History of Tioga County, Pennsylvania, Part 6

Author:
Publication date: 1897
Publisher: Harrisburg : R. C. Brown
Number of Pages: 1454

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ORIGIN OF THE TROUBLE.

As this review of the boundary line question relates mainly to the dispute now existing between Lycoming and Tioga counties, it need only be said that it is pre- sumed from the reading of the law, which seems to contemplate such action, that the commissioners appointed to run the lines of the three western counties, did so in accordance with the true intent and meaning of the act of Assembly, and that also before Messrs. Ellis and Ross did or could begin to locate those of Mckean, Potter and Tioga. Of the latter commission, so far as it can be traced or known, the pur- pose of this chapter is to speak.

· The provincial habit of dividing lands purchased from the Indians into districts for convenience in surveying and selling, continued to prevail under the State govern- ment, and Joseph J. Wallis, who had charge of the northwestern territory-as it was previous to the last purchase-which comprised a very large district, died in August, 1795, and was succeeded by his son-in-law, Daniel Smith, a lawyer of Sunbury. He only held the office for two or three years, when he was succeeded by Henry Donnel, also of Sunbury.

After the last purchase from the Indians and the division of the territory into districts, William Ellis was assigned to the first district and Daniel Brodhead to the second, which included nearly, or perhaps, all of the territory afterwards embraced

Sinon Tower

TIOGA COUNTY ORGANIZED.

in the three eastern counties formed in 1804. Soon after his assignment. however, Mr. Brodhead was appointed surveyor general, and he transferred to Ellis the vacant deputyship thus ereated. This occurred in November, 1789. During the next sue- ceeding five years Mr. Ellis had most of the lands lying in the first and second dis- triets surveyed, and thus acquired more information respeeting the topography of the new purchase than any other man within the bounds of the State. The informa- tion which fixed the limits of each county must have been derived from his office, and he was, therefore, a proper person to be commissioned to run and mark the lines of the new counties.

But, unfortunately, Mr. Ellis was at this time in poor health. Mueh business had affected his mind. He executed his will January 14, 1805, and after adding several codicils died. The will was subsequently set aside on the ground of unsound mind when executed. It being generally understood that he was not a practical surveyor, it is hardly to be presumed under the circumstances that he personally went upon the ground and ran any part of the required lines. There are a number of other circumstances which may be given to show that he was never personally on any part of these boundary lines. Some of them are as follows:

It was not required that two of the commissioners should be on the ground in making this survey. The law says any two, but they were given no discretion, and could have nothing to consult about. The district surveyors' return drafts of land as surveyed by them were the guides; and yet it is often found that two such drafts, sworn to as made on the same day, are at least 100 miles apart and could not have been made personally by the same deputy. Besides this, it is a well known fact to all surveyors, that each deputy had a number of praetieal surveyors working for him, who reported periodically and were paid for work approved and used and re- turned as aforesaid. Therefore, by analogy, Mr. Ellis could, and did, send his sur- veyor or surveyors to run certain of the county lines for him, and did not go on the ground himself.

The commissioners appointed to run and mark the boundary lines of Jefferson county, having first performed their duty, as already stated, Ellis and Ross, or any surveyor authorized by them, had a plain task to perform. "Beginning at the south- east corner of Warren county; thence east along the line of Jefferson county to the northeast corner thereof; thence south along the line of Jefferson county, fifteen miles; thence east twenty-two miles; thence north to the State line," ete .. which comprised the territory of MeKean. This done, the same or any other surveyor, could run and mark the lines of Potter, which are directed by the law to begin "five miles north of the southeast corner of Mckean county: thence east thirty miles to Brodhead's (now Ellis') district line; thenee north along said distriet line to the State line," etc.

Tioga county remains to be established. Section five of the aforesaid law di- rects: That so much (but no more) of the county of Lycoming, included in the following boundaries, to wit: "Beginning fire miles north of the southeast corner of number four [the fourth county named] on Brodhead's district line, on the eastern boundary of said number four: thenee due cast until it strikes the main branch of Lycoming creek; thenve np the said creek to the head thereof, near the Towanda

HISTORY OF TIOGA COUNTY.

Beaver dams; thence to the head of said Beaver dams or until it intersects the boundary line between Luzerne and Lycoming counties; thence a straight line to the eightieth mile stone on the State line," etc.

The foregoing provisions of the law seem explicit enough, and yet, through accident or design, were never complied with. The beginning, course and termina- tion of each line being fixed, any surveyor competent to run a compass, could have legally followed and marked the lines, and it is probable that certain portions of these were undertaken, respectively, by Ellis and Ross. It will be seen that the distance eastward from the Jefferson line, which had to be run, was twenty-two miles; thence north to the State line, since ascertained to be forty miles; thence along the south line of Potter, thirty miles, to the district line; thence north along the latter five miles, aggregating ninety-seven miles. This part of the work would naturally fall to the lot of George Ross to perform. Then following the district line north to the State line, thirty miles; from same eastward to the Lycoming creek, thirty-five miles; thence up the same and to the State line thirty-three, aggregating also ninety-eight miles, for Mr. Ellis, or his surveyor, at the eastern division.

VARIOUS EFFORTS TO ESTABLISH LINES.

Now, if such an allotment of duties was made between William Ellis and George Ross, which fact is inferential from others, then George Ross honestly performed his part of the contract, as a continuous line of the right date has been and can still be traced as far as thirty miles eastward at the south side of Potter county, and to a north and south tract line (John Barron, No. 5524)-perhaps mistaken for the dis- trict line of about the same date-a birch corner is found at its termination, cor- responding in age with the line and with the "call" on the official map returned to Harrisburg by George Ross and filed as required by law. From this birch corner a surveyed line runs north, but whether made for the county or for a tract line, has not yet been determined, nor has it yet been traced north beyond 520 perches.

As regards William Ellis' work, which would embrace the south, east and west lines of Tioga county, it is almost certain that whatever was done, must have been done by surveyors under his direction. Old vouchers are on file in the prothonotary's office at Williamsport, showing payment by the county of Lycoming, to William Benjamin,* one of Mr. Ellis' surveyors, for money received for running and marking the lines of Tioga township and county. And a copy of an old draft is in existence in the handwriting, it is believed, of John Norris, at the time a prominent citizen of Wellsboro, Tioga county, made some time during the third decade of the present century (or about 1827), which shows the termination of the county line on the Lycoming creek, as returned by George Ross, and thence up it to the Beaver dams near its source, delineating the same by a red line "as run by Joseph Williams, by direction of the governor, in 1805." And also showing where Joseph Williams "ended in 1805 running the county line." Joseph Williams, a pioneer of Williams-

* In the minute book of the commissioners of Lycoming county for 1805, under date of June 7th, (order No. 56) this entry appears : " William Benjamin in acct. for running the division line of Tioga township and county, $30." Also in the same book, under date of July 25, 1805, (order No. 87) is the following cbarge : " William Benja- min in full for running the line of Tioga township and county, $77.39." This is conclusive evidence that he ran the line, and the total cost was $107.39.

TIOGA COUNTY ORGANIZED.

port, was also one of Mr. Ellis' employed surveyors, and is referred to in his will as hia agent for selling lands. He would, therefore, be a most likely person to be deputed to run, at least, a part of the Tioga county line. But which of these lines were run by Benjamin, and which by Williams? Tioga township was erected by the court of Lycoming county in 1797, by dividing Lycoming township. The latter was erected by decree of the court of Northumberland county in 1785, and extended from the river to the New York State line, and its southern end was bounded on the east and the west by Lycoming and Pine creeks, respectively. Its territory was of great extent originally. When settlements were made in the valley of the Tioga river, it soon became apparent that the township (Lycoming) was too large for convenience, and a division was made by setting off Tioga township, which then comprised the terri- tority which became the county of Tioga in March, 1804.

Considering the business operations of the times, the extensive purchase of lands by what was called the Pine ('reek Land Company, the operations of Morris and Norris in what is now Morris township, the relationship existing between several of the parties concerned, together with the fact that William Ellis was made one of the trustees of Tioga county by legislative enactment, it may be reasonably inferred that William Benjamin ran and marked the western line, and also that at the east, extend- ing from the eightieth mile-stone on the State line southward to the head of the Beaver dams, on Towanda creek.

Joseph Williams, on the other hand, had surveyed, or sub-divided, Mr. Ellis' lands between the bycoming and Pine creeks, and would be presumned to know all about this section of the county, and was, therefore, no doubt, assigned to run and mark the south line of Tioga county, and thence up the Lycoming creek, as shown by said okdl draft. If Benjamin and Williams did this work in 1805, during the life- time of Mr. Ellis, nothing remained to be done at his death, but the making of a map in conjuction with (leorge Ross, to complete the task assigned them.

But by a supplemental law, passed April 13, 180;, it appears that "a small part of the duty remained to be performed," and that George Ross was authorized "to com- plete the running of the boundary lines of the counties of MeKean, Potter and Tioga, and to return the map or draft of the lines of the said counties to the secretary of the commonwealth." Said Ross was also allowed an extra sum of seventy-five cents for every mile run, to be accounted for to the legal representatives of William Ellis, in proportion to services rendered by him in his lifetime. At what point, then, along these 200 miles of lines to be run and marked, did this "small part" remain to be done in 1807?

Joseph Williams was engaged in surveying, dividing up, and selling Mr. Ellis' lands between Lycoming and Pine creeks, and the old draft says he ran the county line along or through these lands, but no continnons line of that date has yet been found between Brodhead's district and Lycoming creek. There rests the whole diffi- enlty. If such a line ever was run, it must be so far out of position as to make it void if found: and if it never was run, then a fraud was practiced upon the commis- sion which returned it as complying with the law.

It is true that a certain tract or land line extending from Pine creek eastward several miles, contains notched trees at intervals which indicate mile-trees, and after a jog of some rods another line continues toward the Lycoming creek, but neither

HISTORY OF TIOGA COUNTY.

of these lines have a beginning at the district line or an ending at the Lycoming. creek, and one found nearly a mile out of place, would answer to no survey of Mr. Ellis' land. Moreover the notched trees could hardly be intended for mile-trees, as no intelligent surveyor would denote the distance in that way, for in running thirty- five or thirty-six miles he would have to cut the same number of notches, and if made only six inches apart the scarred surface of the tree would gradually extend from one to eighteen feet high! The marks alluded to were, therefore, probably made for sub- divisions of Mr. Ellis' land only. Besides, an intermediate line, if intended for the boundary, beginning ten miles east of the monument fixed by the law, and one mile south of a direct east line from such, and stopping five miles short of the Lycoming creek, could hardly be called a compliance with the "true intent and meaning of the law," and therefore a nullity.

The want of evidence that the boundary between Lycoming and Tioga was originally run, marked and fixed as required by the law, has been a perplexing problem for surveyors ever since the year 1805. Numerous old drafts can be found differing from one another as to the location of the county line, but none defining its position from any given point. This want of knowledge induced land owners in its supposed vicinity to apply to the legislature for relief; and by an act passed the 29th of March, 1849, A. H. McHenry and John Pratt, of Lycoming, and William Bache, of Tioga, were appointed commissioners "to run and distinctly mark the boundary line or lines between the said counties of Lycoming and Tioga agreeably to the pro- visions of the acts of Assembly defining the boundaries of the said counties."

In pursuance of this act, two of the commissioners named, did run and mark a line from the thirty-first mile trce on the Brodhead district line through, due east, to the Lycoming creek, which line is the only continuous one ever run and marked that can be found, although it must be admitted that its beginning at the thirty-first mile- tree is in accordance with George Ross' draft only, and not with the law; but then, as the Potter line was not at this time extended to the district line, as already shown, how could Major McHenry and his colleague find any other starting point, or do otherwise than they did?

The transparent injustice of allowing two commissioners from Lycoming to adjust and determine a question in which Tioga was equally interested, very properly induced the legislature at its next session to annul their work, but continue the com- mission, with a representative from each county interested, and an umpire from a third. The new board never met and the old dispute remained in statu quo.

After the ratification of the New Constitution of 1873, by an act of the legislature of April 17, 1876, the authority of apportioning commissioners to "carefully ascer- tain the old line and designate the same by suitable marks of a permanent character," on petition, was conferred upon the several courts of quarter sessions of the com- monwealth, and under this law, on application, William Bache, of Tioga; Henry H. McNett, of Lycoming, and one surveyor from Bradford, were appointed to re-run and mark the boundary line between Lycoming and Tioga.

It will be seen that these commissioners were to carefully ascertain the old line, but as no line was originally run, as designated by the act of Assembly, it was impossi- ble for these men to ascertain what was not in existence. They began on a tract line, about midway between the district line and the Lycoming creek, significantly saying

TIOGA COUNTY ORGANIZED.

in their report, that the line westward was too well known and manifest to require remarking! Now as to this, somebody was deceived. The line they traced does not extend but a short distance farther westward, while there is none at all between Pine creek and the district line. This commission therefore did not perform a miracle, to find and re-mark a line never made!

The commission of 1892, composed of Hiram E. Bull, of Bradford county; Darius L. Deane, of Tioga, and C. D. Eldred, of Lycoming, had all the foregoing com- plex problems to examine and wrestle with. Their first effort was made to find the "Birch corner" on the district line, returned as made by George Ross. But no "Birch corner" of 1805, or later, except the one made by MeHenry and Spafford in 1870, could be found. These last named gentlemen were authorized by the act of April 3, 1869, "to re-run and revive and establish the original county line on the northern boundary of Clinton county, the same being the division line between Clinton and Potter counties."

The report and draft of their work cannot now be found in either of the afore- said counties, and one of the commissioners (Mr. Spafford)-the other, Mr. McHenry, being dead-in a letter on file with Messrs. Bull and Deane's report, alleges that his notes of the survey were burned up with his building, but that his recollection is that in marking the survey, the old line was found and followed to the waters of Young- woman's creek, after which it apparently disappeared. This letter corroborates the allegation that the surveyor, whoever he was, believed he had arrived at the division line in running the south line of Potter, and made a birch corner on a tract line, by mistake, three miles and 223.7 perches, by official survey, short of the proper monument. The members of the last commission, therefore, had no trouble, as already stated, to find MeHenry and Spafford's "Birch corner" on the district line, but could discover no older marks on or near their line.

There is, it is true, a birch mile-tree, the thirty-fifth, on the said district line, which possibly might have been taken by Joseph Williams for the one made by mia- take over three miles westward; but if so, his line running east at a point five miles north of it would make the line run by him as much too far north, as the partial line commonly reputed as the county line, is found too far south. It is, therefore, plain that Joseph Williams, or any other surveyor sent by William Ellis or George Ross, to run and mark the south line of Tioga county, could not begin at the southeast corner of Potter county on Brodhead's district line and run along it north five miles, as the law required, before running due east to the Lycoming creek, as no such corner was yet established; but he could and should have gone to some point on the south line of Potter county and traced that line to the "Birch corner." The mistake being found, a line north from the birch five miles and then due east, would reach the dis- triet line at precisely the same point that a line north would have done, had the south line been extended and the birch made on the district line, as called for in George Ross' draft. Therefore the error was not material, as the law, and not the draft, fixed the southeast corner of number four.

Another problem remains to be solved on the east boundary of Tioga. The law creating the county directs a due east course to be run from the point fixed on the district line "until it strikes the main branch of Lycoming creek-thence up the said creek to the head thereof, near the Towanda beaver dams," etc. Does the word

HISTORY OF TIOGA COUNTY. -

"strike," mean to a point at the middle of the stream, and "up," the center of the channel? Messrs. Ross and Ellis did not so construe the law, as they followed the tracts of land lines (crossing and re-crossing the creek many times) as shown by their report and draft filed; but the inhabitants along the valley seem always to have un- derstood the middle of the creek to be the line and boundary.

The line as returned is certainly the most permanent, as it can always be traced with some degree of accuracy; whereas the channel of a creek undergoes constant and inevitable changes naturally, and may be diverted artificially without limit. It is well known that the construction of the Northern Central railroad did change it materially in one location, and that floods have done the same thing in other sections, to say nothing of private operations generally. Hence, if the middle of the channel is the true line, then does this shuffle-board carry to and fro the county line, or was it the line only where the creek ran in 1805? If the latter, how can it be established now, after such a lapse of time and so many changes in the channel? Moreover, the present established corner of Lycoming, Tioga and Bradford counties, is not at the head nor on the bank of the Lycoming creek, but is on, or nearly on, the line surveyed by Joseph Williams in 1805, and returned by George Ross to the land office in 1809.

In conclusion, it is but fair to say that Joseph Williams about this year (1805) succeeded in selling some of Mr. Ellis' lands on or near the reputed county line, at Texas and the Block House, and that the new settlers, in the absence of any other, adopted this intermediate and broken line as the actual county line and the people have so regarded it up to the present.

A TANGLE OF PERPLEXING QUESTIONS.

Therefore, taking into consideration all the foregoing facts and circum- stances, as they were found to exist by the last commission, or can be now es- tablished, there seems to be a plain case for a judicial construction of the several questions involved:

First. No corner being established on Brodhead's district line, and hence no point at five miles north of it fixed and marked, from which a line due east is found or was run to the Lycoming creek as required by the law, are the direc- tions of the act still in force, and is the original line to be run and marked as the prescribed one established by the legislature?

Second. What effect, if any, has the draft required to be made by George Ross and filed at Harrisburg in 1809, which agrees exactly with the law, but has no water courses, or other monuments, marked thereon to designate or show his work; or does it signify that a line was run, but not properly marked according to the true intent and meaning of the act of Assembly?

Third. No continuous line having been found as run in accordance with the law and draft referred to, but an immediate line between Pine creek and the Roaring Branch of Lycoming creek, out of position and more than half of it well- known land lines, and broken in character, but heretofore' recognized, and by tradition, as the reputed county line; can the mistake of the settlers on or near it, or the official acts of the township or county officer, nullify the provisions of the law and thus change by prescription the boundaries of counties?

TIOGA COUNTY ORGANIZED.

Fourth. If tradition and prescription can supercede a law, will it avail to extend the line, where none is now found, from Pine creek west to the district line, a distance of some ten miles; and eastward from the Roaring Branch to Lycoming creek, say four miles, or only as far as the line eastward?

Fifth. Would such a decision attach that portion of Potter county east of the old birch made by mistake on the west line of John Barron, No. 5.524. to Clinton county, and affirm the survey up Lycoming creek along the land lines as aforesaid (and not in the middle of the channel) as made by Joseph Williams in 1805 and returned as the county line by George Ross in 1809?

These seem to be complex, but important questions, and must be settled by judicial or legislative authority, unless future developments should serve to cut the gordian knot.

Messrs. Bull and Deane, however, disagree with Mr. Eldred. They filed a separate and elaborate report, containing maps and drafts, showing the lines that have been run, and took the position that the recognized line should be accepted. If the proposed new line were accepted it would take quite a slice of territory from Tioga. This, it is claimed, would not only be a hardship, but would disar- range titles and cause more or less trouble. If the traditional line were accepted by a decree of the courts the dispute would be forever ended.

THE LATEST COMMISSION.

Since the foregoing was written, a new commission has been appointed by the courts and boards of county commissioners of Tioga and Lycoming counties, under authority of an act of assembly, approved May 22, 1895. This commission consists of D. L. Deane, of Wellsboro, Tioga county, and Hiram E. Bull, of To- wanda, Bradford county, appointed by the court and board of commissioners of Tioga county; and E. J. Eldred, of Williamsport, Lycoming county, and J. M. Boyer, of Selinsgrove, Snyder county, appointed by the court and board of com- missioners of Lycoming county. These four met in Williamsport, September 18, 1896, and selected John Morgan, of Ridgeway, Elk county, for the fifth member. J. M. Boyer was elected president and Hiram F .. Bull secretary. It is to be hoped this commission will settle the dispute, and that their labors will result in a satisfac- tory and final settlement of this century-old and perplexing boundary line trouble.

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History of Tioga County, Pennsylvania, Part 6

Author: Publication date: 1897 Publisher: Harrisburg : R. C. Brown Number of Pages: 1454

Author:
Publication date: 1897
Publisher: Harrisburg : R. C. Brown
Number of Pages: 1454