USA > Massachusetts > Barnstable County > Chatham > History of Chatham, Massachusetts : formerly the Constablewick or Village of Monomoit ; with maps and illustrations and numerous genealogical notes > Part 19
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13. "Joseph Nickerson of foli age testitieth and saith that the lands In controversy where Sarjeant Daniel Hambleton cut wood on in Manamoy for which Ensign William Nickerson brought a plea of trespass against him for at the Court of Common Pleas In Barnstable in April last past ,which sd action is now by appeal to be herd & tryed at the Superior Court at Plymouth on the 27th day of this Instant & to my knolege by the best information that I have herd, sd very spot of land is som part of that land which I herd my now deceased father William Nickerson often say was part of the undivided lands in sd Manamoy & i often herd my sd father in his lifetime say that the Jands in Monemoy which was not then laid ont shold ly General & shold not be divided I never knew or herd that sd jand was Jaid ont before I lately herd it was granted to Ensign William Nickerson." Dated March 15, 1710-1. Files Superior Court of Indica- ture, No. 8212. See aiso testimony of Benjamin Phillips, page 84, note 23, supra.
197
EARLY LAND PROBLEMS.
of necessary and convenient ways to the several parcels and established also the method of drawing lots among the " proprietors " themselves, after the first drawing between them as a whole and the "privileged men." It was also ordered that a piece of land be set off and sold to defray the expense of the suit. Nickerson vs. Hamilton.
At a subsequent meeting on May 11 Mr. Daniel Hamil- ton was chosen as a representative of the "privileged men" to be on the committee to procure and assist the surveyor. This committee selected Mr. Daniel Parker of Barnstable as the surveyor. H He entered upon his duties during the follow- ing summer and completed his work, so that a meeting of the "proprietors " could be had in the autumn. Forty-three lots were laid out, leaving various small pieces not in- cluded in any lot. The location of these lots is indicated on the map at page 132, except lot 24, which can not be located and does not appear in the division.
The meeting of the "proprietors " was held on October 3. It accepted the report of the Committee and of the sur- veyor and proceeded to the preliminary drawing. The "privileged men " had eighteen choices or opportunities to draw and drew the following lots: 1. 10, 11, 15, 20, 21, 22, 23, 26, 27, 29. 30, 31. 34, 38, 41 and 1-2 of the 40th lot. The "proprietors " had twenty-seven choices and drew the following lots : 2, 3, 4, 5, 6, 7, 8, 9, 12, 13, 14, 16, 17, 18, 19, 25, 28, 33, 35, 36, 37, 39. 42, 43 and 1-2 of the 40th lot. Lots 11, 12, 13 and 40 were divided into halves in order to increase the number of choices. Lot 9 was assigned to Rev. Mr. Adams according to the agree- ment of the village with him at the time of his settlement there. Lot 24 appears not to have been laid out. Mr. Adams had charge of the drawing, numbering the papers
14. William Nickerson and Daniel Sears were employed by the Committee as "ax- men" to assist the surveyor by marking the trees as he proceeded in the work. Files Superior Court of ludicature No. 19,259.
198
HISTORY OF CHATHAM.
and shuffling them for the drawing, and drawing them ont. As their choice came, Mr. Robert Nickerson, chose the lots for the " proprietors " and Sargeant Hamilton for the " priv- ileged men."
The division between the " proprietors " and the "priv- ileged men " having now been effected, it was necessary for each party to divide among themselves the lots which had fallen to them. For this purpose the " proprietors " met on Feb. 2, 1713-14 and made choice of Sargeant Hamilton to number and draw forth the papers for them. Before the drawing began, they voted that Mr. William Nickerson should have, as one of his lots, the 33rd lot adjoining his marsh at the Red River neck.
The result of the drawing was as follows :
Choice
Lot Chosen
"Mr
William Nickerson
7
.12
Mr
William Nickerson
9
28
Richard Sears in Mr. Sprags Rigt
15
13
Dan'l Sears in Mr. Sprags Right
6
16
Willm Covel in M's Covels Rigt"
11
17
Mr
Seth Taylor in Ms Covels Right
4
13
Mr
William Nickerson
1
5
Ebenr Hawes in Ms. Covel Rigt
3
7
Mr
William Nickerson
13
3
Mr
William Nickerson
16
35
Daniel Sears in Mr Sprags Right
18
18
William Eldredg in Ms Covel Right
5
2
Mr
William Nickerson
24
39
Mr
William Nickerson
23
37
Mr
William Nicker-
20
36
Mr
William Nickerson
12
6
Thomas Atkins in Mr. Sprags Right"
17
12 40
8
Richard Sears in Mr Sprags Rigt
14
25
Isaac hinkely or
in Ms Covel Rigt
22
32
Richard Sears in Mr. Sprags Right
19
19
Richard Sears in Mr. Sprages Rigt
10
1.4
Daniel Sears in Mr. Sprags Right
21
12
The reader will doubtless notice that, in the above drawing, those claiming in Mrs. Covell's right had only
15. It seems that Joseph Harding, William Nickerson, son of John, and John Nick- erson, his brother, were interested with Willlam Covell in this share.
Nath. Covel in Mr. Sprages Right
2
4
Thos Adkins in Mr. Sprages Rigt
199
EARLY LAND PROBLEMS.
half as many chances to draw as Mr. William Nickerson and those claiming under Mr. Sprague. The reason for this is that by previous agreement, Joseph Covell, Isaac Hawes, Michael Stewart, Caleb Lumbert and Nathan Bassett, all claiming in the Covell right, had been assigned, before the drawing, specific portions of the common land satisfactory to all parties, and these portions were in full for their interest. They are shown on the map above referred to.
The procedure for division among the "priviledged men " was necessarily more complicated than in case of the "pro- prietors." Not only was it uncertain what should be the share of each one in the division, but there was a dispute as to what persons were entitled to be called " priviledged men " at all. In order to settle these questions, the parties interested entered into a written agreement dated January 29, 1713-14, by which the whole matter was referred to. Justice John Otis, Col. John Gorham and Dea. John Paine, disinterested parties, for decision. Their report is as fol- lows :
To all people to whom these presents shal come, Know yee yt wee John Otis, John Goreham & Deacon John paine, being mutually & indifferently chosen by those who are called privilidged men of yo Inhabitants of Chatham & desired to determine, arbitrate & award who were ye proper privilidged psons which ought to shear in & have a right unto ye sixteen lots & half of land already laid out by ye mutual agreement of ye proprietors & those called privilidged men in sd Town of Chatham to be for ye use & propertie of them ye sd privilidged men, their heirs & assigns forever as may apear by an agreement on record in ye proprietors Clerks book of sd Town bear- ing date Aprill ye 28th 1713 Referance to sd agreement being had & for as much as those which Judg ymselves to be privilidged men as aforsd & have right in & unto ye abov sd sixteen lots & half being at variance and differing about who they are & what proportion each Claimor may Reasonably have in & unto ye before mentioned sixteen lots & half of land & being minded to put a final end, peacable issue & Comfortable determination to ye Controversy, wee ye sd arbi- trators being at ye house of Mr. Ebenezar Hawes of Chatham aforsd: having given opertunity for al psons who could lay any Reasonable
200
HISTORY OF CHATHAM.
Claim to ye prmisses or any part thereof to make their pleas, claims & alligations & duly considered & weiged ye same, have & doe order, (rard & set out to each & evirie pson herunder named to have ye several parts & proportions annexed to each name as followeth:
lots
It: to Insign Stuart or his assigns one lott & an half
1-2-4
to Daniel Hamelton one lot and one eight
to Thom. Howes one lot 1-1-8
1-0
to Joseph Stewart half one lot
0-1-2
to John Smith one lot & one eight of a lot
1-1-8
to Jehoshaphat Eldred half a lott 0-1-2
to Robert Paddock half a lott
0-1-2
to John Taylor one lott
1-0
to William Michel one lot
1-0
to Moses Godfree one lot
1-0
to James Eldred three quarters of one lott 0-3-4
to Samuel Taylor one lot 1-0
to Jonathan Godfree half a lot 0-1-2
to John Nickerson Sen as an apendant to his farm one lot 1-0
to Joseph Eldred one lot 1-0
to William Covel one lot 1-0
to Ebenezar Hawes one lot
1-0
15 & 1-2 lots
which distribution & division will take up fifteen lots & half to be set forth to each privilidged man in a proper method & there will remain one lot which we propose & advise to be the lot near ye meeting house (not having much wood thereon) to be at ye disposition of ye above mentioned Shearers of sd fifteen lots & an half either to sell to pay charg or otherwise to be disposed of as may be Judged best by ye major part of ye Interest in a lawful meeting. And wee the sd arbitrators being chosen to ye service above mentioned as may apear by an agreement in writing Bearing date ye 29th day of January 1713-14 & axcepting the same, do accordingly give in this our award & final determination Relateing to ye premisses this seiventeenth day of february 1713-4 in presence of thes wittness under our hands & seals Seth Taylor .Jno Otis (seal)
Isaac Hawes
Jno Goreham (seal)
Jno Paine (seal)
Immediately upon the rendering of this award a meet- ing of the "priviledged men " was called and held on March
.
201
EARLY LAND PROBLEMS.
1, 1714. The award was unanimously accepted and it was voted to sell lot 1 to pay the expense of the referees and other expenses of the division. The half lot No. 40 was assigned to Jonathan Godfrey, he being entitled to just one- half a lot in the division. Mr. Godfrey was selected to draw the lots and the following choice resulted :
Choice
lot
"Joseph Stuard for himself, father & Brethren
05
31
Daniel Hamblton
06
22
John Smith
07
20
Thomas Howes
11
27
Joseph Eldredg
15
10
Ebenr Hawes
01
15
Moses Godfre
08
23
William Michal
10
34
Samuel Taylor
13
26
John Taylor
14
38
William Covel
09
29
James Eldredg 3 quarters & hamblton & Smith 1 quart
03
11
Jehoshaphet Eldredg & Robert padock 1 lot
0.4
41
Joseph Stuard in ye Rights above sd
12
30
John Nickerson as an apendant to his farm"
02
21
The foregoing proceedings and division, with a full description of the several lots, are recorded in a book en- titled " A proprietors' Book for Chatham 1713 Ebenr Hawes Chatham," which is now deposited in the office of the Town Clerk at Chatham where by law it is required to be kept and preserved. 16 The record was made by Ebenezer Hawes Clerk for both " proprietors " and "priviledged men." The lots laid out have ever since been the basis for conveyances of land in the westerly half of the town. After the divi- sion no meetings of the proprietors were held for many years and those subsequently held were of minor impor- tance. The dates of these subsequent meetings were
16. About the year 1893 the writer found this book in the possession of Mr. James M. Young of this town, it having been given to his father, Reuben Young, then deceased, many years before by 'Squire Sears, the last representative of the Sears family In the town. Knowing That the law required it to be deposited In the Town Clerk's Office. the writer obtained the consent of Mr. Young to place it in the hands of Mr. Levi Atwoo 1, the clerk of the town. The book has recently been rebound at the expense of the State by the Emery process and is now In shape to fast for many years.
202
HISTORY OF CHATHAM.
March 25 1741-2 (Samuel Stewart chosen Clerk), June 9 1742, July 5 1742, April 26 1749, (Daniel Sears chosen Clerk ) Feb. 18 1752, March 9 1752, June 13 1758 (Paul Sears chosen clerk), Oct. 22 1787, (John Emery chosen ('lerk ).
It is a singular fact that, although this division was re- garded as final and as fixing the ownership of the lots, the land or at least that part of it which was not settled upon or enclosed and cultivated, was still regarded as common land for many purposes for many years after this date. Cattle, sheep and hogs were still permitted to roam over it as before and the inhabitants in town meeting continued for many years to regulate the use of the tract for pastur- age. The rules most frequently made were that swine should be well yoked and ringed, that rams should not run at large thereon between the tenth of August and the mid- dle or last of October and that no sheep on the common should be driven for shearing before the third Monday of May. It is believed that this common use did not extend to wood cutting, but that each owner after the division cut wood on his own lot.
There was another unsettled land problem of long stand- ing, which disturbed the early years of the village, almost as important as that affecting the common lands. It re- lated to the ownership of Monomoit Great Beach and was not finally settled till the year 1729. The value of this beach lay in the large tracts of salt marsh and sedge grass scattered along the inner or westerly side thereof.
Some of the settlers of Eastham, who doubtless claimed right therein as " Purchasers or Old Comers," were early ac- customed to utilize this beach as pasturage and breeding ground for their horses, young cattle, etc., for which it was then well suited, driving them on in the spring and allow- ing them to range its whole length.
203
EARLY LAND PROBLEMS.
The early Monomoit settlers also used it for the same purpose from the time of the first settlement, and also at times cut hay thereon. They were anxious to secure con- trol of it, on account of its proximity, but they appear to have realized that they had no right to purchase it, at least, without consent of the Court. It appears also that after a time the Monomoit settlers were put to much trouble and loss on account of the use made of this beach. They, therefore, in February 1691, petitioned the General Court for relief, espec- ially for authority to purchase the beach of the Indians.17 They got no satisfaction, however, as the beach was clearly a part of the Cape "reserve," and the right to purchase it from the Indians rightfully belonged only to those "purchasers or old comers," to whom this "reserve " had been assigned, as explained in chapter IV.
In the course of time there came to be three sets of claimants to this beach. First, the Niekersons and Covells claimed it, as representatives of William Nickerson Sen, on the ground of long use and possession. It does not appear that it was any part of the lands at Monomoit, granted to Thomas Hinckley and others June 7, 1665, and later purchased of them by William Nickerson Sen., or that the Nickersons and Covells claimed
17. "To the Hond Generall Court of Plymouth. The Humble Petition of ye Inhab- Itants of ye Village of Monamoy. [lIere follows the petition quoted on page 102 supra ]
And whereas there lyeth a Beach called the Great Beach Betwixt ns and the sea and several of the Inhabitants of some of our Neighbouring Towns hath many Horses and mares which go rate free and are brought and hunted from said Beach by the Indians being Imployed by the owners of sald Horses whereby we suffer great damage by hav- Ing our food eaten and our fences broken & coalts drowned.
We humbly request of ye Honored Court for to grant us libertle for to purchase sald Beach and soe leave it to your consideration.
We rest your Humble Petitloners whose names are under written in the Behalf of ye Town.
Monamoy ye 11th of Feb 1630 [ 1].
Nicholas Eldredge William Griffith Hugh Stewart William Mitchell."
State Archives Vol. 113, 353.
-(16)-
204
HISTORY OF CHATHAM.
any title to it under any purchase from the Indians. It was plainly not included in the tracts of "unpurchased land " laid out to them in 1695 by Jonathan Sparrow and John Freeman.18 The claim of the Nickersons and Covells ap- pears to have rested solely upon long continued possession and use, beginning with the first settlement of the village. 19
The second set of claimants were Elisha Hedge of Yar- mouth, Samuel Smith of Eastham, David Melville of East- ham and Hugh Stewart of Monomoit, who together pur- chased the beach in 1694 of John Quason and Josephus Quason. They could not ascertain that the beach had been granted by the General Court to any one and therefore thought that they might with safety purchase it. It was an outlying strip of land near the Nickerson purchase and it probably was not known to them that it was, in fact, a part of one of the three great tracts reserved in 1640-1 for the "purchasers or old comers " as explained in chapter IV, and that the latter alone had the legal right to purchase it of the Indians. 20
The third set of claimants were the "purchasers or old comers " themselves, to whom the Cape "reserve" had been assigned in March 1652, or rather their successors in title, for the original " purchasers or old comers" had now all passed away. These persons were said to hold title by virtue of the Royal Grant, that is, by virtue of the original patent from the King to Gov. Bradford. These peo- ple did not attempt to exercise their right of purchase from
18. See page 134 supra.
19. "Benjamin Phillips testifies yt wheras I for thirty years standing have known ye Nickerson & Covells to be in pursation of ye Great beach comonly called Mana- moitt Great Beach by feeding & cutting ye grass & erbig on sd beach," 24 April 1724. Files Superior Court of Judicature No. 19,259.
20. General Court Records X, 19. I have not found the original deed to Hedge and others above mentioned, but the following memorandum, made by some one who con- sulted the County Records before they were burned in 1827, gives an Inkling of Its con- tents: "grat Beach deed to Samuel Smith and others-Beginen at Grat Rock in Jere- miah howes bound in his line to the sea & southeriy-deed dated 169][?]." Osborn Nick- erson papers. For "Jeremiah howes bound" see page 49 note 23.
205
EARLY LAND PROBLEMS.
the Indians till the year 1711. At that date those who had succeeded to the rights of the original "purchasers or old comers " were John Cole, Daniel Cole, Joshua Hopkins, Nicholas Snow, Micajah Snow and Nathaniel Doane all of Eastham and Stephen Hopkins, Prince Snow and John King of Harwich. These nine men by deed dated May 18, 1711, purchased of the heirs of John Quason, viz. John Quason, Joseph Quason, Samuel Quason, Josephus Qua- son, Sarah Pompmo, Bettie Nopie, wife of Isaac Nopie, and Wawhanana "living in Harwich, Eastham, Monamoy and Yarmouth," a large tract, comprising nearly all of the present town of Harwich and also such title as the Indians could give to Monomoit Great Beach, which is described in the deed as follows : " All that our Great Beach lying be- tween Monamoy and the main sea extending eastwards & westwards so far as our deceased father, John Quason, his right did extend, with all the meadow or sedge ground ad- joining & every way thereto belonging from Sandy point home to Sipson's bounds, together with that one Island called Cotchpinicut Island lying between said Monamoy & the Great Beach."21 After making this purchase, these men, with others who had joined them, entered into an agreement, under date of March 9, 1712-3, determining their relative inter- ests in the beach as follows : John Cole, Joshua Hopkins, Nicholas Snow, Micajah Snow, Joseph Doane, Prince Snow, John King, Thomas Clark, Edmund Freeman and John Gray each one fourteenth part, Stephen Hopkins two four- teenths, and Joseph Cole, Elisha Hopkins, Nathaniel Doane and Israel Doane each one twenty eighth.22
21. Osborn Nickerson papers. "Sipson's bounds" were the bounds of the tract belonging to John Sipson and sold by him to Jeremiah Howes by deed dated Feb. 26, 1691, (see note 23, page 49 supra). This tract was later known as the Strong Island propriety. The boundary line between it and the Monomoit Great Beach propriety ran from the north side of Cotchpinteut Island rasterly to a great rock in or near the channel, called Untumsket Rock, thence easterly to and across the Beach to the ocean. See deed dated June 17, 1805, from Abner Freeman & at to Ensign Nickerson. Osborn Nickerson papers.
22. Osborn Nickerson papers,
206
HISTORY OF CHATHAM.
After this purchase, these people appear to have been active in asserting their rights to the beach and to have caused disturbance to Mr. Elisha Hedge and partners, who had been not only using the beach but selling portions of it to others. The result was that Mr. Hedge and his part- ners in 1715 presented a petition to the General Court at Boston, asking for protection and confirmation of their title.23 They got no redress, however, the petition being dismissed June 6, 1716.
The dispute concerning the ownership of this beach con- tinued for a number of years after this time. Finally, in or about 1724, there appears to have been some kind of a lawsuit, which was carried up to the Superior Court of Judicature and resulted in establishing the rights of the Nickersons in the beach." When this question had been finally settled, the parties came together and agreed upon an equal division of the beach between them. The first meeting of the proprietors and their action is shown by the following record :
At a Meeting of ye Proprietors of ye Great Beach Meadow and Sedge ground Lying in ye County of Barnstable Called Monemoy Great Beach Being assembled on ye 22d day of July 1729 In a Regular Manner as ye Law Directs To choose them a Clerk &c
23. "Upon Reading a Petition of Elisha Hedge, John Smith, son & Heir to Samuel Smith late of Eastham Decd, David Melvil & Hugh Stuart of Monomoy Allas Chatham, Importing that whereas they did In ye year 1694 purchase of the Indians John Quason & Josephus Quason of Monomoy alias Chatham in the County of Barnstable a certain Beach comonty called Monomoy Beach lying Eastward of sd Monomoy with severall parcels of meadow or sedge ground lying adjacent thereunto as may be seen by an in- strument of conveyance under the hands and seals of the sd John and Josephus Qua- son, wh said Meadow and Beach was never as they can learn by the General Court granted to any Persons whatsoever and therefore they thought they might with safety purchase the same. It being no way to the Prejudice of the said Indians to sell it Beach which was no way likely to be profitable to them, that the said Purchase was made before any law of this Province was made to the contrary, that they have for many years quietly enjoyed & possessed the sald Beach with Its appurtenances & have since sold and made conveyances of a considerable Part of sd Beach to other Persons, who have quietly possessed & improved the same withont any manliest dislike to the Indians, yet notwithstanding some English do trespass upon the sald Beach by turning over Horses & Cattle to graze thereon & they also mollest & disturb the persons to whom it was sold, Whereby great Inconvenience & Damage Is like to ensue to your Petitioners unless timely prevented; Humbly Praving that the General Court will please to take this matter into Consideration & relieve them by confirming a Grant of the said Beach with the appartenances which are specified in the Deed of Sale made to them by John'& Josephus Qnason.
In the llouse of Representatives ord-rel thit this Petition be continued unthì the next May session and that in the meantime Publiek notice be given by the Petitioners in the town of Chatham That if any persons have any reasonable objectlon to make they may then be heard." Dec. 6, 1715. General Court Records, X, 19.
24. See note 19 supra.
207
EARLY LAND PROBLEMS.
then made choise of Edward Kenwrick for their clerk who was then sworn to that office-Then also made choise of Joseph Doane Esq. Lieut. Prince Snow, Ensign William Nickerson, Joseph Covel, Capt. John Atkins & Thomas Mayo to be a committee to draw up proposals to lay before said Proprietors Relating to each claimers claim to sd Great Beach, meadow and sedge Ground: Lieut. Thomas Clarke chosen moderator for said meeting.
Attest Edward Kenwrick Proprietor's Clerk. A true copy as on record examined per James Covell, Cler.
Here follows the abovesaid Committee's return exactly Transcribed: July 22, 1729. We, John Atkins, Joseph Doane, Prince Snow, Wil- liam Nickerson, Thomas Mayo and Joseph Covell being appointed a committee of the proprietors of ye Great Beach called Monemoy Great Beach from Sandy Point Eastward or Northward to Potanu- macut Harbour so called with the Meadow and Sedge ground ad- joyning and belonging at a proprietors meeting of said proprietors Lawfully assembled ye 22 Day of July 1729 to consider and ac- cordingly to make report to said proprietors what and how much of the premises each of the three claimers of said Beach, meadow and sedge ground shall be in the whole In order that each claimer may Lovingly unite & Incorporate Into one Intire Distinct propriety In ye whole of sd propriety and having Discoursed on and concern- ing the premises, Do conclude and accordingly report as followeth, that is to say :
1) that they who call themselves Purchasers in Eastham and Har- wich that purchased of ye Quasons By virtue of ye Royal Grant their Heirs and assigns to have one third part of said Beach, meadow and sedge ground.
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