking "the original land patent to determine under which Homestead Act your lands were originally patented."
• After severance there are two chains to follow (see Chain of Title and Mineral Estate).