USA > Virginia > Washington County > Washington County > History of southwest Virginia, 1746-1786, Washington County, 1777-1870 > Part 64
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Numerous depositions were taken in this case. and the Supreme Court of the United States, on the 3d day of April, 1893, rendered their opinion, and decided that Virginia was estopped by her ac- tion in the year 1803, and declaring the true line between the States to be the compromise line of 1803 .*
Controversies between the citizens of Virginia and the citizens of Tennessee at this time and for some time previous thereto were
*148 U. S. Reports, page 503.
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of frequent occurrence, and oftentimes seriously threatened the breach of the peace.
In the year 1889, N. T. Wills, Joseph Southerland and R. R. Butler undertook to take possession of a tract of land situated near Green Cove in this county, the property of Marion Miller and the heirs of George W. Hopkins, deceased, and continued their efforts until the year 1892, in which year Marion Miller obtained an in- junction from the judge of the Circuit Court of this county re- straining the said Wills, Southerland and Butler from interfering with said property, and in the month of October, 1893, the de- fendants answered in said suit. Numerous depositions were taken, and on the 24th of May, 1895, the judge of the Circuit Court of this county rendered an opinion, holding that the summit of White Top, as the beginning of the compromise line of 1802, did not mean, nor never was intended to mean, the top of the highest peak of that mountain, but that it meant the top of the mountain at the point where the compromise line run by the commissioners of 1802 began. But the court, in view of the fact that the corner where the line of 1802 actually began was uncertain, ordered and decreed that the following issues out of chancery should be tried at the bar of the court, namely :
First. Does the compromise line of 1802, between the States of Virginia and Tennessee, as located and established by General Jo- seph Martin, Creed Taylor and Peter Johnston, commissioners on the part of Virginia, and Moses Fisk, General John Sevier and General George Rutledge, commissioners on the part of Tennessee, lie south or north of the lands in controversy ?
Second. At what point did it actually begin, and in what direc- tion was it actually run and located until it passed west of the lands now claimed by complainant and in controversy in this cause ?
This issue was tried by a jury, composed of R. P. Carson, W. O. Booker, H. B. Roberts, D. A. Jones, Jerry Whitaker, Thomas H. Akers, J. C. Hayter, George Keller, James Hagy, W. F. Arnett, Robert Miller, and James Fields.
This jury, after hearing all the evidence produced by the par- ties, returned the following verdict :
"1st. We, the jury, find and decide that the compromise line of 1802-'03 runs south of the land in controversy.
"2nd. The jury further find that the point where that line be-
Washington County, 1777-1870.
gan is on the summit of Pond Mountain, and runs due west be- yond the lands in controversy."
The defendants moved the court to set aside this verdict of the jury and grant them a new trial, and the court, in the month of January, 1896, delivered an opinion disagreeing with the jury in their conclusions and adjudging that the top of Pond mountain was not the summit of White Top, where the said line began, and fixed said line north, instead of south, of the land in controversy, and declared the land in controversy to be in the State of Tennessee and without the jurisdiction of the court.
From this opinion of the court the plaintiff, Marion Miller, ap- pealed to the Court of Appeals of Virginia, and that court, on the 18th of November, 1897, delivered an opinion reversing the judg- ment of the Circuit Court of Washington county and fixing the boundary line between the States of Virginia and Tennessee as a straight line, beginning on the top of White Top mountain where the northeastern corner of Tennessee terminates and following a due west course midway between Walker's and Henderson's lines to the top of the Cumberland mountain where the southwestern corner of Virginia terminates .*
By this decision the contention of the citizens of the State of Virginia was sustained, and the position of the claimants of lands under titles derived from the State of Virginia was greatly strengthened.
Thus matters stood when, on the 30th day of April, 1900, a consent decree was entered by the Supreme Court of the United States in the suit of Tennessee, complainant, vs. the State of Vir- ginia, defendant, directing commissioners to ascertain, retrace, re- mark and re-establish the boundary line between the State of Ten- nessee and the State of Virginia as fixed in the year 1803.
W. C. Hodgkins, J. B. Baylor and Andrew H. Buchanan were appointed commissioners to execute said decree.
These commissioners proceeded to execute this decree, and on the 5th day of January, 1903, filed their report in the clerk's office of the Supreme Court of the United States, which report is in the words and figures following, to-wit :
*92 Virginia Reports, page 337.
728
Southwest Virginia, 1746-1786.
To the Honorable the Chief Justice and Associate Justices of the Supreme Court of the United States:
Your commissioners, appointed by decree of this honorable court, dated April 30, 1900, to ascertain, retrace, re-mark and re-estab- lish the boundary line established between the States of Virginia and Tennessee, by the compact of 1803, which was actually run and located under proceedings had by the two States, in 1801-1803, and was then marked with five chops in the shape of a diamond, and which ran from White Top mountain to Cumberland Gap, re- spectfully represent that they have completed the duties assigned to them by the said decree of April 30, 1900, that they have re- marked and retraced the said boundary line as originally run and marked with five chops in the shape of a diamond in the year 1802, and that for the better securing of the same they have placed upon the said line, besides other durable marks, monuments of cut lime- stone, four and a half feet long and seven inches square on top, with V's cut on their north faces and T's on their south faces, set three and a half feet in the ground, conveniently located as herein- after more fully described, so that the citizens of each State and others, by reasonable diligence, may readily find the true location of said boundary ; all of which is more particularly set forth in the detailed report of their operations which your commissioners here- with beg to submit, together with two maps explanatory of the same, a list of the several permanent monuments and other durable marks, and a complete bill of costs and charges. And your com- missioners further pray that this honorable court accept and con- firm this report; that the line as marked on the ground by said commissioners in the years 1901 and 1902 be declared to be the real, certain and true boundary between the States of Tennessee and Virginia ; that your commissioners be allowed their expenses and reasonable charges for their own services in these premises, as shown on the bill of costs which forms a part of this report; and finally that your commissioners be discharged from further pro- ceedings in these premises.
[SEAL.]
[SEAL.]
[SEAL.]
WILLIAM C. HODGKINS, Commissioner. JAMES B. BAYLOR, Commissioner.
ANDREW H. BUCHANAN, Commissioner.
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Washington County, 1777-1870.
Detailed report of the operations of the commission appointed by the Supreme Court of the United States (April 30, 1900,) to retrace and re-mark the boundary line between the States of Ten- nessee and Virginia.
At the date of the above decree and for several months there- after the State of Virginia had no funds available for the proceed- ings ordered by the court, and none could be had until there could be a session of the State Legislature to make the needed appro- priation. It was, therefore, necessary for your commissioners to seek an extension of the time within which they might make their report, and, upon the motion of the attorney-general of Virginia, an extension was granted until the next term of court.
At a session of the General Assembly of Virginia held in the winter of 1900-1901, the sum of five thousand dollars was appro- priated for the purpose of paying Virginia's share of the expenses of this boundary survey. The Tennessee Legislature had pre- viously made a like appropriation.
Your commissioners, therefore, made preparations for beginning the execution of their duties under your decree of April 30, 1900, as early in the season of 1901 as the weather conditions should per- mit.
The commission held its first meeting at Washington, D. C., on May 16. 1901, and organized by choosing William C. Hodgkins, of the State of Massachusetts, as chairman, James B. Baylor, of the State of Virginia, as secretary, and Andrew H. Buchanan, of the State of Tennessee, as treasurer.
At this meeting there was a full discussion of the problem pre- sented and of the method of work which might be most suitable under all the conditions. Arrangements were also made for pro- curing the necessary camp outfit and supplies.
Through the courtesy of the superintendent of the United States Coast and Geodetic Survey your commissioners were able to pro- cure from that bureau, without charge, not only the outfit of tents and camp furniture required for the shelter and comfort of the party, but also valuable instruments needed for the survey.
This relieved the States of Tennessee and Virginia of a consider- able expense which would otherwise have been unavoidable. The two States were spared another heavy item of expense by the fact that each of your commissioners is a civil engineer and entirely
₡30
Southwest Virginia, 1746-1786.
familiar with work of this nature. It was, therefore, unnecessary to follow the usual course of employing engineers or surveyors to carry out the field work under the direction of the commissioners. Instead of that, your commissioners themselves conducted all the field work, hiring only such rodmen, axemen, etc., as were necessary from time to time. By such methods and by exercising rigid economy in all their expenditures, your commissioners have been able to complete the entire work, including the setting of cut-stone monuments and also including the amount charged for their own remuneration for the sum of $9,475.99, which is but little more than the amount charged to the State of Virginia alone by the joint commission of 1858-1859.
It having been decided at the first meeting of the commission that the most convenient place for beginning field operations would be the city of Bristol, which is located directly upon the boundary line, the commission adjourned to that place.
Field-work was begun on May 22, 1901, with the examination of a portion of the line east of Bristol, where a number of trees were found which bore the marks of the surveys of 1802 and 1858-'59. As there have been considerable controversy and conflicting testi- mony in regard to the nature of these old marks, it may be well to show by diagrams and photographs the actual arrangements and appearance of those of both years, as well as of the somewhat dif- ferent mark which was used for the present re-marking by your commissioners :
1802.
1859. =
1902.
While the marks made in 1858-'59 are still numerous in forested areas and are generally easily distinguishable, those made in 1802 are becoming scarce, and sometimes are barely discernible when found.
This is shown in the accompanying photograph of a large white oak tree, upon which the marks of 1858-'59 can readily be traced, while only three of those made in 1802 can be distinguished, and those with difficulty. The marks of 1802 were apparently made with a small and light hatchet, and on many trees which have a
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thick and rough bark the hatchet does not seem to have reached the wood, and in such cases the gradual exfoliation of the bark has often nearly or entirely obliterated the mark. Where the wood was wounded a small burr has formed, which can nearly always be recognized ; but cuts which did not completely penetrate the bark have sometimes disappeared.
The marks left by the survey of 1858-'59 were found of very great value as guides to the older "diamond" marks of 1802. Both marks were often found on the same tree, and it was a rare occur- rence to find the diamond mark without the mark of 1859 either above or below it. In fact, it was very soon noticed that the mere fact of finding the mark of 1858-'59 either above or below the nor- mal position on a tree was an almost certain indication that a dia- mond mark had been found there at the date of the latter marking, even though, through the action of time and the elements, all ves- tiges of it may now have disappeared. Since the date of the last survey, very many marked trees have been destroyed through va- rious agencies, especially since the more rapid development of this section in the recent years has caused a greater demand for lum- ber, and in some places the trees bearing the old marks are so far apart and the marks themselves are so faint that great trouble and delay would often have been experienced in the search for these old marks had it not been for the aid afforded by the marks of 1858-'59, which always proved reliable guides by which to find the older marks.
In this connection it may not be inappropriate for your commis- sioners to state that they everywhere found that the joint commis- sion of 1859 did its work in a careful and conscientious manner, and that they believe its line, as marked on the growing timber, is identical with that marked by the joint commission of 1802, and that full credence should be given to statements of fact in the re- port of that survey.
From a point about a mile and a quarter east of Bristol the line was traced without difficulty, other than that due to the broken na- ture of the country traversed, as far as the beginning of what is commonly known as the Denton Valley offset.
At this point occurs the greatest and most remarkable irregu- larity in the whole course of this line, there being a deflection from the direct course of 66°, 10' for a distance of 8715.6 feet. The
732
Southwest Virginia, 1746-1786.
portion of the boundary east of the offset is further north than that west of the offset, so that the deflection is to the south in going westward from the eastern end of the line, the direction in which it was originally run out, or to the north in working eastward from Bristol, as was done in the present survey for reasons of conveni- ence. In either case the deflection is to the left hand ; but it is not the same in each case, as the two portions of the line east and west of the offsets are not exactly parallel to each other. This differ- ence of direction amounts to 1°, 30', as shown on the map of the line accompanying this report.
Owing to the long controversy over this offset and the persistent assertions of certain parties that marked timber would be found on the eastern prolongation of the portion of the line extending from Bristol to Denton's valley, if the same were run out, your commis- sioners felt obliged, in order to settle the question for all time, to run out this line and make a careful search for marked timber along its course. This was accordingly done and a careful exami- nation of the timber on each side of the transit line was made as the work progressed, but with only negative results.
Although several weeks were spent in running this line across the series of very rough and heavily-timbered mountains lying between Denton's valley and Pond Mountain, near the corner of North Carolina, and although every story brought to the commis- sioners by people interested in the result was carefully examined, your commissioners were utterly unable to find or have pointed out to them one authentic mark of the line 1802, either on this line or anywhere in its vicinity.
On the other hand, the "offset line" and the portion of the line running eastward from the offset to the vicinity of the White Top mountain were found well marked; both the 1802 and the 1858-'59 marks were found at frequent intervals.
In order to be assured that these marks were authentic, blocks were cut from several of these trees at different points on said offset line, and the ages of the marks were determined by counting the rings of the annual growth.
These tests showed that the marks were of the supposed age. The ages of the most important marks were verified by the United States Bureau of Forestry. As was found in 1858-'59, the marking of the timber ceased (or began) on a comparatively low eminence,
733
Washington County, 1777-1870.
known as Burnt Hill, which from the neighboring heights of White Top or Pond mountain seems to be in the bottom of a hollow.
The apparent discrepancy between this situation and the lan- guage of the report of the joint commissioners of 1802, which reads : "Beginning on the summit of the mountain generally known as the White Top mountain," ete., has led some to suppose that the line should be extended further east, to the summit of the so- called "divide" or watershed between the tributaries of the Holston and New rivers.
There seems, however, nothing to support this theory except the somewhat hazy idea that the eastern end or point of beginning of this line ought to be on a summit.
As a matter of fact, the actual end of the line of Burnt Hill is on quite as much of a summit as if it had been on the "divide," which in this place is so low and flat as to be scarcely perceptible as an elevation of any importance. It certainly could never be sup- posed to be the summit of White Top mountain, which towers far above it, its huge, dome-like bulk filling the northeastern horizon.
No marked trees of 1802 or 1858-'59 could be found east of Burnt Hill, though the line was produced through heavy timber of original growth to the "divide," and careful search was made for them. The same condition was found in 1859, as reported by the commission of that year. A point which that commission seems to have overlooked is the important fact that the eastern end of the marked line at Burnt Hill is almost exactly in line between the corner of North Carolina, on Pond Mountain, and the sum- mit of White Top mountain. What more likely than that the commissioners of 1802, who had agreed to lay out a line equally distant from the older lines, known as Walker's and Henderson's and beginning on the summit of the mountain generally known as the White Top mountain, should begin at the point where the Walker line reached the northwestern corner of North Carolina, and where accordingly the jurisdiction of Tennessee should begin, and run thence in the direction of the most important peak to the northward and eastward until they reached the desired middle point between the lines of Walker and Henderson, and from that point started on their westerly course. It is hard to understand why they should have omitted to mark this part of the line; but this small bit of boundary extending from the northeast corner of
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Southwest Virginia, 1746-1786.
Tennessee to the northwest corner of North Carolina seems to have been somewhat overlooked in more recent proceedings. Your com- missioners respectfully recommend that the straight line between these two points be declared to be the boundary, believing as they do, in the absence of any marks to the contrary, that this was the original and true line. All of this section is composed of very rugged and densely-wooded mountains with but a scanty popula- tion.
The progress of the work in this mountainous anl almost inac- cessible region was delayed not only by the nature of the country and by the fact that in this very worst part of the whole line it was necessary to run out these two independent lines, doubling the labor to be expended, but also by the unfortunately rainy 'weather which was experienced. The frequent and heavy rains often stopped field work, washed the few roads so badly that they became almost impassable, and raised the streams so high that sometimes for days at a time it was impossible to ford them.
It was not until September 21st that your commissioners were able to close work in the White Top region and return to Bristol to start westward from that place towards Cumberland Gap.
For the remainder of the season, however, both the weather and the nature of the country were much more favorable for field operations, and excellent progress was made, though it was impos- sible to complete the work before the approach of winter.
So far as the portion of the boundary passing through the cen- tral portion of the city of Bristol is concerned, the labors of your commissioners were, forestalled by a special act of the General Assembly of the State of Tennessee, approved January 28, 1901, ceding to the State of Virginia the northern half of the main street of the two cities. The General Assembly of Virginia ac- cepted. the cession by an act approved February 9, 1901, and the action of the two legislatures was subsequently ratified by the Con- gress and approved by the President of the United States March 3, 1901. This cession covers, however, but a small part of the boundary, extending only from the northwest corner of the old town of Bristol on the west to the western boundary of the Bristol cemetery on the east. As it is important to guard against the possible renewal of this long-standing controversy, and as the town is already extending beyond the above limits, it was deemed proper
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Washington County, 1777-1870.
to mark the old diamond line by monuments, just as if there had been no legal change in the boundary for this short distance. But your commissioners regret to report that they have been unable to reach a unanimous conclusion in regard to the true location of the said diamond line within and near the above limits.
Commissioners Hodgkins and Buchanan, after careful study of all the evidence of record and after diligent examination of the ground, are of the opinion that the said diamond line of 1802-1803 runs from monument No. 25, near the first marked trees east of Bristol, in a straight line, to monument No. 26, on the western boundary of the Bristol cemetery and on the north line of Main or State street; thence along the northern line of said Main or State street to "a planted stone in the edge of a field formerly owned by Z. L. Burson, being the northwest corner of the corporate territory of the old town of Bristol" referred to in the act of cession, supra ; and thence in a straight line to monument No. 28 in the fork of the main road and near the first marked trees west of Bristol.
Commissioner Baylor, on the other hand, after equally careful consideration of all the evidence of record and diligent examina- tion of the ground, is of the opinion that the said diamond line of 1802-1803 runs from monument No. 25, near the first marked tree east of Bristol, in a straight line to monument No. 27, situated just outside of the wall of the Bristol cemetery, and on the middle line of Main or State street as it runs west from this point; and thence in a straight line along the middle of Main or State street to monument No. 28, near the centre of the fork of the main road and near the first marked trees of 1858-'59 west of Bristol.
The said line running through the centre of Main or State street is just thirty feet south of monument No. 26 on the north property line of Main or State street outside the western wall of Bristol cemetery.
Westward from Bristol, the boundary was retraced without dif- ficulty by the marked trees, just as in the previous work to the eastward.
Only one marked deviation from the general course of the line was encountered during the remainder of the season. This was on the property formerly known as the Hickman place, in the vicinity of the village of Bloomingdale, Tennessee.
Here the line was found to have a deflection of 8º, 30' to the
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Southwest Virginia, 1746-1786.
right or north for the distance of 3161.8 feet. From the west- ern end of this offset the line resumed its general westerly course, and so continued until the end of the work of that year. As the season advanced it became evident that even under the most favor- able conditions it would be impossible to complete the survey with- out working far into the winter, which on many accounts was un- desirable.
The attorney-generals of the two States therefore joined in a request for a further extension of time within which your com- missioners might file their report, and this honorable court there- upon extended that time until the opening of the October term, 1902.
The field operations for the season of 1901 were closed at the end of October, at which time the survey had been extended to the Clinch river, forty-three miles east of Cumberland Gap, the total length of boundary retraced being seventy miles, besides sixteen miles of trial line run on the extension of the "straight line" from Denton's valley to Pond mountain.
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