In the 1890 case of Green v. Elbert, the United States Supreme Court ruled on a dispute involving land ownership in Colorado. The plaintiff, Green, claimed that he had acquired rights to certain lands under an act passed by Congress in 1862 known as the Homestead Act. This law allowed any citizen or intended citizen who was head of a family or over twenty-one years old to claim up to 160 acres of public land provided they lived on and cultivated it for five years. However, before Green could fulfill these requirements, defendant Elbert purchased part of this same tract from another party who held a preemption claim (a right granted by federal statute allowing settlers on public lands to purchase them at minimum price before they were offered for sale publicly). The court decided in favor of Elbert stating that his title was superior because it originated from an earlier valid preemption claim which took precedence over subsequent homestead claims according to existing laws.

In the dissenting opinion for Green v. Elbert, the justice argued that the majority's decision was based on a misinterpretation of the law and an overreach of judicial power. The justice contended that it is not within their purview to decide whether or not a state has violated its own laws unless there is clear evidence of such violation. In this case, they believed that no such evidence existed and thus, it was inappropriate for them to intervene in what should be a matter handled by state courts. Furthermore, they disagreed with the majority's interpretation of Colorado mining statutes as granting exclusive rights to mine owners over all minerals found on their property regardless if these were discovered after initial ownership claims were made. They maintained that under common law principles and historical precedent, mineral rights are separate from surface rights and can be claimed independently by different parties at different times.