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History of York County Pennsylvania From the Earliest Time to the Present online

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to grant to any other person until he marked
and made known his lines. The further
correspondence, in relation to this matter,
shows that the Germans settled about Cone-
wago Creek, on the lands claimed by Digges,
had contracted with him for the purchase of
their plantations and given bonds for the
consideration money. They had ascertained,
by computation, that the extent of his claim
was more than his patent contained, and
they requested him to have his lines marked,
which he refused to do. They procured an
attested copy of the courses of his tract from
the land office at Annapolis, and, though
opposed by him, a surveyor ran the lines
sufficiently' to show that several plantations
he had sold were without the bounds of his
patent. His application to the Pennsylvania
office was in 1743, which seems not to have

«IArohives, 713—14.

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


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

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

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

*I Archives, 688.


Forney, within the jurisdiction of this prov-
ince, Mr. Peters desired to retain Mr. Calder
for Adam Forney, and would send him by
the iirst good hand t\TO pistoles. Mr. Tilgh-
man was also to be retained. These counsel
were to defend Mr. Forney in such manner
as that there might be an appeal to the King
in council. It turned out, however, by the
witnesses who were secured for Mr. Forney,
and who were reported to be "clear, intellig-'
ibie men and spoke English well," that
the spot where Adam Forney and his son
were arrested was actually within Digges'
old survey and patented land. The engage-
ment of Mr. Calder, therefore, on behalf of
the proprietaries of Pennsylvania, was res-
cinded, and Forney, after a rebuke, was left
to defend his own case. Another incident
in this case may be noticed. At a meeting
of the Provincial Council, held at Philadel-
phia, on the 17th of March, il4S, it was
reported by an express from Mr. Cookson
that Adam Forney was shot dead by an
Indian in liquor, as he stood at his own door.
The Indian was immediately seized and
carried before Justice Swope, at York, and
there detained till the Governor should give
orders what should be done with him. The
trouble arose from the fact occurring within
the lines of Digges' patent, and the Attorney-
General had to be consulted on the question
of jurisdiction. In the meantime the report
was contradicted. Forney had been shot, but
recovered, so nothing further was done.

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

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

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

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


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

The Town of Hanover was within the lim-
its of Digges' patent, and consequently all
delinquents escaping from justice found a
refuge in Hanover and were free from arrest.
The officers of justice of the County of York
could only come within half a mile of that
town to execute their warrants. On the 18th
of February, ]757, the grand jury took such
action as compelled all persons to obey the
Koyal Order, by showing allegiance to the
province from which they had received titles
to their land.


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

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

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


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


alleged that considering the various ineqali-
ties of the ground, such radii could not
extend equally, consequently from them no
irue arc of a circle could be found, and
insisted upon geometrical and astronomical
mensuration. Thus the proceediiigs of the
Commissioners stopped and they wrote to their
respective principals for further instructions
relating to that point.*

In the meantime Charles, Lord Baltimore,
died, and was succeeded by his son, Fred-
erick, and there were further proceedings in
chancery, bill of review and supplemented
bill. At length, ou the 4th of July, 1760,
the final agreement betvpeen the proprietaries
was executed. It recites the original charters
to Lord Baltimore and William Penn, and
refers to the very long litigation and contests
which had siibsisted from 1683, and the
many orders in Council pronounced relative
thereto. The agreement of the 10th of May,
1732, is given at length, and the decree of
the Lord Chancellor and other proceedings.
And after its long recitals says:

"Whereas the parties to these presents,
Frederick, Lord Baltimore and Thomas and
Kichard Penn, have come to an amicable
agreement in manner as hereinafter men-
tioned," and then proceeds to describe and
make provisions for fixing the circle and
running the line, and provides for the
attornment of the tenants and occupiers of
the lands under the respective proprietaries.
This agreement, of 1760, was enrolled in
Chancery in England. The original is now
deposited with the Secretary of the Com-


tit appears in full in the fourth volume of the Pennsylvania
Archives, old series. This original agreement was produced in
evidence at Bedford, October, 1806,on the trial of Ross' lessee vs.
Cutshall, reported in 1 Biuney, 39U, and admitted after, argu-
ment, and decided to be proper evidence by the Supreme
Court on an appeal, because it was an ancient deed, ascertaiu-
ing the boundaries of the then provinces of PennsylvHuia and
Maryland, and may be considered in the light of a State paper,
well known to the courts of justice,'and which had been ad-
mitted in evidence on former occasions. (2 Sm. 135). And also in
the case of lessee of Thomas Lilly vs. George Kitzmiller, at York,
in May, 1791), (1 Yeates. 28), a case of title arising out of the Mary-
land patent called Digges' Choice. And in the case of Thomas vs.
StiEars, in ]846(5Barr, 480), where it was held that the court
will take notice of the agreement between Lord Baltimore and
Penn relating to the boundary between the two provinces, and
that the true interpretation to be put upon the agreement was
the one adopted by the State of Maryland, lo-wit; that the
agreement embraced all cases, the inception of title whereof
commenced prior to 1760, and which were completed or consum-
mated before the final designation of boundary in 1768. And in
the case between the same parties in 1854, (11 Harris, 367), m
which it was held that the agreement of July 4, 1760, between
the Pen ns and Lord Baltimore, construed under the light of
the other agreements and documents concerning that contro-
versy does not confirm any Maryland titles to land in Penn-
sylvania west of the Susquehanna, except those that e.xisted by
grant and occupation at the date of that agreement, and that
are not more than one-fourth of a mile north of Mason and
DLvon's Line— the starting point for temporary, line on the
west side of the Susquehanna having been marked one-half a
mile further north than on the east side of the river. This
last mentioned litigation, concerning valuable lands in Fulton
County, continued until 1861 (3 Wright, 486), in which the
case was finally decided by affirming the decision in the last
preceding case.


The Commissioners appointed under this
last agreement met at Newcastle the 19th of
November, 1760, and entered upon their du
ties. From November, 1760, to the latter
part of October, 1763, the Commissioners
and surveyors were laboring in attempts to
trace out the radius of twelve miles, and the
tangent line from the middle point of the
west line across the peninsula. As late as
the 21st of October, 1763, no practical solu-
tion of this problem had been effected,
though there was a clos« approximation to
the true tangent. On the 22d of October,
1763, the Pennsylvania Commissioners in- '
formed the Maryland Commissioners that
they had lately received a letter from the pro-
prietors of Pennsylvania, dated the 10th of
August last, acquainting them that they and
Lord Baltimore had agreed with two mathe-
maticians, or surveyors, to come over and
assist in running the lines agreed on in the
original articles, who were to embark for
Philadelphia the latter end of August, and
that their arrival might soon be expected.
On the 1st of December, 1763, the articles
of agreement were read between Lord Balti-
more, and Thomas and Richard Penn, and
Charles Mason and Jeremiah Dixon, who su-
perseded the former surveyors in the marking
out of the boundary lines. They immediately
entered upon their duties, and were employed
in tracing and marking the lines until the
26th of December, 1767, when they were
honorably discharged.

To ascertain the most southern point of
the city of Philadelphia, the Mayor and
Recorder, and two of the city regulators, on
the 3d of December, 1763, went with the
Commissioners and Messrs. Mason and Dixon
to the street called Cedar or South Street, the
south side of which street the Mayor, Re-
corder, and Regulators informed the Com-
missioners to be the southern boundary of
the limit of the city. By which information
and a view of some old deeds of lots bound-
ing on Cedar Street, and of a plat of the
city, the Commissioners were satisfied that
the north wall of a house, then occupied by
Thomas Plumstead and Joseph Huddle, was
the most southern part of the city of Phila-
delphia. The latitude of the north wall of
this house was determined by Mason and
Dixim from astronomical observations, in

Online LibraryJohn GibsonHistory of York County Pennsylvania From the Earliest Time to the Present → online text (page 17 of 218)