USA > Pennsylvania > A history of the region of Pennsylvania north of the Ohio and west of the Allegheny river, of the Indian purchases, and of the running of the southern, northern, and western state boudaries. Also, an account of the division of the territory for public purposes, and of the lands, laws, titles, settlements, controversies, and litigation within this region > Part 3
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tracts, marking the corners of each lot, and a tree or two as before stated; then turning east or west, as the survey required, to run across to the opposite corner ; then going on in the first direction, north or south, to repeat the same thing, and at the breadth of four tracts to return east or west to the first line, repeating this method until the other line of the district was reached. The return to the first district or base line followed the same method. As a consequence of this mode, owing to the uneven and woody surface of the country, and to mistakes of the chain-carriers, the chaining was often inaccurate, and three out of the four cross lines (east or west) were not carried and marked through : chain-carriers sometimes dropped "pins" by which the count was kept, or failed to " knot" the "outs," as they were called, when the whole number of pins were "stuck." The effect of these errors was that the eastern and western corners of tracts were not opposite to each other, and the lots assumed irregular figures, instead of being rectangular parallelograms. Having tried many boundary disputes in the Donation surveys, I have known tracts to fall short or to overrun as many as fifty acres. The corners being marked and the east and west lines not, the law required, as it was held by the courts, a straight line to be
ยท
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run from corner to corner. (See Hunt v. McFar- land.)1
Perhaps the most important feature in the direc- tion to survey is that which required the north- west corner to be marked with the number of the lot. As a consequence this "numbered corner" became the "earmark" of the tract, and controlled all other matters of description; even the very place the number occupied on the "General Draft," and the adjoiners stated in the patent. In other words, it wrenched the lot from its place on the draft, and fixed it on the place where the number was found marked on the ground. The reasons given for this control of the "numbered corner" are forcibly stated by Chief Justice Gibson in Smith v. Moore,2 and are worthy of a careful perusal. The principle of the decision is, that the numbered corner is the legal, original, and true index of the ground it occupies, and being marked on the ground by the order of the law itself, it is the con- clusive evidence of the identity of the survey, and of the lot attached to it. It must therefore super- sede all other evidence. The effect of this primary evidence of identity was, in the case of Dunn v. Ralyea3, to dislocate the lot from the place it fitted on the "General Draft," and to locate it
1 2 Wright, 69. 3 6 W. & S. 475.
2 5 Rawle, 348.
.
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several miles distant, on the ground where the number as marked placed it.
The corner was numbered by cutting on the tree a broad, flat surface, upon which the numbers were sunk with a tool, such as was used by millers in marking the numbers on barrels. These numbers have often been seen fifty and sixty years after- wards, by removing the growths of the tree over the numbers. The marks made in 1785 and 1786 were grown over annually with new wood, made by the downward current of the sap in the summer. The outward mark, when not discovered by an ordinary observer after so many years, would be detected by skilful surveyors by a discoloration of the bark. Sometimes it requires the observer to stand off a number of yards to perceive this discol- oration. Often in these very old marks it requires the tree to be "blocked" to prove the existence of the mark. The removal of the supervening growths displays the original cut. This testimony of nature often disposes of questions of survey when no other evidence remains.
When a sufficient number of lots had been sur- veyed, the law required a connected draft of them to be made, noting the number on each lot, and the draft to be deposited afterwards in the office of the Master of the Rolls, as a public record, to serve when the number is drawn, and the name of the
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soldier noted on the lot, in lieu of recording the patents.
In consequence of lapse of time, dying of timber, burning of the woods, and obliteration of the orig- inal marks, the location of some of the surveys became uncertain. To remove this doubt the Leg- islature passed the Act of 24th March, 1818,' mak- ing the "General Drafts"-that is, the maps of the several districts-the evidence of the location of the lots, and making office copies evidence in courts of competent jurisdiction.
The 13th section of the Act of 24th March, 1785,2 provided for the distribution of the lots by lottery, the tickets to be drawn from a wheel, well turned round, and kept in safe custody under the direction of a committee of three members of the Supreme Executive Council; the committee judging of the right of each applicant to draw from the wheel.
A major-general was entitled to draw four 500 acre lots ; a brigadier-general, three 500 acre lots ; a colonel, two 500 acre lots; a lieutenant-colonel, one 500 acre lot and one 250 acre lot ; a surgeon, chaplain, or major, two 300 acre lots; a captain, one 500 acre lot; a lieutenant, two 200 acre lots ; an ensign or regimental surgeon, one 300 acre lot ; a sergeant, sergeant-major, or quartermaster-ser-
1 7 Smith's L. 122. 2 2 Ib. 292.
.
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geant, one 250 acre lot ; and a drum-major, fife- major, drummer, fifer, corporal, or private, one 200 acre lot.
The 4th section provided for the issuing of patents for the numbers drawn and the form of the patent. The fees of the surveyors were three pounds for every 500 acre lot ; two pounds for 300 acres, and one pound ten shillings for 250 and 200 acre lots; which should include all expenses of chain-bearers, markers, and other charges; to be paid by each applicant, in proportion to his lands, before drawing. The time for making application was extended to the expiration of one year after the Surveyor-General should have returned to Council the draft, of which public notice was to be given.
After the time for drawing had expired, the re- maining unsold lots, and the residue of the lands appropriated, not applied to be laid off, were to be advertised and sold within a reasonable time for the benefit of the State; and all certificates of de- preciation received in payment, then receivable in the Land Office for lands sold by the Common- wealth agreeably to law.
As the western and northern boundaries of the State were not then run and marked, the Council was required to direct the lands remote from these boundaries to be first surveyed.
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On the 3d day of May, 1785,1 the Comptroller- General reported to the Council a list of persons entitled to Donation Lands (with the quantity of each), agreeably to the grants ordered to be made to the officers and soldiers of the Pennsylvania Line; and on the same day? the Council instructed the Surveyor-General to direct his deputies to sur- vey the lands, first surveying those most remote from the northern and western boundaries of the State.
On the 5th May, 1785,3 the Surveyor-General nominated and reported for approval the deputy surveyors of the Donation Lands under the Act of 24th March, 1785.4 They were : Major William Alexander, Benjamin Lodge, Captain James Chris- tie, Ephraim Douglass, Griffith Evans, James Dickinson, John Henderson, William Power, Jr., Peter Light, Andrew Henderson, James Dickinson, James Hoge, David Watt of Shearman's Valley, Alexander McDowell. The report was approved.
The Donation Lands were laid out into ten dis- tricts, running east and west. No. One began at the line of the Depreciation Lands; the others fol- lowed numerically to the northern boundary of the State. The deputy surveyors were, viz :-
William Alexander, for District No. One.
1 14 Col. Rec. 451-2. 2 Ib. 452.
' Ib. 454.
4 2 Smith's L. 290.
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John Henderson, for District No. Two. Griffith Evans, for District No. Three. Andrew Henderson, for District No. Four. Benjamin Lodge, for District No. Five. James Christy, for District No. Six. William Power, for District No. Seven. Alexander McDowell, for District No. Eight. James Dickinson, for District No. Nine. David Watts, for District No. Ten.
Griffith Evans was afterwards appointed Sur- veyor of District No. Nine, in room of James Dickinson, who suspended work on account of his fear of the Indians. (See his letter.)1
The commission to Griffith Evans, as surveyor of District No. Nine, contained the following clause : " Also of so much of the lands remaining yet unsurveyed on the waters of Beaver River as shall be sufficient to satisfy the quota of donation lots assigned to the aforesaid district." Date, May 8th, 1786. Under this clause he surveyed in Dis- tricts Nos. One and Two.
On the same day, May 5, 1785,2 commissioners were appointed to run and mark the western boun- dary of the State from the Ohio River to the north- west corner of the State. (This matter will be referred to hereafter.) Owing to the uncertainty
1 10 Penna. Arch. 740. ? 14 Col. Rec. 454. -4
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of the true line of the western boundary, much good land west of the Beaver River was left unsur- veyed. After its location by the State Commis- sioners, Griffith Evans surveyed many tracts on this land in Districts Nos. One and Two, under the clause in his commission just recited. An agent duly qualified was required, to be appointed by the Council, to explore the country, noting the quality of the soil, the hills, mountains, and waters, creeks, marshes, upland, bottom-land, and such other mat- ters as deserved notice, with the situation and dis- tance, and particularly the land unfit for cultivation. The agent was required to make oath to perform his duties impartially, and was to receive one pound ten shillings for every day employed, not exceed- ing four months. His report was to be published. Sections 20, 21, 22, 23, Act 24th March, 1785.1 The 24th section, Act of 24th March, 1785, had required the surveys to be made and returned on or before the 1st February, 1786; and required the agent to report failures of duty on part of any of the deputy surveyors. Whether any suspension of the sur- veys took place is not clear. But the Council must have been desirous of haste, as on the 20th of the preceding July2 they wrote to David Rittenhouse and Andrew Porter, the Commissioners, urging the
1 2 Smith's L. 294.
? 14 Col. Rec. 507.
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completion of the survey of the western boundary. This was necessary to carry forward the Donation surveys. It appears, however, by a letter of James Dickinson, surveyor of district No. Nine, dated at Pittsburgh, January 24, 1786,1 that fear of the In- dians prevailed, and a conference with the Indian chiefs Long Face and Long Hair led him, under the advice of John Wilkins and Jacob Springer, traders, to leave the survey for a time. Indeed, it was not until the 9th of January, 1789, that the title of the Indians to the lands bordering on Lake Erie and the Triangle was fully extinguished by an agreement of that date, made by Gen. Richard Butler and John Gibson, Commissioners of Penn- sylvania, at Fort Harmar, with the chiefs, warriors, and others representing the Ondwagos or Senecas, Cayugas, Tuscaroras, Onondagos, and Oneidas, of the Six Nations.2
The surveys, however, were generally completed in 1786, though a few were made later.
The 7th section of the Act of 12th March, 1783,3 had directed that all officers and privates entitled to land should make their applications, within two years after peace should be declared, and should any die, their heirs, executors, etc. should make application within one year thereafter. In the
1 10 Penna. Arch. 740. .2 11 Ib. 529. $ 2 Smith's L. 64.
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event of neglect within the time limited it was then lawful for any person to apply to the Land Office to take up unlocated lands on such terms as the Legislature should thereafter direct. This period was extended by various laws from time to time.
Many of those entitled to lands having failed to appear or to apply, the Legislature, on the 6th of April, 1792,1 passed an Act authorizing the land officers, on the 2d of July, 1792, to draw lots for every person entitled to Donation Land, who had not received the same, according to the list fur- nished by the Comptroller-General, in the same manner as if the persons entitled were present. Patents were to be issued within two years from the date of the Act. Any land not applied for within two years was ordered to be disposed of, agreeably to the regulations of the Act for the sale of the vacant lands within the Commonwealth.
The general Act for the sale of the vacant lands had been passed only three days before, on the 3d April, 1792.2
The limitation of two years was virtually re- pealed in the second section of the Act of 5th April, 1793,3 and the land officers were required to draw lots for every person entitled who had not received his donation, and should apply therefor,
1 2 Smith's L. 296, in note. 3 Ib. 70. 3 Ib. 110.
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agreeably to the list submitted by the Comptroller- General to the Supreme Executive Council, and to issue patents agreeably to the 2d section of the Act of 6th April, 1792. The time for drawing under the second section was indefinite, none being fixed by the law.
On the 17th April, 1795,1 another general Act was passed, directing the Comptroller-General to make lists of the names of those entitled to Donation Lands, whose names had not been included in his last report, together with their rank and quantity of land. Tickets were to be prepared for all persons entitled to Donation Lands, but not any more, and placed in the wheel, kept safely in custody, from which the land officers were to draw for those entitled, who had not before drawn lots. Report of the drawings was to be made to the Governor, who should cause patents to issue at the expense of the State. The legal representatives of deceased persons were entitled to all the advantages of the Act. All persons entitled were required to make application within one year; those beyond sea, or out of the United States, within two years; and officers and soldiers in the service of the United States within three years after the passage of the Act.
By the 6th section, after the expiration of these
1 3 Smith's L. 233.
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periods, so much of the Donation Lands for which no application had been made might be disposed of in such manner as the Legislature should further direct. The time was further extended by Act of 20th March, 1797,1 and again extended by Act of 11th April, 1799,2 until September 1, 1799. Before any claim should be allowed it should be presented to the Comptroller-General, Register-General, and State Treasurer, who should inquire into its lawful- ness, and, if allowed or rejected, the result certified to the Secretary of the Land Office. Notice was to be given of the time limited, and lots drawn after the 1st September in favor of all claimants receiving a certificate of allowance. On the 1st of May, 1800, the powers given were to cease, and no lots drawn afterwards. The residue of the Dona- tion Lands was then to revert to the State, and be disposed of in such manner as should be directed by law in relation to other lands the property of the State.
The time, however, was further extended by Act of 23d February, 1801,3 the second section of which required the Comptroller-General to furnish the Secretary of the Land Office with a list of names of all persons who had drawn lots, but not obtained patents for the same, with the numbers of the lots
1 2 Smith's L. 297. 2 3 Ib. 383. 3 Ib. 467.
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drawn, and the district in which they lay. It made it the duty of the Secretary, on application, to cause patents to be issued accordingly ; the patents to be on parchment, and at the expense of the State; and any frauds or disputes to be decided by the Board of Property, as in other cases.
The first and third sections of this Act related to Donation Lots which had been surveyed beyond the Pennsylvania northern boundary and in the State of New York, as shown by the running and marking of the boundary line in the meantime. (This branch of the subject will be noticed here- after.) Up to this time the subject of the Donation Lands had become complicated by the numerous Acts passed, and the limitations adopted, and ex- tended from time to time, and many persons had not received their gratuities.
The Legislature, therefore, resolved to reopen the subject, and passed the Act of April 2, 1802,1 entitled "An Act to complete the benevolent in- tention of the Legislature of this Commonwealth, by distributing the Donation Lands to all who are entitled thereto." The preamble recited that some of the soldiers of the Pennsylvania Line had not received Donation Lands; that some of the lots supposed to lie in New York were still in Pennsyl-
1 3 Smith's L. 505.
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vania, and that other lots had not been numbered and returned, or were otherwise appropriated. The Act therefore required the land officers to ascertain these, cause them to be ticketed, and to be drawn in a prescribed manner, upon the application of those entitled, in the order of their applications : "Provided always that no lot to be drawn or patent to be issued in pursuance of this Act shall interfere with or defeat any prior title, which may have been acquired under the authority of any former law of this Commonwealth."
This proviso had an important bearing upon titles to undrawn Donation Lots acquired under the Act of 3d April, 1792, and 22d April, 1794; and especially upon titles acquired by settlement upon tracts lying within the eastern part of the Second District, known as the "Struck District" (which will be referred to).
The second section of the Act of 1802 required the Surveyor-General to ascertain the lots referred to with accuracy by actual survey, have returns made, and divide large into smaller lots, so as to supply the number required to carry the design of the Act into complete effect. Under this Act the Board of Property was to exercise the same powers relating to Donation Lands as in cases of other lands, and to decide cases of difficulty and dispute. Provision was made for the widows and heirs of de-
4
.
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ceased soldiers. Applications for lands and patents were limited to one year after the passage of the Act. The Act of 1802 was continued until the 1st April, 1805, by the Acts of 1st April, 1803, and 29th March, 1804.
By the Act of 25th March, 1805,1 persons hold- ing donation lands within the "Struck District" and the Erie Triangle were authorized, upon re- leasing their patents, to have other unappropriated lots of equal quantity to be patented to them free of expense. The second section provided that this law and the Act of 2d April, 1802 (excepting the limitation clause in that Act), should continue in force until April 1, 1806. The first section of the Act of 1805 was continued in force until the 1st of April, 1810. This Act ended the general legisla- tion conferring donations, and since April 1, 1810, the Land Office has been closed against further applications. .
Lastly came the Act of 26th March, 1813, which opened all Donation Lands which should remain undrawn on the 1st of October, 1813, to improve- ment and actual settlement, and confirmed titles by actual settlement theretofore made. The terms of this Act differed from those of 3d April, 1792. The settler must have resided thereon with his family for three successive years immediately pre-
1 4 Smith's L. 223.
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ceding the passage of the Act, and cleared, and fenced, and cultivated at least ten acres thereof. Any person who should, after the 1st October then next, make an improvement and actual settlement on any undrawn tract, by erecting thereon a dwel- ling-house fit for the habitation of man, and reside thereon with a family for three years from the date of his settlement, and clear, fence, and cultivate at least ten acres thereof, and make proof of the completion of his settlement and residence, by two witnesses, before a judge or justice of the same county, and pay to the State one dollar and fifty cents per acre, with interest from three years after his settlement, should be entitled to a patent. But the patent should not issue until the applicant pro- duced a certificate of the deputy surveyor of the proper county, certifying to the number of the tract, the number of acres, and a survey by him according to the original boundaries. The first settlement made and continued was to give incep- tion of title.
Notwithstanding the closing of the office against applications of the soldiers after the 1st of April, 1810, this law. seems inferentially to have recog- nized a continuance of them until October 1, 1813. Probably this meant to embrace the applications of widows and heirs.
In order to facilitate actual settlements under the
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Act of 1813, the 3d section provided for a list of all undrawn lots in the several districts, and a pub- lication thereof at the seat of government, and at Pittsburgh, Mercer, Meadville, and Beaver.
In August, 1785, Genl. Wm. Irvine, the agent appointed by the State to explore and examine the Donation Lands, reported to the Supreme Execu- tive Council those parts of the lands he considered unfit as gratuities to the soldiers of the Pennsyl- vania Line. Among these, he found the land north of the line of the Depreciation Lands, and eastward from the path from Fort Pitt to Ve- nango, at the mouth of French Creek, beginning about forty miles above Fort Pitt, pretty good for about five or six miles ; thence to the Allegheny River, about twenty-five miles due east, no land was fit for cultivation.
In consequence of this report, the Council left out of the wheels the lots within the easternmost part of the Second District. This part has since been known as the "Struck District," and was generally understood at the time to be subject to actual settlement under the Act of 3d April, 1792. It was therefore entered upon and settled by persons who had made large and valuable improve- ments. Indeed, it was afterwards held by the Supreme Court that these titles were valid,1 in
1 6 S. & R. 155.
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the case of Varnum v. Kennedy. The decision was admitted by Judge Duncan, who delivered the opinion, to be a doubtful matter. Still, it was wise and just, and prevented, probably, contests between the settlers and the soldiers. The Act of 25th March, 1805,1 however, ended all difficulty, by ordering all tickets for lots in the "Struck District" to be withdrawn from the wheels; and by authorizing soldiers to return their patents for lots in this District and take lots elsewhere. The confusion leading to the Act of 1805 arose out of the interpretation given by the Land Officers to the Act of 2d April, 1802, which directed all the undrawn lots, not otherwise appropriated, and drawn lots not applied for, to be put into the wheels. It was supposed this included the lots in the "Struck District," and therefore the tickets, which had been withdrawn by order of the Coun- cil, were returned to the wheels. The Act of 1805 required these to be again withdrawn, and the lots opened to settlement. The settlements were ratified generally by the Act of 1813.
At the time when the Tenth Donation District was surveyed into lots, the northern boundary between Pennsylvania and New York had not been definitely surveyed and marked, and the Tri- angle at Erie had not been purchased. In conse-
1 4 Smith, 223, 4.
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quence of this uncertainty, some of the lots in that District were surveyed within the State of New York, and within the Triangle. This led to Acts to correct the errors and confer title to other lands, upon those whose lots fell therein.
The Act of 30th September, 1791,1 reciting that after the running of the northern boundary, it appeared that some of the Donation Lots had been laid off in New York, directed the Surveyor- General to report to the Governor the patents granted for such lots, number of acres, and names of grantees, and requested the Governor to give public notice to all persons concerned to apply before December 1, 1791, on which day the Sur- veyor-General should ascertain the lots to be chosen (in a prescribed manner), in lieu of those lost, and of like quantity in the Donation Districts already surveyed, and not disposed of. New patents were to be issued, provided the applicant returned his former patent, and released the Com- monwealth from any loss sustained.
The Act of 10th April, 1792,2 extended the period of application until July 1, 1792. This was followed by the Act of 5th April, 1793,3 which repeated the directions of the Act of 30th September, 1791.
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