F 153 .A27 C py 2 Class _ELl5JS. Rnolc , A a. '] COf^^ICHT DEPOSIT A HISTORY OF THE REGION OF PENNSYLVANIA NORTH OF THE OHIO AND WEST OF THE ALLEGHENY RIVER, INDIAN PURCHASES, AND OF THE RUNNING OF THE SOUTHERN, NORTHERN, AND WESTERN STATE BOUNDARIES. ALSO, AN ACCOUNT OF THE DIVISION OP THE TERRITORY FOR PUBLIC PURPOSES, AND OF THE LANDS, LAWS, TITLES, SETTLE- MENTS, CONTROVERSIES, AND LITIGATION AVITHIN THIS REGION. BY Hon. DAI^IEL AGXEW, LL.D., LATE CHIEF JU.STICE OF PENNSYLVANIA. PHILADELPHIA : KAY & BROTHER, LAW PUBLISHERS, BOOKSELLERS, AND IMPORTERS. 1887. ^\5-3 • V^l Co^^S Entered according to Act of Congress, in the year 1887, by Hon. DANIEL AGNEW, LL.D., in the Office of the Librarian of Congress, at Washington. COLLINS PRINTING HOUSE, 705 Jayne St., Phiia. PREFACE. Probably no part of Pennsylvania is more interesting in its history, settlement, titles, and protracted litigation than that portion lying north of the Ohio and west of the Allegheny River. A century having elapsed since its purchase of the Indians, and the passage of the laws regulating its appropriation and titles, few lawyers are living familiar with these subjects. The legislation peculiar to this region was unfortunate, and gave rise to contests which for many years retarded improvement, and rendered titles uncertain. It was my fortune to begin practice when lapse of time and the Statute of Limitations began to urge a final settlement of the disputes between the "warrantees" and the "set- tlers." In the winter of 1829-30 accident, or good fortune, threw into my hands the second volume of Charles Smith's edition of the Laws of Pennsylvania, containing his exhaustive note (156 pages) on the Land Laws. The study of this was my preparation for a large practice in land titles. In December, 1818, John B. Wallace, Esq., had con- veyed a large body of land, in Beaver County, to the Farmers and Mechanics' Bank of Philadelphia. In 1832 the bank, finding it necessary to act promptly, sent out IV PREFACE. its agent, William Grimshaw, Esq., a lawyer, better known as a com})iler of minor histories and school- books. He compromised Avith many settlers, yet many were left against whom ejectments were brought, causing long litigation. I was largely employed, and became familiar with the disputes between the warrantees and settlers. The history of this region is so blended with the leg- islation relating to it, it is impossible to separate them. It is not only interesting, but necessary therefore to take a historical view of the condition in which this north- west territory was found, when the Indian title was relinquished, and the laws were passed relating to it. The number and variety of the original titles and their ramifications are so great they must be historically considered in order to understand them. Not more than three or four lawyers remain who were contemporary with the questions involved ; and perhaps not another beside myself willing to undertake the labor of perpetuating the events which entered into them. Hoping that the account given in the following pages will be interesting and useful, I present them to the profession and the public. DANIEL AGNEW. Beaver, October, 1886. CONTENTS. CHAPTER I. PAGE General Situation of Northwestern Pennsylvania before the Purchases of the Indians in 1784, 1785, and 1789 . 1 CHAPTER II. Relating to the Purchases of the Indians . . . .13 CHAPTER III. Of the Depreciation Lands ...... 19 CHAPTER IV. The Donation Lands ....... 32 CHAPTER V. The Western and Northern Boundaries of the State, and part of the Southern ....... 58 CHAPTER VL The Erie Triangle •......, 66 VI CONTENTS. CHAPTER VII. PAGE The Reservations . . . . . . • .73 CHAPTER VIII. The Allegheny and Beaver Reservations .... 79 CHAPTER IX. Reservations at Erie, Franklin, Warren, and Waterford . 102 CHAPTER X. General Disposition of the Lands under the Act of April 3, 1792 117 APPENDIX. Address of Daniel Agnew at the Dedication of the New Court-house of Beaver, Penn'a . . . . .167 Report of General Wm. Irvine, agent of the State on the Donation Lands ........ 196 Letter of David Redick, relative to the Allegheny Reserva- tion of 3000 acres 210 Address of Cornplanter, or Captain Abeal, before the Supreme Executive Council of Pennsylvania . . 212 CONTENTS. Vll Account of Ft, Mcintosh and of the French Forts at Presque Isle, Le Boeuf, Machault or Venango, and Du Quesne ......... 220 Fort Mcintosh . Presque Isle Fort le Bceuf Fort Machault or Venango Fort Du Quesne . 220 225 226 228 229 Deed of John B. Wallace to the Farmers and Mechanics' Bank of Philadelphia 232 Memorandum of deed from Maurice and William Wurts and Ham Jan Huidekoper to Meredith and Day . . 234 Index 237 HISTORY TERRITORY, SETTLEMENT, AND LAND TITLES NORTH OF THE OHIO AND WEST OF THE ALLEGHENY RIVER. CHAPTER I. GENERAL SITUATION OP NORTHWESTERN PENNSYLVA- NIA BEFORE THE PURCHASES OF THE INDIANS IN 1784, 1785, AND 1789. The state of the "Western country, between the years 1780 and 1796, had a direct bearing upon the condition of the territory, and the land titles, within that section of Pennsylvania lying north of the Ohio and west of the Allegheny River. This portion is within the last purchases of the Indians at Fort Stanwix in 1784, Fort Mcintosh in 1785, and Fort Harmar in 1789. It is a matter not only of historical interest, but essential to a proper understanding of the land laws, land titles, and general history of this region, that the facts bear- ing upon its situation should be grouped in a short detail. 2 SETTLEMENT, AND LAND TITLES. France, Spain, and England were the three great powers which, in the seventeenth and eighteenth centuries, contended for the dominion of the north- ern half of the new continent. Spain pursued her designs in southern fields, France in northern, and Great Britain between the two. The Appala- chian chain of mountains, running northeasterly and southwesterly, parallel to and a few hundred miles inland from the Atlantic coast, long formed a barrier to the English advance into the interior of Korth America. But France, entering the Gulf of the St. Lawrence, and ascending that river, found her way in the rear of that great mountain range, into the heart of the continent. The world has rarely witnessed methods pur- sued similar to those of the French kings in the conquest of the wilds of America. No great army landed on these shores with banners flying, driving before them peaceful inhabitants. But religion, knowledge, and chivalry made their way slowly from the St. Lawrence to the distant Mississippi, carrying with them the influence of peace and the guise of friendship. Missionaries of the Cross, filled with zeal and possessing much of the learning of the age, were found in the wig- wam of the Indian, and on the moss-carpeted floor of the wilderness, teaching the doctrines of Christ, and some of the ideas of civilization. Here toiled SETTLEMENT, AND LAND TITLES. 3 priest and chevalier — Champlain, Le Caron, Mes- nard, Brebceuff, Allonez, Marquette, Joliet, La Salle, Hennepin, De Tonti (Italian), Frontenac, and others, many of whom imprinted their names upon the soil they trod. France, following the river Ottawa, it chanced, discovered Lake Huron first, and thence spread over the country adjacent to Lakes Michigan and Superior, reaching the Illinois and Mississippi rivers. Later she found the straits leading into Lake Erie, and founded Detroit ; in the meantime having discovered Ontario. Lake Erie was the last to be reached, owing to the adoption of the northern route by the Ottawa first, and to the Erie region being inhabited by the league of the warlike Iroquois, who presented a formidable barrier to progress in that direction. Though some of the British colonies were planted as early as 1620, and even before, along the Atlantic coast, it was not until the middle of the next cen- tury the English broke over the Allegheny moun- tain range and began the contest with France for the possession of the western territory, at the junc- tion of the rivers where Pittsburgh now stands. At this time the western tribes of Indians were under the influence of the French, who had pushed their way to Pi-esque Isle, on Lake Erie, 4 SETTLEMENT, AND LAND TITLES. and built forts at Le Bcenf, above on French Creek, and at Venango, at its mouth. The first step taken by the Colonial government was to ascertain the feelings of the Indians beyond the Allegheny River, and their number and strength; it being understood that they were de- clining in their fi'iendship for the French. For this purpose, Conrad Weiser, a prominent citizen of Berks County, familiar with the Indian tongues, was sent out under instructions from the President and Council of Pennsylvania. He kept a minute journal, setting out from his home August 11, 1748, and reaching Logstown, on the noith bank of the Ohio, on the 27th of August. His mission was faithfully performed, and favorable results accom- plished. In December, 1750, George Croghan, an Indian trader, as the representative of Governor Hamilton, of Pennsylvania, held interviews with the Indians at Logstown, and made a treaty with some of the Six Nations, and the Delawares, Shawanese, Wy- andots, and Twightwees. The next most memo- rable was the visit of Washington on behalf of Governor Dinwiddle, of Virginia, to the French commandant at Le Bo^uf. The territory surround- ing the confluence of the Monongahela and the Allegheny was then supposed by Virginia to be- long to her. He set out in [N'ovember, 1753, and SETTLEMENT, AND LAND TITLES. 5 reached Le Boenf on the 11th of December. His journal, kept in detail, was considered so import- ant that it was published by Virginia. The result of his mission was the discovery of the intention of the French to hold the head of the Ohio, and the country noi'thward and westward, under the alleged discovery of La Salle, about eighty years before. In view of this fact the Governor and Council of Virginia resolved to send a force to the head of the Ohio, and plant a fort and station there. The Assembly voted the means, and a small army was raised, commanded by Col. Fry, who died before the advance, and was succeeded in command by Washington. "When Washington, with a part of his force, reached the Monongahela, he there en- countered a small force of the French, sent from Fort Du Quesne, at the junction of the rivers, under command of Jumonville. The French were de- feated, and Jumonville killed, under circumstances the French called assassination — a charge always denied by Washington. This was followed by the battle of the Great Meadows, with a larger force sent from the fort, the retreat of Washington, and building of Fort Necessity, and, finally, its sur- render and evacuation by him. The French having thus succeeded in holding possession of the territory at the head of the Ohio, Great Britain resolved upon stronger measures to 6 SETTLEMENT, AND LAND TITLES. dislodge them. This led to the memorable expedi- tion under General Braddock, and his defeat on the 9th of July, 1755, near the mouth of Turtle Creek, ten miles above Pittsburgh. He had come byway of Cumberland and Wills Creek. His defeat for a time confirmed the French possession, then ex- tending from the Gulf of St. Lawrence to the southern shore of Lake Erie, and thence from Presque Isle, where Erie now stands, down the Ohio (as the Allegheny was then called) by a chain of forts at Presque Isle, Le Boiuf, and Venango, to Fort Du Quesne, at the junction of the rivers. It was by this route down the Alle- gheny, the French, under Mons. Contrecoeur, a French officer, in April, 1754, descended with three hundred canoes, and one thousand French and Indians, and eighteen cannon, drove off Ensign "Ward, of the Virginia troops, and built Fort Du Quesne, named after the French Governor of Canada. The defeat of General Braddock was a great disaster, and for a time retarded the efforts of the British. The next attempt by the English to dislodge the French took place in 1758, by way of the Pennsylvania route, through the region now of Bedford and Westmoreland counties, and by way of Ligonier and Bushy Run. This expedition, under General John Forbes, was successful, and SETTLEMENT, AND LAND TITLES. 7 Fort Da Qnesne became Fort Pitt, soon to be known as Pittsburgh. But the Fi-ench were not expelled from the western country, and though held in check by Fort Pitt, they and their Indian allies occupied the country north of the Ohio and west of the Allegheny ; the Indians making fre- quent incursions southward and eastward of these streams, bringing terror to the few scattered in- habitants by their barbarities — killing, scalping, and taking many prisoners, and carrying women and children into their western haunts. The French power was broken by the fall of Quebec and the capture of Niagara, yet it did not immediately surrender. The French army retired to Montreal, which became the centre of their operations until September, 1760, when the French Governor of Canada, threatened by the near ap- proach of two English armies, surrendered Mon- treal, Detroit, Mackinaw, and all other posts within his dominion, to General Amherst, the English commander. Following this came the Treaty of Paris, of 1763, by which France ceded to Great Britain " her pre- tensions to ^ova Scotia, or Acadia, and in full right Canada, with all its dependencies; and agreed that the boundary of division between the terri- tories of Great Britain and France should be a line drawn along the middle of the Mississippi Piver to 8 SETTLEMENT, AND LAND TITLES. the river Iberville, thence by the middle of that river and the lakes Maurepas and Pontchartrain to the sea;" surrendering to Great Britain all the territory on the left, or east side of the Mississippi, excepting the town and island of 'New Orleans. Peace, however, did not come to the western country. In 1762 Pontiac, the great Ottawa chief, fearful of English ascendency, was forming his grand confederacy of all the Indian tribes, which took final shape in a general council at the river Ecores, in April, 1763. This was followed by Pontiac's war, which for more than a year raged with terrific violence. During that time no safety for the white man lay in Western Pennsylvania. The Indians besieged Fort Pitt so closely it was in constant danger. Their incursions were carried far beyond the Allegheny River to the Allegheny Mountains, frequently passing their defiles into the region of the Juniata, carrying terror, massacre, and destruction in their paths. The siege of Fort Pitt brought about the expe- dition of Colonel Henry Boquet, with a force of about five hundred men, in the year 1764, to relieve it. He was ambushed at Bushy Run by the In- dians, who, having notice of his approach, left the investment of Fort Pitt to meet and destroy him. For a time defeat seemed inevitable, and many of his troops were killed and wounded; but by a skil- SETTLEMENT, AND LAND TITLES. 9 ful manoeuvre, attacking the Indians in their flank and rear, he finally put them to flight with great loss, his own, however, in the beginning being greater. From Fort Pitt Colonel Boquet made his expeditions against the Indians in what is now the State of Ohio, in the autumn of 1764. The relief of the siege of Detroit by the English, and their possession of the lake country, put an end to Pon- tiac's war. The Indian troubles, however, did not cease, and Western Pennsylvania continued unset- tled beyond the Allegheny Eiver. This, at first, was largely owing to the influence of the French settlers along the lakes and in the western terri- tory, whose bitterness toward the English con- stantly made the English nation odious and hateful to the Indians. This animosity came to a head in 1774, in the war known as Lord Dunmore's. The settlers, then chiefly from Virginia, had pushed their improvements to the Ohio River and were ad- vancing into Kentucky. Reports of Indian out- rages, many untrue, were fanned into a flame among the excited whites along the Ohio, above and below Wheeling. These culminated in the massacre of two small bodies of Indians by Micliael and Daniel Cresap, one below Wheeling at Captina, and the other at Baker's, opposite the mouth of Yellow Creek. They became the immediate causes of the war of 1774. It was in this state of hostile feeling 10 SETTLEMENT, AND LAND TITLES. the murder of the family of Logan, the Mingo chief, took place, causing him, to this time the firm friend of the whites, to enter into the struggle against them with an almost frantic zeal, and to glut his revenge in blood. ^ow came another blast to fan the flame of In- dian wrath against the whites — the war of the Revolution. England, in her effort to subdue the colonies, regardless of the ties of blood and the dictates of humanity, sought the savages, and by every art in her power persuaded them to lift the tomahawk and sharpen the scalping knife against the whites in the West. Outrage and barbarity followed the footsteps of the Indians in their many incursions into the settlements. The entire terri- tory north of the Ohio became unsafe. The decla- ration of peace between the United States and Great Britain by the treaty of peace of 1783 did not end the Indian warfare. These sons of the forest saw the march of white settlements still pressing onward toward their hunting-grounds, and with the feelings natural to all men conceived that their rights were endangered, and a country believed to be their own about to be wrested from them by violence. In these feelings they were encouraged by certain white renegadoes, who had acquired influence among them. The doctrine of conquest, however justified by SETTLEMENT, AND LAND TITLES. 11 so-called Christian kings, to expand their posses- sions and power, can scarcely be allowed as a justifi- cation for war, desolation, and seizure of land from those who inhabit it. Civilization pleads the bar- barism of the natives ; yet the pure principles of the doctrine of the Prince of Peace will find it hard to defend the plea. It is the proud distinction of Pennsylvania that all the land she owns she bought. But this claim does not turn aside the trend of his- tory. The Indian war was marked on the side of the whites by cruelty. The massacre of the Christian Moravian Indians at Gnadenhutten, on the Tusca- rawas, was one of the most fiendish acts that ever disgraced civilized men, and whose particulars freeze the blood and make the heart stand still. This state of affiiirs led to expeditions against the Indians — Crawford's in 1782, Harmar's in 1790, and St. Clair's in 1791 — all of which suffered defeat. The Ohio country remaining unsafe, outside of a few forts, the next step was the organization of an army under General Anthony Wayne. St. Clair's defeat, in 1791, was attributed to the want of dis- cipline of his troops, largely militia who had not undergone drill. To obviate this defect, General Wayne assembled his troops on the elevated plain a short distance below the present town of Economy, on the Ohio, in what is now Beaver County. His encampment has since been known as Legionville, 12 SETTLEMENT, AND LAND TITLES. a few perches east of the present Pittsburgh, Fort Wayne, and Chicago Railway, which here skirts the right bank of the Ohio River. This encamp- ment lasted throughout the winter and spring of 1792-3. In April, 1793, he moved his army to Fort Washington (now Cincinnati), remaining there till the spring of 1794. Thence he made his expedition to the Maumee. On the 20th of August he gave battle to and defeated the Indians at Fallen Timbers. In this engagement the Indians were completely routed, and their power broken. After- wards he returned to Fort Greenville, which he made his headquarters, where, on the 3d of August, 1795, he concluded a treaty of peace with the In- dians which put an end to the war. This treaty was ratified by the Senate of the United States on the 22d of December, 1795 — a date which has since played a conspicuous part in the controversies upon the land titles of Western Pennsylvania under an Act of the Legislature of the 3d of April, 1792. SETTLEMENT, AND LAND TITLES. 13 CHAPTEK II. RELATING TO THE PURCHASES OF THE INDIANS. It is proper now to refer to the acts which gave Pennsylvania title to the territory north and west of the Ohio and Allegheny rivers. By the treaty made at Fort Stanwix (now Rome, in New York), on the 5th of November, 1768, between the Penns and the Six ]N"ations, the Indian title had been extingnished on the east side of a boundary beginning where the northern State line crosses the I*^orth Branch of the Siisqnehanna River, and running a circuitous course by the West Branch of that river to the Ohio (Allegheny), at Kittanning ; thence down that river to where the western boundary of Pennsylvania crosses the main Ohio. Thence the line ran southward and eastward by the western and southern boundaries of the State, to the east side of the Allegheny Mountains. By a treaty made October 23, 1784, also at Fort Stanwix, between the commissioners of the State of Pennsylvania and the Six ISTations, viz., the Mohawks, Oneidas, Onondagas, Senecas, Cayugas, and Tuscaroras, all the remaining In- 14 SETTLEMENT, AND LAND TITLES. dian lands in Pennsylvania were purchased. The eastern boundary was that of the western boun- dary of the purchase of 1768. As the boundaries of the treaty of 1784 are important to the subject of this treatise, they are copied, viz : — "Beginning on the south side of the river Ohio, w^here the western boundary of the State of Penn- sylvania crosses the said river, near Shingo's Old Town, at the mouth of Beaver Creek, and thence by a due north line to the end of the forty-second and beginning of the forty-third degrees of north latitude ; thence by a due east line, separating the forty-second and forty-third degrees of north lati- tude, to the east side of the East Branch of the river Susquehanna; thence by the bounds of the late purchase made at Fort Stanwix, the 5th day of November, Anno Domini 1768, as follows: ' Down the East Branch of the Susquehanna, on the east side thereof, till it comes opposite the mouth of a creek, called by the Indians Awandac, and across the river, and up the said creek, on the south side thereof, along the range of hills, called Burnett's Hills by the English, and by the Indians ; on the north side of them, to the head of a creek, which runs into the West Branch of the Susquehanna, which creek is by the Indians called Tyadaghton, but by Pennsylvanians Pine Creek, SETTLEMENT, AND LAND TITLES. 15 and down said creek, on the south side there- of, to the said West Branch of the Susquehanna ; then crossing the said river, and running up the same, on the south side thereof, the several courses thereof to the fork^ of the same river which lies nearest to a place on the river Ohio (Allegheny), called Kittanning, and from the fork by a straight line to Kittanning aforesaid ; and then down said river by the several courses thereof, to where the western boundary of the said State of Pennsylvania crosses the same river, at the place of beginning,' " It will be noticed that, in this deed, the western boundary is said to cross the Ohio River, near Shingo's Old Town, at the mouth of Beaver Creek. The Indian town at the mouth of Big Beaver Creek was Sawkunk, or Sawkung. I have not heard of any Shingo's Old Town at the mouth of Little Beaver. The Big Beaver seems to be the creek referred to, though the boundary, as after- wards run in 1785-6, fell a few yards below the mouth of Little Beaver, twelve miles below the Big Beaver. In 1753, Washington, in his journal, said Shingiss, king of the Delawares, lived about two miles below the forks of the Ohio (Pitts- burgh). It is possible "Shingo's Old Town" merely indicated his chieftaincy, and not the name of the ^ This fork was known as the " Canoe Fork," or more latterly as the *' Cherry Tree Corner." 16 SETTLEMENT, AND LAND TITLES. town. This uncertainty of the western boundary is referred to by General Wra. Irvine in his report (see Appendix), and had much to do with pre- venting the donation surveys from being laid near to the western boundary. The Wyandot and Delaware Indians then occu- pied a large territory west of the Allegheny Kiver, and not being parties to the treaty made at Fort Stanwix, in 1784, a treaty with them was held by the same commissioners at Fort Mcintosh (now Beaver), in January, 1785, and their title extin- guished by a deed of the 21st of January. This deed is in terms and boundaries the same as that of Oc- tober 23, 1784. Thus the Indian title to all the lands in Pennsylvania was finally extinguished b}^ pur- chase under the humane and enlightened policy which characterized the course of Wm. Penn and his heirs. At the time of the treaty of 1785, the State was not the proprietor of the northwestern angle of the present territory of the State, called the Erie Tri- angle. A subsequent treaty was made in 1789, at Fort Harraar, for the purchase of the Indian title to the " Triangle." It will be noticed hereafter. In consequence of the Declaration of Independ- ence of the Colonies in 1776, the title of the Penns became vested in the Commonwealth in sove- reignty. This was declared by the divesting Act SETTLEMENT, AND LAND TITLES. 17 of the Assembly, passed on the 2Tth l^ovember, 1779.^ The Act saved, however, all titles granted by the Penns before the 4th day of July, 1776; and all private estates and lands of the Penns, in- cluding surveyed manors or tenths, and certain quit-rents. The Commonwealth having become the sovereign proprietor of all the lands within the State, and in- tending and anticipating the purchase of the Indian title, provided by an Act of 12th March, 1783,^ for the approj^riation of all that portion of the pur- chase of 1784 and 1785 north of the Ohio and west of the Allegheny River and the Cagnawaga (now Conewango) Creek, by dividing the same into two large and separate sections. These were — 1. For the redemption of the Certificates of De- preciation, given to the officers and soldiers of the Pennsylvania Line, in pursuance of an Act of 18th December, 1780,^ providing that the certificates should be equal to gold or silver, in payment of unlocated lands, if the owners should think proper to purchase such. 2. In fulfilment of the promise of the State, in a resolution of March 7th, 1780, to the officers and soldiers of the Pennsylvania Line to make them certain donations in lands, according to their rank in the service. ^ 1 Smith's L. 479. " 2 lb. 62. ' 2 lb. 62. 2 18 SETTLEMENT, AND LAND TITLES. The Act of 12th March, 1783, therefore divided this territory hy a due west line, running from Mogul bnghti ton Creek, on the Allegheny River above Kittanning (probably Pine Creek), to the western boundary of the State. The course of this line runs between seven and eight miles south of the present city of 'New Castle, which lies in the fork of the Shenango and IN^eshannock creeks. The land south of this boundary was appropriated to the redemption of the Depreciation Certificates, and became known as the "Depreciation Lands." Out of this section were reserved to the State two tracts, of 3000 acres each ; one at the mouth of the Allegheny, where the city of Allegheny now stands ; the other at the mouth of the Big Beaver Creek, on both sides, including Fort Mcintosh (now Beaver). The land north of the line above described was ap- propriated to donations to the soldiers of the Penn- sylvania Line for their services in the Revolutionary "War, and became known as the "Donation Lands." These appropriations of territory in the last pur- chases, being first acted upon by the State, require their disposition to be first considered. SETTLEMENT, AND LAND TITLES. 19 CHAPTEE III. OF THE DEPRECIATION LANDS. In order to encourage enlistment, and to reward those who in the Revohitionary War entered into the military service in the Pennsylvania Line, and in the State Navy, the State promised to pay them in a sound currency, and also to secure to them donations of land. In pursuance of this patriotic purpose, and of the recommendation of Congress, of the 15th of May, 1778, recited in the Act, the State, by the Act of March 1, 1780,^ made provision for the State troops, and the officers and marines of the navy, extending these provisions to the widows and children of those killed in battle. An important supplement to that Act, passed October 1, 1781,^ reciting the Act of Congress of 13th June, 1781, containing important additional provisions, may be consulted by those desiring further infor- mation. These provisions were continued by sub- sequent Acts. This encouragement to enter the service had become necessary owing to the diversion produced 1 1 Smith's L. 487. » 2 lb. 8, 9. 20 SETTLEMENT, AND LAND TITLES. by the occupancy of Philadelphia by Lord Howe, in 1777-8, and the distress of the American army lying at Yalley Forge. Philadelphia became the refuge of royalists and neutrals, and the spirit of the people was much broken. Distress pervaded, and gloom fell upon all ranks for a time. An ex- cellent view of this state of affairs can be realized from the diary of one living at the time, James Allen, a neutral, published in the 'Pennsylvania Magazine of History and Biography.'^ By the Act of December 18th, 1780,'- the State provided for the settlement of the depreciation from the Continental currency in the pay of the Penn- sylvania Line and State N^avy, and for issuing cer- tificates for the same. They were made receivable in payment of confiscated estates and unlocated lands. The confiscation of the estates of traitors and seditious persons, many by name, others by description, owing to the number of persons flock- ing to Lord Howe for protection, and of those adhering to the crown of Great Britain (then com- monly called, royalists), had been provided for in the Act of 6th March, 1778.' The fifth section recited that it was "highly reasonable that the estates of subjects or inhabitants of this State who have engaged in the present most unnatural, unjust, barbarous, and execrable war, and who shall 1 Vol. 9, for 1885. ' 1 Smith's L. 522. ^ lb. 449. SETTLEMENT, AND LAND TITLES. 21 be duly attainted as guilty of treason, should be discovered and applied to the use of the State." The subject of confiscation is, however, apart, and it is as payment for " unlocated lands" that the certificates are being noticed. These certifi- cates were included in the Act of 3d April, 1781,^ directing the mode of adjusting and settling the payment of debts and contracts entered into and made between the 1st day of January, 1777, and 1st day of March, 1781. The 5th section gave the scales of depreciation for the years 1777, 1778, 1779, 1780, and 1781, as compared with silver and gold. In July, 1777, the scale was three to one; in 1778 it rose to six to one; in 1779, to forty-one and a half to one ; in 1780, to seventy-five to one; and in 1781, to seventy-five. Afterwards the scale of depreciation was published from time to time, under the Act of 23d December, 1780.- For the purpose of carrying out the legislation of the State as to Pennsylvania troops, the Supreme Executive Council, on the 23d of April, 1781,^ resolved "that James Stevenson, John JS^icholson, Wm. Goforth, Robert Levers, Henry Haller, John Thom, John Beaton, Samuel Boyd; Henry Slagle, and Samuel Laird, or any two of them, of whom the said James Stevenson and John ]^icholson 1 1 Smith's L. 519. ^ 12 Colonial Records, 611-12, 618, 681, 716. ' 12 lb. 703. 22 SETTLEMENT, AND LAND TITLES. always to be one, be appointed commissioners for the payment of one-third of the depreciation certificates, and for granting new certificates as directed by the said Act." The said " auditors" were also empowered to correct certain mistakes, take receipts on certifi- cates surrendered for money paid on account, and to pay strict regard to the law confining the pay- ment to ofiicers and soldiers in the actual service. After these Acts, provisions, and resolutions of Council came the Act of 12th March, 1783,^ before referred to, describing and appropi'iating the land for the redemption of the certificates of deprecia- tion jriven to the officers and soldiers of the Penn- sylvania Line. The territory so appropriated is thus described : " Beginning where the western boundary of this State crosses the Ohio River; thence up the said river to Fort Pitt ; thence up the Allegheny River to the mouth of Mogulbugh- titon Creek ; thence by a west line to the western boundary of this State ; thence south by the said boundary to the place of beginning." This line west from the mouth of Mogulbugh- titon (Pine) Creek, was run by Alexander McClean, Esq. See the interesting letter of Gen. William Irvine to President Dickinson, August 18, 1785.^ The land to the north of this line was by the same ^ 2 Smith's L. 62. » 11 Penn. Arch. 514 ; also 16 Col. Rec. 340. SETTLEMENT, AND LAND TITLES. 23 Act of 12th March, 1783, appropriated to donations to the officers and soldiers of the Pennsylvania Line, and will be treated of hereafter. Out of the land appropriated for the redemption of the certificates of depreciation two reservations, of 3000 acres each, were made b}^ the Act, which will also be treated of in a proper place. The Act of 1783 requii-ed the " Depreciation Land" to be laid out by the Surveyor-General, under the direction of the Supreme Executive Council, into lots of not less than two hundred acres, and not more than three hundred and fifty acres, numbering them numerically on the draft or plot of the country. As soon as the same, or on hundred lots thereof, should be surveyed, the Sur- veyor-General, Secretar}" of the Land Office, and Receiver-General, were required to proceed to sell, in numerical order, at such times and places, and under such regulations as should be appointed by the Supreme Executive Council ; the full considera- tion bid at such sales to be paid in silver or gold, or in depreciation certificates. Intelligence of Indian hostilities caused the Council to delay the order to the Surveyor-General to proceed to survey these lands until the 10th of June, 1783,^ when the instructions to him were issued, and he was directed to proceed with the ^ ]3 Col. Rec. 596; and 10 Penn. Arch. 53,54. 24 SETTLEMENT, AND LAND TITLES. work immediately. He was authorized to begin with the surveys of the two tracts of 3000 acres reserved for the use of the State, and then to sur- vey the remainder, and lay out and number the lots contiguous to each other, and thus to form an accurate draught or map of the country. On the map were to be noted the courses and depths of the waters, places of mines, sites for towns, the quantity of each lot, and a precise description. The courses and distances were to be determined with precision and distinctly marked, retaining the natural boundaries, and dividing the waters as well as the nature of the ground would admit: care and nicety in the work were required, and those em- ployed were forbidden to give information of the quantity and advantages of the lots, except in the return made to the Council. Without attributing to Daniel Leet, Surveyor of the Second Depreciation District, anything improper, his general knowledge of the country along the Ohio, above his own dis- trict, enabled him to obtain that large and valuable body of lands on the Sewickly Bottom, which de- scended to his daughter, the late Mrs. Shields, wife of the late David Shields. In the performance of the work the advice and assistance of General William Irvine were to be furnished.^ lie was then the military commandant at Fort Pitt, ' 10 Penn. Arch. 56. SETTLEMENT, AND LAND TITLES. 25 It would seem, even at that early day, men were found disposed to advance their private interest by the sacrifice of the public good. Information to this effect (presumably from Gen. Irvine)^ led Secretary John Armstrong, on the 2d July, 1783,^ to address a letter to the Surveyor-General, John Lukens, advising him of combinations formed to engross large tracts of the best part of the land assigned by law for the redemption of depreciation certificates, and plans laid to conceal the relative value of the lots, and enjoining the utmost care to prevent all abuse of trust. A second point of apprehension was the unlawful breaking in upon the tract appro- priated for donations. The 6th section of the Act of 1783 had made void all grants of lands within the Depreciation and Donation tracts by any In- dian nation, the late proprietaries, and other per- sons. On the next day, July 3, 1783, General Irvine was, by letter, thanked for his communica- tion of 3d June, and his attention asked in giving care to the two tracts appropriated to the State. '^ For the purpose of surveying the lands appro- priated to the payment of the certificates of depre- ciation, this territory was divided into five principal districts,' running from the Ohio northward, and numbering from the west to the east. District !N^o. 1, allotted to Alexander McClean, deputy sur- ^ 10 Penna. Arch. 66. ' lb. 65. => lb. 66. 26 SETTLEMENT, AND LAND TITLES. vej'or, lay neai'est to the western boundary of the State. District No. 2 was allotted to Daniel Leet and Richie, deputy surveyors, though Leet seems to have made the surveys. 'No. 3 was divided among I^athaniel Braden, William Alex- ander, Samuel ^N^icholson, Ephraim Douglass, and Samuel Jones; it is commonly called Braden's District. No. 4 was allotted to James Cunning- ham; and 1^0. 5 to Joshua Elder and John Morris, deputy surveyors.^ On the 29th of August, 1785,^ the Surveyor- General reported to the Council that he had re- ceived upwards of one hundred and forty returns of survey of the land appropriated to the redemp- tion of the depreciation certificates, and daily expected more. Thereupon the Council ordered him'^ to furnish a map descriptive of the lots re- ported. From time to time surveys were reported as they came in from the several districts ; these returns seem to have come in irregularly. September 12, 1785,^ the Supreme Executive Council ordered 100 lots in Daniel Leet's district to be sold ; and on the 11th of November, 1785,^ ordered the sale of 43 lots remaining in the same ^ The instructions of the Surveyor-General are not to be found in the Land Office. ^ Penna. Arch. 506. » 14 Col. Rec. 527-8. * 10 Penna. Arch. 541. ^ 14 Col. Rec. 577. SETTLEMENT, AND LAND TITLES. 27 district. On the 18th November, 1785/ the Coun- cil directed the Depreciation Lands to be sold by the acre, that the city auctioneer (Philadelphia) be emjiloyed to sell them, and that no warrant direct- ing a return of survey should issue. The lands having been surveyed in districts and maps made, the last direction was to obviate returns for each lot, for patenting, as was the practice of the Land Office in ordinary cases. To the orders of the 12th September and 11th ^November John Lukens, Surveyor-General, David Kennedy, Secretary of the Land Office, and Fran- cis Johnston, Keceiver-General, returned^ on the 26th JN^ovember, 1785, that they proceeded to the sale of the lots in Leet's district; the quantity sold amounted to 38,202 acres, and amount of cash re- ceived was £13,985 14s., an average of a little over 8 shillings and 5 pence per acre. These sales were made at the " Old Coffee-house," in Philadelphia. December 6, 1785,^ a report was made by the Surveyor-General, Secretary of the Land Office, and Receiver-General, of sales of the lands in ^N^athaniel Braden's district — 31,883 acres — for £4:402 17s. 3d.y averaging 2 shillings 6| pence per acre, and when added to the amount of sales in Leet's district, averaging only five shillings per ^ 10 Penna. Arch. 537. ^ lb. 541. » lb. 545. 28 SETTLEMENT, AND LAND TITLES. acre. They therefore recommended a suspension of sales for a time. On the 12th December, 1785,^ Francis Johnston, the Receiver-General, informed the Council that the time of payment for the lands sold in Leet's district had expired, and he had reason to believe sundry purchasers did not mean to comply with the terms of sale, and he submitted to Council "what steps should be taken. March 12th, 1787,^ the Receiver-General reported sales on the 7th instant, at the "Old Coffee-house," of the remaining lots in Leet's district, but to his surprise the 27 lots sold averaged only £5 8s. 4d. per 100 acres. He postponed the sales until the 10th, when but three lots were sold at the rate of 3 pence per acre. He recommended that the sales in the city, at auction, should cease, as lands so dis- tant could not be sold there. This sale was made under an order of Council, of December 28, 1786,^ directing sales at the " Old Coffee-house" on the first Monday of March, 1787. This is the last re- port of sales I have found. It is evident that these western lands were not in demand owing to several reasons. Indian hostilities were then active. Many of the drawn donation lots were sold by the soldiers, especially the privates, at very low prices. In my practice I have seen many of these assignments 1 lOPenna. Arch. 547. ^ 11 lb. 125. M5 Col. Rec. 138. SETTLEMENT, AND LAND TITLES. 29 endorsed on the patents. This fact is also re- ferred to in the report of the Register- General of 12th March, 1787J The whole western territory, north of the Ohio, was then an uninhabited wilder- ness. This state of affairs continued much later, as will be seen in a letter of General Richard But- ler, of August 10, 1790.^ The disinclination of the State authorities to sacrifice the public lands is seen also in the order of the Council of June 5, 1790,^ ordering certain lots purchased by John Nicholson to revert to the State. Nicholson had on the 28th of May previous* asked to know whether he should retain them. I have been particular in stating these sales, as the tradition came to me in my early practice that the sales were discontinued in consequence of the low prices brought at the "Coffee-house;" and owing to this fact the Depreciation Lands were taken up by warrant and survey under the Act of 3d April, 1792. On the very day of the passage of this law Daniel Broadhead, then Surveyor-General, had two warrants issued in the names of William Barker and Joseph Williams, for lands opposite to the great falls of the Big Beaver, on which the town of Old Brighton (now part of Beaver Falls) was located. On the 14th of April, 1792, many warrants were ' 11 Penna. Arch. 125. ^ lb. 715. ^ 16 Col. Rec. 376. * 11 Penna. Arch. 702. 30 SETTLEMENT, AND LAND TITLES. issued, which were surveyed on Depreciation Lands. On what grounds the officers of the Land Office considered the office open for the sale and settle- ment of the Depreciation Lands I know not, unless the abandonment of the sales led to the belief that these lands then fell within the general provisions for the sale of the lands within the last purchase. But it was not until the passage of the Act of 22d March, 1813,^ these titles had the benefit of express legislation. Yet many of the titles so obtained were before the Supreme Court, and this question not raised. In the meantime the depreciation cer- tificates had been declared to be irredeemable if not presented to the Receiver-General on or before the second Tuesday in January, 1807.^ 'No important judicial decisions have been made as to the depreciation titles. The surveys were generally well made, owing to their proximity to Fort Pitt, and the method of sale led to no contests. These surveys were afterwards partly adopted in locations made under the Act of 3d April, 1792. In a few instances this partial adoption led to liti- gation. Among the most noted instances were the lawsuits upon the two surveys made for General Broadhead, above referred to, in the name of Wil- liam Barker, surveyed at 440 acres and allowance of six per centum ; and Joseph Williams, surveyed ^ 6 Smith's L. 54. ^ 4 lb. 203. SETTLEMENT, AND LAND TITLES. 31 at 410 acres and allowance. This litigation began with the century, and was continued with various success until the last case came before Justice Greer, in the Circuit Court of the United States at Pittsburgh, about 1860. I took my share in it until 1851, when I went upon the Common Pleas Bench. The effect of a partial adoption of the lines of the depreciation surveys under the Act of 3d April, 1792, was decided in McRhea v. Plummer. (1 Binney, 227.) The effect of the Depreciation District lines was considered in Evans v. Beatty. (1 Penrose & Watts, 489.) In that case Justice Huston remarked, that when the sale of the Depreciation Lands by auction was abandoned, and the country thrown open to settlement or sale in the ordinary mode, the country was again divided into districts, and surveyors appointed. But he does not state on what grounds these lands were considered open to settlement and sale. The districts referred to by him were necessary at all events, owing to the vacant lands interspersed among the Depreciation Lands. The Legislature seems to have considered the Act of 1813 necessary to cure defects and dispel doubts. 32 SETTLEMENT, AND LAND TITLES. CHAPTER lY. THE DONATION LANDS. The Depreciation and Donation lands were the twin progeny of patriotism and necessity. As has heen stated ah'eady, the northern section of the lands divided by the Act of 13th March, 1783, was appropriated to donations to be made to soldiers of the Pennsylvania Line. The 5th section^ of the Act provides, that for the ■purpose of effectually complying with the letter and intention of the said resolve (mentioned in the preamble), there be, and it is hereby declared to be, located and laid off, a certain tract of country be- ginning at the "mouth of Mogulbughtiton Creek; thence up the Allegheny River to the mouth of the Cagnawaga Creek f thence due north to the northern boundary of this State ; thence west by the said boundary to the northwest corner of the State ; thence south by the western boundary of the State to the northwest corner of lands appro- priated by this Act for discharging the certificates » Now the Conewango. * 2 Smith's L. 63. SETTLEMENT, AND LAND TITLES. 33 herein mentioned; and thence by the same lands east to the place of beginning; which said tract of country shall be reserved and set apart for the only and sole use of fulfilling and carrying into execu- tion the said resolve." The 6th section forbade any improvement loca- tion, warrant, grant, right, title, or claim under the Indians, the late proprietaries, or other person or persons whatsoever, upon the limits of the two described tracts of country, and made void all such claims. It also put it out of the power of non- commissioned officers and privates to sell their shares of the land until actually surveyed and laid off. The Act of 1st March, 1780,^ had previously ex- empted the soldiers' lands from taxation during the lifetime of the soldier, unless when aliened or transferred. The Act of 16th March, 1785,^ made the same provision. This exemption from taxation during life led to several important judicial de- cisions. The Act of 24th March, 1785,"' followed, " directing the mode of distributing the Donation Lands promised to the troops of this Common- wealth." It referred to the resolution of 7th March, 1780, and the Act of 12th March, 1783, and directed the Surveyor-General to appoint deputies, to be ap- 1 1 Smith's L. 487. ' 2 lb. 287-8. ^ lb. 290. 3 34 SETTLEMENT, AND LAND TITLES. proved by the Supreme Executive Council, to sur- vey and lay ofi' the land into lots; provided w^hat officers and soldiers should be entitled to lands (including Baron Steuben, Inspector-General, and Lieutenant-Colonel Tilghman), according to the rank and pay they held last before they left the ser- vice; excepting that no promotion or rank by brevet or commission should entitle, unless where pay had been allowed by the United States, and these dona- tions should not be affected by donations of land promised by Congress. The Comptroller-General was directed to make complete lists of persons, stating their rank and quantity of land, to be laid before the Council, that the Surveyor- General might be able to instruct his deputies as to the number and contents of the lots. The lots were to be of four descriptions, viz : 500 acres, 300 acres, 250 acres, and 200 acres each; a quantity laid off in 500 acre lots, equal to what should be necessary for major-generals, brigadier-generals, colonels, captains, and two-thirds of lieutenant-colonels ; in 300 acre lots for regimental surgeons and mates, chaplains, majors, and ensigns; in 250 acre lots for one-third of lieutenant-colonels, sergeants, ser- geant-majors, and quartermasters ; and in 200 acre lots for lieutenants, corporals, drummers, fifers, drum-majors, fife-majors, and privates. SETTLEMENT, AND LAND TITLES. 35 The deputy surveyors were required to make oath not to select the best lands, or to favor any of these classes to the prejudice of the others. In running the boundaries the surveyors were to de- fine well by marking trees on the lines at short distances, and particularly the angles and corners; and on the northwest corner of each lot the num- ber of the lot should be marked. If the corner should be a post, the number should be marked on a tree in the lot nearest to the corner. The neglect of the surveyors to perform these directions — a neglect owing to the payment of a fee for each lot surveyed, and a fear of the Indians who were hostile — led to many difficult lawsuits. The territory was divided into districts, for each one of which a deputy surveyor was appointed. In running from the base, or district line, north or south, the surveyor ran a distance required for each lot, and marked its corner. He would there set his compass, taking the course east or west, as the case might be, and direct the axeman to mark a tree or two on the course, and instead of running the line through and marking it as the law con- templated, he would go on in his first direction, north or south. The effect was that the east and west lines were not marked through. The usual mode, after starting north or south from the base or district line, was to run the breadth of four 36 SETTLEMENT, AND LAND TITLES. tracts, marking the corners of each lot, and a tree or two as before stated ; then turning east or west, as the survey required, to run across to the opposite corner; then going on in the first direction, north or south, to repeat the same thing, and at the breadth of four tracts to return east or west to the first line, repeating this method until the other line of the district was reached. The return to the first district or base line followed the same method. As a consequence of this mode, owing to the uneven and woody surface of the country, and to mistakes of the chain-carriers, the chaining was often inaccurate, and three out of the four cross lines (east or west) were not carried and marked through: chain-carriers sometimes dropped "pins" by which the count was kept, or failed to " knot" the "outs," as they were called, when the whole number of pins were " stuck." The eSect of these errors was that the eastern and western corners of tracts were not opposite to each other, and the lots assumed irregular figures, instead of being rectangular parallelograms. Having tried many boundary disputes in the Donation surveys, I have known tracts to fall short or to overrun as many as fifty acres. The corners being marked and the east and west lines not, the law required, as it was held by the courts, a straight line to be SETTLEMENT, AND LAND TITLES. 37 run from corner to corner. (See Hunt v. McFar- land.)' Perhaps the most important feature hi the direc- tion to survey is that which required the north- west corner to be marked with the number of the lot. As a consequence this "numbered corner" became the "earmark" of the tract, and controlled all other matters of description ; even the very place the number occupied on the "General Draft," and the adjoiners stated in the patent. In other words, it wrenched the lot from its place on the draft, and fixed it on the place where the number was found marked on the ground. The reasons given for this control of the "numbered corner" are forcibly stated by Chief Justice Gibson in Smith V. Moore, ^ and are worthy of a careful perusal. The principle of the decision is, that the numbered corner is the legal, original, and true index of the ground it occupies, and being marked on the ground by the order of the law itself, it is the con- clusive evidence of the identity of the survey, and of the lot attached to it. It must therefore super- sede all other evidence. The effect of this primary eviaence of identity was, in the case of Dunn v, Ralyea^ to dislocate the lot from the place it fitted on the "General Draft," and to locate it ^ 2 Wright, 69. * 5 Rawle, 348. ' 6 W. & S. 475. 38 SETTLEMENT, AND LAND TITLES. several miles distant, on the ground where the number as marked placed it. The corner was numbered by cutting on the tree a broad, flat surface, upon which the numbers were sunk with a tool, such as was used by millers in markins: the numbers on barrels. These numbers have often been seen fifty and sixty years after- wards, by removing the growths of the tree over the numbers. The marks made in 1785 and 1786 were grown over annually with new wood, made by the downward current of the sap in the summer. The outward mark, when not discovered by an oidinary observer after so many years, would be detected by skilful surveyors by a discoloration of the bark. Sometimes it requires the observer to stand oft' a number of yards to perceive this discol- oration. Often in these very old marks it requires the tree to be "blocked" to prove the existence of the mark. The removal of the supervening growths displays the original cut. This testimony of nature often disposes of questions of survey when no other evidence remains. When a sufficient number of lots had been sur- veyed, the law required a connected draft of them to be made, noting the number on each lot, and the draft to be deposited afterwards in the office of the Master of the Rolls, as a public record, to serve when the number is drawn, and the name of the SETTLEMENT, AND LAND TITLES. 39 soldier noted on the lot, in lieu of recordins: the patents. In consequence of lapse of time, dying of timber, burning of the woods, and obliteration of the orig- inal marks, the location of some of the surveys became uncertain. To remove this doubt the Les:- islature passed the Act of 24th March, 1818,^ mak- ing the "General Drafts" — that is, the maps of the several districts — the evidence of the location of the lots, and making office copies evidence in courts of competent jurisdiction. The 13th section of the Act of 24th March, 1785," provided for the distribution of the lots by lottery, the tickets to be drawn from a wheel, well turned round, and kept in safe custod}^ under the direction of a committee of three members of the Supreme Executive Council; the committee judging of the right of each applicant to draw from the wheel. A major-general was entitled to draw four 500 acre lots ; a brigadier-general, three 500 acre lots ; a colonel, two 500 acre lots ; a lieutenant-colonel, one 500 acre lot and one 250 acre lot ; a surofcon, chaplain, or major, two 300 acre lots ; a captain, one 500 acre lot; a lieutenant, two 200 acre lots ; an ensign or regimental surgeon, one 300 acre lot ; a sergeant, sergeant-major, or quartermaster-ser- ^ 7 Smith's L. 122. ' 2 lb. 292. 40 SETTLEMENT, AND LAND TITLES. geant, one 250 acre lot ; and a drum-major, fife- major, drummer, fifer, corporal, or private, one 200 acre lot. The 4th section provided for the issuing of patents for the numbers drawn and the form of the patent. The fees of the surveyors were three pounds for every 500 acre lot ; two pounds for 300 acres, and one pound ten shillings for 250 and 200 acre lots; which should include all expenses of chain-bearers, markers, and other charges ; to be paid by each applicant, in proportion to his lands, before drawing. The time for making application was extended to the expiration of one year after the Surveyor-General should have returned to Council the draft, of which public notice was to be given. After the time for drawing had expired, the re- maining unsold lots, and the residue of the lands appropriated, not applied to be laid off, were to be advertised and sold within a reasonable time for the benefit of the State ; and all certificates of de- preciation received in payment, then receivable in the Land Office for lands sold by the Common- wealth agreeably to law. As the western and northern boundaries of the State were not then run and marked, the Council was required to direct the lands remote from these boundaries to be first surveyed. SETTLEMENT, AND LAND TITLES. 41 On the 3d day of May, 1785,^ the Comptroller- General reported to the Council a list of persons entitled to Donation Lands (with the quantity of each), agreeably to the grants ordered to be made to the officers and soldiers of the Pennsylvania Line ; and on the same day^ the Council histructed the Surveyor-General to direct his dei3uties to sur- vey the lands, first surveying those most remote from the northern and v^^estern boundaries of the State. On the 5th May, 1785,^ the Surveyor-General nominated and reported for approval the deputy surveyors of the Donation Lands under the Act of 24th March, 1785/ They were : Major William Alexander, Benjamin Lodge, Captain James Chris- tie, Ephraim Douglass, Griffith Evans, James Dickinson, John Henderson, William Power, Jr., Peter Light, Andrew Henderson, James Dickinson, James Hoge, David Watt of Shearman's Valley, Alexander McDowell. The report was approved. The Donation Lands were laid out into ten dis- tricts, running east and west. l^o. One began at the line of the Depreciation Lands ; the others fol- lowed numerically to the northern boundary of the State. The deputy surveyors were, viz : — William Alexander, for District JSTo. One. ' 14 Col. Rec. 451-2. ' lb. 452. » lb. 454. * 2 Smith's L. 290. 42 SETTLEMENT, AND LAND TITLES. John Henderson, for District 'No. Two. Griffith Evans, for District No. Three. Andrew Henderson, for District No. Four. Benjamin Lodge, for District !No. Five. James Christy, for District No. Six. William Power, for District ISTo. Seven. Alexander McDowell, for District JS^o. Eight. James Dickinson, for District No. Nine. David Watts, for District No. Ten. Griffith Evans was afterwards appointed Sur- veyor of District No. Nine, in room of James Dickinson, who suspended work on account of his fear of the Indians. (See his letter.)^ The commission to Griffith Evans, as surveyor of District No. Nine, contained the following clause: "Also of so much of the lands remaining yet unsurveyed on the waters of Beaver Kiver as shall be sufficient to satisfy the quota of donation lots assigned to the aforesaid district." Date, May 8th, 1786. Under this clause he surveyed in Dis- tricts Nos. One and Two. On the same day. May 5, 1785," commissioners were appointed to run and mark the western boun- dary of the State from the Ohio River to the north- west corner of the State. (This matter will be referred to hereafter.) Owing to the uncertainty ^ 10 Penna. Arch. 740. ^ 14 Col. Rec. 454. SETTLEMENT, AND LAND TITLES. 43 of the true line of the western boundary, much good land west of the Beaver River was left unsur- veyed. After its location by the State Commis- sioners, Gritfith Evans surveyed many tracts on this land in Districts ^os. One and Two, under the clause in his commission just recited. An agent duly qualified was required, to be appointed by the Council, to explore the country, noting the quality of the soil, the hills, mountains, and waters, creeks, marshes, upland, bottom-land, and such other mat- ters as deserved notice, with the situation and dis- tance, and particularly the land unfit for cultivation. The agent was required to make oath to perform his duties impartially, and was to receive one pound ten shillings for every day employed, not exceed- ing four months. His report was to be published. Sections 20, 21, 22, 23, Act 24th March, 1785.^ The 24th section. Act of 24th March, 1785, had required the surveys to be made and 'leturned on or before the 1st February, 1786 ; and required the agent to report failures of duty on part of any of the deputy surveyors. Whether any suspension of the sur- veys took place is not clear. But the Council must have been desirous of haste, as on the 20th of the preceding July" they wrote to David Rittenhouse and Andrew Porter, the Commissioners, urging the 1 2 Smith's L. 294. * 14 Col. Rec. 507. 44 SETTLEMENT, AND LAND TITLES. completion of the survey of the western boundary. This was necessary to carry forward the Donation surveys. It appears, however, by a letter of James Dickinson, surveyor of district 'No. Kine, dated at Pittsburgh, January 24, 1786,^ that fear of the In- dians prevailed, and a conference with the Indian chiefs Long Face and Long Hair led him, under the advice of John Wilkins and Jacob Springer, traders, to leave the survey for a time. Indeed, it was not until the 9th of January, 1789, that the title of the Indians to the lands bordering on Lake Erie and the Triangle was fully extinguished by an agreement of that date, made by Gen. Richard Butler and John Gibson, Commissioners of Penn- sylvania, at Fort Harmar, with the chiefs, warriors, and others representing the Ondwagos or Senecas, Cayugas, Tuscaroras, Onondagos, and Oneidas, of the Six I^ations.^ The surveys, however, were generally completed in 1786, though a few were made later. The 7th section of the Act of 12th March, 1783,' had directed that all officers and privates entitled to land should make their applications, within two years after peace should be declared, and should any die, their heirs, executors, etc. should make application within one year thereafter. In the 1 10 Penna. Arch. 740. * 11 lb. 529. ' 2 Smith's L. 64. SETTLEMENT, AND LAND TITLES. 45 event of neglect within the time limited it was then lawful for any person to apply to the Land Office to take up unlocated lands on such terms as the Legislature should thereafter direct. This period was extended by various laws from time to time. Many of those entitled to lands having failed to appear or to apply, the Legislature, on the 6th of April, 1792,^ passed an Act authorizing the land officers, on the 2d of July, 1792, to draw lots for every person entitled to Donation Land, who had not received the same, according to the list fur- nished by the Comptroller-General, in the same manner as if the persons entitled were present. Patents were to be issued within two years from the date of the Act. Any land not applied for within two years was ordered to be disposed of, agreeably to the regulations of the Act for the sale of the vacant lands within the Commonwealth. The general Act for the sale of the vacant lands had been passed only three days before, on the 3d Apri , 1792.^ The limitation of two years was virtually re- pealed in the second section of the Act of 5th April, 1793,^ and the land officers were required to draw lots for every person entitled who had not received his donation, and should apply therefor, 1 2 Smith's L. 296, in note. ' 3 lb. 70. » lb. 110. 46 SETTLEMENT, AND LAND TITLES. agreeably to the list submitted by the Comptroller- General to the Supreme Executive Council, and to issue patents agreeably to the 2d section of the Act of 6th April, 1792. The time for drawing under the second section was indefinite, none being fixed by the law. On the 17th April, 1795,^ another general Act was passed, directing the Comptroller-General to make lists of the names of those entitled to Donation Lands, whose names had not been included in his last report, together with their rank and quantity of land. Tickets were to be prepar'ed for all persons entitled to Donation Lands, but not any more, and placed in the wheel, kept safely in custody, from which the land ofiicers were to draw for those entitled, who had not before drawn lots. Report of the drawings was to be made to the Governor, who should cause patents to issue at the expense of the State. The legal representatives of deceased persons were entitled to all the advantages of the Act. All persons entitled were required to make application within one year; those beyond sea, or out of the United States, within two years; and oflBcers and soldiers in the service of the United States within three years after the passage of the Act. By the 6th section, after the expiration of these ^ 3 Smith's L. 233. SETTLEMENT, AND LAND TITLES. * 47 periods, so much of the Donation Lands for which no application had been made might be disposed of in such manner as the Legislature should further direct. The time was further extended by Act of 20th March, 1797,^ and again extended by Act of 11th April, 1799,' until September 1, 1799. Before any claim should be allowed it should be presented to the Comptroller-General, Register-General, and State Treasurer, who should inquire mto its lawful- ness, and, if allowed or rejected, the result certified to the Secretary of the Land Office. ]^otice was to be given of the time limited, aud lots drawn after the 1st September in favor of all claimants receiving a certificate of allowance. On the 1st of May, 1800, the powers given were to cease, and no lots drawn afterwards. The residue of the Dona- tion Lands was then to revert to the State, and be disposed of in such manner as should be directed by law in relation to other lands the property of the State. The time, however, was further extended by Act of 23d February, 1801,^ the second section of which required the Comptroller- General to furnish the Secretary of the Land Office with a list of names of all persons who had drawn lots, but not obtained patents for the same, with the numbers of the lots 1 2 Smith's L. 297. ' 3 lb. 383. ^ n,. 467. 48 SETTLEMENT, AND LAND TITLES. drawn, and the district in which they lay. It made it the duty of the Secretary, on application, to cause patents to be issued accordingly; the patents to be on parchment, and at the expense of the State; and any frauds or disputes to be decided by the Board of Property, as in other cases. The first and third sections of this Act related to Donation Lots which had been surveyed beyond the Pennsylvania northern boundary and in the State of 'New York, as shown by the running and marking of the boundary line in the meantime. (This branch of the subject will be noticed here- after.) Up to this time the subject of the Donation Lands had become complicated by the numerous Acts passed, and the limitations adoj^ted, and ex- tended from time to time, and many persons had not received their gratuities. The Legislature, therefore, resolved to reopen the subject, and passed the Act of April 2, 1802,^ entitled " An Act to complete the benevolent in- tention of the Legislature of this Commonwealth, by distributing the Donation Lands to all who are entitled thereto." The preamble recited that some of the soldiers of the Pennsylvania Line had not received Donation Lands; that some of the lots supposed to lie in New York were still in Pennsyl- ^ 3 Smitli'ri L. 505. SETTLEMENT, AND LAND TITLES. 49 vania, and that other lots had not been numbered and returned, or were otherwise appropriated. The Act therefore required the land officers to ascertain these, cause them to be ticketed, and to be drawn in a prescribed manner, upon the application of those entitled, in the order of their applications: "Provided always that no lot to be drawn or patent to be issued in pursuance of this Act shall interfere with or defeat any prior title, which may have been acquired under the authority of any former law of this Commonwealth." This proviso had an important bearing upon titles to undrawn Donation Lots acquired under the Act of ad April, 1792, and 22d April, 1794; and especially upon titles acquired by settlement upon tracts lying within the eastern part of the Second District, known as the "Struck District" (which will be referred to). The second section of the Act of 1802 required the Surveyor-General to ascertain the lots referred to with accuracy by actual survey, have returns made, and divide large into smaller lots, so as to supply the number required to carry the design of the Act into complete effect. Under this Act the Board of Property was to exercise the same powers relating to Donation Lands as in cases of other lands, and to decide cases of difficulty and dispute. Provision was made for the widows and heirs of de- 4 50 SETTLEMENT, AND LAND TITLES. ceased soldiers. Applications for lands and patents were limited to one year after the passage of the Act. The Act of 1802 was continued until the 1st April, 1805, by the Acts of 1st April, 1803, and 29th March, 1801. By the Act of 25th March, 1805,' persons hold- ing donation lands within the "Struck District" and the Erie Triangle were authorized, upon re- leasing their patents, to have other unappropriated lots of equal quantity to be patented to them free of expense. The second section provided that this law and the Act of 2d April, 1802 (excepting the limitation clause in that Act), should continue in force until April 1, 1806. The first section of the Act of 1805 was continued in force until the 1st of April, 1810. This Act ended the general legisla- tion conferring donations, and since April 1, 1810, the Land Office has been closed against further api^lications. Lastly came the Act of 26th March, 1813, which opened all Donation Lands which should remain undrawn on the 1st of October, 1813, to impi'ove- ment and actual settlement, and confirmed titles by actual settlement theretofore made. The terms of this Act difi'ered from those of 3d April, 1792. The settler must have resided thereon with his family for three successive years immediately pre- 1 4 Smith's L. 223. SETTLEMENT, AND LAND TITLES. 51 ceding the passage of the Act, and cleared, and fenced, and cultivated at least ten acres thereof. Any person who should, after the 1st October then next, make an improvement and actual settlement on any undrawn tract, by erecting thereon a dwel- ling-house fit for the habitation of man, and reside thereon with a family for three years from the date of his settlement, and clear, fence, and cultivate at least ten acres thereof, and make proof of the completion of his settlement and residence, by two witnesses, before a judge or justice of the same county, and pay to the State one dollar and fifty cents per acre, with interest from three years after his settlement, should be entitled to a patent. But the patent should not issue until the applicant pro- duced a certificate of the deputy surveyor of the proper count}^, certifying to the number of the tract, the number of acres, and a survey by him according to the original boundaries. The first settlement made and continued was to give incep- tion of title. N^otwithstanding the closing of the office against applications of the soldiers after the 1st of April, 1810, this law seems inferentially to have recog- nized a continuance of them until October 1, 1813. Probably this mea t to embrace the applications of widows and heirs. In order to facilitate actual settlements under the 52 SETTLEMENT, AND LAND TITLES. Act of 1813, the 3d section provided for a list of all undrawn lots in the several districts, and a pub- lication thereof at the seat of government, and at Pittsburgh, Mercer, Meadville, and Beaver. In August, 1785, Genl. "Wm. Irvine, the agent appointed by the State to explore and examine the Donation Lands, reported to the Supreme Execu- tive Council those parts of the lands he considered unfit as gratuities to the soldiers of the Pennsyl- vania Line. Among these, he found the land north of the line of the Depreciation Lands, and eastv^^ard from the path from Fort Pitt to Ye- nango, at the mouth of Fi'ench Creek, beginning about forty miles above Fort Pitt, pretty good for about five or six miles ; thence to the Allegheny River, about twenty-five miles due east, no land was fit for cultivation. In consequence of this report, the Council left out of the wheels the lots within the easternmost part of the Second District. This part has since been known as the "Struck District," and was generally understood at the time to be subject to actual settlement under the Act of 3d April, 1792. It was therefore entered upon and settled by persons who had made large and valuable improve- ments. Indeed, it was afterwards held by the Supreme Court that these titles were valid,^ in > 6 S. & K. 155. SETTLEMENT, AND LAND TITLES. 53 the case of Yarnum v. Kennedy. The decision was admitted by Judge Duncan, who delivered the opinion, to be a doubtful matter. Still, it was wise and just, and prevented, probably, contests between the settlers and the soldiers. The Act of 25th March, 1805,^ however, ended all difficulty, by ordering all tickets for lots in the "Struck District" to be withdrawn from the wheels; and by authorizing soldiers to return their patents for lots in this District and take lots elsewhere. The eonfasion leading to the Act of 1805 arose out of the interpretation given by the Land Officers to the Act of 2d April, 1802, which directed all the undrawn lots, not otherwise appropriated, and drawn lots not applied for, to be put into the wheels. It was supposed this included the lots in the "Struck District," and therefore the tickets, which had been withdrawn by order of the Coun- cil, were returned to the wheels. The Act of 1805 required these to be again withdrawn, and the lots opened to settlement. The settlements were ratified generally by the Act of 1813. At the time when the Tenth Donation District was surveyed into lots, the northern boundary between Pennsylvania and 'New York had not been definitely surveyed and marked, and the Tri- angle at Erie had not been purchased. In conse- ^ 4 Smith, 223, 4. 54 SETTLEMENT, AND LAND TITLES. qiience of this uncertainty, some of the lots in that District were surveyed within the State of 'New York, and within the Triangle. This led to Acts to correct the errors and confer title to other lands, upon those whose lots fell therein. The Act of 80th September, 1791,^ reciting that after the running of the northern boundary, it appeared that some of the Donation Lots had been laid off in JN'ew York, directed the Surveyor- General to report to the Governor the patents granted for such lots, number of acres, and names of grantees, and requested the Governor to give public notice to all persons concerned to apply before December 1, 1791, on which day the Sur- veyor-General should ascertain the lots to be chosen (in a prescribed manner), in lieu of those lost, and of like quantity in the Donation Districts already surveyed, and not disposed of. New patents were to be issued, provided the applicant returned his former patent, and released the Com- monwealth from any loss sustained. The Act of 10th April, 1792,^ extended the period of application until July 1, 1792. This was followed by the Act of 5th April, 1793,^ which repeated the directions of the Act of 30th September, 1791. 1 2 Smith's L. 295, in note. Mb. ^3 lb. 110. SETTLEMENT, AND LAND TITLES. 55 The Act of 11th April, 1799,' extending until September 1, 1799, the period for applying for Donation Lands, and regulating the mode of au- thenticating claims, would seem to embrace the applications for lands in lieu of those surveyed in New York. By the Act of 23d February, 1801,' the Legisla- ture again intervened for those whose lots had fallen in Kew York. The time of application was extended three years ; the Board of Property was required to investigate suspected fraud, and dis- putes between applicants, and to call on the attor- ney, if any, to make oath that he had no interest in the claim. The Board was to proceed in the man- ner directed in the 13th section of the Act of 21th March, 1785.^ The Act of 2d April, 1802,^ already referred to, applies only to those lots which were supposed to have fallen within 'New York, but which were found to be in the Erie Triangle. The Act of 25th March, 1805,^ in the 1st section coupled those whose lots were within the Triangle with those whose lots were within the "Struck District," and authorized them, on surrendering their patents, to receive therefor an equal quantity of unappro- priated land, and obtain patents therefor. Section ' 3 Smith's L. 383, and 2 lb. 297-8. ' 3 lb. 467. ' 2 lb. 292. * 3 lb. 505. ^ 4 lb. 224. 56 SETTLEMENT, AND LAND TITLES. 2d continued the Act in force until April 1, 180G. As to those lots within the Erie Triangle which had been drawn and patented, it was held by the Supreme Court that the purchase from the United States accrued to the benefit of the owners of these lots, who still retained them, on the principle in equity, that an after-accrued title is held in trust by a vendor for his vendee. 'No legislation was necessary to confirm their titles. (McCall v, Coover.O In regard to taxation of Donation Lands, the following decisions have been made : In Coney v. Owen,^ in which the subject was discussed by Gibson, C. J., on one side, and Kennedy, J., on the other, it was held that exemption from taxation under the Acts of 1st March, 1780, and 16th March, 1785, is the personal privilege of the soldier, and that under the words of the tax law of 1804 gen- eral jurisdiction was conferred upon the county authorities to assess all unseated lands. The privilege, therefore, must be shown. As a conse- quence, a sale of such lands for taxes is good where the exemption is not shown ; and when shown, though the sale is void, the purchaser at the tax sale is entitled to the value of his improve- ments. The exemption under these Acts is limited to the life of the grantee and his ownership of the ^ 4 W. & S. 151. ' 10 Harris, 256. SETTLEMENT, AND LAND TITLES. 57 lot. Death or alienation subjects the lot to taxa- tion. The case of McCall v. Coover also decided this. The doctrine of Coney v. Owen was not looked upon as just, though the decision was acquiesced in. (Steele i;. Spruance.^) In Jennings V. McDowell'^ it was held that without proof of death, after a great lapse of time and no acts of ownership, the death of the donee may be pre- sumed, and a tax title held valid against an intruder, or one showing no title whatever. As to location by the numbered corner and boun- daries, see the following cases : Smith v. Moore, 5 Kawle; Dunn v. Ralyea, 6 AV. & S. ; Maris v. Hanna, 4 W. & S. ; Hunt v. McFarland, 2 Wright. ' 10 Harris, 256. ^ 1 Casey, 388. 58 SETTLEMENT, AND LAND TITLES. CHAPTER Y. THE WESTERN AND NORTHERN BOUNDARIES OF THE STATE, AND PART OF THE SOUTHERN. The boundaries of Pennsylvania on the west and north are so intimately connected with the Depreciation and Donation Lands, and the sub- sequent titles, that a short account of them is in place here. On the 23d of April, 1781,^ the Supreme Execu- tive Council issued instructions to John Lukins and Archibald McClean, Esquires, to run and mark the State line between Pennsylvania and Virginia, according to the following agreement, made at Baltimore, August 31st, 1779: — "We, George Bryan, John Evving, and David Rittenhouse, Commissioners from the State of Pennsylvania; and we, James Madison and Robert Andrews, Commissioners for the State of Virginia, do hereby mutually, on behalf of our respective States, certify and confirm the following agree- ment, viz : To extend Mason and Dixon's line, due west five degrees of longitude, to be computed 1 12 Col. Rec. 704. SETTLEMENT, AND LAND TITLES. 59 from the River Delaware for the southern boun- dary of Pennsylvania, and that a meridian drawn from the western extremity thereof to the northern limit of said State be the western boundary of Pennsylvania forever." Lukins and McClean, as Commissioners, were informed that it was expected they would be met by Commissioners on part of Virginia, but if not, they were instructed that the line should be ascer- tained and marked, in as strict conformity as possible to the above agreement, which had been ratified by the Legislature of each State. The resolution of ratification of Pennsylvania was passed on the 23d September, 1780.^ The resolu- tion of ratification by Virginia was, however, not satisfactory to the Pennsylvania authorities, and an Act was passed, April 1, 1784,^ to prevent any countenance it might give to unwarrantable claims of title under Virginia. With these resolutions the agreement was again confirmed. The purpose was to save lawful rights, prevent unlawful intru- sions, and preserve harmony between the States. In the meantime a temporary line had been run in the autumn of 1782 — by Alexander McClean on the part of Pennsylvania, and Joseph Seville on the part of Virginia — to prevent collision between the inhabitants of the two States. The authorities ^ 2 Smith's L. 261. ^ lb. 261. 60 SETTLEMENT, AND LAND TITLES. of Virginia had made claim to a large part of "Western Pennsylvania, embracing it in the dis- trict of West Augusta, and had erected the coun- ties of Monongalia, Ohio, and Youghagania, each interfering with Pennsylvania territory. Courts, magistrates, and officers had been established within this district; and officers of Pennsylvania had been arrested and imprisoned. The war spirit rose to a high pitch, and had nearly suffused the disputed soil with blood. Many Virginia surveys therein were made, and titles granted by "Virginia. Added to the alarming condition of affairs between the people of the two States, Virginia had been invaded by the British; rendering the running and marking of a permanent boundary impossible for a time. A large correspondence took place be- tween the President of the Supreme Executive Council of Pennsylvania and the Governor of Vir- ginia, which will be found in the ninth and tenth volumes of the Pennsylvania Archives. A most full and interesting account of those times will also be found in the Histor}^ of Washington County, edited by Boyd Crumrine, Esq., and published in 1882. The tempoi-ary line referred to was confirmed by the Assembly on the 22d of March, 1783,^ and a proclamation issued by John Dickinson, President ^ 10 Penna. Arch. 8, SETTLEMENT, AND LAND TITLES. 61 of the Council, on the 20th of March, 1783,^ giving notice and commanding obedience to this estab- lishment of boundary. On the 26th March, 1784,^ instructions were issued to Dr. John Ewing, David Rittenhouse, John Lukins, and Thomas Hutchins, who had been appointed Commissioners on part of Pennsylvania, to run and finally determine the boundary line between this State and Virginia. The report of the Pennsylvania Commissioners was made at Philadelphia, December 23d, 1784, ■' inclosing the joint report of the Commissioners of both States, dated IN'ovember 18th, 1784. They ran the boundary and defined and marked the southwest corner of Penns^dvania, from which the western boundary was to be run northward, to the northwest corner of the State, and fixed upon the 16th of May, 1785, to complete the work on the western boundary. April 9, 1785,^ instructions were issued to Dr. John Ewing and Mr. Hutchins to run and mark the western boundary. Dr. Ewing, being unable to accept, resigned, April 18, 1785,' and Mr. Hutchins being absent, David Rittenhouse and Andrew Porter took their places.*^ They, with the Virginia Commissioners, Andrew Ellicott and Joseph IN^eville, reported on the 23d of August, ^ 13 Col. Rec. 541-2. '- 10 Penna. Arch. 230. ' lb. 373-7. * lb. 438. * lb. 443. « lb. 444. 62 SETTLEMENT, AND LAND TITLES. 1785,^ that they had carried the meridian line from the southwest corner of Pennsylvania northward to the river Ohio, and marked it by cutting a vista over all the principal hills, felling and dead- ening trees through the lower grounds, and placing stones, marked on the east side P. and the west side v., accurately on the meridian. Here the duty of the Virginia Commissioners ended. Under a resolution of May 5, 1785,- David Pit- tenhouse, Andrew Porter, and Andrew Ellicott were appointed Commissioners to continue the western boundary north of the Ohio to the north- west boundary of the State. These Commissioners began their survey from the Ohio northward on the 23d of August, 1785. Fort Mcintosh was then occupied by the Pennsyl- vania troops, under Lieutenant-Colonel Josiah Harmar, commandant. On the 29th Messrs. Por- ter and Ellicott visited the fort, going up by water, and in a few days Dr. McDowell and Major Finney, from the fort, returned the visit. This was followed by a visit to the Commissioners on the 11th September, by Colonel Harmar and Major Doughty. After carrying the line forward between forty and fifty miles the Commissioners suspended the work until the following year. The survey of the ^ 10 Penna. Arch. 506. ' 14 Col. Rec, 454. SETTLEMENT, AND LAND TITLES. 63 remainder of the line to Lake Erie was made in 1786' b}^ General Porter and Alexander McClean. By a letter dated at " Shenaiigoe" Creek, 25th Jnne, 1786,"^ they informed the Council that they began the extension on the 19th of June. On the 23d September they reached a point 143 miles from the southwest corner of the State, and on the waters falling into Lake Ei-ie. On Friday, September 15, 17S6, they came to Lake Erie, a distance of 155 miles 226 perches from the southwest coiner of the State. The angle formed with the northern boundary fell a short distance within the waters of the lake. At this time the Erie Triangle had not been purchased of the .Indians and the United States, and the northern boundary was a straight line, intersecting the western as stated, leaving Pennsylvania without a harbor. An interesting- account of the runnino; of this western boundarv will be found in the Journal of General Andrew Porter, piiblished in the fourth volume of the Pennsylvania Magazine of History and Biograph}^ THE NORTHERN BOUNDARY. Li determining its operation on the lands within the last purchase of the Indians in 1784 and 1785, it will be unnecessary to trace the northern boun- dary, except from the Allegheny River westward. A map of this part of the line is found at the end ' 11 Penna. Arcli. 26. ' lb. 64 SETTLEMENT, AND LAND TITLES. of the eleventh vohime of Pennsylvania Archives. The distance is about nine miles from the Alle- gheny to Connewango Creek, adopted as the eastern boundary by the Act of 3d April, 1792, opening the lands westward to settlement and survey. This line ends in Lake Erie, a short dis- tance from the shore end of the western boundaiy. Under a resolution of the Assembly of September 15, 1783,^ it was made the duty of the Commis- sioners to examine and ascertain where the northern boundary would fall, and whether any part of Lake Erie was within the State. The Commissioners made two reports, the first, October 12, 1786,^ stating the running and mark- ing of the line to the 90th milestone from the Delaware, on the western side of the South Branch of the Tioga River. This report was signed by Andrew Ellicott for Pennsylvania, and James Clinton and Simeon De Witt for l^ew York. The second was made October 29, 1787,^ b}' Andrew Ellicott and Andrew Porter for Pennsylvania, and Abraham Hardenberg and AYilliam Morris for 'New York. It states the running and marking of the line in the 42d parallel of north latitude, beginning at the Delaware River, and extending to a meridian drawn from the southwest corner of Pennsylvania, and that they had extended the line ^ 10 Penn. Arch. 129. ^ 11 lb. 522. * lb. 526. SETTLEMENT, AND LAND TITLES. 65 from the 90th milestone to Lake Erie, and marked the same permanently with milestones, or posts surrounded with earth where stone was not found, well marked, with variations of the magnetic needle, and the distances ; and on the south side, "Pennsylvania, latitude 42° N^., 1787;" and on the north side, " JSTew York." This report was re- ceived l^ovember 29, 1787. By an Act of Assembly of Pennsylvania, of the 29th of September, 1789,^ the boundary as thus run was confirmed provisionally that the same should be ratified by ;N"ew York. This Act is valuable in the features that its preamble recites a full history of the proceedings relative to this boundary, and states particulars as to the execu- tion of the commission. It provided also for the perpetuation of the evidence by means of copper- plate maps, of which two hundred were to be printed in perjjetuam memoriam. The line began at a stone monument upon a small island in the Mohawk branch of the Delaware, set npon the beginning of the 43d degree of north latitude, and ran to Lake Erie, a distance of 259 miles and 88 perches. This line remained unchanged until so much of it as bounded the Erie Triangle was superseded by the purchase of that territory, to be presently stated. 1 2 Smith's L. 510. 66 SETTLEMENT, AND LAND TITLES. CHAPTER YI. THE ERIE TRIANGLE. The running and marking of the northern honn- dary did not complete the present area of the State of Pennsylvania. But the location of the line brought out clearly the fact that she had no harbor or even convenient access to Lake Erie. This led her authorities to think of purchasing from the United States territory bordering on the lake and the northern boundary, which would fur- nish access and a secnre harbor at Presque Isle. Measures were taken through the Pennsylvania members in Congress to acquire the territory lying between the western boundary of 'New York and Lake Erie, triangular in shape, and embracing the harbor at Erie. A report was made by a committee appointed for the purpose of inquiry, read in the Assembly on the 9th of November, 1787.^ Thereupon, ;N"ovem- ber 12th, it was resolved to call upon the Supreme Executive Council to lay before the Assembly a ' 11 Penna. Arch. 211. SETTLEMENT, AND LAND TITLES. 67 description of the lands lying between the northern boundary of the State and Lake Erie, and an esti- mate of the sum necessary to purchase the same. On the 5th of February, 1788,' Yice-President Muhlenberg, on behalf of the Council, wrote to the members of Congress from Pennsylvania, in- closing the resolution, and requesting information upon the subject. His letter was answered Feb- ruary 28, 1788.- General William Irvine, one of the members, on the 23d,^ introduced a resolution into the House, reciting the running of the north- ern boundary of Pennsylvania, and that the north- west corner extended into Lake Erie, cuttino* off a narrow strip of land from the territory of the United States ; that by the cessions of New York and Massachusetts a line was to be drawn by which the said States were to be bounded on the west; and it was important to peace and harmony that this boundary line be run, and therefore directing the Geographer of the United States, in conjunction with the agents of these States, to run and ascertain their western limits. A committee, consisting of Messrs. Clai-k, Irvine, Armstrong, Wadsworth, and Brown,^ to whom General Irvine's resolution Avas referred, reported upon it favorably, submitting a resolu- ^ 11 Penna. Arch. 237. ^ lb. 251. " lb. 247. * lb. 248. 68 SETTLEMENT, AND LAND TITLES. tion to carry the purpose of the report into effect. This report was adopted June 6, 1788/ and direc- tions given to make the survey, and cause a re- turn to be made to the Board of the Ti-easury, who were authorized to sell the tract in whole, at a private sale, for a price not less than three-fourths of a dollar per acre, in specie, or public securities bearino^ interest. Extracts from the deeds of ces- sion to the United States by Massachusetts and ^ew York will be found in the Pennsylvania Archives.^ The Supreme Executive Council, on the 14th day of June, 1788,^ authorized the President to inform our delegates in Congress that they were empowered to contract with Congress on behalf of the State for the purchase of these lands, at the rate of three-quarters of a dollar per acre, payable in specie, or in public securities bearing interest. William Bingham and James P. Peid, two of the delegates, made the proposal for the purchase on the stated terms, on July 7, 1788,^ which was accepted by Samuel Osgood and Arthur Lee on behalf of the Board of the Treasury, August 28, 1788.'' In pursuance of this contract. Congress by an ' 11 Penna. Arch. 308. ' lb. 309-10. 3 lb. 313. * lb. 382-83. * lb. 382. SETTLEMENT, AND LAND TITLES. 69 Act of cession and transfer, of the 4th of Septem- ber, 1788,^ completed the sale. The purchase was reported to the Assembly September 9th, 1788, with an estimate of nine hundred and fifty pounds as necessary to carry out the negotiations.^ On the 13th September, 1788,'^ the Assembly confirmed the purchase and provided means for payment, describing the land as "a triangular piece or tract of country, situate, lying, and being on Lake Erie, bounded on the east by a meridian line, part of the western boundary of the State of New York ; on the south by part of the northern boundary of the State of Pennsylvania, being a continuation of the line between this State and that of New York, from the western boundary of the said State till it intersects the said lake, including Presque Isle, and running northeasterly, or as the margin of said lake runs, according to the several courses thereof (with all benefit, pro- perty and advantages of the coast, bays, and inlets, on or near that part of the margin of said lake, which is the boundary of the country de- scribed, or intended so to be), till it meets the same meridian line before mentioned." This completed the area of the State as it exists now, leaving the Indian title only to be extinguished. 1 11 Penna. Arch. 387-8. ^ lb. 389-90. « lb. 395-6. 70 SETTLEMENT, AND LAND TITLES. PURCHASE OF THE INDIANS. On the 9th of September, 1788,' Yice-President P. Muhlenberg, on behalf of the Supreme Execu- tive Council of Pennsylvania, informed the Speaker of the General Assembly that accounts had been received from Pittsburgh of a pacific disposition of the Indians, and stating that a large meeting of the northern and western tribes was expected at Muskingum, to hold a treaty with the Continental Commissioners, and that the opportunity was favorable to purchase the title of the Indians to the territory in the Erie Triangle. A commission to treat with them was therefore recommended. On the lOth^ a committee of the Assembly, con- sisting of Messrs. Peters, Lowry, Rittenhouse, Finlay, and Irvine, conferred with the Council on the subject of the purchase. Action on the report of this committee was taken in the Assembly on the 13th,'^ and the Supreme Executive Council was empowered to take the necessary steps for pur- chasing of the Indians having just claims, and to appoint two commissioners to negotiate with them. An appropriation not exceeding nine hundred and ^ 15 Col. Rec. 531. ' lb. 532. ^ 11 Penna. Arch. 396. SETTLEMENT, AND LAND TITLES. 71 fifty pounds was made for this purpose, agreeably to an estimate of tlie Council/ In pursuance of these proceedings a commission was issued to General Richard Butler and General John Gibson, dated at Philadelphia, October 2, 1788,^ accompanied by the resolution of the As- sembly of the 13th September, the resolution of Congress relative to the Triangle, and a rough map of it drawn by Mr. EUicott. The Commissioners met the Indians at Fort Harmar, at the mouth of the Muskingum River, and on the 9th of January, 1789, effected a treaty with them for the purchase of their title. The treaty, entitled "Agreement between the Six Nations and Commissioners for Lands on Lake Erie," etc., is dated January 9, 1789,' and names the tribes as "Ondwagas or Senecas, Cayugas, Tuscaroras, Onondagos, and Oneydas." This agreement provided fully for the cession of the Indian title and the rights of the State, reserving only to the Indians residing on the Connewano-o Creek, and other places within the TrianHe, the right of hunting and fishing peaceably. This treaty is referred to by Cornplanter (Cap- tain Abeal), in an extended address before the ^ 11 Penna. Arch. 390. ' 15 Col. Rec. 554. * 11 Penna. Arch. 529-33. 72- SETTLEMENT, AND LAND TITLES. Supreme Executive Council, at Philadelphia, on the 29th of October, 1790.' (See Appendix.) Thus was the last remnant of Indian title to the soil of Pennsylvania extinguished, according to the uniform, humane, and just policy of the Pro- prietaries and the State. 1 16 Col. Rec. 501 to 507. SETTLEMENT, AND LAND TITLES. 73 CHAPTER YII. THE RESERVATIONS. The subject to be noticed next, in natural order, is the reservations by the State out of the lands north and west of the Ohio, Allegheny, and Connewango. These were reserved expressly ''to the use of the Staie.^^ The purpose was to prevent title being acquired by her citizens under the general laws relating to lands. A prime motive also was to enable her to dispose of the lands therein by special mode, in the manner best suited to her wishes and her interests. This mode will be referred to hereafter. The two most important reservations are those found in the original Act of 12th March, 1783,^ in these words: "Reserving to the use of the State three thousand acres in an oblonof of not less than one mile in depth from the Allegheny and Ohio rivers, and extending up and down the said rivers from opposite Fort Pitt so far as may be necessary to include the same; and the further quantity of ^ 2 Smith's L. 63. 74 SETTLEMENT, AND LAND TITLES. three thousand acres on the Ohio, on both sides of the mouth of Beaver Creek, including Fort Mcintosh." Other reservations were made, under subsequent laws, at Erie, Franklin, Waterford, and Warren. The first suggestion as to these seems to have come from Andrew Ellicott, in a letter dated at Baltimore, February 19, 1788.^ lie was one of the Commissioners to run and mark the northern boundary of the State, and had noticed the general features of the country during his work. He stated in his letter that the situation of several places demanded the attention of the Legislature ; and mentioned the mouth of the Connewango (Warren) ; the mouth of French Creek, where Fort Venango stood (Franklin) ; and the head of the navigable water of French Creek, at Fort Le Boeuf (AYaterford). The purchase of the Erie Triangle was not then completed, and for this reason probably Erie was not mentioned. On the 12th of November, 1788,' the Supreme Executive Council, by message, recommended the subject to the attention of the Legislature, and specified Presque Isle (formed by Lake Erie), Le Boeuf, and Connewango to be reserved to the use of the Commonwealth. A committee was ap- 1 11 Penna. Arch. 243 ; lb. 203. =* 15 Col. Rec. 593. SETTLEMENT, AND LAND TITLES. 75 pointed, who reported; and on the 24th of March, 1789,^ the Assembly authorized the Council to have surveyed, for the use of the Commonwealth^ of lands at Presque Isle (Erie), Le Boeuf, at the mouth of the Connewango, and at Fort Yenango, not ex- ceeding three thousand acres at each place. In pursuance of this authority, the Council, on the 4th April, 1789,^ directed the Surveyor-General to appoint a proper person to locate, survey, and return the several tracts mentioned. The Sur- veyor-General appointed to this service John Adlum, who, on the 14th of April, applied for money to make the survey. A committee of the Council reported^ they could find no money which with propriety could be advanced. On the 28th of April the Council refused the application, be- cause of there being no appropriation for this purpose.^ Presumably the funds were afterwards supplied, as a report of the surveys of the four reservations was made by Mr. Adlum to the Su- preme Executive Council, which, on the 16th of September, 1789, was transmitted to the Assembly.^ There is a private reservation, originating in the suggestion of General Richard Butler, which re- quires special notice.*^ In a letter of 23d March, 1 11 Penna. Arch. 566. "" 16 Col. Rec. 47. 8 11 Penna. Arch. 577. * lb. 577; 16 Col. Rec. 66. 6 16 Col. Rec. 161. « 11 Penna. Arch. 562. 76 SETTLEMENT, AND LAND TITLES. 1789, addressed to the President and Council, he stated that Captain Abeal (the Cornplanter), one of the principal chiefs of the Seneca Tribe of the Six ^JsTations, had been very useful in all the treaties smce that of 1784, inclusive, and his attachment to the State was very great. The General therefore suggested it would be good policy to fix his attachment, and also because of his ideas of civilization, to grant to him a small tract of land within the last purchase. He sug- gested 1000 or 1500 acres. This letter was sent to the Assembly on the 24:th of March, 1789, who on that day ordered the Council to set apart and survey 1500 acres in the Triangle for the use of the Seneca Chief, Captain Abeal, or the Corn- planter, to him and his heirs forever, in considera- tion of his personal merit and attachment to the State.' The Cornplanter visited Philadelphia and had interviews with the Council in October, 1790. His speech to the Council on that occasion will be found in the Appendix; it is worthy of perusal, exhibiting mental acuteness and accuracy of statement. He also refers with feeling to the wrongs done to the Indians even when known friends of the whites. Cornplanter never swerved in his friendship to 1 11 Penna. Arch. 566 ; 16 Col. Rec. 501 to 506. SETTLEMENT, AND LAND TITLES. 77 the "Quaker State." The Executive Council he termed "Fathers of the Quaker State." Among the great men of the Indian tribes none shone more resplendently in every virtue than Gy-ant-wa-chia, the Cornplanter, commonly called Captain John Abeal, or O'Bail. Pontiac, Brandt, and Red Jacket possessed high qualities, but theirs were individiial and single. Cornplanter com- bined all of theirs and more. He was statesman, warrior, and orator; wise, brave, and eloquent. He loved peace, truth, honesty, sobriety, humanity, and justice, and in his latter years adopted Chris- tian principles, and some of the ways of civiliza- tion. His love of the whites led to suspicions among the Red Men of his fidelity ; but his long life — more than one hundred years — and his con- sistency of conduct dispelled all thought of this, and marked his wisdom in shielding his people from the inevitable fate which seemed to await them, by cultivating the good-will of Washington and of the Quakers of Pennsylvania. A monument was erected to his memory in Warren Count}^, Pennsylvania, under the legisla- tion of the State. It was very carefully superin- tended by the Honorable Samuel P. Johnston, of Warren, who took great interest in the work ; and a very appropriate and able address upon the life, services, and character of Cornplanter was de- i8 SETTLEMENT, AND LAND TITLES. livered by the late Honorable James Ross Snow- den in 1867. There was a private reservation, called *' General Irvine's," referred to in the Act of 31st March, 1812, which I have not been able to trace.^ Pos- sibly it is the same referred to in 13 Colonial Records, 776. Yet this seems to be too early in date. More probably the reservation lay at the mouth of the Brokentraw, where General Irvine is known to have had valuable land. ^ 5 Smith's L. 380. SETTLEMENT, AND LAND TITLES. 79 CHAPTER YIII. THE ALLEGHENY AND BEAVER RESERVATIONS. The Allegheny reservation contained in the Act of 12th March, 1783,^ is in these words — viz: ^^Iteserving to the use of the State three thonsand acres, in an oblong of not less than one mile in depth from the Allegheny and Ohio rivers, and extending up and down the said rivers, from op- posite Fort Pitt, so far as may be necessary to include the same." I have italicized the leading words to characterize the intention of the Legis- lature. This reservation was surveyed by Alexander McClean, in the month of April, 1785, in pursu- ance of an oi'der to make the survey before the other lands were surveyed. The northern boun- dary began on the right bank of the Ohio River, nearly opposite to the mouth of Chartiers Creek, and ran east nine hundred and seventy -two perches to a hickory tree, north eighty perches to a sassafras, east two hundred and twenty- nine and a half perches to a mulberry, north twenty-six * 2 Smith's L. 63. 80 SETTLEMENT, AND LAND TITLES. perches to a post and stones on the bank of Girty's Run, thence clown Girty's Run several courses — m all one hundi-ed and three perches — to the Alle- gheny River. The two rivers constituted the remaining boundaries. To the present generation the description of the Allegheny reservation given by David Redick, Esq., will be amusing. He was then a man of mark in Western Pennsylvania; at one time Vice- President of the Supreme Executive Council,^ then a delegate to the Constitutional Convention of 1789-90, and after the organization of Beaver County, in the year 1803, one of its Associate Judges until his death in 1830. In his letter to President Franklin of 19th February, 1788,^ he wrote in derisive terms of this reservation. Among other things he said: "I am of opinion that if the inhabitants of the moon are capable of receiving the same advantages from the earth which we do from their world — I say, if it be so — this same famed tract of land would aftbrd a variety of beautiful lunar spots not un- worthy the eye of the philosopher." But time has shown the fallacy of his views. The policy of the State in all these reservations was to reserve them to herself, so that by special legislation, comprehending regulations, minor re- » 11 Penna. Arch. 410-11, and 15 Col. Rec. 584. ' 11 Penna. Arch. 224; also Appendix. SETTLEMENT, AND LAND TITLES. 81 servatwns^ and wise provisions, they could be dis- posed of to suit the views of the Legislature. Pursuing that design, the first Act passed was that of September 11, 1787.' It recited that " a sale of the said tract of land, if laid out and disposed of to the best advantage, will furnish a considerable sum of money towards discharging the debt due by the State. Therefore, to attain this end in the most serviceable manner to the State," it enacted, '' That the President or Yice- President in Council are hereby empowered to cause to be laid out and surveyed a town, in lots, with a competent and suitable number of out-lots for the accommodation thereof, in the said tract; and to cause to be laid out and surveyed the residue of the tract in lots, which last-mentioned lots shall not be less than one acre nor more than ten acres each." Upon the return of such surveys they were era- powered to sell the whole of the said lots to the most advantage to the State, and to convey the same. Then followed the important minor reservations required to preserve control, and to cany out the legislative design, viz : — "That the President or Yice -President in 1 2 Smith's L. 414. 82 SETTLEMENT, AND LAND TITLES. Council sliall reserve out of the lots of the said town, for the use of the State, so much land as they shall deem necessary for a court-house, gaol, and market-house, for places of public worship, and hurying the dead; and without the said town one hundred acres for a common of pasture ; and the streets, lanes, and alleys of the said town and out- lots shall he common highways forever^ I have italicized the leading features to indicate the intent of the Legislature ; and show the clear distinction between reservations and dedications. The places deemed necessary for public uses were detailed as reservations; while the streets, lanes, and alleys necessary as highways were dedicated at once to the public. A noticeable feature, indicating the views of that time, was the inclusion of houses of public worship and burial places, as _2J^(&Z^c uses. How- ever singular this may appear to men of this generation having looser notions, at that early day this reservation accorded decidedly with their stricter notions of religious practice, under a Constitution which then required the members of Assembly to be sworn to a belief in God and in the divine inspiration of the Scriptures,^ and which declared that all religious societies or bodies of men united or incorporated for the ad- ^ Conventions of Pennsylvania, p. 58. SETTLEMENT, AND LAND TITLES. 83 vancement of religion and learning*, or other pious or charitable purpose, should be encouraged.^ In that day, and long anterior, churches were deemed objects of sacredness, and a great public blessing in then* influence upon society, while burial was considered a paramount Christian duty. This spirit of the times is to be seen in the nu- merous laws for the protection of religion, religious societies, and their places of worship. Among these laws may be noticed the Act of 6th May, 1731,' and the Act of 4th April, 1793,' which evince the care and solicitude of the State for the preservation and protection of churches. The records of some of these churches were the only depositories of births, marriages, and deaths. Those of Christ Church in Philadelphia were of so much importance that the Historical Society of Pennsylvania has deemed them worthy of publica- tion in long lists, continuing through numbers of its quarterly. The Act of 1700 made such regis- tries legal evidence.^ Judicial decisions have also recognized the value and importance of religious societies and churches, and even held that the Christian religion is a part of the common law of the State.^ The Legislature, also, in three Acts, recognized chui'ches and burial grounds as among ^ Conventions of Penna. p. 64. " 1 Smith's L. 192. ^ lb. 323, 4. * lb. 20. MIS. & R. 394. 84 SETTLEMENT, AND LAND TITLES. public uses in the case of the Beaver reserva- tion {q. v.). It is manifest, therefore, that places of pnblic worship were deemed so vital to public morals and essential to the welfare of the people, they were a '"'' puhlic use''' worthy of a place in the legislation relative to these reservations. In the following year (1788), by the Act of 24th September,^ the county of Allegheny was erected out of parts of Westmoreland and Washington counties. The 8th section directed the Trustees of the county to choose lots in the reserved tract opposite Pittsburgh for a court-house and prison. But the region beyond the Allegheny River, being then uninhabited and subject to Indian incursions, the Act of 13th April, 1791, repealed this pro- vision, and authorized the Ti'ustees to erect these buildings in Pittsburgh.'^ In makmg the survey of the town under the Act of 1787, the plat was laid out a square, the sides coinciding nearly with the cardinal points of the compass, and a common of pasture laid around it, leaving the largest part lying to the north of it, and the smallest to the south. Hence the different parts have been called North, East, South, and West common. This common is now the public park of Allegheny City. ^ 2 Smith's L. 448. * 3 lb. 3G. SETTLEMENT, AND LAND TITLES. 85 Four centre squares in the town plat were re- served for the public uses specified in the Act. The next law of importance relative to this reserve tract was the Act of 3d March, 1818/ directing the Western Penitentiary to be erected on the public land adjoining the town of Alle- gheny, and requiring the Councils of Pittsburgh to appoint a Commission of five persons to select a suitable site, to contain not less than ten acres "of the public land." The site was selected on the west common, and the Penitentiary built, and fi-om time to time enlarged, until lately removed to the right bank of the Ohio. The owners of lots entitled to common of pas- ture made no objection to the selection and erec- tion. The State held the title to the land on which the common was laid out, subject only to the use for pasture. On this ground the grant for the erection of the Penitentiary was sustained, as stated by Chief Justice Tilghman in the case of The Western University v. Robinson et aV It was the understanding of the lot-owners (he said) that the advantage of the erection of the Peniten- tiary on the common ground was for their in- terest, without further compensation, and having acquiesced their rights were released. The University stood, however, in a different 1 7 Smith's L. 62. M2 Sergt. & Rawle, 29. 86 SETTLEMENT, AND LAND TITLES. attitude, and there being no evidence of acquies- cence by the lot-owners, the grant to the Univer- sity of forty acres laid oJ0P upon this common would not be supported adversely to the right of pasture. The grant to the University was under the Act of February 18, 1819.^ This case settled an important principle appli- cable to both of these reservations under the Act of 12th March, 1783, that the title to the land in the minor reservations in the town lands remains in the State. This principle was applied with force in several cases. Carr v. Wallace^ recoo^nized the rio:ht of the Commonwealth to dispose of the' land itself, sub- ject only to the commonage of the lot-owners, which could be relinquished by consent. In that case Carr was estopped in equity by reason of his supineness, and permitting the Theological Sem- inary to expend money in building and improving, without notice of his dissent, under the Act of April 17, 1827.^ It was further held in this case that the right of common was appurtenant to the in-lots, and not to the out-lots, and that the right was divisible by alienation of a part of a lot. This ownership of the State in the land reserved was recognized in other cases to be referred to presently. ^ P. L. 1818, 19, 64. ^ 7 Watts, 394. ^ P. L. 1827, 498. SETTLEMENT, AND LAND TITLES. 87 The most important Act bearing on the subject is the charter of the city of Allegheny, passed April 13, 1840/ The 13th section is m these words : " That the right of this Commonwealth to all lands within said city mentioned in the 4th section of the Act of Assembly of the 11th Sep- tember, 1787, excepting such parts thereof as have heretofore been appropriated by grant and author- ity of law, is hereby granted and vested in the said city of Al legheny, ybr such 2^uhliG uses as are re- cited in said Act, and such otJier louhlic uses as the Select and Common Councils may from time to time direct and ordain." This Act thus expressly declares the title to all the unsold lands (including therefore the minor re- servations) to be in the State, and vests it in the city, for the recognized public uses. The designation of the public uses in the reserved squares was thus transferred by the State to the City Councils, and was enlarged to embrace other public uses equally necessary, but not specified in the original Act; for example, a town-hall and council chambers, public offi.ces, engine-houses, etc. The powers of the Councils were considered and defined in the case of the Commonwealth v. Rush.^ In order to obtain funds to pay city debts the Councils had directed one of the reserved squares ' P. L. 1840, p. 303. 2 2 Harris, 186. 88 SETTLEMENT, AND LAND TITLES. in the centre plat to be laid oflP into forty lots and sold. A lot was sold to a purchaser who was pro- ceeding to erect a house thereon. He was enjoined against on the ground that this was not a lawful exercise of the power of the Councils. It was held that the charter of the city vested the right only for such public uses as are recited in the Act of 1787, and such other public uses as they might di- rect, but lots sold for private use were not such. It was held also that the dedication was 7iot gene- ral but special only, for such public uses as should be within the power conferred on Councils. The Judge said the Act of 1840 does not, and cannot alter the original Act,^ but places it in the power of the Councils to designate the particular parts of the square to be occupied for a market-house, pub- lic buildings, churches, etc. He thought, also, it would extend to a town-hall, or a j^^blic useful building. He held also that unlike a public square dedicated generally, it could not be considered as a coynmon or public highway. This is the evident distinction between the declaration of a use (a pre- sent specification of the use) and a dedication to public use generally. The opinion of Judge Hep- burn was sustained and adopted in the Supreme Court. Bell V. Ohio and Pennsylvania R. R. Co." fol- 1 2 Harris, 192, 3. ''I Casey, IGl. SETTLEMENT, AND LAND TITLES. 89 lowed, decided by a divided Court, one Judge not sitting. Chief Justice Lewis held in his opinion that the right of common was appurtenant, not appendant, and was extinguished by the act of the plaintiff in purchasing part of the land which was subject to the easement. The next case, Allegheny City v. Ohio and Penn- sylvania K. R. Co.,^ was decided also by a divided Court, one judge not sitting. C. J. Lewis held that the railroad, as a highway, was a public use, and, as such, fell within the power of the Councils; who could lawfully grant fifty feet of the common for this use. The decree, however, was made by four of the judges restraining acts of the company outside of the fifty feet, and acts within it not strictly for use as a highway. The effect of the legislation recited and the ju- dicial decisions thereupon is clear; that under the Acts of 1787 and 1840 there is 710 general dedica- tion of the public squares, but a reservation only for certain public uses specified in the Act of 1787, and such other j^^^l^c uses as the Councils should specify under the Act of 1840; and that the squares reserved are not reserved in such a sense as to make them public highways within the decisions in Com- monwealth V. Bowman, 2 Barr; Rung v. Shoenber- ger, 2 "Watts, and a like class of cases, holding ' 2 Casey, 356. 90 SETTLEMENT, AND LAND TITLES. public squares to be dedicated to a general public use— that the common was dedicated to a private iise (for pasture) leaving the title and the ground under the control of the State subject only to the use, which may be extinguished by consent or estoppel in equity. THE BEAVER RESERVATION. This reservation is contained in the same Act of 12th March, 1783, and is in these words: "And the further quantity of three thousand acres on the Ohio and on both sides of the mouth of Beaver Creek, including Fort Mcintosh." This reservation was surveyed probably in the month of April or May, 1785, but the original re- turn is not to be found in the Land Office. The boundaries are as follows: Beginning at an elm on the Ohio River, thence running north two degrees and a half west three hundred and seventy-five perches to a white oak — south eighty-seven and a half degrees west ninety-seven perches to a white oak — north two and a half degrees west one hun- dred perches to a white oak — south thirty-seven and a half degrees west three hundred and ninety- one perches to a maple on the margin east side of Beaver River — thence from a stake on the west side of the Beaver, south two and a half degrees east one hundred and ninety-six perches to a white SETTLEMENT, AND LAND TITLES. 91 oak — south eighty-seven and a half degrees west five hundred and eighty-seven and a half perches to a post and stones — south six hundred and forty- one perches to the Ohio River. The Ohio consti- tuted the remaining boundary. The first Act relating to this reservation was that of 28th September, 1791,^ authorizing the Governor to lay out a town and out-lots for the uses therein mentioned. Referring to the Act of 1783, it empowered the Governor to direct the Surveyor-General to survey two hundred acres of land in town lots, on or near the ground where the old French town stood, in such manner as Commissioners appointed by the Governor should direct; and also one thousand acres adjoining on the upper side thereof, in out-lots, as nearly square as may be, of not less than five acres nor more than ten acres in each, " provided that the Gover- nor shall reserve out of the lots of the said town so much land as he shall deem necessary for iniblic uses.^^ I have italicized the words in this proviso to draw attention to their true character. It was land, not lots merely. This land was reserved, not dedicated, and it was for public uses, not specified, but left to be declared by competent authority. 1 3 Smith's L. 56. 92 SETTLEMENT, AND LAND TITLES. This the Legislature, the only authority, has done from time to time. On the return of the surveys to the Surveyor- General the Governor was authorized to sell one equal half of the town lots, and the whole of the out-lots, to the best advantage, and convey the same, " excepting always such as shall be reserved for public uses." By the third section the streets, lanes, and alleys of the town and out-lots were dedicated as common highways forever. The survey under the Act of 1791 was made by Daniel Leet, in the month of l!^ovember, 1792, but in the absence of the Commissioners whose duty it was to direct the survey. In consequence of this want of authority on part of Leet, the Act of 6th March, 1793,^ was passed, confirming the sur- vey, repealing the appointment of Commissioners, and authorizing the Governor to sell and convey the lots contained in the surv^ey, but subject to this important provision : " Li the same manner and under the same regulations, excejHioris, and reservations, as are prescribed in the said recited Act of the General Assembly," viz., of 28th Sep- tember, 1791. The Governor, acting under this provision, by a writing dated the 11th March, 1793^ directed the 1 3 Smith's L. 90. SETTLEMENT, AND LAND TITLES. 93 Surveyor-General to mark the reservations reqiured by the Act of 1791, upon the survey of the town plat, includmg the squares which Leet had without authority marked as public squares on his plat. On the next day, March 12, 1793, the Governor issued his commission to sell, with instructions. The fifth instruction was in these words: "That the four lots in the centre and the corner lots of the town plat marked 'Public Square,' shall be announced as lands deemed necessary for public uses, and reserved by the Governor accordingly." The effect of this action of the Governor was to bring these reserved squares within the intent and meaning of the reservations in the Act of 1791 and thus to prevent the unauthorized act of Leet in marking them as "Public Squares" from giving to this entry on the plat the appearance of Tdedi^ cation of these squares to the public generally. This left the uses subject to the appointment of the Legislature, as first intended, which was after- wards exercised. The next disposition of the reserved tract was a grant of five hundred acres, to be laid off by actual survey, adjoining the town of Beaver, "for the use of such school or academy as may hereafter be established by law in the town of Beaver." This Avas accordingly done by laying off the land on the southwest side of the town plat, embracing all the land running southwesterly down and by the Ohio 94 SETTLEMENT, AND LAND TITLES. River to the end of the beautiful elevated plain below^ Beaver. The direction is contained in the 17th section of the Act of 12th March, 1800, the same law erecting the counties of Beaver, Butler, Mercer, Crawford, Erie, Warren, Tenango, and Armstrong. The Trustees appointed for Beaver County were Jonathan Coulter, Joseph Hemphill, and Denny McClure.^ Another appropriation of the reserved tract by the Legislature was made in the Act of March 29, 1802.^ The Surveyor-General was authorized to survey two separate lots, containing in the whole not more than fifteen acres, on the north side of the in-lots of the town of Beaver, so as to include several streams or springs of water; "and they are hereby granted to the inhabitants of said borough forever." This is the Act incorporating Beaver into a borough. It will be observed that the o;i'ant was to the "inhabitants." The Act confers no power over the lands granted upon the corporation. ISTor does it confer on the corpora- tion any power over the reserved squares. By the Act of 21st February, 1803,'^ four Trus- tees, viz., John Lawrence, Guion Greer, James Alexander, and Samuel Johnston, were appointed to take charge of the land granted under the Act 1 3 Smith's L. 429. ' Pamphl. L. 1802, 120. » 4 Smith's L. 12. SETTLEMENT, AND LAND TITLES. 95 of 1800 for an academy. These Trustees were empowered to erect a suitable building on one of the reserved squares in the town of Beaver for an academy. This power was exercised at an early day, the building being erected on the middle lot of the southeast reserved centre square. It re- mained in use many years after 1829, the year the writer first saw it ; probably as late as until 1860. Beaver County was organized for judicial pur- poses under the Act of 2d April, 1803.^ In this Act the Legislature again exercised its power over the reserved squares by authorizing the Commis- sioners to erect a court-house, prison, and public buildings on such part of the public squares in Beaver as they might think proper. Until a court- house should be erected the courts were to be held in the house of Abner Lacock, in Beaver. The court-house and offices were erected on the north- west centre reserved square, and the prison on the northeast centre reserved square. The next sale of the town and out-lots of Beaver was authorized by Act of 2d March, 1805." John Lawrence, Samuel Wilson, and David Potter were empowered to sell one-fourth of the town-lots of Beaver, ^''excepting those Jieretqfore reserved for public uses," and one-fourth of the reserved tract at the mouth of Beaver in lots not less than five ' 4 Smith's L. 81). ' lb. 215. 96 SETTLEMENT, AND LAND TITLES. nor more than ten acres each. A condition in the sales of the m-lots was that each purchaser should, within three years from the time of sale, build on his lot a house at least one story high, measuring not less than twenty-four by eighteen feet, having a chimney, and fit for the accommodation of a family. If not so improved the lot should revert to the Commonwealth. The time for making this im- provement was extended to the first day of Sep- tember, 1811. (Act 20th March, 1810.') A sale of all of the remainder of the Keserve tract was ordered by the Act of 14th March, 1816,^ to be made by "Wm. Leet, John Wolf, Sr., and James Dennis, who were empowered to survey it in lots of not less than five and not more than ten acres in each. The purchase-money was to be paid within two years and patents issued. But on fail- ure to pay, the Secretary of the Land Oftice was authorized on payment of the purchase-money and interest by any other person, to issue a patent to him. The limitation in this section was continued twice — the second until January, 1824. The Legislature again exercised its power to ap- point the uses over the squares reserved for public uses. The 4th section of the Act of 14th March, 1814,^ enacted, *'that the public square in the 1 5 Smith's L. 158. =' G lb. 131. ' lb. 132. SETTLEMENT, AND LAND TITLES. 97 northwest corner of the general plan of the town of Beaver, which was reserved for public purposes, be and the same is hereby (njpropriated for a Iturial- ground.'''' This is again a direct legislative asser- tion that these reservations had not been dedicated, and was an exercise of the power to declare the uses. The next sale of lots in Beaver was under the Act of the 5th of March, 181G.^ The commissioners were James Alexander, Guion Greer, and James Logan. They were directed to sell all the remain- ing lots, yet the property of the Commonwealth, " excepting those heretofore reserved for public uses." One-half of the purchase-money was to be paid previous to 3d Tuesday of December, 1816, and the other half on or before the 3d Tuesday of De- cember, 1817. On failure to pay the purchase- money for one year, the Secretary of the Land OflBice was authorized to issue a patent to such person as would pay the sum due. This Act again asserts that the reserved lots were the property of the Commonwealth. The Act of 10th April, 1826,' was the next au- thorizing the sale of the out-lots. The commis- sioners were Thomas Henry, Joseph Hemphill, and Robert Moore. The purchase-money was payable 1 P. L. 181G, p. 96. ^ lb. 1826, p. 351. 7 98 SETTLEMENT, AND LAND TITLES. one-fourth in hand, and the remainder in three equal annual instalments. Five hundred dollars of the proceeds were granted to the borough of Beaver for the supply of water. The last sale authorized was under the Act of 15th April, 1834.^ James Lyon, Benjamin Adams, and James Eakin, Jr., or any two were empowered to sell at public sale all the lots which had reverted to the Commonwealth laid out by John Lawrence, Samuel Wilson, and David Potter, under the Act of 2d March, 1805, " excepting those heretofore re- nerved for public uses" — and also all the lots sold by James Alexander, Guion Greer, and James Logan, under the Act of 5th March, 1816, which reverted to the Commonwealth — the purchase- money payable one-fourth in hand and the remain- der in three equal annual instalments, patents to be issued on payment being made. $500 of the proceeds of the sale were granted to the borough of Beaver for the supply of water. The next exercise of the power of the State over the reserved squares was contained in the Act of 29th March, 1824.^ It appropriated a part of the southeast centre square to the Presbyterian con- gregation of Beaver, for a church, with a yard not exceeding one-quarter of an acre. The Trustees ^ P. L. 1834, 487. "" lb. 1824, 149. SETTLEMENT, AND LAND TITLES. 99 were James Allison, Thomas Henry. David Mar- quis, David Eakin, and Edward "Waggonner. This was followed by a similar appointment to the use of a Methodist Episcopal Church; con- tained in the Act of 10th April, 1826/ The 5th sec- tion empowered Benjamin Adams, Robert Darragh, Milo Adams, Joseph Yera, and John T. Miller, Trustees for the Methodist Episcopal Church, in the borough of Beaver, "to erect a church or house of worship on the southeast section of the public square in the town of Beaver, between the Acad- emy and the southeastern boundary of said public square, and to inclose a yard not exceeding one- fourth of an acre." These last two declarations of public uses were in the direct line of the leo^islative thoup'ht as seen in the other reservation at the mouth of the Alle- gheny River. Both Acts of 1787 and 1791 were the twin product of the same legislative intent which created these reservations of 3000 acres each. The Allegheny Act expressly included "places for public worship and burying the dead." The for- mer Act was evidently before the draughtsman who drew the latter (1791), but its enumeration of uses being manifestly defective, in not including other customary buildings,'^ such as town halls, public 1 P. L. 182G, p. 352. ^ Ante, pp. 87 and 88. 100 SETTLEMENT, AND LAND TITLES. oflSces, engine buildings, weigh-scales, etc., he re- jected the method of enumeration, and reached the same end in a better way by saying ^''for puhlic usesy This embraced all buildings for uses deemed necessary, convenient, or proper, including houses of public worship and burial grounds expressly named in the Alleghen}^ Act. Another conclusive evidence of the reserved legislative control over the uses, is seen in the Act of 1840, conferring on the Councils of the city of Allegheny the power to declare other public uses, besides those named in the Act of 1787. Under this authority the city has erected extensive public buildings, includ- ing all its city oflSces, a town hall, and the post- office. The reo:ard in which churches or houses of public worship were held in the last century, when these Acts of 1787 and 1791 were passed, will be seen by referring to the remarks relating to this subject in the case of the Allegheny reservation.^ Indeed, it is impossible to interpret truly the Act of 1791 without referring to its immediate prede- cessor in pari materia, the Act of 1787. In all the Acts relatins; to the Beaver reserva- tion, and they were numerous, the minor reserva- tions are called reservations, not dedications. The ^ Ante, pp. 82, 83, 84, 89. SETTLEMENT, AND LAND TITLES. 101 only dedications were of the highways, streets, lanes, and alleys. The laws of William Penn, of the Province and of the State, the Constitution of 1776, and the decisions of the Supreme Court, all regard the institutions of the Christian reliofion, includino: its places of public worship, as eminently worthy of State protection, and as essential to the morals and general welfare of the people.^ Hence the uniform current of legislation in relation to these minor reservations of the public squares has the effect of an assertion of the power of the State over them, to declare the uses from time to time. In pari materia are the Acts relating to the reservations at Erie, Warren, Franklin, and Water- ford. This part of the State was then a wilder- ness, and the State planted her reservations and towns to serve the purposes most conducive to her own interests and the general Avelfare. (See the concluding paragraph relating to these reser- vations under the Allegheny Act, page 89.) ^ We have but to imagine a country without churches, to per- ceive how ffreat the retrogression of mankind would be. 102 SETTLEMENT, AND LAND TITLES. CHAPTER IX. RESERVATIONS AT ERIE, FRANKLIN, WARREN, AND WATERFORD. As already stated, the Supreme Executive Council, in 1788, in consequence of the sugges- tion of Andrew Ellicott, recommended to the Assembly the subject of reservations at the mouth of the Conewango, Venango, and Le Boeuf. The Assembly, by a resolution of 1789,^ authorized the Council to have surveys, not exceeding 3000 acres, made for the use of the State at these places and at Erie, the "Triangle" by this time having become the property of the State. These surveys were made by John Adlum, and reported to the Council, and transmitted to the Assembly in Sep- tember, 1789. ^ The original survey of the Erie reservation by John Adhim is not to be found in the Land Office. As otherwise ascertained the boundaries appear to be these : Beginning on Lake Erie, thence south twenty-seven degrees east nine hundred and seventy-nine perches to a post ; south fifty-three degrees west two thousand five hundred and ninety perclies to a post ; north twenty-seven degrees west ninety-three perches to Lake Erie; the lake con- stituting the remaining boundary. SETTLEMENT, AND LAND TITLES. 103 On the 3d April, 1792, the Act of Assembly was passed opening to warrant settlement and survey the lands north of the Ohio and west of the Allegheny and Conewango Creek. The 13th section directed to be reserved for the use of the State at Presque Isle, formed by Lake Erie, the island forming the harbor, and a tract extending eight miles along the shore of the lake, and three miles in breadth, so as to include the tract already surveyed by virtue of a resolution of the Assembly, and the whole of the harbor formed by Presque Isle at the mouth of Harbor Creek, which empties into Lake Erie, along the shore on both sides of said creek, two thousand acres. This was followed by the Act of 18th April, 1795,^ to provide for laying out and establishing towns and out-lots within the several tracts of land heretofore reserved for iniblic uses, situated at Presque Isle (Erie), mouth of French Creek (Franklin), mouth of Conewango Creek (War- ren), and Fort Le Boeuf (Waterford). It recited the purpose to facilitate and promote the progress of settlements within the Commonwealth, and afford additional security to the frontiers thereof. The Governor was directed to appoint two Commissioners to survey 1600 acres of land in town-lots, and 3100 acres adjoining for out-lots, at 1 3 Smith's L. 233. 104 SETTLEMENT, AND LAND TITLES. or near Presque Isle. The streets were to be not more than one hundred and not less than sixty feet wide; and such lanes, alleys, and reservations for public uses made as the Commissioners should direct; no town lot to contain more than one acre, and no out-lot more than five acres, and the reservations not more than twenty acres. The town should be called Erie, and all the streets, lanes, and alleys be common highways forever. A draft of the survey was required to be filed in the office of the Secretary of State ; and the Governor was authorized to sell at public auction and on advantageous terms one-third part of the town-lots, and one-third part of the out-lots, on the condition that the purchasers should, within two years after the sale, build on each town-lot sold a house sixteen feet square, containing at least one brick chimney ; patent not to be issued for two years, and not to vest title, and all previous pay- ments to be forfeited, unless the condition be performed, and proof thereof made in the Court of Common Pleas, and certified to the Governor. The Act fui'ther required one-half of the pur- chase-money to be paid within three months from the time of sale, and the other half, with interest, within one year; and in case payment be not so made, the sale to be void. The Commissioners were also required to sur- SETTLEMENT, AND LAND TITLES. 105 vej, previous to the survey of the town and out- lets, sixty acres on the southern side of the harbor of Presque Isle, one-half above and the other half below the bank, including the point at the entrance of the harbor ; one lot of thirty acres on the penin- sula at or near the entrance of the harbor; one other lot on the peninsula containing one hundred acres for the accommodation and use of the United States, in erecting and maintaining forts, maga- zines, arsenals, and dockyards, and other improve- ments deemed advantageous by the United States. Exception was made of mill-seats on the creek near the old French Fort, if they fell within the cession to the United States. Convenient roads also were to be made without injury to the United States for the use of the citizens ; and nothing in the Act should be deemed to cede or transfer to the United States the jurisdiction or right of soil in the said lots, but only their occupancy and use. The commissioners were required to survey also three hundred acres for town-lots, and seven hun- dred acres adjoining thereto for out-lots on the re- servation at the mouth of French Creek, the town to be called " Franklin ;" and also three hundred acres for town-lots, and seven hundred acres ad- joining thereto for out-lots on the reservation at the mouth of Conewango Creek, the town to be called "Warren." 106 SETTLEMENT, AND LAND TITLES. Ill each case the lands should be laid out into town-lots and out-lots, with streets, lanes, and alleys, and reservations fo7' 2}uhliG uses, as the Com- missioners should direct; no town-lot to contain more than one-third of an acre, and no out-lot more than five acres, and the reservations for pub- lic use not to exceed ten acres. The streets, lanes, and alle3'^s were established as common highways forever. A draft and report of the survey in each case (Franklin and Warren) were required to be re- turned and filed, and the Governor to proceed to sell at public auction and convey to the pur- chasers one-third of the town-lots and one- third of the out-lots in like manner, power, and autho- rity, and subject to like regulations, terms, condi- tions, and forfeiture, as provided in relation to the town- and out-lots at Presque Isle.^ ^ None of the returns of surveys by John Adlum, of the reser- vations at Erie, Waterford, Warren, and Franklin, are to be found in the Land Office, except that at Waterford. It is supposed they were lost when the Rebels raided Pennsylvania, or so displaced they cannot be found. All the papers of the Land Office were hurriedly thrown into boxes, barrels, and hogsheads, and carried to a place of safety. The head fell out of a hogshead, and possi- bly other accidents happened. The papers dropped out and were scattered and torn. On their return many papers were found in pieces, and others were not to be found at all. SETTLEMENT, AND LAND TITLES. 107 As to the reservation at Le Boeuf, a different provision was made. The ninth section recited the survey of a town by Andrew Ellicott at Le Boeuf, near the head of navigation of French Creek, and the plan communicated by the Gov- ernor to the Assembly and approved. It then enacted that the plan of the town so surveyed being first recorded in the office of the Secretary of the Commonwealth, and the original deposited in the office of the Surveyor-General, should be fully ratified and confirmed, as if made in pursu- ance of a previous law. The Commissioners were required, further, to survey five hundred acres adjoining the town plot for out-lots, with streets, lanes, and alleys ; no out-lot to contain more than The description, as taken from Adlum's survey of the reserva- tion at Le Bojuf (now Waterford), is as follows : — Beginning at east branch of Le Bceuf or French Creek at a sugar tree, thence north eighty-one perches to a hemlock, west one hundred and thirty-four perches to a white oak, north one thou- sand one hundred and thirty perches to an ash, east two hundred and seventy perches to a white pine, south one hundred and sixty perches to a post, east two hundred and seventy pei'ches to a white pine, south one hundred and sixty perches to a post, east two hun- dred perches to a black ash, south one hundred and five perches to a white thorn, east forty perches to a beech, south seven hundred and thirty-two perches to a hickory, thence down French Creek to the beginning, containing three thousand and seventy-three acres and one hundred and fourteen perches. 108 SETTLEMENT, AND LAND TITLES. five acres, and the reservation for ijublic uses not to exceed in the whole ten acres. The town was to be called Waterford, and the streets, lanes, and alleys of the same and of the out-lots to be com- mon highways forever. A further provision for Waterford was a right of preemption to those who had built houses on the lots therein. The Governor was required to sell at public auction one-third of the lots, and one-third of the out-lots, exclusive of the i^eserved lots, and of those appropriated to settlers, in like manner and subject to like regulations, restric- tions, terms, conditions, and forfeitures touching the survey, return, sale, and conveyance of the town and out-lots at Presque Isle. It was provided as to all these towns that one- half of the town-lots and the out-lots to be sold in pursuance of the Act, should be sold in the city of Philadelphia, one-fourth in Carlisle, and one- fourth in Pittsburgh. The remainder of the Act relates to the military establishments at Fort Le Boeuf, and a fort to be established at Presque Isle. A cession was also made to the United States for military purposes of two out-lots of the town of Franklin by Act of Feb. 1, 1796.' ' 3 Smith's L. 261. SETTLEMENT, AND LAND TITLES. 109 The next legislation was a general Act for sell- ing the reserved tracts at Erie, Franklin, Warren, and Waterford, April 11th, 1799.' It provided for actual surveys of the parts of these reservations not before laid out in town- and out-lots not ex- ceeding one hundred and fifty acres in each, desig- nating in the drafts the quality of each as first, second, and third quality. It granted five hun- dred acres to be laid off" in each reservation for the use of such schools or academies as might be established by law in the said several towns. The surveys were to be returned to the Surveyor-Gene- ral, and general drafts thereof to the office of the Secretary of the Commonwealth. After these drafts were lodged as stated, copies were to be transmitted by the Governor to the Commissioners for sales of the towns ; who were ^ to give notice of the opening of the books, and the terms of sale were one-fifth of the purchase- money in hand, one-fifth in twelve months, one- fifth in two years, and the remainder in three years. ]N"o contract for sale was to be complete for fifteen days after the opening of the books and then the highest price offered to be accepted. The mode of proceeding by the Commissioners was pre- scribed. The following important condition was ' 3 Smith's L. 381. 110 SETTLEMENT, AND LAND TITLES. declared. ISTo title should vest unless the pur- chaser within three years after purchase made an actual settlement thereon, by clearing, fencing, and cultivating at least two acres for every fifty acres contained in one survey and erecting a mes- suage fit for the habitation of man, and residing thereon for five years from his first settlement. In default of such actual settlement, residence, and improvement, the purchaser should forfeit all pay- ments, and the land be open to sale again. The 4th section required the Governor to ap- point four resident Commissioners in each town, who with two to be appointed by the Judges of the Common Pleas of Allegheny County, should appraise all the in- and out-lots in Franklin, War- ren, and Waterford, and the first section in Erie, and out-lots adjoining. The Commissioners were to advertise the town for sale on the terms one- third of the purchase-money payable in hand, one- third to the Heceiver-General in twelve months, and the remainder in eighteen months, for which bond should be given by the purchasers, the Gov- ernor to grant patents at the expiration of the eighteen months if the purchase-money be paid. Provision was made that those who had pur- chased lots in the second and third divisions of Erie might exchange for lots in the first division at the same price they had paid. Those who had SETTLEMENT, AND LAND TITLES. Ill paid for or improved forfeited lots should have a preemption at the prices they sold for at former sales, provided they applied within three months after the passage of the Act. The 6th section provided for the sale of the lot of gronnd reserved in Erie at the mouth of Cas- cade Creek at a price not less than fifty dollars an acre. The Act of 19th Feb. 1800' repealed so much of any law which imposed on purchasers of lots in Erie, Franklin, "Warren, and "Waterford the con- dition of improving the same, and which prohibited the issuing of the patent without proof of such improvement. It extended also the time of appli- cation of those entitled to the preemption of for- feited lots to twelve months. This period was also extended by Act of 26th Feb. 1801, for one year from that date.^ By the Act of 29th March, 1805,' the first sec- tion of the town of Erie was incorporated into a borough. This law conferred on the borough cer- tain powers over parts of the reserved land for w'ater-lots and wharves. Two thousand dollars arising from sales of lots and out-lots in Erie were appropriated to public ^ 3 Smith's L. 411. * lb. 412, note. ' P. L. 1805, p. 176. 112 SETTLEMENT, AND LAND TITLES. county buildings in Erie. Act of 16th March, 1807.^ A supplement, March 20, 1811,' provided for the appraisement and sale of all the in-lots in squares, and the out-lots in the second extension of Erie. Two reputable citizens were to be appointed by the Governor, who, with the Commissioners of sales, should make the appraisement. The Commis- sioners were then to advertise and open books, and the highest price oifered within sixty days was to be accepted, payable one-third in hand, one-third to the Secretary of the Land Office in twelve months, and the remaining one-third in two years — bonds to be taken and transmitted to the Secre- tary of the Land Office, and patents granted at the expiration of two years if purchase-money be paid. This Act also provided that a part of the beach for twenty peiches back from the water's edge, and from the upper corner of the Gai-rison tract down to lot JSTo. 38, the property of John Kelso, should be and remain a public landing for the use of the public, until otherwise appropriated by law, and provided penalties for any obstruction thereof. The State also ceded to the United States the use and occupancy of a part of the Erie reserva- tion, containing not less than two nor more than ' P. L. 1807, p. 74. ' 5 Smith's L. 212. SETTLEMENT, AND LAND TITLES. 113 four acres for the site and erection of a lisrhthouse, to be laid off by Daniel Dobbins, James Weston, and James Pollock, as Commissioners, upon con- sultation with at least three of the captains or commanders of vessels. A plat or draft was to be made of the lot and transmitted to the Secretary of the Treasury of the United States. Act of April 2, 1811.^ The United States, having long before ceased to maintain a garrison at Presque Isle, and having vacated the lots at Waterford reserved for the use of the United States by Act of 18th April, 1795, and the buildings fast going to decay, in order to preserve them the State by Act of 20th March, 1812,^ provided Commissioners, viz., Thomas Wil- son, John Boyd, and John Lytic, to take charge of the property with power to lease, receive the rents, and pay them to the Treasurer of Erie County for the use of the county; the leases to be relinquished whenever the property should be wanted for the use of the United States or any other purpose. Provision was also made by the 3d section of the Act of 31st March, 1812," for issuing patents for fourteen out-lots of five acres each adjoining the out-lots of the first section of the town of Erie, not included in Thomas Ree's ' Smith's L. 263. * lb. 337. " lb. 381. 8 114 SETTLEMENT, AND LAND TITLES. survey, sold by the Commissioner of Sales without authority of law. An enabling Act, passed February 5, 1817,^ authorized the borough of Erie to lease several, not exceeding ten, water-lots to the United States for a term not exceeding twenty-one years, and appropriate the rents to the improvement of the boron «:h. By the Act of 25th March, 1817,^ incorporating an academy to be established at Erie, the five hun- dred acres appropriated out of the reserved land at Erie for the use of an academy in the Act of 11th April, 1799 (3 Smith's L. 381), were granted to the incoi'porated academy. Certain other lots, by number, were also granted to the academy, on which to erect buildings. A supplement'^ vested in the Trustees lot 'No. 2544, and empowered them to sell fifteen other lots in Erie, and with the proceeds to purchase four other lots. These Acts relating to the academy at Erie were followed by the Act of 28th March, 1820,^ authorizing the Trustees to receive $2000 out of the balances unpaid on out-lots in the reservation at Erie for which patents had not been granted. Various provisions to carry this into effect were added. A supplement'' to the "Waterfoi'd Act authorized 1 6 Smith's L. 398. ^ P. L. 1817, p. 302. ' 7 Smith's L. 424. * P. L. 1820, p. 174. ^ lb. SETTLEMENT, AND LAND TITLES. 115 the Secretary of the Land Office to issue a patent to the Trustees of the academy at that place for eight lots in Waterford marked B, in the general plan on which the United States buildings had stood, to be disposed of by the Trustees as they should think best for the academy. A further supplement authorized the Trustees of the Waterford Academy to sell to the best advan- tage and conve}'' the tract of five hundred acres laid off, in the reserved tract adjoining Waterford, under the Act of 11th April, 1799, for a price not less than ten dollars an acre, and the proceeds in- vested for the use of the academ}^ Act 21th Feb- ruary, 1820J The last important Act deemed necessary to be referred to, was that of March 23, 1818.' It ex- tended the limit in the 3d section of the Act of 11th April, 1799, for making settlement, improve- ment, etc., on purchased lots until the first day of April, 1821. The second section required the per- sons entitled to the benefit of this extension to pay in addition to the purchase-money an advance of twenty per cent, for rent and interest on the whole sum from the time the interest commenced on the original purchase-money. Of the foregoing reservations the same may be 1 P. L. 1820, p. 39. ^ 7 Smith's L. 114. 116 SETTLEMENT, AND LAND TITLES. said as was said of the i-eservations at Allegheny and Beaver. They were not dedications to the public, but reservations to the State herself. They are products of the same thought, and bear the same interpretation: that is, her reservation for public uses were to enable her to declare them in such manner as would be beneficial to herself as well as to the public. Hence she constantly passed laws controlling and disposing of them as she deemed best for all interests, her own and others. SETTLEMENT, AND LAND TITLES. 117 CHAPTER X. GENERAL DISPOSITION OF THE LANDS UNDER THE ACT OF APRIL 3, 1793. The last, and most important, division of the subject, is the general disposition of the lands in the region north of the Ohio River, and west of the Allegheny River and Conewango Creek. The prime intention of the State, as already stated, was to reward the soldiers of the Pennsyl- vania Line in the Revolutionary War for their meritorious services; to raise money; plant popu- lation in advanced positions for the protection of the western border of the State, and to facili- tate improvement. These objects she had pro- vided for in the redemptioii of the certificates of depreciation given to the soldiers, donations to them in land for their services, and by reservations at important points, for speedy sales, to raise money, and invite settlements. These patriotic purposes left large sections of territory undisposed of. All of the western terri- tory, excepting a small portion on the eastern side of the Allegheny River, adjacent to Fort Pitt, 118 SETTLEMENT, AND LAND TITLES. was wild and niiiiihabited, and subject to Indian incursions. From 1780 until 1795 there was no safety from invasion and massacre. In 1782 Colonel Crawford was defeated, and bui'ned at the stake, with a barbarity and suffering almost in- credible. In the same year Hannahstown, in "Westmoreland County, was ravaged, and thence- forward the country from Wheeling to Fort Pitt was constantly threatened. General Harmar was defeated on the Miami in 1790, and General St. Clair in 1791 ; and in 1792 General Wayne began his preparation for his Indian campaign, which lasted until 1795. This condition of the western country bore directly upon the legislation of 1792. The General Assembly of Pennsylvania, con- ceiving in that year that the time had come to make a general provision for the sale and settle- ment of this territory, passed the Act of the od of April, 1792,' entitled "An Act for the sale of the vacant lands within this Commonwealth." After providing for the sale of the remainder of the unsold lands lying within the purchase of the Indians in 1768, the Act offered all the land lying- north of the Ohio River, and west of the Alle- gheny Piver and Conewango Creek — excepting such parts as had been, or thereafter should be, 1 3 Smith's L. 70. SETTLEMENT, AND LAND TITLES. 119 appropriated to any public or charitable purpose — to persons who would cultivate, improve, and settle upon the same, for the price of seven pounds ten shillings for every one hundred acres, with an allowance of six per centum for roads and highways, to be located and secured as jorovided in the Act. To understand the evils of this legislation, and the vice which led to the greatest litigation and uncertainty of title which ever ruined the pros- perity of a new country, and set it back many years, it may be stated in this place that the Assembly committed the sin of enacting a duplex and adverse system of acquiring title, which placed Land Oflace rights and settlement claims in direct hostility to each other, and led to a contest in the courts and on the lands, which lasted until long after the writer came to the bar. One mode was the purchase of a warrant at the Land Office for a tract of land to be surveyed thereupon, not exceeding four hundred acres and the allowance of six per cent., the grantee paying the purchase-money and fees of office into the State Treasury; to be followed by actual settlement and improvement. The other mode was by an ac- tual settlement and improvement, in the first in- stance, made upon a tract not exceeding four hun- dred acres and allowance by any person desirino- 120 SETTLEMENT, AND LAND TITLES. to settle, improve, and reside upon the same. In both instances a survey was required to be made by the deputy surveyor of the district in which the land lay. The warrant was so called, be- cause in its terms it was an authority or order to the Surveyor-General to survey a tract applied and paid for, and the Surveyor was required to make the survey thereof forthwith. On the other ' hand, an actual settlement and improvement being made, the 8th section of the Act required the deputy surveyor of the district, upon application of tiie settler, to make a survey of the tract upon which he had settled, and enter it on his books. Had there been no Indian war probably there would have been fewer adverse claimants to the same tract. The settlers under warrants and those for improvements for themselves, would have oone on to the lands at an early date, and prioi'ity of entry would then have settled many disputes. But while those who desired to acquire land by settlement and improvement were prevented by Indian hostility, the capitalists, having money, and being near to the Land Office in Philadelphia, proceeded at once, procured their warrants, and lodged them in the hands of the deputy survey- ors for execution. Hence much the largest num- ber of the warrants were taken out in 1792. On the 3d of April, 1792, the day of the passage of the law, Daniel Bi-odhead, then Surveyor-Gene- SETTLEMENT, AND LAND TITLES. 121 ral, took out two warrants for lands lying on Wal- nut Bottom jKnn, opposite the great falls of the Beaver, where the town of Beaver Falls now stands. On the 14th of April, 1792, the largest proportion of the warrants was taken out by John Nicholson, then the Comptroller-General of the State, and. others, which afterwards became the property of the Pennsylvania Population Com- pany. Another large number of warrants was taken out in April, 1792, and April and August, 1793, in behalf of a foreign company known as the Holland Company. Besides, there were many individual capitalists who purchased or afterwards became owners of these early warrants, such as Judge James Wilson, Benjamin Chew, Archibald McCall, and other eastern residents. So great was the collective number of the warrants that, in the language of the old residents, the country was " thumbed over" from the Ohio to the Lake. Sur- veys on these warrants were made generally in 1794 and 1795. As a consequence they would have given undoubted titles had it not been for the terms of the 9th section of the Act of 3d April, 1792, which were variously interpi-eted by lawyers, courts, and people. This 9th section (to be copied in full hereaftei") provided that no warrant or sur- vey of these lands should vest title unless the grantee had prior to the date of the warrant made, 122 SETTLEMENT, AND LAND TITLES. or sJiould within two years after the date of the same, make an actual settlement thereon, by clearing two acres for every one hundred in the survey, erecting a messuage and residing thereon for five j^ears. The section then provided for a forfeiture of the land in case of a default in these requirements. But the Indian war continued without abate- ment. In the winter of 1792-3, General Wayne encamped his army at Legion ville, a short distance below the present town of Economy, and on land now owned by the Harmon}^ Society. His pur- pose was to drill and discipline his soldiers well to » meet their Indian enemies — a want of proper dis- cipline having led largely to the defeats of Har- mar and St. Clair. The next winter (1794) he encamped at Fort "Washington (Cincinnati), and in the summer made his expedition to the Maumee, where he- defeated the Indians on the 20th dny of August. His treaty of peace with the Indians was not made until the 3d of August, 1795. It was ratified by the United States Senate on the 22d December, 1795. This became the first signal of safety for entry and settlement on these lands. Only a very few adven- turous spirits had gone on before, chiefly in the vicinity of the forts. The spring of 1796, became, therefore, the period when the largest wave of set- tlement rose, and the settlers took possession. SETTLEMENT, AND LAND TITLES. 123 The current opinion among the settlers, the re- sult partly of legal advice, partly of self-interest, and to some extent of ignorance and hostility to capitalists who had bonght up the lands, was, that the owners of the warrants, by reason of non- entry settlement and improvement, within the two years from the date of the warrants according to the requirement of the 9th section of the Act of 3d April, 1792, had forfeited their titles, and the lands were open to entry and settlement. As a consequence the settlers sat down upon the lands they selected, regardless of the surveys made on the warrants. This led at once to alarm among the warrant holders, and to steps to vindicate their rights. To understand properly the events following, it is necessary to state the different interpretations placed upon the 9th section of the law. The set- tlers believed the warrants were absolutely void, or " dead," as they said, by reason of non-settle- ment, etc., within two years from their date. The warrant-holders, whom I shall call "warrantees" in the language of that day, held that the condi- tion of settlement being subsequent was abso- lutely gone by the prevention of the enemies of the United States (the Indians), and by their persistence to settle within the two years. The legal profession in the western part of the State 124 SETTLEMENT, AND LAND TITLES. held an intermediate interpretation, tluxt neither the warrants were void, nor the condition of set- tlement gone; but that the latter was only sns- 2:)ended nntil the prevention ceased, which ended with the ratification of the treaty of peace on the 22d December, 1795 ; and then, resuming its force, the warrantees had two years, viz., until the 22d December, 1797, to perform the condition by mak- ing the required settlement, etc. Referring to the legal profession in the West, I may add some of the ablest lawyers in the State then graced the AVestern Bar. The following list of lawyers admitted at the first court held in Beaver County in February, 1804, will serve to give character to the lawyers of that day, viz: — Alexander Addison (Judge), Thomas Collins, Steele Sample, A. W. Foster, John B. Gibson (the Chief-Justice), Sampson S. King, Obadiah Jen- nings, Wm. Wilkins, James Allison, John Sim- onson, David Kedick, Parker Campbell, David Hays, C. S. Sample, Henry Baldwin, Thos. G. Johnston, Isaac Kerr, James Mountain, Robert Moore, Wm. Ayres, and Wm. Purviance. To these I may add James Ross and John Woods, of Pittsburgh. Many of these gentlemen became in after life eminent in the State and the United States. SETTLEMENT, AND LAND TITLES. 125 Connecting itself with the cnrrent of events as to these warrant titles, it may be said also that the Assembly, containing many fiirmers, sympathized largely with the settlers; while some of the jndi- ciary, drawn from the East, looked favorably upon the cause of the warrantees. The Assembly, perceiving that so many of these lands had been taken up under warrants, and not settled, and fearing that the prime intent of the Act of 1792 was being frustrated by non-settle- ment, on the 22d of April, 1794,^ passed an Act forbidding, after June 15, 1794, more warrants for unimproved land within "that part of the Com- monwealth commonly called the JSTew Purchase, and the triangular tract upon Lake Erie," except in favor of persons claiming the same by virtue of some settlement and improvement being made thereon, with a proviso m favor of certain persons who had credit balances due to them in the Land Office on certain unsatisfied warrants, who wei'e allowed until the first day of January, 1795, to take out warrants upon such credits. Still more effectually to guard the settler's interests the Act provided that no warrants, except wherein the land is particularly described (technically known as " descriptive warrants"), should in any manner ^ 3 Smith's L. 184. 126 SETTLEMENT, AND LAND TITLES. affect the title or claim of any person having made an actual improvement before such warrant is entered and surveyed in the deputy-surveyor's books. The office of the deputy-surveyor being in the district in which the land lay was thereby convenient of access to the settlers, and his books gave notice of the lands appropriated. The interference in favor of the settlers was more decided in the Act of 22d September, 1794,^ in these words : " That from and after the passing of this Act no applications shall be received at the Land Office for any lands within this Common- wealth, except for such lands whereon a settlement has been or hereafter shall be made, grain raised, and a person or persons residing thereon." The second section annulled all applications on file after April, 1794, on which the purchase-money had not been paid. Provision was also made for the benefit of certain credits in the Land Office, and foi" patents. This Act extended to the whole State, and included, thei"efore, these lands and the triangle at Lake Erie. On the other hand, the officers of the Land Office and the Board of Property, down to about the year 1800, held that the condition of settlement was extinguished and wholly gone, by the preven- ^ 3 Smith's L. 193. SETTLEMENT, AND LAND TITLES. 127 tion caused by the Indian war, and a persistence to make the settlement during the two years from the date of the w^arrants. There was evidence of this persistence on part of the Holhmd Company. On this ground the Board of Property, as then composed, granted to the Holland Company eight hundred and seventy-six patents, and so late as February 4, 1799, granted numerous patents to the Pennsylvania Population Company. These patents became known as "Prevention Patents." But a change in the administration of the State Government took place by the election of October, 1799. Thomas Mifiiin had been the Governor from 1790 until 1799, when Thouias McKean suc- ceeded him, remaining in ofRce until 1808. A different doctrine was held by the Board of Pro- perty under Governor McKean, and it was now held that the Indian war merely siispended the required settlement under the 9th section of the Act of 3d April, 1792. The Holland Company having renewed its ap- plication for prevention patents, the Secretary of the Land OfRce refused to issue them. The com- pany thereupon instituted proceedings by man- damus, in the Supreme Court, against Tench Coxe, Esq., the Secretary, to compel him to issue the patents. As several companies played conspicuous parts 128 SETTLEMENT, AND LAND TITLES. in the groat controvers}^ under the 9th section of the Act of 1792, it is proper to notice them briefly. The Hoihmd Land Company, consisting of a company of Holland capitalists, had had large sums of money invested in America during the Revolutionary War. After the declaration of peace, concluding not to remove their money, they purchased large bodies of land chiefly in New York. They invested also in Pennsylvania, first in lands, surveyed in large tracts, generally of one thousand acres each on the east side of the Allegheny River within the purchase of 1784. After the passage of the Act of 3d April, 1792, they purchased many warrants of four hundred acres each, to be located on the west side of the Allegheny and the Conewango, and within the Erie Triangle. They purchased and paid for eleven hundred and sixty-two warrants of four hundred acres in Districts ^os. one, two, three, six, and seven. These were issued for them in April, 1792, and in April and August, 1793. They were surveyed chiefly in 1794 and 1795. This company took the lead in the litigation re- ferred to. The Pennsylvania Population Company was next in importance. John ]N^icholson, the Comp- troller-General, soon after the passage of the Act of 3d April, 1792, applied for three hundred and SETTLEMENT, AND LAND TITLES. 129 ninety warrants, to be located within the Ei-ie Triangle, and two hundred and fifty warrants to be located on the waters of Beaver Creek. He then organized the Pennsylvania Population Company, of which he became President, and Messrs. Caze- nove, Irvine, Leet, Hoge, Mead, and Stewart, managers. JN'icholson conveyed his claims to this company, they paying the purchase-money to the State, and in addition paying for five hundred more warrants. The capital of the company con- sisted of twenty-five hundred shares, laid out in the purchase of five hundred thousand acres of land. Their first general agent was Ennion Williams, who belonged to the Society of Friends. He was appointed May 20, 1795, and February 1, 1805. Their next general agent was Enoch Marvin, ap- pointed May 2, 1809. These gentlemen figured largely in the controversies with the settlers ; both, however, being gentlemen of kindly feeling and just views. For the purpose of performing the condition of settlement under the Act of 1792, this company offered to persons willing to settle their land, and make proof of the settlement to obtain the patents, a gratuity of one hundred and fifty acres ; and, in many instances, also sold to them an additional quantity, at a certain price, the whole not gene- rally exceeding two hundred acres. 130 SETTLEMENT, AND LAND TITLES. The company dissolved in the year 1812, and their lands passed chiefly to William Griffith, of Kew Jersey, and John B. Wallace, of Philadel- phia. These gentlemen soon failed, owing to the disastrous times following the war of 1812-15, ruining not only them but many others. The writer has a vivid recollection of the general in- solvency prevailing in Pittsburgh in the years 1821, 2, 3. Mr. Griffith and Mr. Wallace divided their lands, Griffith taking the contracts of settlement and sale, and Wallace the unseated and unsold lands. Griffith's interest finally passed into the hands of Wm. Meredith and John Day, assignees of Maurice Wurtz and Wm. Wurtz, of Philadelphia, the largest part of Mi*. Wallace's going to the Farmers and Mechanics' Bank, of Philadelphia, to which he was indebted. The deed to the bank is dated December 1, 1818. It is partly copied into the Appendix, as a matter of curiosity to Philadelphians, who will recognize in the names of the warrantees in the schedule many names of Philadelphians in the last decade of the last cen- tury. The explanation is this: In the practice of the Land Office only one warrant could be issued to one person. Hence the capitalists who pur- chased many warrants were compelled to use the names of many persons, who afterwards made over SETTLEMENT, AND LAND TITLES. 131 to them the legal title by " deeds poll." This custom was so general that the courts recognized these persons as trustees for those who paid the purchase-money and the surveying fees. As the evidence of the identity of the persons paying the purchase-money certain " blotters" in the Land Office, known as John Keble's^ Blotters, became famous, in which he had entered the names of purchasers of warrants, etc. These were much used in the trial of ejectments. In 1806, the Board of Managers of the Pennsyl- vania Population Company consisted of James Gibson, President, and Paul Busti, William Cram- mond, Henry Drinker, Jr., Thomas Astley, and John "Waddington, managers. The titles of the company were vested in John Field, "William Crammond, and James Gibson as Trustees, who afterwards conve3'ed to Pobert Bowne, a new Trustee. All these names appear frequently in the titles to these lands. In January, 1812, the stockholders of the com- pany having dissolved the association under the terms of their agreement, directed all their estate, real and personal, to be sold at auction, and ap- pointed James Gibson, Henry Drinker, Jr., Thomas Astley, "William Griffith, John B. Wallace, and William Crammond, as managers and agents to » 8 Watts, HI, 112; 3 Casey, 15, 16. 132 SETTLEMENT, AND LAND TITLES. attend to the business. All their estate, real and personal, was sold at anction at the Merchants' Coffee House in Philadelphia on the 29th and 30th days of June, 1812. The North American Land Company was one of vast proportions, formed in 1795, in Philadel- phia by Pobert Morris, John ^Nicholson, and James Greenleaf. Its Divestments were largely in other States, chiefly in l!^ew York. But little is known of this company in this State, excepting that in recent years the settlement of its affairs has undei'gone judicial investigation in Phila- delphia. The mandamus case, before referred to, of the Commonwealth v. Tench Coxe, brought at the in- stance of the Holland Land Company to compel the issuing of patents to them is found in 4th Dallas's Reports, 170 to 205, and furnishes a very full history of the controversy between the war- rantees and the settlers. It contains, also, the form adopted and approved by Attorney-General Ingersoll for the certificates of prevention, framed to obtain the patents, since known as "Prevention Patents." This case brought up the question of the inter- pretation of the 9th section of the Act of 3d April, 1792; which is in the following words:' — ^ 3 Smith's L. 73. SETTLEMENT, AND LAND TITLES. 133 " That no warrant or survey, to be issued or made in pursuance of this Act, for lands lying north and west of the rivers Ohio and Allegheny, and Conewango Creek, shall vest any title in or to the lands therein mentioned, unless the grantee has prior to the date of such warrant made or caused to be made, or shall within the space of two years next after the date of the same, make or cause to be made, an actual settlement thereon, by clearing, fencing, and cultivating at least two acres for every hundred acres contained in one survey, erecting thereon a messuage for the habita- tion of man, and residing, or causing a family to reside, thereon for the space of five years next fol- lowing his first settling of the same, if he or she shall so long live, and in default of such actual settlement and residence, it shall and may be law- ful to and for this Commonwealth to issue new warrants to other actual settlers for the said lands, or any part thereof, reciting the original warrants, and that actual settlements and residence have not been made in pursuance thereof, and so as often as defiiults shall be made for the time and in the manner aforesaid, which new grants shall be under and subject to all and every the regulations contained in this Act. Provided always, never- theless, that if any actual settler or any grantee 134 SETTLEMENT, AND LAND TITLES. in any such original or such succeeding warrant shall by force of arms of the enemies of the United States be prevented from making such actual set- tlement, or be driven therefrom, and shall persist in his endeavors to make such actual settlement as aforesaid, then, in either case, he and his heirs shall be entitled to have and to hold the said lands, and in the same manner as if the actual settlement had been made and continued." The controversy centered around the provision in the section in regard to the time of persistence in making the settlement, and the effect of the Indian war upon it, by extinguishment or suspen- sion of the condition. Chief Justice Shippen held that " the Legislature could only mean to exact from the grantees (warrantees) their best en- deavors to make the settlements within the space of two years from the date of their warrants, at the end of which time, if they have been prevented from complying with the terms of the law by the actual force of the enemy, as they had justly paid for the land, they are entitled to their patent." Justice Yeates delivered the opposite opinion, which maybe summed up in the paraphrase which he made of the 9th section, viz: "Every warrant- holder shall cause a settlement to be made on his lands within two years next after the date of his SETTLEMENT, AND LAND TITLES. 135 warrant, and a residence thereon for five years next following the first settlement, on pain of forfeiture by a new warrant. Nevertheless, if he shall be interrupted or obstructed by external force from doing these acts within the limited periods, and shall afterwards persevere in his efforts in a reasonable time, after the removal of such force, until these objects are accomplished, no advantage shall be taken of him for a want of a successive continuation of this settlement." Justice Smith concurred with Yeates, J., and Brackenridge, J., gave no opinion, having been retained at the bar for the Holland Company. He had also acted as attorney for settlers in some Western cases. This doctrine followed previous decisions in respect to the nature of a settlement, which re- quired a personal residence as its prime charac- teristic, and not mere improvements on the land. (Ewalt V. Highlands; McGlaughlin i?. Dawson; Scott V. Williams; Morris v. ]!*^eighman.^ See, also, Hazzard v. Lowry, 1 Binney, 166.) But the Commonwealth v. Coxe did not end the controversy on the 9th section. The Assembly was memorialized on both sides. This brought about the Act of 2d April, 1802,^ to raise what 1 2 Smith's L. in note, 208 to 211. » 3 lb. 506. 136 SETTLEMENT, AND LAND TITLES. was known as the "Feigned Issue," to try the questions in dispute. The preamble recites in full the 9th section of the Act of 3d April, 1792 ; the difficulties and disputes between the warrantees and settlers; the inability to secure a fair trial where so many persons are interested ; and the fact that the Holland Land Company and the Population Company had applied to the Supreme Court for a mandamus to comj^el the Secretary of tlie Land Office to complete their titles; and also the complaints of these companies, and the appli- cations of the settlers to the Legislature for redress. It then proceeds to require the Supreme Judsres to meet and devise a form of action for trying aud determining the question, whether or not the warrants are void against the Common- wealth by reason of non-settlement ; and whether grants of the Land Office are good founded upon prevention certificates given by Justices of the Peace, without other evidence of the nature and circumstances being given. The form thus de- vised by the Judges was to be transmitted to the Governor, who, with the assistance of the- Attorney-General, was to carry it into effect. By it the questions of law and fact were to be heard and decided at Sunbury before the Judges of the Supreme Court and a jury. It was made com- petent, also, for the jury, under the constitutional SETTLEMENT, AND LAND TITLES. 137 direction of the Court, to decide upon the law and the facts, and, if they thought proper, to bring in a general verdict. Any of the parties could give evidence of the prevention certificates, and of the circumstances of the country at the time to which the certificates related, and any other fact tend- ing to illustrate the questions aforesaid. Further instructions were given to the Judges to provide for the admission of parties and for notices, and to require the Secretary of the Land Oflfice to attend the trial, with such books, papers, and documents as they may specify, oi* he may deem material. It is evident by the mode of decision of the law and fact by the jury, no injustice was intended to be done to the settlers. As a further protection, and to prevent confusion of title and lawsuits, it was enacted that the Secretary of the Land Office should grant no new warrant for land which he had reason to believe had already been taken up under a former warrant. On every application filed, proof should be made by one disinterested witness that the applicant was in actual posses- sion, specifying the time when possession was taken. If the decision of the court and jury should be in favor of the settlers, warrants were to be granted on payment of the purchase-money according to the priority of application. The Governor was authorized to appoint not 138 SETTLEMENT, AND LAND TITLES. more than two counsel to assist the Attorney- General. The case was made up and known as the Attor- ney-General V. The Grantees under the Act of April, 1792, and is found in 4 Dallas, 237 to 245. Yeates, Smith, and Breckenridge, J J , met at Sun- bury, on the 25th of November, 1802, a jury was empannelled, and the case argued by Attorney- General McKean, W. Tilghman, and Cooper. Chief Justice Shippen did not attend. 'No one rep- resented the Grantees, the Holland Company hav- ing declined to appear, but their reasons for not discussing the subject were given in a letter to the Judges dated June 21, 1802, found at page 238 of 4 Dallas, signed by J. Ingersoll, W. Lewis, and A. J. Dallas. The decision in the case of the Commonwealth v. Coxe having been made by the same majority of the Judges, it is probable that the Chief Justice and the Holland Company thought it useless to attend. The case was heard ex parte, and the opinion delivered by Judge Yeates, following in the track of his former opinion in Coxe's Case. He also discussed, with reference to authorities, the doc- trine of precedent, and subsequent conditions; ar- riving at the same conclusions he had before reached. The decision may be summed up as follows: — SETTLEMENT, AND LAND TITLES. 139 1. " Prevention by force of arms of enemies does not absolutely dispense with and annul the condi- tions of actual settlement, improvement, and resi- dence ; but it suspends the forfeiture by protract- ing the limited periods. Still the condition must be performed by the warrantee cy pres, whenever the real terror arising from the enemy has sub- sided, and he shall honestly persist in his endeav- ors to make such settlement, improvement, and residence, until the conditions are fairly and fully complied with." 2. " The patents and the prevention certificates recited in the patents are not conclusive evidence against the Commonwealth, or any person claim- ing under the Act of 3d April, 1792, of the patentees having performed the conditions en- joined on them, although they have pursued the form pi-escribed by the Land Office. But the cir- cumstance of recital of such certificate will not ipso facto avoid and nullify the patent if the actual settlement, improvement, and residence, pointed out by law, can be established by other proof." The jury found a general verdict for the plain- tifij and judgment was rendered in favor of the Attorney-General against the Grantees. The Holland Company, however, was not con- tent to abide by the decisions of the State Court. Another action was brought, therefore, in the 140 SETTLEMENT, AND LAND TITLES. Circuit Coiiit of the United States, sitting at Phila- delphia, before Washington, J., of the Supreme Court of the United States, and Peters, District Judge. The case is entitled Huidekoper's Lessee V. Douglass (found in 4 Dallas, 392). The plain- tiff claimed title under the Holland Company, and the defendant was a settler under the Act of 3d April, 1792. In order to test the question fully, the case went up, by a division of opinion of these Judges, to the Supreme Court of the United States. The opinion in the latter Court was de- livered by Marshall, C. J., holding the law other- wise than as decided by the State Court. The result is thus stated : — "A grantee by warrant under the Act of 1792, who by force of arms of the enemies of the United States was prevented from settling and improving said land and residing thereon from the 10th of Api'il, 1793, the date of the warrant, until the first day of January, 1796, but who during the said period persisted in his endeavors to make such settlement and residence, is excused from making such actual settlement as the enacting clause of the 9th section of the said law prescribes, to vest a title in the said grantee." And further, in such case the grantee "persist- ing in his endeavors to make such settlement and residence, vests in such grantee a fee simple in SETTLEMENT, AND LAND TITLES. 141 the said land ; although, after the said prevention ceased, he did not commence, and within the space of two years thereafter, clear, fence, and cultivate at least two acres for every hundred acres con- tained in his survey for the said land, and erect thereon a messuage for the habitation of man, and reside or cause a family to reside thereon for the space of five years next following his first settling of the same, the said grantee being yet in full life." The effect of this judgment in favor of the warrantees Avould have been disastrous upon the interest of the State. As nearly the whole section north of the Ohio and west of the Allegheny and Conewango (excepting the sold Depreciation and drawn Donation Lots) had been taken up under warrants numbered by the thousand, it would have left- this portion an unsettled wilder- ness, in violation of the fixed policy of the State to fill it up with settlers under the warrants^ as well as with those settling for themselves. But the question being purely a State one, and her Judges not being bound by the doctrine of the Supreme Gourt of the United States (except in single cases of exceptional jurisdiction), they persisted in their interpretation of the 9th section of the Act of 3d April, 1792, in order to maintain the well settled and absolutely essential improvement policy of 142 SETTLEMENT, AND LAND TITLES. the State, and their ophiioii became the law of the titles under that Act. Yet there were Judges of the State who, bound by and following the State decisions, thought the opinion of Chief Justice Marshall the only sound doctrine of the Act. Such was the opinion of Chief Justice Gibson, whose early impressions were eastern, and whose earlier opinions were not alwa3's followed by himself in later years. !Notably this was the case in the application of the doctrine of the Statute of Limitations in cases between warrantees and settlers. He began in the strictest pedis possessio of the settler, as an- nounced in Miller v. Shaw (7 S. & R. 137), and ended in the extreme doctrine of a ^j?'6's?^^/?^j^we ouster, as labored in McCall v. Nealy (3 Watts, 71), a doctrine which lay at the bottom of the famous tilt between Black and Lewis in Barney Hole's Case. It seems to me, however, that the interpretation of the 9th section of the Act of 1792, as given in Huidekoper's Lessee v. Douglass, cannot be sus- tained. It will be seen that Chief Justice Mar- shall regarded the section as inconsistent and repugnant in terms, and therefore changed its reading in order to reach the conclusion he came to. It will be noticed also that his interpretation is wholly literal, so much so it is obnoxious to the SETTLEMENT, AND LAND TITLES. 143 maxim, qui hceret in litera, hcBvet in cortice ; and fails to regard the most important feature which characterized the whole law. Had he recurred to the second section he would have been im- pressed with its express language, which ac- corded with the entire current of the legislation of the State in reference to these wild lands. It reads thus :' " That from and after the passing of this Act, all other lands belonging to this Com- monwealth, and within the jurisdiction thereof, and lying north and west of the rivers Ohio and Allegheny, and Conewango Creek, except such parts thereof as heretofore have been, or hereafter shall be, appropriated to any public or charitable use, shall he and are hereby offered for sale toper- sons who will cultivate, improve, and settle the same, or cause the same to he cultivated, improved, and settled, at and for the price of etc. In direct accordance with this language the ninth section was made applicable to warrantees as well as settlers. It says " no warrant or survey . . . shall vest any title in or to the lands thei-ein men- tioned unless the grantee has, prior to the date of such warrant, made or caused to be made, or shall within the sjjace of two years after the date of the same, make or cause to he made an actual settlement thereon, by cleai'ing," etc. * 3 Smith's L. 71. 144 SETTLEMENT, AND LAND TITLES. Again, this section applies to original settlers as well as warrantees, and therefore mnst be con- strued in view of the expressed purpose of the Act to apply to both classes. Thus the law never offered these Western lands for sale, except upon the very condition of settling the same, and thus carrying population into the new country. Besides, this was in accord with all other legislation, expressing this policy of the State, and to be considered in pari materia. For example, the Acts of December 21, 1784,' Septem- ber 16, 1785,- December 30, 1786,^ April 22, 1794,-^ September 22, 1794,' and April 2, 1802.« This policy is stated in express language in the preamble to the Act of 18th April, 1795 (3 Smith's L. 233), laying out the towns of Erie, Franklin, Warren, and Waterford, viz: "In order to facilitate and promote the progress of settlements within this Commonwealth, and to afford additional security to the frontiers thereof." The effect of the doctrine of the United States Court would have left this entire northwest region an unreclaimed wilderness, without power in the State to remedy it. For a title vested hi fee by prevention, would leave the lands under the sole » 2 Smith's L. 274. ^ lb. 342. ' lb. 395. * 3 lb. 184. ^ lb. 193. « lb. 510. SETTLEMENT, AND LAND TITLES. 145 control of the grantees who pay their money, and they could settle or sell them when and how they would please. These lands would have become the subject of mere speculation to be sold in blocks or otherwise, as the interests or fancy of the capitalist owners might have dictated. The State doctrine was not only in accord Avith the general policy of the State, as set forth in the Acts just referred to, but with the very purpose, intent, and language of the Act of 1792 itself. Besides, it did no injury to the warrantees. They were bound to make a settlement and improve- ment, and the State doctrine merely suspeiided performance, giving them the opportunity of complying with the condition required in order to "vest title." They were favored by delay, not injured, in view of the express language of the laws. It will be seen, thei-efore, it was the merest technicality to apply the common law doctrine of subsequent conditions, in ordinary contracts be- tween man and man, to a question of great State policy, intended to serve the welfare of a frontier population and important State interests. Again, the State courts, as the logical conse- quence of their doctrine, held that the warrantee was protected against any adverse entry before the 22d of December, 1797; in other words, until 146 SETTLEMENT, AND LAND TITLES. two years had expired after the ratification of the treaty of Fort Granville. And, further, they held that an adverse entry was still unlawful, even after the 22d of December, 1797, without a vaca- ting warrant procured from the State. Before noticing this feature more particularly, I may refer to several Acts of the Assembly bearing on these titles, and first the Act of 22d April, 1794.^ It provided that no application should be received after the passage of the Act for unimproved land in the new purchase or the Tri- angle at Erie. Also that no warrant should issue after the 15th of June for lands in the new pur- chase and the Triangle, except to persons claiming by settlement and improvement ; and all applica- tions on file after that date on which the purchase- money had not been paid should be void. Excep- tions were made in favor of persons who had credits for balances due in the Land Ofiice. Another pi-ovision in favor of settlers was that indescriptive warrants should not afl:cct their title by actual improvement before the entry of the warrant on the deputy-surveyor's books. This was followed by the Act of 22d September, 1794," which forbade the receiving of applications for land in any part of the Commonwealth except for lands on which a settlement has been /nade, 1 3 Smith's L. 184. * lb. 193. SETTLEJIENT, AND LAND TITLES. 147 grain raised, and a person residing thereon. It also made void all applications filed after April 1, 1784, on which the purchase-money has not been paid. There was a proviso in fiivor of a person having a credit in the Land Office. Then came the Act before referred to on which the feigned issue was raised, viz., April 2, 1802.^ The fourth section provided that after its passage no new warrant should bo granted for land the Secretary had reason to believe had been taken up under a former warrant, and provided for filing the application and giving a copy to the applicant. At the end of this section is an important pro- vision, which, being omitted in the edition of Pur- don of 1830, led to important results to be referred to hereafter. Following in the wake of the Act of 1802 an Act was passed April 3, 1804,^ which durino- its limited existence of two years was important to the settlers. AVithin that time it gave the effect of vacating warrants to the applications of set- tlers under the Act of 3d April, 1792, describing particularly the lands applied for, and vouching such other requisites as are provided for in the Act of 22d September, 1794. The Act was en- titled "An Act for ascertaining the right of this- ^ 3 Smith's L. 506. ^ 4 lb. 199. 148 SETTLEMENT, AND LAND TITLES. State to certain lands north and west of the riv- ers Ohio and Allegheny and. Conewango Ci'eek." The second section anthorized the Governor to employ able connsel to attend to the interest of the State in pending snits in the United States Conrt. ^ This Act was continned in force nntil the 1st April, 1807, by an Act of 28th April, 1806.' In Shippen v. Anghenbangh,^ decided in 1806, Jndge Yeates held that an application nnder the Act of 1804, in the natnre of a vacating warrant, taken out after snit brought, was not evidence. In Jones v. Anderson the Act of 1804^ was dis- cussed in the Supreme Coui't by S. B. and A. W. Foster on one side, and by Semple and Baldwin on the other. It was again held that an applica- tion under the Act of 1804, after suit brought, was not competent evidence. This case also decided that an entry by a settler before the ter- mination of the two years allowed the warrantee after the ratification of the treaty of peace, w\as ij^so facto a prevention, and gave no inception of title as against the warrantee. The doctrine of illegal entry by the settler within the two years is reasserted in Barnes v. Irvine (5 Watts, 497). The controversies under the vacatino^ warrant 'rt 1 P. L. 1806, p. 63G. ^ 4 Yeates, 328. ' lb. 5G9. SETTLEMENT, AND LAND TITLES. 149 clause of the 9tb section may now be referred to. As has been stated, the State Courts held that an entry by a settler, even after the 22d Decembei', 1797, Avas unlawful, without having obtained a vacating or new warrant. It was so held because the Commonwealth had by the terms of the sec- tion prescribed this as the only mode of assertino- her own title. Owing to ignorance, bad advice, and presumption, few settlers, after 22d December, 1797, had availed themselves of the statutory mode of acquiring title after the default of the war- rantee. Still, owing to the unsettled state of the countrj^, and the difficulty of pursuing their claims in the local courts, the warrantees generally suf- fered delay. A few, by reason of non-residence in the State, brought 'suits in the United States Court in Philadelphia, there being no Western District in Pennsylvania until the year 1819. But those who brought suits in the East found great difficulty in enforcing their judgments by execution. The spirit of resistance prevailed so sternly among the settlers, who thought the at- tempt to oust them from their homes was i-uthless, it became difficult to serve legal process. An instance of this occurred in Beaver County, in 1808. William B. Irish, the Marshal, in attempt- ing to deliver possession in the case of William Fulks, a settler on Little Beaver Creek, was way- 150 SETTLEMENT, AND LAND TITLES. laid and fired upon, and one of his posse, a man named Hamilton, was killed. The consequence was that the titles in North- western Pennsylvania remained unsettled for many years. In 1810 Mr. Smith, in the second volume of his edition of the Laws, page 205, refers to this state of affairs in these words : — "The population and imiDrovement of the coun- try have been imperilled and restricted. IS^ineteen years have elapsed, but the dispute is still unde- cided ; and whilst to the north and to the west of these controverted lands the country increases with industrious citizens and smiles with cultiva- tion, here the half-finished cabin and remaining forests proclaim that the land is without a certain owner." This state of title led to a new course of legis- lation in the hope of ending disputes by compro- mise between the warrantees and settlers. The first Act is that of 20th March, 1811,' "for the set- tlement of certain disputed titles to lands north and west of the rivers Ohio and Allegheny, and Conewango Creek." The preamble recites that the improvement of these lands is still impeded. That the opinion is entertained that persons calling themselves the 1 5 Smith's L. 206. SETTLEMENT, AND LAND TITLES. 151 Holland Land Company, the Population Com- pany, and l^f^orth American Land Company, and others claiming lands by warrants forfeited their titles and claims by non-performance of the con- dition of settlement, etc., that this title still re- mains in the Commonwealth, and that actual settlers have entered and claim title, and in some cases have suffered judgments in ejectment, and finally the importance of settling these disputes. It enacts that in all cases of agreement between the original warrant-holder and settlers, and where the required settlement and improvement have been made according to the Act of 1792, the Commonwealth releases her claims. Where an actual settler has entered and made the required settlement and improvement, and has compromised with the original warrantee by receiving one hun- dred and fifty acres surveyed to him, or where either has purchased the right of the other, the Commonwealth ceases to have farther claim, and will confirm the title. And where a settler has made an adverse actual settlement and improve- ment, and purchased a part of the tract to include and secure his improvement, the Commonwealth "will release title on the warrantee conveying one hundi'ed and fifty acres of the tract in considera- tion of the settlement. And an actual settler who has entered and within two years made the im- 152 SETTLEMENT, AND LAND TITLES. provement required, but has abandoned the tract before the full time of residence has been com- pleted, shall, on return and completing his actual settlement, be entitled to the benefits of this Act. So an actual settler who had been evicted by legal process shall be entitled to the benefit of the Act upon the warrantee releasing to him one hundred and fifty acres and allowance by survey, or if either party purchase the right of the other the Commonwealth will cease to have claim to the tract, and will ratify the title. Where no settle- ment has been made, but the warrantee, before the 1st June, 1814, shall agree with any person to make the settlement before that day, and will agree to release to him one hundred and fifty acres and allowance by survey, and the settlement shall be made according to the law, the Commonwealth wnll cease to have claim and will confirm and ratify the title. Certain other provisions were made re- specting prevention patents, new warrants already taken out, granting of patents, and evidence to be produced, etc. etc. The Act ended with this pro- viso: That nothing should prevent the Common- wealth from asserting her right of forfeiture under the Act of 1792, where the warrantees and settlers fail to embrace the provisions of this Act. The terms of this Act are conclusive of the prime and lasting intention of the State to provide SETTLEMENT, AND LAND TITLES. 153 for the actual settlement and improvement of these wild lands. Those parts of the Act of 1811, which would expire by limitation, were revived and continued until April 1, 1824. (See Acts February 21, 1814, March 24, 1818, March 29, 1819, April 2, 1822.^) Probably the most important legislation chang- ing the condition of the warrantees and aiding the course of the settlers is found in the Act of 24th March, 1814.^ Prior to this Act it was a presump- tion, from the state of the country and the Indian war, as held by the courts, that the warrantee was prevented from making the required settlement and improvement before the ratification of Wayne's treaty on the 22d December, 1795. The Act is entitled "An Act explanatory of an Act for the sale of vacant lands within this Com- monwealth," and enacts that before a warrantee for land north and west, etc., shall recover against an actual settler or his representative, he shall prove to the satisfaction of the Court and jury that he was individually and in fact prevented by the enemies of the United States from settling the land, and that within two vears from the date of his warrant he did persist; and what acts of per- 1 6 Smith's L. 107, 380; 7 lb. 138, 240, 598. ' lb. 130. 154 SETTLEMENT, AND LAND TITLES. sistence were made ; and that his warrant was fairly obtained and executed. Then came a pro- viso which enabled him to preserve his right, and at the same time enabled the settler to obtain the one hundred and fifty acres contemplated in the compromise Act of 1811. This was a conve^yance by the warrantee to the settler of one hundred and fifty acres within two years. If the settler refused to accept it, he lost the benefit of the Act of 1811. This Act was continued in force until April 1, 1^24, by Act of April 2, 1822.^ In Bedford v. Shilling" it was decided that this Act did not extend to suits commenced by war- rantees against settlers before its passage. The advantage the Act of 1814 intended to confer upon the settler received a severe shock in the case of Ross v. Barker,^ which overthrew all its supposed protection; that case deciding that in certain aspects the Act would be unconstitutional, and in certain others it would be useless. Under the decision in Ross v. Barker its operation, if any it could have, was limited to a narrow compass. The controversy under the 9th section of the Act of 3d Api'il, 1792, was, however, brought substantially to an end by the Act of 3d April, 1833,^ which dispensed with the settlement, and 1 7 Smith's L. 598. ' 4 S. & R. 401. » 5 Watts, 395-6 * P. L. 1833, p. 129. SETTLEMENT, AND LAND TITLES. 155 provided that a patent might issue to the war- rantee without proof of settlement, etc. But it provided that the Act should not impair the rights of settlers already acquired, and that such patent should not be given in evidence against the settler where the title would come in question. This Act of 1833 was the last important act of legislation upon that long drawn out litigation between warrantees and settlei-s. Then came the controversy in the Supreme Court itself, on the subject of new or vacating warrants. In the case of Skeen v. Pearce,^ decided in 1821 (the true name was Skeer), the Supreme Court — consisting of Tilghman, Gibson, and Duncan — decided very positively that a settler could not enter upon warranted land to make a settlement under the Act of 1792, without a vacating warrant under the 9th section. (Jones v. Anderson^ and other cases were cited for this.) But a new doc- trine was advanced in Campbell v. Galbraith.^ In the mean time the Supreme Court had been en- larged in number, and was composed of Gibson, C. J., Kogers, Huston, Kennedy, and Ross. The fresh Judges were not so adherent to the claims of the warrantees, and, as a consequence, there was a ^ 7 S. tfc R. 303. ^ 4 Yeates, 5G9. '1 Watts, 70. 156 SETTLEMENT, AND LAND TITLES. better feeling towards the claims of the settlers. This became more evident in another branch of title to be adverted to hereafter. The opinion was delivei'ed by Kennedy, J., with a concurring opinion from Huston, J. ; Koss, J., took no pai't, and Gibson and Rogers acquiesced on a ground stated by Gibson, C. J., in Barnes v. Irvine, noticed hereafter. Kennedy, J., conceded that the prior docti'ine of a presumptive prevention ipso facto, by the entry of the settler within the time allowed to the warrantee for the making of an actual settlement was sound. But on the ques- tion whether the settler could enter without a vacating warrant after the time had elapsed for performance of the condition b}^ the warrantee, he held that the effect of the Acts of 1794, 1802, and 1804 (already cited) rendered the new warrant nnnecessary ; and that the settler could lawfully enter, if the warrantee had failed to perform the condition of actual settlement within the two years after the ratification of Wayne's treaty with the Indians. This decision took place in 1832, and, as a consequence, the warrant titles being imperilled by it, a gi-eat distui'bance arose. This eventuated in new suits, and in the passage of the Act of April 3,1833 (already cited). Two cases came into the Supreme Court in October, 1835 — SETTLEMENT, AND LAND TITLES. 157 to wit, Barnes v. Irvine,^ and Smith v. Collins. The former was argued by able counsel, McCal- ment and Thompson on one side and Banks and Pearson on the other. The opinion was delivered by Gibson, C. J., in October, 1836, in which he begins by stating the error under which he and Justice Rogers were led to acquiesce in the de- cision in Campbell v. Galbraith — viz: the omission of the last clause of the 4th section of the Act of 2d April, 1802 (in the Digest of Mr. Purdon, published in 1830). The doctrine of Campbell V. Galbraith was reversed, and the Court again stood upon the broad ground that the warrantee was excused by the prevention of the Indian war from making his settlement until the end of two years after the ratification of Wayne's treaty, and that the settler could not enter for the forfeiture, even after the two years had expired, without obtaining: a vacatins" warrant. On the argument of the case in 1835, the Judges, excepting Judge Sergeant,- who came upon the bench after the decision in Campbell i\ Galbraith, were equally divided in opinion. At his request the case was held over for his exami- nation, he not being familiar with western land titles. In the mean time he read up, and this led ' 5 Watts, 497-505. 158 SETTLEMENT, AND LAND TITLES. to the making of his Treatise on the Land Laws of Pennsylvania. After the discovery of the omission by Mr. Purdon of the proviso to the 4th section of the Act of 1802, Kennedy and Huston, J. J., seemed not to have insisted on their interpre- tation of the Acts of 1794, 1802, and 1804. The breadth of the opinion in Barnes v. Irvine was, however, not so important, as the Act of 1833 had dispensed with the condition of settlement on part of the warrantee. In this long controversy it is manifest the legislative mind turned toward the settlers, while the judicial mind stood on the other side, until the Legislature ended the contest by the Act of 1833. This termination against the settlers of the controversy upon the 9th section of the Act of 3d April, 1792, as to the necessity of obtaining a va- cating warrant, did not, however, quiet titles. There remained another contest, continuing for years, arising out of the application of the Statute of Limitations to the possession of the actual settlers. For a long time the Supreme Court stood firmly on the side of the warrantees, but gradually this strictness gave way; and finally, under the influence of an infusion of new blood upon that bench, the rights of the settlers were broadened and ripened into a possession that quieted the title in many remaining cases, which had not been settled at law, or by compromise. SETTLEMENT, AND LAND TITLES. 159 The early doctrine was, that a settler, who enters on land which had been warranted and surveyed, or had been patented to another, being a tres- passer, acquired no right under the Statute of Limitations, beyond the land actually cultivated or inclosed for twenty-one years. This was termed his pedis j)OSS€ssw, or actual possession. All the woodland, outside, was deemed at law to be in the possession of the warrantee or patentee by reason of his title. This was the presumptive possession of the owner of the warrant or patent. Consequently, as the land first cleared, and fenced or cultivated was small in the beginning of the twenty-one years, the statute, as thus interpreted, protected the settler to the extent only of his original improvement, which was often only a very few acres — perhaps only three or four out of a four hundred acre tract. In other words, the title by limitation was confined to the few acres only held by a pedis possessio in the beginning, and could not be constructively, extended to the unimproved land. The case of Miller v. Shaw,^ decided in 1821, seemed to settle this doctrine conclusively. Gibson, J., opened his opinion by saying, it is a well established principle that there can be no construction in favor of a wrongdoer. ' 7 S. & R. 129. 160 SETTLEMENT, AND LAND TITLES. After this came the case of Royer v. Benloc, in 1823.^ It was argued most elaborately; but the Supreme Court held it plainly came within the principle of Miller v. Shaw. The Court below had held that a clearing and cultivation of the land, within the defined limits of the occupant, in two parcels half a mile distant from each other, and a use of the woodland by cutting when and wdiere it suited his convenience, protected every part of the land so designated. This was decided to be error, and the judgment below was reversed. Chief Justice Tilghman repeated the principle stated in Miller v. Shaw, in these words : " He who enters without title is a trespasser, and has no constructive possession, but is limited to the spot actually occupied." Yet the Chief Justice, in a few words of exception, where the owner con- fesses himself to be out of possession, gave rise to a doctrine of a presumjjtive ouster, which afterwards became the foundation of a great change in the doctrine of possession under the statute. One of the examples given by the Chief Justice was where an owner permits the settler to pay the whole of the taxes on the land for twent^^-one years, without objection on his part. McCall V. Neeley," in 1834, gave occasion for 1 10 S. & R. 303. ' 3 Watts, G9. SETTLEMENT, AND LAND TITLES. 161 the application of this exception; and what is remarkable, in an opinion by Chief Justice Gib- son, who before and afterwards, gave strong ut- terance to the old doctrine. In the beo-innino- of the opinion he gave the fi-esh idea logic and strength. However, the Court had inci-eased from three to five Judges, at least two of whom had been reared in a different school. The plaintiff was a patentee, and the defendant a settler on the whole tract, who continued in possession for twenty-one years, paying the taxes on the whole land. The Chief Justice, after announcing the former doctrine in clear terms, then turned to the doctrine of disseisin at common law, and discuss- ing it awhile with not very decisive result, said : "The principle I have thus attempted to enforce may seem inconsistent with the doctrine of Miller V. Shaw (7 S. & R. 129) ; but it is to be observed that the Court had in view the case of an intruder claiming no more than the rights of a settler, which it has been shown give no possession of anything but the land immediately occupied; and this much it is proper to say, in order to restrain the generality of expressions used, more particu- larly by myself" And, indeed, this apology seemed to be necessaiy, for in a few moments he started afresh thus : ''But may not one who entered originally as a settler or squatter change the char- 11 162 SETTLEMENT, AND LAND TITLES. acter of bis disseisin by exercising acts of owner- ship under the title of the dissesee, and thus become a disseisor by color of title?" He then refers to the dictum of Chief Justice Tilghinan in Eoyer v. Benloe (10 S. & R.), repeated by Justice Kogers in Read v. Goodyear (17 S. & R.), that payment of taxes raises a presumption of ouster of the whole tract; and of acquiescence of the owner as an acknowledgment of ouster. Yet the same reasoning had been used before in many cases with- out effect. Indeed, the payment of taxes by the settler for the whole tract was a necessary inci- dent of the law itself, which subjected the tenant in possession to the payment of all the taxes. And what makes the reasoning in McCall v. Neely more remarkable is, that at the same term, September, 1834, in Sweeny v. McCnllough^ the doctrine of Miller and Shaw, and Royer and Benloe, was reasserted by Justice Rogers with renewed tenacity. He even says, that after these two solemn decisions the question should be at rest. Yet to those who understand these settle- ment cases the only difference between McCali v. JN^eely and Sweeny v. McCullough is the proof of the payment of the taxes in the former, while the presumption of the payment of them arises in the ^ 3 Watts, 345. SETTLEMENT, AND LAND TITLES. 163 latter quite as conclusively by operation of law, from continued possession, and the legal mode of assessment and taxation. However, this nice dis- tinction threw the first ray of light upon the titles of these benighted settlers, and counsel soon began to improve it. The next attempt to hold title by limitation to the whole of the tract arose in the case of Ross V. Barker.^ There was no proof of an early defini- tion- of boundary by the settler, or proof of the actual payment of taxes by him, and the Court confined the operation of the statute to eight acres held by J^Je6?^5 possessio for twenty-one years. This was a very noted case, the claim of the settler being to four hundred acres, embracing parts of the two warrants of Daniel Broadhead, heretofore referred to, as issued on the 3d of April, 1792, for land opposite to the great falls of Big Beaver Creek; the same land on which the town of Beaver Falls, in part, stands. But the opinion of Chief Justice Gibson gave another ray of hope in the effect he seemed to attribute to an official survey by a settler under the Act of 1792. This intimation was taken hold of by the writer in the case of Lawrence v. Hunter,^ and resulted m the reversal of the judgment of the 1 5 Watts, 3'Jl. '9 lb. 6i. 164 SETTLEMENT, AND LAND TITLES. Court below, and establishment of the doctrine that an official survey for a settler under the Act of 1792 gave a color of title to the land within the snrvey, and thereby title to the whole sur- vey under the Statute of Limitations.^ In the mean time, however, Lawrence v. Hunter had received an accession of strength from the- reannouncement of the doctrine of McCall v. IN'eely, in the case of Criswell v. Altemus," on the east side of the Allegheny River. The doctrine repeated in it can be best stated in the language of Kennedy, J., who delivered the opinion. After referring to some of the cases I have noticed, he says ; " Though I cannot recur to any case where the question has been raised directly and adjudi- cated by this Court in the affirmative; nor am I certain that any such has occurred; yet such has been the settled opinion in it for some time back, that where an intruder enters without color of title into, and settles with his family upon, an unseated tract of land belonging to another — who claims it under warrant and survey, either with * This case was reached on Saturday afternoon, and the Court declined to hear it, but said it would be taken on written argu- ments. Printed paper-books were then not in use. Mr. Forward was willing, the writer being a young lawyer. However, my argument, found at length in the report, prevailed. » 7 Watts, 5G5. SETTLEMENT, AND LAND TITLES. 165 or without a patent from the Commonwealth— and having settled npon, claims it as his own, by exer- cising acts of ownership over it, from year to year, in putting up buildings npon it, clearing and fencing more or less of it, and using the whole of it according to the custom of the country — that is, the clear land as arable, or meadow, or pasture, and the woodland for obtaining from it timber as often as the settler shall have occasion for it to answer his purpose — also, returning the whole of it to the assessors as his own, and paying taxes thereon, when assessed, for a period of twenty-one years, will be sufficient, under the operation of the Statute of Limitations, to protect him in posses- sion of the whole of the tract or survey, includ- ing the woodland as well as the improved parts of it." r It is unnecessary to pursue the subject of title by limitation further. Criswell v. Altemus, and Lawrence v. Hunter became the foundation of other cases in which the rights of the settlers were supported after an adverse possession of twenty-one years. The general doctrine of the statute does not M\ within the scope of the design of the writer, though many cases in after years arose, and many interesting discussions took place, such as occun-ed in the case of Hole v. Rittenhouse, wherein the contest between the late 166 SETTLEMENT, AND LAND TITLES. Chief Justice Black and his colleague, Justice Lewis, took a form which made the discussion State-wide in its interest. It would extend this sketch too far to recount the great number and variety of decisions made under the Act of 3d April, 1792. Besides, many are so well stated by Charles E. Smith, Esq., down to the year 1810, in his admirable note in the second volume of his Laws, and so many are col- lected and arranged under various heads by Mr. "Wharton, in his Digest of Pennsylvania Decisions, the labor is unnecessary. Having accomplished the work of sketching pretty fully the history of the lands in the north- western part of the State, acquired under the Indian purchases of 1784, 1785, and 1789, at Fort Stanwix, Fort Mcintosh, and Fort Harmar, and the histoiy of the great questions which arose under the legislation applicable to tliese lands, further labor is unnecessary. In this work I hope I have rescued from oblivion many matters of great interest, and exhibited the trials and suffer- ings of those who gave their toil, and some their lives, in the development and improvement of this interesting and important section of the State. Some matters of interest will be found in the Appendix. SETTLEMENT, AND LAND TITLES. 167 APPENDIX. ADDRESS OF DANIEL AGNEW AT THE DEDICA- TION OF THE NEW COURT-HOUSE OF BEAVER, PENN'A.i Ladies and Gentlemen : There are occa- sions when the celehration of a public event, by appropriate ceremonies, is instructive to those whom it concerns, marking their progress as a people in refinement and culture ; and this one is eminently so. What can be more deeply in- teresting to American freemen than the dedication of a temple to the service of that great and ruling principle, upon which hang all their rights, their interests, and their happiness? Law ! Grand, immutable, inscrutable enei'gy ! Springing from the un fathomed depths of the Great Jehovah, permeating all his works, and carrying blessings everywhere, it is the type and the very basis of human institutions. Deprived ^ This Address is given because its contents are germane to the subjects of this Treatise. 168 SETTLEMENT, AND LAND TITLES. of human law, what would he the condition of man? Without it might would he right, fraud success, and violence redress. And without law Avhat is justice? A form without life, a voice dying on the air. To give efficacy to this great regulating, refining, enduring principle, you have assembled this day to dedicate this beautiful structure to the service of the Ministry of Justice. It is a building worthy of its projectors, creditable to those who planned and built it, and a testi- monial of honor to the people who gave their means to erect it. Long may it stand, a work of high art, a monument of liberality, and a tower of safety for the rights of the people. This house marks an epoch in the history of the county. As we survey its surface we behold the evidences of improvement in the physical and mental condition of its inhabitants, and mark the progress made since its organization. If we recur to the first decade of the century, we discover a people in a rude state of civilization, living in round log cabins, made with the axe and the auger — drawing a scanty support from the earth by the labor of their hands, and possessing few comforts and no luxuries — simple in garbs woven by their own hands, and colored from the barks of the forest. They were without much educa- tion, uncouth in speech, and unpolished in man- SETTLEMENT, AND LAND TITLES. 169 iiers. Yet, to their praise be it spoken, they were, notwithstanding these accidents of situation, vir- tuous, sincere, hospitable, courageous, and honest; having strong religious convictions, a just sense of right and wrong, and full of patriotic fire. Such were the early settlers of Beaver County — not barbarous, but made primitive by the wilder- ness around them. Their type was the sun rising in cloud and fog, and half obscui-ed. Now, look- ing abroad, as when the orb of day has risen to meridian splendor, casting effulgence on every hand, we take in a people abounding in wealth and comfort, enjoying the advantages of educa- tion in manners, morals, learning, and art ; and gaining a bountiful supply for all earthly need, from trades, professions, and avocations unknown to their simple ancestors. !N^o longer confined to the scanty avails of manual efibrts, they reach far into the realms of thought, drawing forth the rich fruits of all the intellectual forces. 'Now schools, academies, and colleges stand thickly on the soil ; great mills and manufactories utilize its products ; beautiful dwellings, and graceful and grand crea- tions of architecture adoru and dignify the rich domain; the wolf, the bear, or the catamount, once contesting the title of the settler to the foi'est around him, no longer alarms with his howl or his cry, while the ox, the horse, and the sheep 170 SETTLEMENT, AND LAND TITLES. now fill their places; and tlie forest itself has given way to green pastures, and fields of waving grain and bending corn. Science and art, too, have added their grand achievements in the tele- graph and the railroad, conveying instant thought and the persons and products of men to distant climes. Even now we listen to the sound of far- oif voices and of music, brought by the telephone over hill and dale, and mountain and valley, and across the rivers that run to the sea. The sun, too, has turned portrait painter, and takes your likeness in a few seconds. But the changes of nature and in the circum- stances of the people are not the only mutations we see. Law is the central thought of this dedica- tion, and the change in the subjects, character, and forms of litigation is not less remarkable. In the earliest times these were of the simplest kinds. Trespasses on lands or cattle, or the humble personal effects of the settler and the small tradesman; breaches of petty contracts for work or of sale, and contracts for lands in their most simple state; these were the common sub- jects of conflict, and brought into use the simplest forms of actions — trespass, and on the case, re- plevin, trover, assumpsit, covenant, and in eject- ment. Let me instance a suit brought at the first term, February, 1804:. Thomas Hartshorne SETTLEMENT, AND LAND TITLES. 171 V. Thomas Sprott, Esq. Replevin for one sow and ten pigs, marked with a crop off the right ear and half a crop out of the nnder side of the left ear, of the vahie of flO. Verdict for the defendant — a new trial, and judgment for the plaintiff for $6 damages — costs, $35.87. The squire paid well for his pork. Beyond these simple forms of action the rural lawyer rarely^ looked. Perhaps he had read of others in black letter books, but thej were useless mysteries. ^N^ow mark the contrast! The land is filled with new kinds of business, new agencies for their exe- cution, new foi-ms of art, new products of labor, new machines, new wants, new supplies, and novel- ties of every sort. Even new beings exist — arti- ficial persons, creations of the law — these have arisen with new purposes and new methods of pro- ceeding. Corporations lie thickly about us. Some assist at birth and others at death ; some take care of the living, and others of the effects of the dead. They take charge of our property and per- sons, insure them against danger and death, trans- poi't them from place to place, educate, facilitate, and employ. Higher types of hand labor and of machine work, and grander modes of inter- course now fill the earth. Commerce swells the avenues of business with new subjects of ti'ade, new forms of contracts, and new agencies of per- 172 SETTLEMENT, AND LAND TITLES. formance. These, and others too numerous to mention, have brought new laws and new modes of proceeding as various as shells on the sea- shore; and new remedies for wrongs have multi- plied like the locusts that swarm over the plains. ]S^ow bills for specific performance, bills for injunction, bills for account, and bills without count ; bills of discovery, of revivor and inter- pleader, writs of mandamus, quo warranto, of error coram vobis et nobis, and writs that few under- stand; actions for death and negligence against cities and towns, corporations and individuals. Complaints of all kinds, more than one can state, now thicken around the crowded brain of the lawyer until he seeks refuge in specialties, and we are introduced to the corporation lawyer, the insurance lawyer, the admiralty, the land and real estate, the orphans' court and quarter sessions lawyer; the proctor, the solicitor and the coun- selor. They swarm from the hive like bees, and the ladies will be glad to know that, like bees, they take their queens. But we are reminded that the law must have its place of enforcement. A court is said to be a place where justice is judicially administered. Take care of the pronunciation of this definition, lest "in" unite with "justice," and the caviller say a truth is told. The location of the seat of jus- SETTLEMENT, AND LAND TITLES. 173 tice at Beaver brings up memories of local history, some of which operated on the minds of the men of 1800 in placing it here. On this beautiful plain, in times long gone by — moi-e than a cen- tury and a quarter ago — the mercurial Frenchman found a lodging among the wild men of the forest, unsuited to Parisian taste, yet made fit by his loyalty to his king. In front flows the Ohio — the Frenchman's "La Belle Riviere," and the Indian's "Clear Water." Above, the Big Beaver rolls down over miles of rocky falls. Far back, before civilization had planted her footsteps on the virgin soil, it took its name, by translation from the In- dian tongue, from the useful animal inhabiting its waters. The town took its name from the stream, and the county its from both. The earliest mention of the name of the stream I have noticed is found in Conrad Weiser's journal of his journey to Logstown. Of course it had a previous existence. Leaving Heidelbei'g Township, Berks County, on the 11th of August, 1748, Weiser crossed the "Allegheny Hills," com- ing on the 22d to the "Clearfields," now in Clear- field County. On the 2.')th he crossed the "Ivis- keminetoes," coming to the Ohio the same day. The Allegheny was then so called, and is thus named in the treaties with the Indians at Fort Stanwix in 1768 and 1784, both describing the 174 SETTLEMENT, AND LAND TITLES. boundary of the purchases as striking the Ohio at the Indian village of Ivittanning. On the ^Oth of August Weiser came to "Beaver Creek," and finally reached Logstown, on the north bank of the Ohio, below the present town of Econonl3^ The "Little Beaver," twelve miles below the "Big," is nientioned by Washington in his journal of his mission to the French Commandant at Fort Le Boeuf and Venango in jS^ovember, 1753. On his arrival at Logstown he says the "Half King- was at his hunting cabin on Little Beaver, and was sent for there." A most interesting account of this region is given by Christian Frederick Post, a German and Moiavian preacher, twice sent out from Philadel- phia, in 1758, to the Indians living west of Fort Du Quesne. In his second journal, !N^ovember 16, 1758, he says: "We went down a long valley to Beaver Creek, through old Kushkushing, a large spot of land, about three miles long. Kushkush- ing was a Delaware town, near the junction of the Shenango and Mahoning, which form the Big- Beaver, and on the west side of the Beaver." In Weiser's joui-nal the town is called "Caskaskie." Here lived the famous chief of the "Turtle Tribe" of the Delawares, known as "King Beaver," or "The Beaver;" and here we meet the origin of the piesent name of the stream, it being evidently SETTLEMENT, AND LAND TITLES. 175 a translation of the Indian name. Both men and tribes were distinguished by the names of favorite animals. In the Irrequois Confederacy, or Five Nations, there were eight tribes of each nation, known as the Wolf, Bear, Beaver, Turtle, Deer, Snipe, Heron, and Hawk. The Delawares were not of the confederacy, but their tribes were distinguished in a similar manner. I have not discovered the Delaware name for " Beaver," but among the Irrequois it was "]!^on-ga-nee-ar-goh." "King Beaver," or "The Beaver," is frequently mentioned, and his speeches preserved in the conferences with the Indians — in that of Georae Croghan, deputy to Sir William Johnston, His Majesty's Superintendent of Indian Affiiirs, at Fort Pitt, in July, 1759; of Brigadier-General Stanwix, at Fort Pitt, in October, 1759; and in the journal of Colonel Henry Boquet of his expe- dition in 1764 from Fort Pitt to the Indians west- ward. At the conference, November 10th, with the Turkey and Turtle tribes of the Delawares, "King Beaver" is set down as the "chief of the Turkey tribe, with twenty warriors." This proves that his name, "Beaver," was personal and not tribal, being taken, probably, from the stream on which he lived, as before mentioned. I have taken these facts from an article on the orisfin of 176 SETTLEMENT, AND LAND TITLES. the name of Beaver Comity, written by m3self, therefore it will not be deemed plagiarism. The town of Beaver is emphatically a child of the State, and its large lots (800 by 120 feet) and wide streets (100 feet) bear no impress of private econom3\ It was laid out under authority of the Act of 28th September, 1791, by Daniel Leet, whose survey was adopted and ratified by the Act of 6th March, 1793, and covers the site of the old French and Indian town, upon which Fort Mcintosh was built. Beaver County was erected by the Act of 12th March, 1800. The Act recites the reservation contained in the Act of 13th of March, 1783— "to the use of the State of 3000 acres on both sides of the mouth of Big Beaver Creek, including Fort Mcintosh." The out-lots of Beaver, and the grant of 500 acres for the use of an academy, were also laid out upon this reser- vation. A similar reservation of 3000 acres was made at the junction of the Allegheny with the Ohio, on which the town of Allegheny and a common pasture for the lot owners of 100 acres (the present parks) and the out-lots, were sur- veyed under the Act of 11th September, 1787. Fort Mcintosh was built in 1778, and from it General Mcintosh marched with 1000 men against the Sandusky towns, and built Fort Laurens on the Tuscarawas. Some of the lines of Fort Mcln- SETTLEMENT, AND LAND TITLES. 177 tosh were visible when I came to Beaver in 1829. One of these lines and the places of the terminal bastions may yet be discerned npon close observa- tion. It was a strong stockade, and mounted one six-pounder. A covered way descended the face of the hill to the bottom, where a well was said to be dug, water not being had on the plain short of the hill, a half a mile in the rear. Fort Mcintosh was the scene of the last treaty with the Indians, which extinguished their title to the soil of Penn- sylvania. The treaties of 1768 and 1784 at Fort Stanwix were made with the chiefs of the six Nations — the Mohawks, Oneydas, Onondagoes, Senecas, Tuscaroras, and Cayugas. These treaties were made after the Tuscaroras had joined the Five ]S"ations. The treaty of Fort Mcintosh was made in January, 1785, with the Wyandotts and Delawares, the last claimants of title, and ran in the words of the description of the boundary line between the purchases of 1768 and 1784. In anticipation of the extinction of the Indian title^ the State had, by the Act of 178-^, laid off the country west of the Allegheny and north of the Ohio into two grand sections, intended as dona- tions to the Revolutionary soldiers of the Penn- sylvania Line, and for the redemption of the certificates of depreciation from the continental scale given to them for their pay. The Donation 12 178 SETTLEMENT, AND LAND TITLES. Lands lay north of a clue west line from Mogiil- bngliiton Creek, above Ivittaniiing, to the Ohio State boundary. The Depreciation Land, as it was called, lay south of this line, which ran between five and six miles south of the present town of 'New Castle.' These historical reminiscences are not foreign to my theme, for they are connected with two germane subjects — the litigation attending the land titles in the county, and the location of the count}^ seat. The Depreciation Lands were ordered to be sold at the " Coffee-house," in Phila- delphia, but bringing very low prices, the sales were suspended. Of the Donation Lands many of the tracts were undrawn, and a lai-ge tract of country, called the "Struck District," was with- drawn from the wheel as unfit, on account of its broken and hilly character. Apart of the "Struck District" lay in Butler County. Afterwards came the Act of 3d April, 1792, which opened to settle- ment and survey the unappropriated lands north of the Ohio, and west of the Allegheny River and Conewango Creek. It was a most unfortunate law for the State. It provided two modes of appropriation — one by warrant and sui"vey, the other by actual settlement and survey — the 9th ^ More nearly eight miles. SETTLEMENT, AND LAND TITLES. 179 section making void and subject to new warrants all Avarrants under which an actual settlement should not be made within two years after the original warrant. Under this section sprang up that once famous contest in the Courts of the State and of the United States, whether the war- rants were void, or voidable only by non-fulfil- ment of the conditions of settlement ; and its kindred question, whether the Indian war excused or only suspended the performance of the condi- tion. At the passage of the Act of 1792 this re- gion was uninhabited, by reason of the Indian war, exceptuig in a very few instances of settlement near the rivers. As a consequence, capitalists, re- siding chiefly in Philadelphia, immediately availed themselves of the warrant mode of acquiring title, appropriating large tracts of country. The war- rants of the Pennsylvania Population Company, organized by John Kicholson, are generally dated on the 14th day of December, 1792, and covered a large part of the territory of Beaver County, north of the Ohio. The Indians being defeated by General Wayne at the battle of Maumee, on the 20th of August, 1794, he concluded a treaty of peace with them on the 3d of August, 1795, which was ratified by the Senate, on the 22d of December followino^. This was the signal for actual settlements under the Act of 1792, and in 180 SETTLEMENT, AND LAND TITLES. the spring of 1796 came that great wave of set- tlers which quickly covered the lands of the county, ^ow the contest began. The settlers, believing the warrants forfeited by non-settlement under the warrants within two years, sat down upon the surveyed tracts, in disregard of the titles of the warrantees. A warfare followed, which for nearly forty years distracted this unhappy region, and delayed its improvement. This is not the time and place to trace in a brief address the history of that great controversy, the conflict of decisions, and the compromise legislation resorted to to compose the strife; yet the subject is well worthy of an abler pen, and teems with interesting incidents. It was in the closing years of this controversy that my own knowledge of land law began. On the dissolution of the Pennsylvania Popu- lation Company, in or about the year 1812, its lands in this county passed, in 1813, into the hands, chiefly, of William Griftith, of l^ew Jer- sey, and John B. Wallace, of Philadelphia. Their adventure failed, probably by reason of the uni- versal depression following the war of 1812. A partition was made, Mr. Griffith taking the land contracts, including the compromises, which were all on time, and Mr. Wallace the unsold parts generally. Mr. Griffith's portion afterwards passed SETTLEMENT, AND LAND TITLES. 181 into the bands of assignees or trustees, and Mr. "Wallace in December, 1818, conveyed tbe remain- der of bis portion to tbe Farmers and Mechanics' Bank of Philadelphia in payment or security for debt. These lands of the bank lay for years with- out attention. In 1832 the bank, fearing the consequence of delay, sent out its agent and attorney, William Grimshaw, the well-known compiler of several school-books and minor his- tories. He was a man of imposing appearance, tall, severe and high-temnered — a man well calcn- lated to impress the settlers with fear of the law's tangled net — not personal fear, for few knew the feeling. He was active and efficient, compromis- ing with some and suing others. A large crop of ejectments followed, some of which found their way to the Supreme Conrt with various fortunes. About ten years later the Messrs. Huidekoper, of Meadville, having purchased the interest of the assignees of William Griffith,' compromised on fiiir terms, and to their credit, be it said, brought few or no suits. But time will not allow me to pursue this subject. It would be interesting to a Phila- delphian, familiar with the names of the families of 1792, to run over the names of the warrantees of that year. To this day, as I walk the streets ^ They were assignees of William and Maurice Wurts, of Phila- delphia, who claimed under William Griffith. 182 SETTLEMENT, AND LAND TITLES. of that city, I read their flimiliar names on the door-plates of their houses. By compromises, by trials, and by the operation of the Statute of Limitations, under a change of judicial interpreta- tion, the titles of this county became settled and an era of improvement began. It is probably not well known to the Bar of Beaver County, as few date their admission beyond 1850, that the variety of the original land titles in Beaver County exceeds that of any other county in the State. On the south side of the Ohio we have all the various titles, under- warrants, improvements, and licenses, both of the proprietary and the State governments, applicable to the purchase under the treaty of 1768, to which may be added Virginia entries by settlement under the " corn" law of that State of 1778, and by special grants, recognized by Pennsylvania in her settlement of boundaries with Virginia. One of these titles by Virginia entry is to be found at and below the mouth of Sawmill Kun, opposite Pittsburgh, the property being owned in my younger days by West Elliott. General Washington was the owner of titles, under Virginia, to lands lying chiefly in Wash- ington County. On the north side of the Ohio we have the titles under the Donation and Depre- ciation surveys, with some marked peculiarities, SETTLEMENT, AND LAND TITLES. 183 and titles under the Act of 1792, by warrant and survey, and actual settlement and surve}^, involv- ing characteristics still more marked, including the doctrines of abandonment and vacating- war- rants. These varying elements have also given characteristics to the tax titles of this county, differing in some respects from those in other 13arts of the State. Tlie difference in the kind of warrants on the north and south side of the Ohio and in the modes of survey on both sides, often conflicting with each other, made the land titles of the county mtricate and difficult. Returning now to the more specific matter of the place selected for the administration of law, I may recur to the Act of 1800 fixing the county seat and the reasons therefor. A county is one of the great municipal divisions of the State, essential to the convenient and efficient administration of the government. The first inquiry of a calm and judicious mind is. Where is the true centre of con- venience, interest, population, and territory-^ — not one of these, but all? It was quite natural that the legislators of that day would remember the town which the State herself had laid out with generous squares, and liberal avenues, and in which she had reserved eight squares for " i)ub- lic uses" — uses which she reserved to herself to appoint. It was on the site of the old French 184 SETTLEMENT, AND LAND TITLES. town, and of Fort McTntosli, to which a fine mili- tary road had been hiid from Fort Pitt bj^ Gen. Broadhead, a road on the south of the river, known to this day as "Broadheads," reaching the Ohio and coming down the hill opposite Beaver. The location of the town was most favorable. Beaver stands on a beautiful, healthy, and com- manding plateau, elevated about 130 feet above the river, and containing about 1000 acres, front- ing upon the Ohio to the southeast, and just below the Big Beaver. Of this plain one whom many of you knew, a son of one of Beaver's earliest and most eminent lawyers, and a child of genius, has beautifully written. Here he was born, here his eyes rested for the last time on the foir scene he depicted, when running a race with death, to the balm of California skies. But death outran him, and he died in Sacramento in January, 1870. His remains now lie here where he wished them to rest. Allow me a single extract from this de- scription : — " The skies which overhang the hill-guarded plain are peculiarly rich and soft — are in unison with the scenery which is boldly beautiful rather than sub- lime. It seems as if, in carving the outline of my native village, God had cut an exquisite brooch to nestle on the bosom of nature. Here dear ones sleep in a tasteful cemetery; among them my hon- SETTLEMENT, AND LAND TITLES. 185 ored father, and the mother, whose memory has, for many years, been to me a living passion. I often think, that when my rambling life is over, if it please God, I would love to sleep, until the voice of Jesus shall quicken me into the full immortality of redemption, where the brawl of my native I'iver shall sweetl}' and sadly resound round my grave. These hills shall lovingly guard, and these skies overshadow many generations after I and mine shall dwell together in the dust. Then shall they be fused and furled in fire — the time of the end shall have come. Happy they who shall stand up in the lot of childlike believers in Jesus! Something whis- pers. Jam claudite vivos. ^^ These were among the last brilliant utterances of the Rev. Franklin Moore, D.D., in his flight ere death caught up, before he had crossed the con- tinent.^ But the beauties of the plain and the memories attending it were not the substantial reasons for fixing the seat of justice here. It had centrality of territory, population, convenience, and interest. Beaver stood on the bank of the jri'eat river of the West. Entering the county on the southeast at the mouth of the Big Sewickly, the Ohio ran northwest to the mouth of the Big Beaver, then turning in front of the town it ran a little south of ^ Eev. Franklin Moore, D.D., filled many leading charges, in- cluding Wheeling, Washington, Uniontown, Harrisburg, Pottsville, and Philadelphia- In the last from 1862 to 1869. 186 SETTLEMENT, AND LAND TITLES. west to the Ohio State line. The Big Beaver coming* in from the north, and bearing onward the waters of the Mahoning, Shenango, !N^eshannock, Slipperyrock, Connoquennessing, Brush Creek, Hickory Creek, Brady's Run, and minor streams, concentrated the valleys of all these water courses, like the radii of a circle, on the Ohio at the mouth of Big Beaver. So Raccoon entering the county at White's Mill on the south ran north nearly midway, entering the Ohio just below the Beaver plain. Thus nature had planted this fine plateau right at the centre of four great valleys, on the north, east, south, and west. These valleys and their corresponding ridges constitute the great channels of travel, all centring here. These again are fed by the smaller valleys and ridges leading into them — the Six Mile Run, Four Mile Run, Two Mile Run, Dutchman's Run, Crow's Run, Tevebaugh, entering the Ohio on the north side, and Logstown Run, and various streams down to Mill Creek on the south side; while Raccoon bore to its mouth the waters of the Big and Little Travis, the Service, and other streams. Thus stood Beaver at this natural centre of travel, and the men of 1800 chose the only true centre of convenience, population, and territory. It was no leap in the dark, but the unbiased judgment of men consulting the public interest. They knew SETTLEMENT, AND LAND TITLES. 187 that the natural course of travel is along the val- leys, and upon the ridges, such as the Ohioville, Achortown, Broadhead and Frankfort roads, and that public thoroughfares do not seek to cross hills and dales, in ups and downs, like the teeth of a saw, at the expense of horse flesh, vehicles, and taxes. These reasons, self-evident then, have never changed, because nature remains the same, and even railroads follow the same law of travel. The connty was organized in 1803, under the Act of 2d of April. The Commissioners erected the public buildings on two of the reserved squares, the court-house on that now occupied by this building, and the jail on the next adjacent, on the same side of Third Street. The first Court was held in February, 1804, in the house of Abner Lacock, on the lot lately owned by John Clark. The jail being first built, the Court was held in the second story of it until the old court-house was completed in 1810. That building was en- larged and improved in 1846, the wings having been rebuilt previously — the eastern wing in 1840, and the western afterward. A new court-house had been sorely needed for years. ISTot only had the old one become unsuit- able, unsafe, unhealthy and uncomfortable, but the division of the former ofiices amone: a jri'eater number of persons, and the creation of new ofiices, 188 SETTLEMENT, AND LAND TITLES. and the accumulation of records, papers, and re- cord books, the increase of population, and vast change in the subjects and character of litigation heretofore described, and other causes, all rendered a new building adapted to the wants of the present day an absolute necessity. Here let me probe a tender spot, which like a wound needs it. I mean the inexcusable we