USA > Ohio > Scioto County > A history of Scioto County, Ohio, together with a pioneer record > Part 167
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Mr. Zoellner is one of the most substantial citizens of Portsmouth. He is strictly honest and upright in all his dealings, and has the confidence of the entire community. The writer regards him as one of the most fortunate men in the city, for he is surrounded by his entire family, and they are all engaged in gainful employment, doing remarkably well for themselves. He can be just- ly proud of the records of his sons and sons-in-law, and his daughters are all admirable women.
PART V. PIONEER RECORD OF SOUTHERN OHIO.
PORTSMOUTH COUNCIL CHAMBER.
PIONEER RECORD OF SOUTHERN OHIO.
CHAPTER I.
The Virginia Military District and Its Surveyors-Congressional Lands in Southern Ohio-Indian Trails, Towns, Camps and Pioneer Traces in the Virginia Military District in Southwestern Ohio-The Governor Lucas Mansion in Pike County, O .- The Arcadian Mineral Springs in Adams County-Rev- olutionary Soldiers.
THE VIRGINIA MILITARY DISTRICT
embraces twenty-two counties and parts of counties in Ohio, lying between the Scioto and Little Miami rivers, and north of the Ohio river. A part of the western boundary is a line drawn from the source of the Scioto river to the source of the Little Miami river, known as Robert's line. It embraces all of the counties of Adams, Brown, Clermont, Highland, Clinton, Fayette, Madison, and Union; and portions of the counties, Scioto, Pike, Ross, Pickaway, Frank- lin, Delaware, Marion, Hardin, Auglaize, Logan, Champaign, Clark, Green, Warren and Hamilton. The district is said to cover over six thousand five hundred and seventy square miles, and contains over four million acres of land.
In the second charter of Virginia, which was granted on the 23rd day of May, 1609, this territory, with much more, was granted by King James 1., of Great Britain to the Treasurer and Company of Virginia, which included "all those lands, countries, and territories. situate, lying, and being, in that part of America called Virginia, from the Point of land, called Cape or Point Com- fort, all along the sea coast, to the southward two hundred miles, and all that space and circuit of land, lying from the sea coast of the precinct aforesaid, up into the land, throughout from sea to sea, west, and northwest; and also all the islands, lying within one hundred miles, along the coast of both seas of ¡the precinct aforesaid." Virginia stoutly claimed this land, at all times, by virtue of this charter.
An act of the Legislature of Virginia of October, 1779, 10 vol., Henning's Statutes of Virginia, p. 160, provides for bounties in lands to the officers and soldiers of Virginia in the Revolutionary War, both on Continental and State establishment, and prescribes the quantity each should receive, according to rank. Prior to the passage of this act, Virginia had promised land bounties to her soldiers of both State and Continental establishment, but the quantity was not definitely fixed until the act last referred to. This act does not prescribe from what particular lands the bounties shall be granted. According to this act the "proportions as have been engaged to them" were as follows: A Private, 200 acres; a Non-commissioned Officer, 400 acres; a Subaltern, 2,000 acres; A Captain, 3,000 acres; a Major. 4,000 acres; a Lieutenant Colonel, 4,500 acres; a Colonel, 5,000 acres; a Brigadier General, 10,000 acres; and a Major General, 15,000 acres.
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An act of Virginia, in May, 1779. 10 vol. Henning's Statutes, p. 51, prescribed the manner in which officers and soldiers of Virginia, who served either upon the State or Continental establishment, should procure their land warrants. The modus operandi may be briefly described as follows: In case of a commissioned officer, he procured a certificate from his commanding officer that he had served the time prescribed by law, three years, stating his
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regiment and particular service. Armed with this certificate, the party ap- plied to the nearest court of record in Virginia and by his own affidavit, or otherwise, satisfied the court of the truth of said certificate. Thereupon the Clerk of the court applied to, made a note of the proof on the original certifi- cate and also in his order book, and annually sent a list of such certificates approved, to the Land office of the State, at Richmond.
With the endorsed certificate, the officer or soldier entitled to the bounty applied to the Register of the Land Office of Virginia, who issued him a war- rant, under his hand and seal of office, specifying the quantity of land and the rights upon which it was due, authorizing any surveyor qualified by law to lay off and survey the same, and requiring him to make a record thereof.
There was also a provision in the same act, by virtue of which, a party holding original warrants could lay them in one or more surveys, and where the survey or surveys were insufficient to fill the quantity named in the war- rant, the party was authorized to exchange the original warrant, or warrants, for others calling for the quantity of land not already entered and divided into quantities, in separate warrants, to suit the party holding the originals. In this way the name "exchange warrant" originated.
The same act also provided that all persons, including foreigners, should have the right to transfer warrants, or certificates of survey of lands.
This statute provided also in regard to surplus in surveys, to the effect that no outside party should be permitted to claim the surplus except during the lifetime of the patentee or grantee, and not then in case any sale or convey- ance of the land had been made from the patentee or original grantee. The party seeking to enter or take up the surplus must give one year to the party in possession to perfect his title to the surplus by covering it with a proper survey, on the same, or another warrant, and in the case the patentee could not defeat the claim for surplus by a resurvey or otherwise, he, and none other, could assign it in the tract held by him where he saw fit. The act also pro- vided that a surplus of five per cent should not be regarded.
On the 20th of October, 1783, Virginia ceded all lands owned or claimed by her northwest of the Ohio river, to the United States. This act recited that Congress did on the sixth day of September, 1780, recommend to the several states in the Union, having claims to waste and unappropriated lands in the western country, to eede them to the common benefit of the Union, and that the Commonwealth of Virginia did, on the 2nd day of January, 1781, yield to the Congress of the United States, for the benefit of the said states, all right, title and claim to this territory northwest of the river Ohio. That Congress did by its act of the 13th day of September, 1783, accept the cession; and it was enacted that Thomas Jefferson, Samuel Hardy, Arthur Lee, and James Monroe, dele- gates to represent the said commonwealth in Congress, should make a con- veyance of the same to the United States, which they afterwards did. The act and deed of cession was for the purpose of having states formed out of the territory of not less than one hundred and fifty square miles, or as near there- to as circumstances would admit: and that the states so formed should be dis- tinet republican states, and admitted members of the federal union; having the same rights of sovereignty, freedom and independence, as the other states.
The act further provided that the French inhabitants of the French posts should have their titles confirmed to them, and gave one hundred and fifty thousand acres of land to General George Rogers Clarke, and to the offi- cers and soldiers of his regiment, which was to be laid off in one tract.
There was a condition in the act, that in case the quantity of good lands on the southeast side of the Ohio, upon the waters of the Cumberland river, and between the Green river and Tennessee river, which had been reserved by law to the Virginia troops, upon continental establishment, should, from the North Carolina line bearing in further upon the Cumberland lands than was expected, prove insufficient for their legal bounties, the deficiency should be made up to the said troops in good lands, to be laid off between the river Scioto and Little Miami, on the northwest side of the river Ohio, in such pro- portions as have been engaged to them by the laws of Virginia.
That all the lands within the territory so ceded to the United States, and not reserved for, or appropriated to, any of the before mentioned purposes,
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or disposed of in bounties to the officers and soldiers of the American army, should be considered as a common fund for the benefit and use of such of the United States as have become, or should become members of the confederation or federal alliance of the said states. Virginia inclusive, according to their usual respective proportions in the general charge and expenditure, and should be faithfully and bona fide disposed of for that purpose, and for no other use or purpose whatsoever. The cession from Virginia was accepted by Congress, March 1, 1784, 1st vol., L. U. S., p. 472.
On the 17th of July, 1788, 1 vol., L. U. S., p. 572, Congress Resolved, That the State of Virginia be requested to inform Congress, whether there has been any deficiency of good lands reserved by the laws of that State on the southeast side of the Ohio, for the Virginia troops on continental establishment, and if so, how much. Afterwards the Legislature of Virginia by a resolution notified Congress that all of it would be required.
By the Act of August 10, 1790, 2 vol., L. U. S., p. 179, Congress opened the district to locations, and authorized the agents of the warrantees to make locations. These were to be entered on a book kept for that purpose. This book was called a Book of Entries. This act also authorized the President of the United States to issue patents; but these patents were to be delivered to the Executive of the State of Virginia, and by him delivered to the grantee.
The Act of May 13, 1800, 3 vol., L. U. S., p. 393, provided that patents might be issued on resolution warrants. There was no limitation under the Law of August 10, 1790, as to when entries should be made and surveys made and returned to the General Land Office; but a number of entries and surveys were made prior to August 10, 1790, and these were made in the counties bor- dering the Ohio river.
The Act of March 23, 1804, 3 vol., L. U. S., p. 592, provided that "the line run under the direction of the Surveyor General of the United States, from the source of the Little Miami towards the source of the Scioto, and which binds, on the east, the surveys of the lands of the United States, shall, together with its course continued to the Scioto river, be considered and held as the westerly boundary line, north of the source of the Little Miami, of the territory reserved by the State of Virginia, between the Little Miami and Scioto Rivers, for the use of the officers and soldiers of the continental line of that State." There was a provision of the act that the State of Virginia should, within two years after the passage of this act, recognize such line as the boundary of the said territory. This act required, in the second Section, that all officers and soldiers should complete their locations within three years after the passage of the act, return their surveys within five years from the passage of the act. And it provided that such portions of the Virginia Military tract as was not located within the time mentioned, should be released from the claims of the soldiers.
A famous act was passed March 2, 1807, 4 vol., L. U. S., p. 92, which provided that the officers and soldiers of the Virginia line, on continentaal es- tablishment, their heirs or assigns, entitled to bounty lands within the tract reserved by Virginia, between the Little Miami and Scioto rivers, for satisfying the legal bounties to her officers and soldiers upon continental establishment, should be allowed a further time of three years, from the 23rd of March next, to complete their locations, and a further time of five years, from the said 23rd of March next, to return their surveys and warrants, or certified copies of warrants, to the office of the Secretary of War. This act had a famous pro- viso, called "The Proviso of March 2nd, 1807" which read "that no locations, as aforesaid, within the above mentioned tract, shall after the passing of this act, be made on tracts of land, for which patents had previously been issued. or which had been previously surveyed; and any patent which may, neverthe- less, be obtained for land located contrary to the provision of this section, shall be considered as null and void." This famous proviso was construed in the case of Jackson vs. Clark, 1st Peters, 666, in which the decision was rendered by the distinguished Chief Justice Marshall.
The time for making locations and returning surveys was extended by Congress from time to time, as follows:
March 16, 1810, 5 and 7 years, 4 U. S. Laws, p. 281.
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November 3, 1814, 3 and 5 years, 4 U. S. Laws, p. 714.
February 22, 1815, 2 years, 4 U. S. Laws, p. 805. April 11, 1818, 3 years, 1 sess., 15 Cong., p. 37.
February 9, 1821, 2 years, 2 sess., 16 Cong., p. 10. March 1, 1823, 2 and 4 years, 2 sess .. 17 Cong., p. 73. May 20, 1826, 3 and 5 years, vol. 4 G. S., 189. April 23, 1830, 2 years, vol. 4, G. S., 396. March 31, 1832, 7 years, vol. 4, G. S., 500. July 7, 1838, 2 years, vol. 5, G. S., 262. August 19, 1841, 3 years, vol. 5, G. S., 449.
July 29, 1846, 2 years, vol. 9, G. S., p. 41.
July 5, 1848, 2 years, vol. 9, G. S., 245.
February 20, 1850, 2 years, vol. 9, G. S., 421.
May 27, 1880, 3 years, 2 sess., 46 Cong., p. 143.
Each of these Statutes, except the last, which is only one of construction, substantially re-enacted the proviso of 1807 before referred to.
The Act of March 16, 1810, 4 vol., L. U. S., p. 281, before referred to, re- enacted the proviso of March 2, 1807.
An Act of June 26, 1812, 4 vol., L. U. S .. p. 455, provided for three com- missioners on the part of the United States, to act with such commissioners as may be appointed by the State of Virginia to establish the westerly boundary line, or rather the line between the head waters of the Little Scioto and Little Miami Rivers.
The commissioners were to be at Xenia on the 5th of October next, and proceed to ascertain, survey, and distinctly mark, the boundary line. There had been a conflict as to the line up to that time, and the commissioners were to employ a surveyor. The act also provided that until the westwardly boun- dary line of the said reservation should be finally established, by the agree- ment and consent of the United States and the State of Virginia, the boundary line designated by an act of Congress passed on the twenty-third of March, 1804, should be considered and held as the proper boundary line.
The commissioners on behalf of the United States, ran a line from the source of the Little Miami to the source of the Scioto, and called it Robert's line. The commissioners appointed by Virginia refused to accede to this line, claiming a still larger tract of land, by running from the source of the Scioto a straight line to the mouth of the Little Miami. The line referred to, in an act of March 23, 1804. p. 133, is designated upon our maps as Ludlow's line. This line was run under the authority of the Surveyor General, by virtue of the act of May 10, 1800. The lands west were surveyed into sections and parts of sections. The territory between these lines, embracing a large tract of fer- tile land, was claimed both by purchase and location, and it became a matter of great importance to the parties, to have established by a judicial decision, the western boundary line of the reservation of Virginia. For this purpose a case was agreed and taken to the Supreme Court of the United States, on er- ror. The cause was decided in 1824, and Robert's line was virtually established. See Doddridge, vs. Thompson, et al. 9 Wheaton 469.
The act of November 3, 1814, before referred to, contained the proviso of March 2, 1807. The same may be said of the Act of February 22, 1815 and the Act of April 11, 1818. The Act of February 9, 1821, and the Act of March 1, 1823, re-enacted the proviso of March 2, 1807.
An Act was passed May 26, 1824, 1 sess., 18 Cong., p. 121, authorizing the President to ascertain the number of acres, and, by appraisement or otherwise, the value thereof, exclusive of improvements, of all such lands, lying between Ludlow's and Robert's fines, in the State of Ohio, agreeable to the principles of a decision of the Supreme Court of the United States, and to ascertain on what terms the holders will relinquish the same to the United States, and that he report the facts at the commencement of the next session of Congress. The Act of May 20, 1826, above referred to, re-enacted the Proviso of March 2, 1807, but provided in addition that any locations on lands west of Ludlow's line should be void. The last Act extending the time for locations in the Virginia Military District was passed February 20, 1850, Vol. 9 U. S. Statutes, p. 421. This
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VIRGINIA MILITARY DISTRICT.
act closed the District to all locations, on the 31st day of December, 1851, and since that time the District has never been open to location.
The Act of August 31, 1852, U. S. Statutes, Vol. 10, p. 143, provided for the relief of an "unsatisfied outstanding warrant," not then located in the United States, in scrip; and this Act was to be deemed in full satisfaction of Virginia Military I.and Warrants, and the State of Virginia was required by proper act of the Legislature to relinquish all claims to the lands of the Virginia Mili- tary District in the State of Ohio. This was done.
An Act passed December 19. 1854, Vol. 10 U. S. Statutes. p. 98, provided that soldiers who had made entries prior to the 1st of January, 1852, should have two years more to return their surveys and warrants to the General Land Office.
An Act passed March 3, 1855, U. S. Statutes, Vol. 10, p. 701, allowed officers and soldiers of Virginia on the Continental establishment who had made entries in the Virginia Military District, prior to the 1st of January. 1852. two years longer to make and return their surveys and warrants. This Act repealed the Act last referred to.
In 1871, it was supposed by Congress that there was a great quantity of unsurveyed land in the Virginia Military District, and it was commonly called "vacant land." It was supposed to be worthless, or nearly so, and the United States not desiring to be burdened further with it, and it being no longer locatable under the laws of Congress, the Hon. John T. Wilson, then a Representative of the 11th Congressional District, introduced an act into Congress to cede to the State of Ohio, unsold lands in the Virginia Military District. This Act was approved February 18, 1871, and provided "that lands remaining unsurveyed and unsold in the Virginia Military District in the State of Ohio, be, and the same are hereby ceded to the State of Ohio and saved to any bona fide settler, not exceeding one hundred and sixty acres, by him occu- pied, by his pre-empting the same in such manner as the State of Ohio might direct. This was conducted through the House by the Hon. John T. Wil- son, through the Senate by Senator Thurman. It was supposed to be an inno- cent act; but it afterwards caused a great deal of trouble. At the time of the passage of this act, it was supposed that if any surveys had been made on these lands. the parties could obtain title and that the surveys would be recognized. That was not only the opinion of laymen in the Virginia Military District, but of lawyers as well. The word "unsold" used in the Act was an improper term, and it should have read "unlocated," as not a foot of land in the District was ever sold, but given away in military bounties.
The State of Ohio ceded this land by an act of the Legislature passed March 26, 1872, to the Trustees of the Ohio State University, and amended the grant on the 3rd of April, 1873, Vol. 70, Ohio Laws. The Board of Trustees of the Ohio State University accepted the grant and began to claim the sur- plus in the unpatented surveys. It developed that the later surveys in the wild and rough lands invariably contained a large surplus over the amount authorized by the warrant. Sometimes there was four times as much land in the survey as the warrant called for; but this fact could only be determined. by a re-survey of the land. The Board of Trustees of the Ohio State University began to survey unpatented surveys and ascertain the fact of surplus. They thereupon began to file caveats against the patents and against the holders of the surveys; and there arose a conflict between the holders of the unpatented surveys and the Ohio State University. The original locaters, who were mostly deputy surveyors, had salved their consciences in the act of March 1, 1784. which required the deficiency in Kentucky and Tennessee to be laid off in good lands. They claimed that the locators in the valleys had got the good lands, and when they located in the hills, they having to take inferior lands, would take a great surplus to make the difference in value; but in returning their surveys the distances between the monuments and the calls were always such that when the contents of the surveys were computed, it would not show a sur- plus of over five per cent. For instance, a call would often be ten rods, when the real distance between the monuments was twenty rods.
The United States Congress was compelled to construe the act of Febru- ary 18, 1871, and thereupon it passed the act of May 27, 1880, Vol. 21 U. S.
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Laws, p. 142, in which it was recited that the act of February 18, 1871 had no reference to lands which were included in any survey or entry within said dis- trict, founded upon military warrants upon continental establishment, and that the true intention and meaning of said act was to cede to the State of Ohio lands not included in any surveys, surveyed or entered or founded upon a military warrant or warrants upon continental establishment. Section 2, provided that all surveys returned to the Land Office on or before March 3, 1857, on entries made before Jan. 1, 1852 on unsatisfied Virginia military conti- uental warrants should be valid. Section 3, gave the officers and soldiers of the Virginia Military District, who had before Jan. 1, 1852, entered a tract within the Virginia Military District, three years from the passage of that act to re- turn their surveys for record to the office of the principal surveyor of the dis- Itrict, and to make and file their surveys at the General Land Office. Section 4 of this act, provided that the act should not effect any land theretofore sold for a valuable consideration by the Board of Trustees of the State University on the authority of the act of February 18, 1871. This act by construction of the courts was considered ineffective.
But Congress was not satisfied, and on August 7, 1882, 22nd Vol. p. 348, passed a law to the effect that any person who had actual open possession in the Virginia Military District of the State of Ohio, under claim of title made in good faith based upon time and entry, of any tract of land within said dis- trict, and a record of which was made in the office of the principal surveyor of the Virginia Military District, prior to January 1, 1852, such possession hav- ing been continued for twenty years should be deemed to hold an absolute title. Section 2 of said act undertook to repeal so much of the act of February 18, 1871, granting unsold and unsurveyed lands to the State of Ohio, as con- flicted with the act of May 27, 1880; but inasmuch as Congress had already granted all its title under the act of February 18, 1871, this act was ineffective and accomplished nothing.
The laymen and the lawyers of the district were entirely taken by sur- prise by the decision of the Circuit Court of the United States for the northern district of Ohio, in the case of Fussel vs. Gregg. That decision was rendered by Judge Mathews, and while it turned out that it was upon the very best au- thority, the lawyers generally supposed, at that time, that it was to get rid of Jeremiah Hall, of Circleville, who had been in the habit of finding heirs in Virginia, obtaining assignments of their surveys and rights and securing patents, and as the legal title only began from the date of the patent, be would bring a suit in ejectment, never failing to recover in a case where he had ob- tained a patent in this manner. He astonished the owners of good lands who had been in possesssion for one hundred years and supposed they had perfect Aitles. It therefore became necessary to get rid of Jerry Hall and his opera- tions. in the interest of the public. In this case of Fussel vs. Gregg, in the Circuit Court of the United States, the decision was pronounced by Justice Stan- ley Mathews, who held, that where the surveys had not been returned to the General Land Office, prior to December 31, 1851, they were utterly void, that the locator, or his assigns had forfeited all rights and had no claim as against the Government. That of course left the holders of the warrants to fall back on the scrip law of August 31, 1852, because their warrants were good but their sur- veys were bad. The decision of the Circuit Court put a quietus on Jerry Hall and his operations; but at the same time it also decided that all lands where the surveys had not been returned to the General Land Office prior to December 31, 1851, belonged to the United States, and passed from the United States to the State of Ohio under the act of February 18, 1871. The case was taken to the Supreme Court of the United States, and was decided there on the 15th day of February, 1885. The case is reported as Fussel vs. Gregg, 113 U. S., 550. The decision came upon the people of the Virginia Military District in Ohio like a thunderbolt out of a clear sky.
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