Conceding to the United States the primary and paramount right to dispose of the soil of this state, according to the laws existing or to be enacted by congress, and full and complete exemption from every form of taxation of their property, it is hereby declared that as between all the good citizens residing in this state, and as between them, or any of them, and others, having or claiming, or pretending to have or claim, any right to occupy, possess, and enjoy any portion of the public domain situate within the boundaries of this state, and as between each and every one of them, and all other persons, associations, corporations, and powers except the government of the United States, the right as the same may exist under the local laws, to occupy, possess, and enjoy any tract or portion thereof, shall be respected in law in all the courts and tribunals of this state.
Source: R.S. p. 531, § 1. G.L. § 2124. G.S. § 2674. R.S. 08: § 5120. C.L. § 1103. CSA: C. 134, § 1. CRS 53: § 112-1-1. C.R.S. 1963: § 112-1-1.
ANNOTATION
Law reviews. For article, "The Public Domain in Colorado", see 13 Rocky Mt. L. Rev. 296 (1941).
It was the design and intention of the general assembly to clothe title by occupancy with the character of real estate. Gillett v. Gaffney, 3 Colo. 351 (1877); Cooper v. Hunter, 8 Colo. App. 101, 44 P. 944 (1896).
By virtue of this and the following sections, occupancy became an investive act. It invested the occupant with a tenure, assertable and defensible in mode and manner, as the highest estate known to the common law. It was not, therefore, a mere "naked possession", but a legal possession under the sanction, recognition, and protection of the law. Gillett v. Gaffney, 3 Colo. 351 (1877).
The right to possess land is same as that of owner of fee at common law. Upon the adjournment of the first general assembly, except as against the United States, and subject to be defeated by abandonment, the bona fide occupant held his lands by a tenure as secure against attack, intrusion, and disseizing, as the owner of the fee at common law and, with the exceptions named, had a title good against all the world. Gillett v. Gaffney, 3 Colo. 351 (1877).
The right to possess land is unassailable as if held by patent. So long as the claimant and his assigns comply with the provisions of this and the following sections, their right to possess and enjoy the land appropriated is as unassailable, except by the general government, or persons connecting themselves with the title of general government, as if they held it by patent of the United States. Cooper v. Hunter, 8 Colo. App. 101, 44 P. 944 (1896).
Title to such land is descendible. Title by occupancy of land subject to entry under the acts of congress, as town sites, must, under this and the following sections, be held to be descendible. Gillett v. Gaffney, 3 Colo. 351 (1877).
A survey of public lands made by the proper officers of the United States, and confirmed by the land department, is not open to challenge by any collateral attack in the courts. Russell v. Maxwell Land Grant Co., 158 U.S. 253 (1895); Colo. Fuel Co. v. Maxwell Land Grant Co., 22 Colo. 71, 43 P. 556 (1895).