USA > Pennsylvania > The Register of Pennsylvania : devoted to the preservation of facts and documents and every other kind of useful information respecting the state of Pennsylvania, Vol. XII > Part 95
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of the said service, in a proportion due to their respec. tive merit, as shall be represented to me by their officers, and held and enjoyed by them without paying any rights, and also free from the payment of quit- rents, for the term of fifteen years. And I do appoint this proclamation to be read and published at the court house, churches and chapels, in each county within this colony,and that the sheriff's take care the same be done accordingly."
As this proclamation was transmitted by governor Dinwiddie to governor Hamilton, the latter gentleman wrote thus, in answer, on the 13th of March, 1754.
" The invasions, &c. having engaged me to inquire very particularly into the bounds and extent of this province westwardly; I have from thence the greatest reason to believe that the fort and lands (intended to be granted,) are really within the limits of Pennsylvania. In duty to my constituents, therefore, I cannot but re- mind you of what I had the honor to write to you some time ago, upon this subject; and transcribe for your consideration the following extracts from two letters of the honourable Thomas Penn, in relation to this mat- ter.
" I desire you will enter into any reasonable measures to assist the governor of Virginia to build a fort there, to wit, at the Ohio, taking some acknowledgment from him, that this settlement shall not be made use of to prejudice our right to that" country, at the same time you gave him assurance the settlers shall enjoy the lands they settle bona fide, on the common quit-rent, &c. March 9th, 1752.'
'I hope you will, as I wrote you on the 9th of March, acquaint the governor of Virginia that we consent to this, (that is, to the building of a fort at Ohio, ) without prejudice to our right to the land, in case it should be found to lie within our province, to be granted to the bona fide settlers on the same rent and conditions as they are to have it from Virginia. July 13th, 1752.'
" As Mr. Penn's expectations herein appear to me extremely reasonable, and I cannot, I apprehend, at all interfere with the well judged encouragement you have thought fit to promise to such as shall enter into this service, I flatter myselt you will find no difficulty in making the acknowledgment therein mentioned, as I on my part am ready to give you any assurance that the bona fide settlers shall be entitled to the lands under this government on the same rent and conditions as are granted by you, &c."
March 21st, 1754, governor Dinwiddie writes in reply, "I am much misled by our surveyors, if the forks of Monongialo be within the limits of your Proprietor's grant; I have for some time wrote home to have the Fine run, to have the boundaries properly known, that I may be able to appoint magistrates on the Ohio, (if in this government, ) &c.
"In the mean time, that ro hindrance may be given to our intended expedition, I think it highly reasonable, if these lands are in your Proprietor's grant, that the settlers thercon should pay the quit rents to Mr. Penn, and not to his majesty ; and therefore, as much as lies in my power, I agree thereto, after the time granted by them by proclamation to be clear of quit-rent, ceases; but surely I am from all hands assured, that Logs-town is far to the west of Mr. Penn's grant."
This fort was shortly afterwards taken, and possessed by the French under the name of Fort Du Quesne; and the military grants never fully took place; but divers settlements had from time to time been made under Virginia rights, which in the amicable settlement of the boundary, in and after the revolution, were provided for as follows.
follows; to wit, "'That the line commonly called Mason and Dixon's line, be extended due west, five degrees of longitude to be computed from the river Delaware, for the southern boundary of Pennsylvania, and that a meridian drawn from the western extremity thereof, to the northern limits of the said states respectively, be the western boundary of Pennsylvania, forever, on condi- tion that the private property and rights of all persons, acquired under, founded on, or recognized by, the laws of either country, previous to the date thereof, be sa- ved and confirmed to them, although they should be found to fall within the other, and that in decision of disputes thereon, preference shall be given to the elder, or prior right, which ever of the said states the same shall have been acquired under, such persons paying, within whose boundary their land shall be included, the same purchase or consideration money, which would have been due from them to the state under which they claimed the right, &c. This agreement, and con- ditions annexed, had been adopted by resolution of the legislature of Pennsylvania, September, 22d, 1780.
Hence has arisen in Pennsylvania, a particular, local, species of land titles, out of the common terms and usages, of the Land Office, and laws respecting it.
To connect the subject, and as much as possible, to- avoid confusion in so long a note, the cases decided on this part of the general subject, will be here given.
In Smith's lessee v. Bazil Brown, Fayette, May, 1795, before M'Kean, C. J. and Yeates, J. it was held-That a prior improvement under Pennsylvania, shall prevail against a Virginia certificate, under the compact be- tween the two states. The custom of granting the lands to real improvers, is recognised by our laws. Between claimants under Virginia, the certificate of the commissioners is conclusive, but not where one of the parties claims under Pennsylvania. There can be no. doubt, but that on every principle of moral and politi- cal obligation, the compact between the two states shouldl be held inviolate. MSS. Reports.
-This case will be cited more at large upon another point.
And, in the lessee of Samuel Hyde v. William Tor- rence, Washington, May, 1799, before Ycates and Smith, Justices. MSS. R ports. The plaintiff claimed: the premises under an early improvement made by Tho- mas Provence, which originated in 1767, and was con- tinned till 1783, without interruption. On the 8th of May, 1782, he conveyed to Aaron Jenkins, in conside- ration of _200, who released to Joseph Ross, under. the yearly rent of 150 bushels of corn; and the tenant afterwards improperly permitted Martin Harden, the son of defendant's landlord, to come into possession on his receiving a bond of indemnification. On the 26th of July, 1783, Jenkins conveyed to the lessor of the plaintiff in consideration of £300, who, on the 24th of November, 1789, obtained a warrant for 200 acres, in- cluding Provence's improvement, whereon interest was. to commence from the 1st of March, 1770, but got no. survey.
The defendant, as tenant to John Harden, claimed under two titles. 1st. An application of John Husk, for 300 acres, on the west side of Monongahela, at the mouth of Big White Lick creek, dated 13th of June, 1769: a deed from Husk to Harden, in consideration of £50, dated 20th of April, 1783; and a survey of 222} acres, made on the 18th of July following. 2d. A cer- tificate of the Virginia commissioners, "That Edward Arsken is entitled to 400 acres, on Monongahela river, on the mouth of Whitely creek, to include the settle- ment and improvement whereon Thomas Provence lives, made in 1767, dated 9th February, 1780, which was regularly entered with the surveyor of the county, on the 7th of March following; and a conveyance from Arsken to Harden, dated 20th January, 1783, in consi- deration of £200.
By an act passed April 1st, 1784, (post. chap. 1088, ) a certain agreement between the states of Pennsylvania and Virginia, concluded and signed, on the 31st of August, 1779, was recognized and finally ratified, to- gether with the conditions proposed by the state of Evidence was offered to prove, that Arsken was no Virginia, in their resolves of the 23d of June, 1780, as | settler under the Virginia law of 3d May, 1779, "by
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making a crop of corn, or residing on the land for one year before the 1st of January, 1778," and that if lie asserted himself as such to the commissioners, he was guilty of misrepresentation and gross deception, which would have been examinable by the chancellor of Virgi- nia, either as a fraud or trust." But on the face of the certificate, it would rather appear, that Arsken did not claim under a settlement matle by himself, or others for him, but would avail himself of the improvement and settlement made by Provence in 1767.
This was opposed by defendant's counsel, who con- tended that the certificate was conclusive evidence of the facts which it contains, and cannot be contradicted by any proof consistently with the solemn compact be- tween the two States. It must be considered as the judgment of a court of justice, acting on a subject with . in its jurisdiction. 'The laws of Virginia must govern. It must be presumed that the acts of the commissioners were rightfully done, and that they did not exceed their authority. Their duty was to adjust the claims of set- tlers, and it is absurd to suppose they would give a cer- tificate to any one, without previously determining that he was a settler. If Provence intended to controvert the truth of the certificate, he might have prosecuted his claim by appeal to the general court before the 1st of December, 1780. In no other way could the certifi. cate be impugned. It is admitted that an elder, or prior right under Pennsylvania may be opposed to it, but none such exists here. After the 1st of December, 1780, the certificate could not be controverted in Vir ginia, by the laws of that State; nor, in Pennsylvania, after the compact. Provence did not prosecute his right before the Virginia commissioners, nor by. appeal to the general court, and he cannot set up a title under his improvement begun before the treaty at Fort Stan- wix, on the 4th of November, 1768.
By the Court. Is a Virginia certificate unden able evidence of the facts set forth in it? Or is it competent to a claimant under this State, to examine into the me- rits of such certificate? This is the mere abstract ques- tion, and in the determination thereof, we feel ourselves bound to pay the most sacred regard to the compact between the two States.
We think the point has already been resolved in this court, in Smith's lessee v. Brown, "between claimants under Virginia, the certificate of the commissioners is conclusive evidence, but not where one of the parties claims under Pennsylvania." We apprehend this must have been the clear intention of the contracting States. A Pennsylvania claimant is at liberty to show fraud, mistake, or a trust. Suppose a certificate, stating a party to have made a settlement in a particular year, and it could be shown he did not come in from Europe till after the 1st of January, 1778, and that a title under this State did accrue before his arrival; what good rea- son can be assigned why these facts should not be re- ceived in evidence?
'The operation of the certificate necessarily must be, that, prima facie, the facts contained in it shall be deem- ed true; but not undeniably so. But it has been said that Provence should have gone before the Virgi- nia commissioners, or have appealed to the general court of that commonwealth. This cannot reasonably be insisted on, as to a person asserting a different juris- diction! Besides, how does it appear that he had no- tice of Arsken's application for the certificate, or of its being granted to him? This was res inter alios acta, and a judgment affects only parties or privies.
Our opinion on the present point. is confined to the defendant's Virginia title, The plaintiff sets up no claim under Virginia. The plaintiff cannot found his preten- sions to the land under the laws or customs of Pennsyl- vania, by any improvements made thereon before the 4th of November, 1768. But here his settlement has been continued peaceably down until 1783, when he was stripped of possession by a trick practised on his tenant. Opposed merely to the defendant's Virginia
certificate, if there really was no settlement made by Arsken, his improvements and peaceable possessions ought to prevail.
Whether the application of Husk, calls for the land with clearness and precision-whether it has been aball- doned, or, the not obtaining a survey thereon, until 1783, can rationally be accounted for, under the cir- cumstances of the country resulting from a conflict of jurisdictions, are matters of fact to be determined by the jury, but thereon the verdict ultimately depends. Verdict for the plaintiff.
In the lessee of 'Thomas Jones, v. . James Park and Benjamin Kinsole, Alleghany, May, 1799, MSS. Re- ports. The plaintiff claimed under a patent, dated in 1785, and made a regular title under divers mesne con- veyances, to 340 acres of land, the subject of contro- versy.
The defendant held under a certificate granted by the Virginia commissioners to Zadock Wright, on the 18th of February, 1783, stating that he was entitled to 400 acres of land, at the mouth of Montour's run, in Youghiogena county, to include his settlement made in 1772."
A witness proved, that in 1772, Zadock Wright had settled a tract at the mouth of Montour's run, different from the lands in question. That John Westfall had settled another tract three fourthis of a mile above the mouth thereof, and Abel Westfall one other tract be- low its mouth; and that the title of Zadock Wright's tract, since became vested in Jeremiah Wright. On inspection of a diagram, which represented all the tracts together, it was manifest that the terms of the Virginia certificate called for the lands held by Jere- miah Wright.
It was then offered to prove that the Virginia certifi- cate was intended to protect and secure the improve- ment of John Westfall, which was objected to, and overruled.
Such testimony would render all property held un- der titles of this nature insecure. The terms of the written paper must govern, and it is evident that the certificate was intended for the lands now occupied by Jeremiah Wright. Zadock Wright made his settlement there, at the mouth of Montour's run. We are, no strangers to the mode of procedure adopted by the Vir- ginia commissioners. They never granted two certifi- cates to the same person, unless he claimed one of the tracts as assignee of some other, and in the case it was uniformly expressed in the certificate. Here it is not so expressed, and the consequence is obvious, that the plaintiff is entitled to recover. Verdict for the plaintiff instanter. Same judges.
The different laws of Virginia respecting military land warrants, and rights under the royal proclamation, and the material parts of that proclamation, may be seen in 3 Dallas 425, to 466, in Sim's lessee v. Irvine, stated in the special verdict, in the circuit court, and decided in the supreme court of the United States, on an eject- ment for Montour's island, in the Ohio river, founded on the right of major Douglass, located in May, 1780, and on which the plaintiff recovered against a patent granted to the defendant by act of September, 1783, and in which those rights, and the construction of the agreement between the two States, came fully to the view of the court. As the case could not be abstracted within a reasonable compass, without mutilating the facts, and being in print, it is here referred to generally. See the royal proclain. tion at large, dated 7th of Octo- ber, 1763. Council books, S. p. 427.
The controversy respecting boundary between the provinces of l'ennsylvania and Maryland, was of early and long standing. It was not rendered less difficult and tedious, by the situation of the parties; and even after an agreement by the respective proprietaries to adjust their limits, nearly thirty years were passed in expensive litigation, before the controversy could be terminated. The history of this dispute and the records
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and papers respecting it, could not be brought within the compass of a note. They would of themselves form a considerable volume. Extracts are, however, here furnished, sufficient to give an understanding of the border titles. In any other point of view than as they affect the landed interest of the country, they have, from the lapse of time, and a settled boundary, become unimportant.
By the charter, Mr. Penn's grant was to be bounded on the north by the beginning of the three and fortieth degree of northern latitude, and on the south by a circle drawn at twelve miles distance from New Castle north- ward and westward, unto the beginning of the fortieth degree of northern latitude, and then by a straight line westward, &c.
The lord Baltimore insisted that the whole fortieth degree of. north latitude, was included in his charter, which was prior in point of time. Mr. Penn insisted that lord Baltimore was precluded by a recital in his charter, that the land was uncultivated and possessed by barbarians; whereas it was not so, but possessed by Dutch and Swedes; and therefore the king was deceiv- e ! in his grant. The early part of this controversy, especially respecting the three lower counties, now state of Delaware, may be seen in the beginning of the first volume of the votes of assembly. A principal dif- ficulty was also made concerning the circle of twelve miles to be drawn about New Castle, and the true situ- ation of Cape Henlopen.
In order to bring this dispute, which had been then depending nearly fifty years, an agreement was entered into between Charles lord Baltimore, and John Penn, Thomas Penn and Richard Penn, Esquires, May 10th, 1732, which recited several matters as introductory to the stipulation between the parties, particularly the respective charters; and the title derived from James, duke of York, to the three lower counties by two feoff- ments, dated 24th of August, 1682. That several contro- versies had been between the parties concerning the boundaries and limits of the two provinces, and three lower counties. They then make a particular provision for settling them by drawing part of a circle about the town of New Castle, and a line to ascertain the boun- daries, &c. and a provision in what manner that circle and line should be run and be drawn; commissioners were to be appointed for that purpose, who were to begin the work in the month of October following, and complete the same on or before the 25th of December, 1733.
In the eleventh section, a clause is inserted, quieting the occupiers and possessors of lands held under the. respective proprietaries, on the'r attorning, and paying arrears of rent, duties, &c. to the said several proprie- taries.
November 24th, 1733, the commissioners on both sides reported, that having used their endeavors to- wards the execution of the articles of agreement, they had respectively broken up, as they differed in running the circle from New Castle; the Pennsylvania commis- sioners insisting that the circle should begin twelve English statute miles from New Castle; and the Mary- land commissioners insisting that the periphery of the circle to be run, should be twelve miles, whose diame- ter would.be somewhat less than four miles from New Castle.
Lord Hardwicke expressed great dissatisfaction with the conduct of the Maryland commissioners, and said they behaved with great chicane in the points they in- sisted on. 1 Vez. 455, Penn v. lord Baltimore.
May 25th, 1738, the royal order issued, founded on the agreement of the proprietaries of Pennsylvania and Maryland, before the committee of council.
make a settlement, until his majesty's pleasure should be signified.
In the third section of the agreement previous to the royal order of 25th of May, 1738, there is this clause: "All lands in contest between the said proprietors, now possessed, by, or under either of them, shall remain in. possession as they now are, although beyond the tem- porary limits hereinafter mentioned. The respective jurisdictions to continue over such lands until the final: boundaries shall be settled, and the tenants of either side not to attorn to each other, nor the respective pro- prietaries to accept of such attornments "
`The 'king took the report of the committee of council into consideration, and approved of the agreement of the proprietaries, and by the advice of his privy coun- cil, ordered the same to be carried into execution.
In the year 1739, the temporary line was run between the two provinces.
A suit in chancery was depending for many years, upon a bill exhibited by the proprietaries of Pennsyl- vania, against lord Baltimore, to obtain a specific exe- cution of the agreement of 1732, which agreement was. decreed to be carried into effect in the year 1750, and after a bill of revivor and supplemental bill, the final. agreement between the different proprietaries was exe- cuted on the 4th of July, 1760.
This agreement recites the original charters to lord. Baltimore and William Penn, and the grants to and from the duke of York, for the three lower counties, and that very long litigations and contests had subsisted from 1683, down to the present time, and many orders in council had been pronounced relative thereto. The agreement of 10th of May, 1732, at full length. That the time being expired for completing the said articles, Charles, lord Baltimore, petitioned the king in council to confirm to him by another charter, the Peninsula granted to Cecilius, lord Baltimore, on the 8th of Au- gust, 1734, which was opposed by a counter petition by John, Thomas, and Richard Penn, on the 19th of December, 1734, and upon references and report there- on, the king, on the 16th of May, 1735, ordered the consideration of the report to be adjourned, that Messrs. Penn might proceed in equity. That they petitioned Chancery on the 21st of June 1735. It then recites the proceedings in Chancery, and the decree of the lord Chancellor at large, that the agreement of 1732 should be carried into specific execution. The appointment of commissioners in pursuance of the decree. The death of Charles, lord Baltimore, the proceedings in Chancery, upon a bill of revivor, and supplemental bill, &c. And whereas the parties to these presents (Frede- rick, lord Baltimore, and Thomas Penn, and Richard Penn, ) have come to an amicable agreement in manner as hereinafter mentioned. It then proceeds to describe and make provision for fixing the circle and running the line, &c. Then there is the following proviso, "That nothing therein contained shall extend to the right of any grantee, or those claiming under him to any of the farms or lands in the actual possession and occupation of any tenant or occupier which have been at any time and in any manner heretofore granted by or under the authority of the said Frederick lord Baltimore, or by or under the authority of any of the ancestors of him the said Frederick lord Baltimore; but that it shall and may be lawful to all, and for all and every such tenants and occupiers of the same premises, and every part thereof, their and every of their heirs, executors, administrators, and assigns, from time to time, and at all times hereafter, to hold and enjoy the said farms, lands, tenements, and hereditaments, and every of them, and every part thereof, for and during all and every such, their several and respective estates, terms, and interests in the same, and every of them, and every part thereof, subject ne- vertheless to and by, and under all and every the same quit rents, reservations and services, to be from hence- forth paid, rendered, and performed to the proprietaries
It recites the first royal order made on the 18th of August, 1737, that, "the respective governors should not make grants of any part of the lands in contest, nor permit any person to settle there, or even attempt to / of the said province of Pennsylvania, for the time being,
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as they the said tenants and occupiers and every of them were liable at the time of, and immediately before the execution of these presents, to have paid, rendered, and performed to the proprietary of the said province of Maryland, any thing herein before contained, to the contrary in any wise notwithstanding."
" Provided also, that it is hereby further declared and agreed, &c. That neither these presents, nor any clause, article or thing whatsoever therein contained, shall ex- tend or be deemed, construed or taken to extend to the right of any grantee or grantees, or those claiming un- der them, to any the farms, lands, tenements or heredi- taments, situtate, lying and being on the east side of the river Susquehanna, and within the space or distance of one-quarter of a mile more south than the east and west line mentioned in the sixth article of the said arti- cles of agreement, of the 10th of May, 1732, and which have been . at any time, and in any manner heretofore granted by or under the authority of the proprietaries of the said province of Pennsylvania, for the time be- ing, and are now in the actual possession or occupation of all, every, or any of the tenants or occupiers of the said province lands, hereditaments and premises, but that it shall and may be lawful to and for all and every such tenants and occupiers of the said last mentioned lands and premises, and every part thereof, their and every of their heirs, executors, administrators and assigns, from time to time, and at all times hereafter, to hold and enjoy their said farms, lands, tenements and hereditaments, and every of them, and every part there- of, for and during all and every their several and re- spective estates, terms and interests in the same, and every of them, and every part thereof, subject never- theless to, by and under all and every the same quit- rents, reservations and services to be from henceforth paid, rendered and performed to the proprietary of the said province of Maryland, for the time being, as they the said tenants and occupiers, and every of them, were liable at the time of, and immediately before the exe- cution of these presents, to have paid and rendered and performed to the proprietaries of the said province of Pennsylvania, and any thing herein before contained to the contrary in anywise notwithstanding."
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