History of York County, Pennsylvania : from the earliest period to the present time, divided into general, special, township and borough histories, with a biographical department appended, Part 16

Author: Gibson, John, Editor
Publication date: 1886
Publisher: F.A. Battey Publishing Co., Chicago
Number of Pages: 1104

USA > Pennsylvania > York County > History of York County, Pennsylvania : from the earliest period to the present time, divided into general, special, township and borough histories, with a biographical department appended > Part 16

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* 1Archives, 556-575.

+Kindly furnished by Levi Cooper, Esq., of Peachbottom Township.

HISTORY OF YORK COUNTY.

courses thereof 499 perches to the place of beginning-the hickory tree on the temporary line. Adjoining this land of McCandless, there was surveyed to Robert Gordon, on the 22d of July, 1771, a tract of land of which Walter Robinson was entitled to part. The draft of this land thus describes the lines : Beginning at a point corner of lands of Al- exander McCandless along the Province Line, north eighty-eight degrees, west 133 perches, and on the south along the Temporary Line north eighty six degrees, west ninety-three perches, and between the Province and Tem- porary Lines south ten and a half degrees, east seventy-two perches, adjoining the prop- erty of Alexander McCandless. By the sur- vey of George Stevenson, made the 20th of December, 1753, from the Temporary Line, which is fixed by the hickory tree corner, there is a course north twenty degrees, east fifty-eight perches to the supposed Maryland line. And in a draft made by Thomas G. Cross, Esq., on the 3d and 4th days of April, 1774, of the land patented to McCandless, the course and distance from the temporary line to Mason and Dixon's Line are north twenty- one degrees, east fifty-eight perches. The discrepancy here may be owing to the uncer- tainty of the position of the temporary line. The older draft is to be preferred, because the hickory corner for the beginning of the temporary line was then a fixed point, and since then the Pennsylvania Canal had been constructed along the river, erasing that cor- ner.

The temporary line, from the course of it, as compared with the fixed boundary line, would cross the latter before it went beyond the limits of York County. The report of the Commissioners, as above given, says "that they gained 110 perches, so that the line on the west side of the Susquehanna was but fifty perches more north than the end of the Jersey line."

The Maryland surveys were very early made and lands patented. The Deserts of Arabia, mentioned in the deeds, was patent- ed to John Cooper on the 20th of May, 1724, as being situate in Baltimore County. The Deserts of Arabia and Elisha's Lot were sit- uate one and two miles above the true boundary line.

From the fancy of the early settlers in that section, or by Maryland custom, perhaps, names were given to the respective tracts of land taken up, such as those mentioned, and Morgan's Delight, Noble's Craft, Jones' Chance, Walter's Disappointment, Cooper's Pleasant Hills, Eager's Design, Mary Lot, Buck's Lodge Right, Stallworth Right,

Croomay's Intrusion, and other names, as- signed possibly by public opinion of the ven- ture.

DIGGES' CHOICE.

Among the earlier tracts of land which had been located north of the Temporary Line, under Maryland warrant and survey, was that known as Digges' Choice. The settlement of this piece of land occasioned the first ques- tion of title under the provisions of the Roy- al Order. It became a source of angry con- troversy, resulting in a tragedy, as in the other instances of border troubles. "A petty nobleman, named John Digges, obtained from the proprietor of Maryland a grant of 10, - 000 acres of land; it being left to the option of Digges to locate said grant on whatsoever unimproved lands he pleased within the juris- diction of his Lordship. By the advice and under the direction of Tom, a noted Indian chief, after whom Tom's Creek is called, Mr. Digges took up, by virtue of said grant, 6,822 acres, contained at present within the town- ships of Conewago and Germany, in Adams County, and the township of Heidelberg, in York County. Hanover, which before its in- corporation was a part of Heidelberg Town- ship, was situated on the southeastern ex- tremity of "Digges' Choice."*

The original warrant was granted to Mr. John Digges, of Prince George's County, Md., on the 14th day of October, 1727, for 10,000 acres of land, and was continued in force by sundry renewals. It was last renewed on the 1st of April, 1732. On the 18th of April, 1732, there was surveyed, in virtue of the said warrant, by Philip Jones, Deputy Sur- veyor, under Charles Calvert, Esq., Surveyor- General of the western shore of the province of Maryland, a parcel of land said to lie in Prince George's County, called Digges' Choice, in the backwoods, the quantity of 6,822 acres, and the same was returned into the land of- fice, by sundry courses, from one place of be- ginning, viz .: At three bounded hickories, and one bounded white oak, and one bound- ed wild cherry tree, standing at the month of a branch, which is commonly known by the name of Gresses' branch, where it intersects with Conewago, and running thence north. The remaining courses and distances are not given. Jones' certificate and return were ac- cepted and recorded, and thereupon a patent issued to John Digges, bearing date the 11th day of October, 1735, at the annual rent of £13, 12s, 11d, sterling, payable at Lady Day and Michaelmas. The tract fell four miles to the northward of the Temporary Line as run

*Glossbrenner's History of York County.

THE BOUNDARY LINE.

and returned in 1739, agreeably to the royal order. Mr. Digges remained in quiet and un- disturbed possession thereof. But numbers of foreigners coming into these parts, and lands thereby rising in value, he, by petition on the 15th of July, 1745, applied to the of- fice at Annapolis, under color of some error in the survey, for a warrant to correct those · errors, and take up the contiguous vacancy, and he obtained a warrant requiring the sur- veyor of Prince George's County to add any vacant land he could find contiguous to the patented tract. In pursuance of this war- rant, there was surveyed on the 1st day of August, 1745, a parcel of vacant land contig. uous to the patented tract, containing 3,679 acres, for which he paid a new consideration. And on the 18th of October, 1745, a patent issued for the same .*

It appears, however, that Mr. Digges had applied for a warrant to the land office of Pennsylvania. On the 18th of July, 1743, Secretary Peters wrote to Mr. Cookson, that Mr. Digges had an irregular piece of land at Conewago, by a Maryland survey, and had applied for such a quantity, all around it, as might bring it within straight lines, but upon such terms as the Secretary was not willing to grant a warrant. However, Mr. Cookson might, at Digges' request, survey for the use of the proprietaries so much as he required- the price to be left to them. On the 20th of April, 1744, Mr. Digges wrote to the Secretary, from Little Conewago, that he had waited at that place to have his lands run round that the vacancy might be reserved for the pro- prietor's own use-and Mr. Cookson pro- posed it now in a different manner, but assured him he should have the preference of any vacancy adjoining, with a request not to grant to any other person until he marked and made known his lines. The further correspondence, in relation to this matter, shows that the Germans settled about Cone- wago Creek, on the lands claimed by Digges, had contracted with him for the purchase of their plautations and given bonds for the consideration money. They had ascertained, by computation, that the extent of his claim was more than his patent contained, and they requested him to have his lines marked, which he refused to do. They procured an attested copy of the courses of his tract from the land office at Annapolis, and, though opposed by him, a surveyor ran the lines sufficiently to show that several plantations he had sold were without the bounds of his patent. His application to the Pennsylvania office was in 1743, which seems not to have

succeeded. He then, in 1745, obtained a warrant of resurvey from the Maryland office, and took in by it the plantations left out in the original survey, including several tracts for which warrants had been granted by tlie proprietaries of Pennsylvania, some of which had been patented. Mr. Digges, however, contended that he had only marked the true courses of the land that had been granted to him, and he proposed the sale of the lands included in his resurvey. The people com- plained, and wanted a Pennsylvania surveyor to ascertain and mark the lines. Mr. Cook. son wrote that it would pay the proprietarie- to have this done. There was no doubt about the resurvey taking in lands not included in his first survey, but Mr. Digges contended that his original warrant was for 10,000 acres of land and he had located it. and that the mistakes of the surveyor, in not including all his settlements, and giving him his full quantity, should not deprive him of his original right of claim and possession by virtue of his warrant. The facts were these (as appeared afterward in a judicial determination of the question in the case of the lessee of Thomas Lilly against George Kitzmiller, before Justices Shippen and Yeates, tried at York in May, 1791) *: The instructions of Lord Baltimore to Charles Carroll, Esq., his agent, dated September 12, 1712, showed the mode of assigning war- rants, wherein he directed that in each survey the boundary alone should be marked, aud the courses and distances specified in the re- turn of survey, as the fairest mode and best calculated to prevent civil suits. It appears that Edward Stevenson, Deputy Surveyor of Maryland, did not return the survey as actually made by him on the ground. The quantity of 10,000 acres was really contained within the lines of the lands run by him, including the lands in question, and upon making his plat and finding the figure to be very irregular, he got displeased, and swore he would not cast up the contents, or return it in that form, and then he reduced a num- ber of lines into one, struck off five or six angles in different places, and made a new plat, differing from the courses and distances run on the land. Of 270 courses contained in the field notes, which were for several years in his possession, he left out about 150 of them, and those notes were afterward delivered to John Digges, the patentee. The irregularity of the tract, it will be remem- bered, is mentioned in the Pennsylvania ap- plication, and Mr. Digges' claims were not without foundation, and all his land would

*IArchives, 713-14.

*I Yeates, 28.

HISTORY OF YORK COUNTY.

have been secured to him under the Penn- sylvania system of making proprietary sur- veys. That is, trees were marked on the ground, and where there were no trees or natural boundaries, artificial marks were set up to distinguish the survey. "The Mary- land surveys, " as the court said, "were merely ideal, precisely fixed on paper alone. No trees were marked except the beginning boundary."

" Lord Baltimore's instructions of 1712, to his agent, Mr. Carroll, showed what his intentions were, and that he was concluded only by the courses and distances returned. The survey was ambulatory, not confined to a certain spot of land, but was governed by the variation of the compass and was con- tinually shifting. The courses and distances returned formed the survey, and determined, on an exact admeasurement, the particular lands granted as often as they were run. Those courses and distances were alone binding on the proprietor and consequently on the pat- entee. Any circumstances shown could not establish a title to lands without the limits of the original survey as returned." Persons may have bought lands from Digges even within the resurvey and acquired title by possession and improvements. But all this has been judicially determined since. There- fore, unfortunately for Mr. Digges, his re- survey was made after the Royal Order, and was ineffectual as against the Pennsylvania settlers. There were other facts that gave color to his claim at the time. John Leman, Sr., first settled on the lands in controversy under John Digges, who declared to Digges, in 1752, that he had settled on the same under a Pennsylvania right. But in the year 1735 or 1736, he had agreed with Digges for 100 acres of land and had received orders from him to his agent to survey the same to him. John Leman, Sr., continued there some time, and had a son born on the land; and afterward sold his improvements to Martin Kitzmiller, who, in 1737 or 1738, came to live on the land. In 1732 or 1733 Robert Owings was directed by John Digges to lay out and dispose of sundry parcels of land, which he did. The lines run did not extend beyond the limits of the first survey, and the lands laid out for John Leman and others were really in the original survey, except a few corners, and Edward Stevenson actually omitted part of the lines run by him. Thomas Prather, exe- cuted the warrant of resurvey, and the orders from Digges were to run the old lines as nearly as possible, and to survey the 10,000 cr es which were actually included in the

lines run by Stevenson. In fact, then, the land had been located under the warrant by a proper survey, and therefore, John Digges addressed to the Governor of Maryland a remonstrauce on complaint of disturbances made by him on the border, contending that the surveyor omitted lines actually run by him and settlements made within his tract. In this remonstrance he complained that Nicholas Forney and Martin Ullery had tres- passed on part of his land, and destroyed the growing timber, for which he had sued them. These men, at Digges' suit, were arrested by the Sheriff of Baltimore County, and were rescued by Adam Forney, father of Nicholas. It appears by a letter of Adam Forney's, on the 25th of April, 1746, that the Sheriff took his two prisoners to Adam's house, who asked him by what authority he arrested these men, and offered to be bound for their appearance at court if they owed any money. The reply was that they should give their bond to Mr. Digges for the land or depart from it. Adam said that the men had taken up their land five years before from the proprietaries at Philadelphia and it had been surveyed for them. He ordered the two men to return to their habitation. The Sheriff drew his sword and Forney's party drew theirs, whereupon the Sheriff and Digges fled .* Subsequently in the month of Febru- ary, 1747, Adam Forney was arrested at his house by an under-sheriff and posse from Maryland, armed with clubs, and was carried off to the Baltimore jail, for resisting officers of the law. This raised a question of juris- diction. Secretary Peters wrote to Mr. Cookson to go to Adam Forney, with papers directed to Mr. Calder, who was to defend him "at the Supreme Court on a writ served upon him manifestly within this province, and as the affair may greatly affect our Prop- rietor, the whole will turn on this single point-whether the place where Adam Forney was arrested, be or be not within our prov- ince." He then says, that Forney must take along with him two witnesses, at least, to Annapolis, who could swear that the place where he was arrested was within our prov- ince, and at some distance from Digges' tract. The expenses were to be paid by the govern- ment, which also undertook to pay the law- yers. He further wrote that our Attorney- General could not go to Annapolis, as it was our Supreme Court then, but he had given all necessary directions to Mr. Calder. The letter to Mr. Calder stated that as Mr. Digges had thought proper to execute a writ of the Supreme Court of Maryland against Adam

*I Archives, 686.

THE BOUNDARY LINE.

Forney, within the jurisdiction of this prov- ince, Mr. Peters desired to retain Mr. Calder for Adam Forney, and would send him by the first good hand two pistoles. Mr. Tilgh- man was also to be retained. These counsel were to defend Mr. Forney in such manner as that there might be an appeal to the King in council. It turned out, however, by the witnesses who were secured for Mr. Forney, and who were reported to be "clear, intellig- ible men aud spoke English well," that the spot where Adam Forney and his son were arrested was actually within Digges' old survey and patented land. The engage- ment of Mr. Calder, therefore, on behalf of the proprietaries of Pennsylvania, was res- cinded, and Forney, after a rebuke, was left to defend his own case. Another incident , in this case may be noticed. At a meeting of the Provincial Council, held at Philadel- phia, on the 17th of March, 1748, it was reported by an express from Mr. Cookson that Adam Forney was shot dead by an Indian in liquor, as he stood at his own door. The Indian was immediately seized and carried before Justice Swope, at York, and there detained till the Governor should give orders what should be done with him. The trouble arose from the fact occurring within the lines of Digges' patent, and the Attorney- General had to be consulted on the question of jurisdiction. In the meantime the report was contradicted. Forney had been shot, but recovered, so nothing further was done.

In 1749, a petition was presented to Gov. Hamilton, signed by Hendrich Seller and thirteen others, praying for relief. They were inhabitants of Little Conewago Town- ship, and Digges had threatened to sue them, unless they would pay him £100, Mary- land currency. He had mortgaged the property to Squire Carroll and Squire Dula- ney, and they represented themselves in dan- ger of being carried to Maryland, and there confined and be obliged to quit their planta- tions. *

These troubles continued to disturb the set- tlers in that section, and claim the attention of the Governor and Council, without any result, until the killing of Dudley Digges, which occurred on the 26th of February, 1752. In consequence of this disaster John Digges presented a petition to Benjamin Tasker, President of Maryland, representing that his son had been murdered within the limits of that province by Martin Kitzmiller, his son Jacob, and others of his family, and that the 27th of April was appointed for the trial, at York Town. This was communicated

to Gov. Hamilton, who answered, "that he had carefully examined into the unhappy af- fair, and had found that Jacob Kitzmiller had killed the deceased, Mr. Digges, to the north- ward of the Temporary Line" and "that he is now imprisoned at York to receive his trial as for an offense committed within that county. That there was a mistake as to the time of trial, and that on the claim of jurisdiction, the trial should be delayed a reasonable time." The reply of President Tasker con. tains an elaborate argument in behalf of the Maryland claim to jurisdiction, and enclosed affidavits as to the facts already mentioned about the settlement of John Leman and the surveyor, Robert Owings. The Council, on the 27th of September, 1752, after hearing, debating and maturely consid- ering the premises, were unanimously of opinion that the possession of Digges or his tenants, at the time of the Royal Order, of the land where the crime was committed, was not held by any warrant or patent, and notice was given to President Tasker that the court for the trial of the case would be held at York Town, on the 30th day of October, where persons authorized by the Maryland Govern- ment may lay before the grand and petit ju- ries all legal proof of jurisdiction. On the 30th of October, 1752, the Attorney-General of Maryland, H. Darnall, Esq., appeared and made a petition to the Judges of Oyer and Terminer and Jail Delivery, then sitting at York Town, in York County, stating that, by the authority of the President of Maryland in Council, he attended the court and was expressly charged to insist that the trial of Jacob Kitzmiller be had in Maryland, where the fact was com- mitted and not in Pennsylvania. With this argument-that the aforesaid Dudley Digges was killed at a place surveyed under a Mary- land warrant before the date of the said Royal Order of 1738, and possessed under a Mary- land right, and that no attornment or other pretext of Martin Kitzmiller, or of any other person or persons after the date of said Order, will prevent or take away the right of the said Proprietor of Maryland, or can in the least hinder the force, effect and opera- tion of his Majesty's most gracious inten- tions. *

Gov. Hamilton had been furnished by Pres- ident Tasker with exemplified copies of the warrants, surveys and patents which had been granted to John Digges, and it appeared that the place where Jacob Kitzmiller killed Dud- ley Digges was in a tract of vacant land that lay to the northward of the Temporary Line

#II Archives, 28.

* II Archives, 93.

HISTORY OF YORK COUNTY.

and which had been granted to Mr. Digges in the year, 1745, in express violation of the Royal Order. These exemplified copies were by order of the Governor produced at the court of Oyer and Terminer, held by the Su- preme Judges, at York, at the trial of Jacob Kitzmiller and his father, who were there- upon acquitted. It appeared from the evi- denee that the killing of Dudley Digges was an accident. At least the doubt as to willful homicide was sufficient to acquit. It was oc- casioned by an attempt to arrest Martin Kitz- miller at the suit of John Digges in a Mary- land affair. This was resisted, and in a strug- gle for a gun, held by Jacob Kitzmiller, it was discharged and fatally wounded Dudley Digges .* By the admitted construction of the Royal Order, the territory within the lim- its of Digges' patent, although four miles north of the Temporary Line, was under the jurisdiction of Maryland. Hence, in this case, the fact committed being in territory outside of his patent was under the jurisdic- tion of Pennsylvania.

The Town of Hanover was within the lim- its of Digges' patent, and consequently all delinquents escaping from justice found a refuge in Hanover and were free from arrest. The officers of justice of the County of York could only come within half a mile of that town to execute their warrants. On the 18th of February, 1757, the grand jury took such action as compelled all persons to obey the Royal Order, by showing allegiance to the provinee from which they had received titles to their land.

THE CASE OF NICHOLAS PERIE.

Nicholas Perie was one of the Germans who had been confirmed in the possession of his land hy a grant from Thomas Penn, in the year 1736. This grant recited that sun- dry Germans had seated themselves by leave of the proprietor on lands west of the Sus- quehanna River, within the bounds of the manor of Springetsbury, and that a confir- mation of the persons seated on the same for their several tracts had been delayed by rea- son of the elaim of the Five Nations, which had been released by deed of the 11th of October, 1736, and Nicholas Perie had applied for a confirmation of 200 acres; Thomas Penn certified under hand, that he would cause a patent to be drawn for the land, on the common terms, so soon as the quantity should be surveyed and returned. Perie had been arrested by a writ issued ont of the Supreme Court of Maryland, for refus-

ing to hold this land under Lord Baltimore, and on the arrival of the Royal Order, was discharged on his recognizance, at the same time that Cressap was set at liberty at Phila delphia, by virtue of the said order.

Charles Higginbotham, in the year 1748, made elaim to the land in possession of Nich- olas Perie; that on the 2d of May, 1737, there had been surveyed to him, by order from the land office of Maryland, a tract of land on the north side of Codorus Creek, by metes and bounds containing 172 acres. On the 5th of May, Lord Baltimore confirmed by patent the land to Higginbotham. At the hearing be- fore the Provincial Council, it appeared that Higginbotham had never been in possession, nor any under him, and that he had never seen the land, but that Perie was arrested on the tract and carried to Annapolis jail for refus- ing to hold under Lord Baltimore, though his land was surveyed by a Maryland war- rant. Col. White testified to having made surveys at the instance of some Ger- mans who had obtained warrants from the land office at Annapolis, but did not remember ever to have seen Perie. The Germans, he said, after the survey of their lands refused to pay for them, being as they pretended within the province of Penn- sylvania, and Lord Baltimore gave him directions to return the surveys of those lands to any person who would apply for them. Capt. Higginbotham applied, and Col. White returned the survey of this land to his nse, and the patent issued. The Conncil on the 11th of April, 1748, were unanimously of the opinion that the Royal Order abso- lutely, under the facts of the case, restrained them from dispossessing Perie, and so Gov. Ogle was informed by letter .*

FINAL AGREEMENT OF 1760.

The provisional arrangement under the order in 1738, was simply for the preserva- tion of the peace between the provinces. The pending proceedings in chancery resulted, May 17, 1850, in the decree of the Lord Chancellor, that the agreement of 1732, should be carried into specific execution. The Commissioners appointed by each party under this decree, met on the 13th of Novem- ber, 1750, and agreed on a center in New- eastle, from whence the twelve-miles radii were to proceed. But a dispute arose con- cerning the mensuration of these twelve miles. The Commissioners of Lord Baltimore alleged that the miles ought to be measured superficially. The Penn's Commissioners

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History of York County, Pennsylvania : from the earliest period to the present time, divided into general, special, township and borough histories, with a biographical department appended, Part 16

Author: Gibson, John, Editor Publication date: 1886 Publisher: F.A. Battey Publishing Co., Chicago Number of Pages: 1104

Author: Gibson, John, Editor
Publication date: 1886
Publisher: F.A. Battey Publishing Co., Chicago
Number of Pages: 1104