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 5
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The Cornplanter visited Philadelphia and had interviews with the Council in October, 1790. His speech to the Council on that occasion will be found in the Appendix; it is worthy of perusal, exhibiting mental acuteness and accuracy of statement. He also refers with feeling to the wrongs done to the Indians even when known friends of the whites. Cornplanter never swerved in his friendship to
1 11 Penna. Arch. 566; 16 Col. Rec. 501 to 506.
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the "Quaker State." The Executive Council he termed "Fathers of the Quaker State."
Among the great men of the Indian tribes none shone more resplendently in every virtue than Gy-ant-wa-chia, the Cornplanter, commonly called Captain John Abeal, or O'Bail. Pontiac, Brandt, and Red Jacket possessed high qualities, but theirs were individual and single. Cornplanter com- bined all of theirs and more. He was statesman, warrior, and orator; wise, brave, and eloquent. He loved peace, truth, honesty, sobriety, humanity, and justice, and in his latter years adopted Chris- tian principles, and some of the ways of civiliza- tion. His love of the whites led to suspicions among the Red Men of his fidelity ; but his long life-more than one hundred years-and his con- sistency of conduct dispelled all thought of this, and marked his wisdom in shielding his people from the inevitable fate which seemed to await them, by cultivating the good-will of Washington and of the Quakers of Pennsylvania.
A monument was erected to his memory in Warren County, Pennsylvania, under the legisla- tion of the State. It was very carefully superin- tended by the Honorable Samuel P. Johnston, of Warren, who took great interest in the work; and a very appropriate and able address upon the life, services, and character of Cornplanter was de-
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livered by the late Honorable James Ross Snow- den in 1867.
There was a private reservation, called "General Irvine's," referred to in the Act of 31st March, 1812, which I have not been able to trace.1 Pos- sibly it is the same referred to in 13 Colonial Records, 776. Yet this seems to be too early in date. More probably the reservation lay at the mouth of the Brokentraw, where General Irvine is known to have had valuable land.
1 5 Smith's L. 380.
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CHAPTER VIII.
THE ALLEGHENY AND BEAVER RESERVATIONS.
THE Allegheny reservation contained in the Act of 12th March, 1783,1 is in these words-viz : "Reserving to the use of the State three thousand acres, in an oblong of not less than one mile in depth from the Allegheny and Ohio rivers, and extending up and down the said rivers, from op- posite Fort Pitt, so far as may be necessary to include the same." I have italicized the leading words to characterize the intention of the Legis- lature.
This reservation was surveyed by Alexander McClean, in the month of April, 1785, in pursu- ance of an order to make the survey before the other lands were surveyed. The northern boun- dary began on the right bank of the Ohio River, nearly opposite to the mouth of Chartiers Creek, and ran east nine hundred and seventy-two perches to a hickory tree, north eighty perches to a sassafras, cast two hundred and twenty-nine and a half perches to a mulberry, north twenty-six
1 2 Smith's L. 63.
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perches to a post and stones on the bank of Girty's Run, thence down Girty's Run several courses- in all one hundred and three perches-to the Alle- gheny River. The two rivers constituted the remaining boundaries.
To the present generation the description of the Allegheny reservation given by David Redick, Esq., will be amusing. He was then a man of mark in Western Pennsylvania; at one time Vice- President of the Supreme Executive Council,1 then a delegate to the Constitutional Convention of 1789-90, and after the organization of Beaver County, in the year 1803, one of its Associate Judges until his death in 1830.
In his letter to President Franklin of 19th February, 1788,2 he wrote in derisive terms of this reservation. Among other things he said : "I am of opinion that if the inhabitants of the moon are capable of receiving the same advantages from the earth which we do from their world-I say, if it be so-this same famed tract of land would afford a variety of beautiful lunar spots not un- worthy the eye of the philosopher."
But time has shown the fallacy of his views.
The policy of the State in all these reservations was to reserve them to herself, so that by special legislation, comprehending regulations, minor re-
1 11 Penna. Arch. 410-11, and 15 Col. Rec. 584.
' 11 Penna. Arch. 224; also Appendix.
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servations, and wise provisions, they could be dis- posed of to suit the views of the Legislature.
Pursuing that design, the first Act passed was that of September 11, 1787.' It recited that "a sale of the said tract of land, if laid out and disposed of to the best advantage, will furnish a considerable sum of money towards discharging the debt due by the State. Therefore, to attain this end in the most serviceable manner to the State," it enacted, "That the President or Vice- President in Council are hereby empowered to cause to be laid out and surveyed a town, in lots, with a competent and suitable number of out-lots for the accommodation thereof, in the said tract; and to cause to be laid out and surveyed the residue of the tract in lots, which last-mentioned lots shall not be less than one acre nor more than ten acres each."
Upon the return of such surveys they were em- . powered to sell the whole of the said lots to the most advantage to the State, and to convey the same.
Then followed the important minor reservations required to preserve control, and to carry out the legislative design, viz :-
"That the President or Vice -President in 1 2 Smith's L. 414.
6
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Council shall reserve out of the lots of the said town, for the use of the State, so much land as they shall deem necessary for a court-house, gaol, and market-house, for places of public worship, and burying the dead; and without the said town one hundred acres for a common of pasture; and the streets, lanes, and alleys of the said town and out- lots shall be common highways forever."
I have italicized the leading features to indicate the intent of the Legislature ; and show the clear distinction between reservations and dedications. The places deemed necessary for public uses were detailed as reservations; while the streets, lanes, and alleys necessary as highways were dedicated at once to the public.
A noticeable feature, indicating the views of that time, was the inclusion of houses of public worship and burial places, as public uses. How- ever singular this may appear to men of this generation having looser notions, at that early day this reservation accorded decidedly with their stricter notions of religious practice, under a Constitution which then required the members of Assembly to be sworn to a belief in God and in the divine inspiration of the Scriptures,1 and which declared that all religious societies or bodies of men united or incorporated for the ad-
1 Conventions of Pennsylvania, p. 58.
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vancement of religion and learning, or other pious or charitable purpose, should be encouraged.1
In that day, and long anterior, churches were deemed objects of sacredness, and a great public blessing in their influence upon society, while burial was considered a paramount Christian duty. This spirit of the times is to be seen in the nu- merous laws for the protection of religion, religious societies, and their places of worship. Among these laws may be noticed the Act of 6th May, 1731,2 and the Act of 4th April, 1793,3 which evince the care and solicitude of the State for the preservation and protection of churches.
The records of some of these churches were the only depositories of births, marriages, and deaths. Those of Christ Church in Philadelphia were of so much importance that the Historical Society of Pennsylvania has deemed them worthy of publica- tion in long lists, continuing through numbers of its quarterly. The Act of 1700 made such regis- tries legal evidence .* Judicial decisions have also recognized the value and importance of religious societies and churches, and even held that the Christian religion is a part of the common law of the State.' The Legislature, also, in three Acts, recognized churches and burial grounds as among
1 Conventions of Penna. p. 64.
2 1 Smith's L. 192.
3 Ib. 323, 4. * Ib. 20. 5 11 S. & R. 394.
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public uses in the case of the Beaver reserva- tion (g. v.).
It is manifest, therefore, that places of public worship were deemed so vital to public morals and essential to the welfare of the people, they were a " public use" worthy of a place in the legislation relative to these reservations.
In the following year (1788), by the Act of 24th September,1 the county of Allegheny was erected out of parts of Westmoreland and Washington counties. The Sth section directed the Trustees of the county to choose lots in the reserved tract opposite Pittsburgh for a court-house and prison. But the region beyond the Allegheny River, being then uninhabited and subject to Indian incursions, the Act of 13th April, 1791, repealed this pro- vision, and authorized the Trustees to erect these buildings in Pittsburgh.2
In making the survey of the town under the Act of 1787, the plat was laid out a square, the sides coinciding nearly with the cardinal points of the compass, and a common of pasture laid around it, leaving the largest part lying to the north of it, and the smallest to the south. Hence the different parts have been called North, East, South, and West common. This common is now the public park of Allegheny City.
1 2 Smith's L. 448. 2 3 1b. 36.
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Four centre squares in the town plat were re- served for the public uses specified in the Act.
The next law of importance relative to this reserve tract was the Act of 3d March, 1818,1 directing the Western Penitentiary to be erected on the public land adjoining the town of Alle- gheny, and requiring the Councils of Pittsburgh to appoint a Commission of five persons to select a suitable site, to contain not less than ten acres "of the public land." The site was selected on the west common, and the Penitentiary built, and from time to time enlarged, until lately removed to the right bank of the Ohio.
The owners of lots entitled to common of pas- ture made no objection to the selection and erec- tion. The State held the title to the land on which the common was laid out, subject only to the use for pasture. On this ground the grant for the erection of the Penitentiary was sustained, as stated by Chief Justice Tilghman in the case of The Western University v. Robinson et al .? It was the understanding of the lot-owners (he said) that the advantage of the erection of the Peniten- tiary on the common ground was for their in- terest, without further compensation, and having acquiesced their rights were released.
The University stood, however, in a different
1 7 Smith's L. 62.
2 12 Sergt. & Rawle, 29.
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attitude, and there being no evidence of acquies- cence by the lot-owners, the grant to the Univer- sity of forty acres laid off upon this common would not be supported adversely to the right of pasture. The grant to the University was under the Act of February 18, 1819.1
This case settled an important principle appli- cable to both of these reservations under the Act of 12th March, 1783, that the title to the land in the minor reservations in the town lands remains in the State. This principle was applied with force in several cases.
Carr v. Wallace? recognized the right of the Commonwealth to dispose of the land itself, sub- ject only to the commonage of the lot-owners, which could be relinquished by consent. In that case Carr was estopped in equity by reason of his supineness, and permitting the Theological Sem- inary to expend money in building and improving, without notice of his dissent, under the Act of April 17, 1827.3 It was further held in this case that the right of common was appurtenant to the in-lots, and not to the out-lots, and that the right was divisible by alienation of a part of a lot.
This ownership of the State in the land reserved was recognized in other cases to be referred to presently.
1 P. L. 1818, 19, 64. 2 7 Watts, 394. 3 P. L. 1827, 498.
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The most important Act bearing on the subject is the charter of the city of Allegheny, passed April 13, 1840.1 The 13th section is in these words: "That the right of this Commonwealth to all lands within said city mentioned in the 4th section of the Act of Assembly of the 11th Sep- tember, 1787, excepting such parts thereof as have heretofore been appropriated by grant and author- ity of law, is hereby granted and vested in the said city of Allegheny, for such public uses as are re- cited in said Act, and such other public uses as the Select and Common Councils may from time to time direct and ordain."
This Act thus expressly declares the title to all the unsold lands (including therefore the minor re- servations) to be in the State, and vests it in the city, for the recognized public uses.
The designation of the public uses in the reserved squares was thus transferred by the State to the City Councils, and was enlarged to embrace other public uses equally necessary, but not specified in the original Act; for example, a town-hall and council chambers, public offices, engine-houses, etc.
The powers of the Councils were considered and defined in the case of the Commonwealth v. Rush .? In order to obtain funds to pay city debts the Councils had directed one of the reserved squares
1 P. L. 1840, p. 303. 2 2 Harris, 186.
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in the centre plat to be laid off into forty lots and sold. A lot was sold to a purchaser who was pro- ceeding to erect a house thereon. He was enjoined against on the ground that this was not a lawful exercise of the power of the Councils. It was held that the charter of the city vested the right only for such public uses as are recited in the Act of 1787, and such other public uses as they might di- rect, but lots sold for private use were not such. It was held also that the dedication was not gene- ral but special only, for such public uses as should be within the power conferred on Councils. The Judge said the Act of 1840 does not, and cannot alter the original Act,1 but places it in the power of the Councils to designate the particular parts of the square to be occupied for a market-house, pub- lic buildings, churches, etc. He thought, also, it would extend to a town-hall, or a public useful building. He held also that unlike a public square dedicated generally, it could not be considered as a common or public highway. This is the evident distinction between the declaration of a use (a pre- sent specification of the use) and a dedication to public use generally. The opinion of Judge Hep- burn was sustained and adopted in the Supreme Court.
Bell v. Ohio and Pennsylvania R. R. Co.2 fol- 1 2 Harris, 192, 3. 2 1 Casey, 161.
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lowed, decided by a divided Court, one Judge not sitting. Chief Justice Lewis held in his opinion that the right of common was appurtenant, not appendant, and was extinguished by the act of the plaintiff in purchasing part of the land which was subject to the easement.
The next case, Allegheny City v. Ohio and Penn- sylvania R. R. Co.,1 was decided also by a divided Court, one judge not sitting. C. J. Lewis held that the railroad, as a highway, was a public use, and, as such, fell within the power of the Councils; who could lawfully grant fifty feet of the common for this use. The decree, however, was made by four of the judges restraining acts of the company outside of the fifty feet, and acts within it not strictly for use as a highway.
The effect of the legislation recited and the ju- dicial decisions thereupon is clear ; that under the Acts of 1787 and 1810 there is no general dedica- tion of the public squares, but a reservation only for certain public uses specified in the Act of 1787, and such other public uses as the Councils should specify under the Act of 1840; and that the squares reserved are not reserved in such a sense as to make them public highways within the decisions in Com- monwealth v. Bowman, 2 Barr; Rung v. Shoenber- ger, 2 Watts, and a like class of cases, holding
1 2 Casey, 356.
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public squares to be dedicated to a general public use-that the common was dedicated to a private use (for pasture) leaving the title and the ground under the control of the State subject only to the use, which may be extinguished by consent or estoppel in equity.
THE BEAVER RESERVATION.
This reservation is contained in the same Act of 12th March, 1783, and is in these words: "And the further quantity of three thousand acres on the Ohio and on both sides of the mouth of Beaver Creek, including Fort McIntosh,"
This reservation was surveyed probably in the month of April or May, 1785, but the original re- turn is not to be found in the Land Office. The boundaries are as follows: Beginning at an elm on the Ohio River, thence running north two degrees and a half west three hundred and seventy-five perches to a white oak-south eighty-seven and a half degrees west ninety-seven perches to a white oak-north two and a half degrees west one hun- dred perches to a white oak-south thirty-seven and a half degrees west three hundred and ninety- one perches to a maple on the margin east side of Beaver River-thence from a stake on the west side of the Beaver, south two and a half degrees east one hundred and ninety-six perches to a white
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oak-south eighty-seven and a half degrees west five hundred and eighty-seven and a half perches to a post and stones-south six hundred and forty- one perches to the Ohio River. The Ohio consti- tuted the remaining boundary.
The first Act relating to this reservation was that of 28th September, 1791,1 authorizing the Governor to lay out a town and out-lots for the uses therein mentioned. Referring to the Act of 1783, it empowered the Governor to direct the Surveyor-General to survey two hundred acres of land in town lots, on or near the ground where the old French town stood, in such manner as Commissioners appointed by the Governor should direct; and also one thousand acres adjoining on the upper side thereof, in out-lots, as nearly square as may be, of not less than five acres nor more than ten acres in each, "provided that the Gover- nor shall reserve out of the lots of the said town so much land as he shall deem necessary for public uses."
I have italicized the words in this proviso to draw attention to their true character. It was land, not lots merely. This land was reserved, not dedicated, and it was for public uses, not specified, but left to be declared by competent authority.
1 3 Smith's L. 56.
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This the Legislature, the only authority, has done from time to time.
On the return of the surveys to the Surveyor- General the Governor was authorized to sell one equal half of the town lots, and the whole of the out-lots, to the best advantage, and convey the same, "excepting always such as shall be reserved for public uses."
By the third section the streets, lanes, and alleys of the town and out-lots were dedicated as common highways forever.
The survey under the Act of 1791 was made by Daniel Leet, in the month of November, 1792, but in the absence of the Commissioners whose duty it was to direct the survey. In consequence of this want of authority on part of Leet, the Act of 6th March, 1793,1 was passed, confirming the sur- vey, repealing the appointment of Commissioners, and authorizing the Governor to sell and convey the lots contained in the survey, but subject to this important provision : "In the same manner and under the same regulations, exceptions, and reservations, as are prescribed in the said recited Act of the General Assembly," viz., of 28th Sep- tember, 1791.
The Governor, acting under this provision, by a writing dated the 11th March, 1793, directed the
1 3 Smith's L. 90.
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Surveyor-General to mark the reservations required by the Act of 1791, upon the survey of the town plat, including the squares which Leet had without authority marked as public squares on his plat. On the next day, March 12, 1793, the Governor issued his commission to sell, with instructions. The fifth instruction was in these words: "That the four lots in the centre and the corner lots of the town plat marked 'Public Square,' shall be announced as lands deemed necessary for public uses, and reserved by the Governor accordingly."
The effect of this action of the Governor was to bring these reserved squares within the intent and meaning of the reservations in the Act of 1791, and thus to prevent the unauthorized act of Leet in marking them as "Public Squares" from giving to this entry on the plat the appearance of a dedi- cation of these squares to the public generally. This left the uses subject to the appointment of the Legislature, as first intended, which was after- wards exercised.
The next disposition of the reserved tract was a grant of five hundred acres, to be laid off by actual survey, adjoining the town of Beaver, "for the use of such school or academy as may hereafter be established by law in the town of Beaver." This was accordingly done by laying off the land on the southwest side of the town plat, embracing all the land running southwesterly down and by the Ohio
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River to the end of the beautiful elevated plain below Beaver. The direction is contained in the 17th section of the Act of 12th March, 1800, the same law erecting the counties of Beaver, Butler, Mercer, Crawford, Erie, Warren, Venango, and Armstrong. The Trustees appointed for Beaver County were Jonathan Coulter, Joseph Hemphill, and Denny McClure.1
Another appropriation of the reserved tract by the Legislature was made in the Act of March 29, 1802.2 The Surveyor-General was authorized to survey two separate lots, containing in the whole not more than fifteen acres, on the north side of the in-lots of the town of Beaver, so as to include several streams or springs of water; "and they are hereby granted to the inhabitants of said borough forever." This is the Act incorporating Beaver into a borough. It will be observed that the grant was to the "inhabitants." The Act confers no power over the lands granted upon the corporation. Nor does it confer on the corpora- tion any power over the reserved squares.
By the Act of 21st February, 1803,3 four Trus- tees, viz., John Lawrence, Guion Greer, James Alexander, and Samuel Johnston, were appointed to take charge of the land granted under the Act
1 3 Smith's L. 429.
2 Pamphl. L. 1802, 120.
3 4 Smith's L. 12.
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of 1800 for an academy. These Trustees were empowered to erect a suitable building on one of the reserved squares in the town of Beaver for an academy. This power was exercised at an early day, the building being erected on the middle lot of the southeast reserved centre square. It re- mained in use many years after 1829, the year the writer first saw it; probably as late as until 1860.
Beaver County was organized for judicial pur- poses under the Act of 2d April, 1803.1 In this Act the Legislature again exercised its power over the reserved squares by authorizing the Commis- sioners to erect a court-house, prison, and public buildings on such part of the public squares in Beaver as they might think proper. Until a court- house should be erected the courts were to be held in the house of Abner Lacock, in Beaver. The court-house and offices were erected on the north- west centre reserved square, and the prison on the northeast centre reserved square.
The next sale of the town and out-lots of Beaver was authorized by Act of 2d March, 1805.2 John Lawrence, Samuel Wilson, and David Potter were empowered to sell one-fourth of the town-lots of Beaver, "excepting those heretofore reserved for public uses," and one-fourth of the reserved tract at the mouth of Beaver in lots not less than five
1 4 Smith's L. 89.
2 Ib. 215.
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nor more than ten acres each. A condition in the sales of the in-lots was that each purchaser should, within three years from the time of sale, build on his lot a house at least one story high, measuring not less than twenty-four by eighteen feet, having a chimney, and fit for the accommodation of a family. If not so improved the lot should revert to the Commonwealth. The time for making this im- provement was extended to the first day of Sep- tember, 1811. ( Act 20th March, 1810.1)
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