An Act for adjusting and settling the titles of claimers to unpatented lands under the present and former government, previous to the establishment of the commonwealth’s land office.
Approved May 1779 by the Virginia General Assembly
I. WHEREAS the various and vague claims to unpatented lands under the former and and present government, previous to the establishment of the commonwealth’s land office may produce tedious and infinite litigation and disputes, and in the mean time purchasers would be discouraged from taking up lands upon the terms lately prescribed by law, whereby the fund to be raised in aid of the taxes for discharging the public debt, would be in a great measure frustrated; and it is just and necessary, as well for the peace of individuals as for the public weal, that some certain rules should be established for settling and determining the rights to such lands, and fixing the principles upon which legal and just claimers shall be entitled to sue out grants; to the end that subsequent purchasers and adventurers may be enabled to proceed with greater certainty and safety: be it enacted by the General Assembly, that all surveys of waste and unappropriated land made upon any of the western waters before the first day of January, in the year 1778, and upon any of the eastern waters at any time before the end of this present session of assembly, by any county surveyor commissioned by the masters of William and Mary College, acting in conformity to the laws and rules of government then in force, and founded either upon charter, importation rights duly proved and certified according to ancient usage, as far as relates to indented servants, and other persons not being convicts, upon treasury rights for money paid the receiver general duly authenticated upon entries on the western waters, regularly made before the 26th day of October, in the year 1763, or on the eastern water at any time before the end of this present session of assembly, with the surveyor of the county for tracts of land not exceeding four hundred acres, according to act of assembly upon any order of council, or entry in the council books, and made during the time to which it shall appear either from the original or any subsequent order, entry, or proceedings in the council books, that such order or entry remained in force the terms of which have been complied with, or the time for performing the same unexpired, or upon any warrant from the governor for the time being for military service, in virtue of any proclamation either from the king of Great Britain or any former governor of Virginia, shall be, and are hereby declared good and valid, but that all surveys of waste and unpatented lands made by any other person, or upon any other pretence whatsoever, shall be, and are hereby declared null and void, provided that all officers or soldiers, their heirs or assigns, claiming under the late Governor Dinwiddie’s† proclamation of a bounty in lands to the first Virginia regiment, and having returned to the secretary’s office, surveys made by virtue of a special commission from the president and masters of William and Mary College, shall be entitled to grants thereupon on payment of the common office fees; that all officers and soldiers, their heirs or assigns under proclamation warrants for military service, having located lands by actual surveys made under any such special commission, shall have the benefit of their said locations, by taking out warrants upon such rights, resurveying such lands according to law, and thereafter proceeding according to the rules and regulations of the land office. All and every person or persons, his, her, or their heirs or assigns, claiming lands upon any of the before recited rights, and under surveys made as herein before mentioned against which no caveat shall have been legally entered, shall upon the plats and certificates of such surveys being returned into the land office, together with the rights, entry, order, warrant or authentic copy thereof upon which they were respectively founded, be entitled to a grant or grants for the same in manner and form herein after directed.
II. Provided, that such surveys and rights be returned to the said office within twelve months next after the end of this present session of assembly, otherwise they shall be, and are hereby declared forfeited and void. All persons, their heirs or assigns, claiming lands under the charter and ancient custom of Virginia, upon importation rights as before limited, duly proved, and certified in any court of record before the passing of this act; those claiming under treasury rights for money paid the receiver general duly authenticated, or under proclamation warrants for military service, and not having located and fixed such lands by actual surveys as herein before mentioned, shall be admitted to warrants, entries, and grants for the same, in manner directed by the act of assembly entitled “An act for establishing a land office, and ascertaining the terms and manner of granting waste and unappropriated lands,” upon producing to the register of the land office the proper certificates, proofs, or warrants, as the case may be, for their respective rights within the like space of twelve months after the end of this present session of assembly, and not afterwards. All certificates of importation rights proved before any court of record according to the ancient custom, and before the end of this present session of assembly, are hereby declared good and valid: and all other claims for importation rights not so proved, shall be null and void; and where any person before the end of this present session of assembly, hath made a regular entry according to act of assembly, with the county surveyor for any tract of land not exceeding four hundred acres, upon any of the eastern waters, which hath not been surveyed or forfeited, according to the laws and rules of government in force at the time of making such entry, the surveyor of the county where such land lies, shall after advertising legal notice thereof, proceed to survey the same accordingly, and shall deliver to the proprietor a plat and certificate of survey thereof within three months; and if such person shall fail to attend at the time and place so appointed for making such survey, with chain carriers and a person to mark the lines, or shall fail to deliver such plat and certificate into the land office, according to the rules and regulations of the same, together with the auditors certificate of the treasurers receipt for the composition money herein after mentioned, and pay the office fees, he or shall forfeit his or her right and title; but upon performance of these requisitions, shall be entitled to a grant for such tract of land as in other cases.
III. And be it enacted, that all orders of council or entries for land in the council books, except so far as such orders or entries respectively have been carried into execution by actual surveys in manner herein before mentioned, shall be, and they are hereby declared void and of no effect; and except also a certain order of council for a tract of sunken grounds, commonly called the Dismal Swamp, in the south eastern part of this commonwealth, contiguous to the North Carolina line, which said order of council with the proceedings thereon and the claim derived from it, shall hereafter be laid before the general assembly for their further order therein. No claim to land within this commonwealth for military service founded upon the king of Great Britain’s proclamation, shall hereafter be allowed, except a warrant for the same shall have been obtained from the governor of Virginia, during the former government as before mentioned; or where such service was performed by an inhabitant of Virginia, or in some regiment or corps actually raised in the same; in either of which cases the claimant making due proof in any court of record, and producing a certificate thereof to the register of the land office within the said time of twelve months, shall be admitted to a warrant, entry, and grant for the same, in the manner herein before mentioned; but nothing herein contained shall be construed or extend to give any person a title to land for service performed in any company or detachment of militia.
IV. And whereas great numbers of people have settled in the country upon the western waters, upon waste and unappropriated lands, for which they have been hitherto prevented from suing out patents or obtaining legal titles by the king of Great Britain’s proclamations or instructions to his governors, or by the late change of government, and the present war having delayed until now, the opening of a land office, and the establishment of any certain terms for granting lands, and it is just that those settling under such circumstances should have some reasonable allowance for the charge and risk they have incurred, and that the property so acquired should be secured to them: be it therefore enacted, that all persons who, at any time before the first day of January, in the year one thousand seven hundred and seventy eight, have really and bona fide settled themselves or their families, or at his, her, or their charge, have settled others upon any waste or unappropriated lands on the said western waters, to which no other person hath any legal right or claim, shall be allowed for every family so settled, four hundred acres of land, or such smaller quantity as the party chooses, to include such settlement. And where any such settler has had any survey made for him or her, under any order of the former government, since the twenty sixth day of October, in the year one thousand seven hundred and sixty three, in consideration of such settlement for less than four hundred acres of land, such settler, his or her heirs, may claim and be allowed as much adjoining waste and unappropriated land, as together with the land so surveyed will make up the quantity of four hundred acres.
V. And whereas several families for their greater safety have settled themselves in villages or townships under some agreement between the inhabitants of laying off the same into town lots, to be divided among them, and have, from present necessity, cultivated a piece of ground adjoining thereto in common: Be it enacted, that six hundred and forty acres of land whereon such villages and towns are situate, and to which no other person hath a previous legal claim, shall not be entered for or surveyed, but shall be reserved for the use and benefit of the said inhabitants until a true representation of their case can be made to the general assembly, that right and justice may be done therein; and in the mean time there shall be allowed to every such family, in consideration of their settlement, the like quantity of land as is herein allowed to other settlers adjacent, or convenient to their respective village or town, and to which no other person hath, by this act, the right of preemption, for which said quantities to be adjusted, ascertained, and certified by the commissioners to be appointed by virtue of this act, in manner herein after directed. The proper claimants shall be respectively entitled to entries with the surveyor of the county wherein the land lies, upon producing to him certificates of their rights from the said commissioners of the county, duly attested, within twelve months next after the end of this present session of assembly, and not afterwards; which certificate the said surveyor shall record in his books, and then return them to the parties, and shall proceed to survey the lands so entered, according to law. And upon due return to the land office of the plats and certificates of survey, together with the certificates from the said commissioners of the rights, by settlement upon which the entries were founded, grants may and shall issue to them and their heirs or assigns, in manner before directed. And if any such settlers shall desire to take up a greater quantity of land than is herein allowed them, they shall on payment to the treasurer of the consideration money, required from other purchasers, be entitled to the preemption of any greater quantity of land adjoining to that allowed them in consideration of settlement, not exceeding one thousand acres, and to which no other person hath any legal right or claim. And to prevent doubts concerning settlements, it is hereby declared, that no family shall be entitled to the allowance granted to settlers by this act, unless they have made a crop of corn in that country, or resided there at least one year since the time of their settlement. All persons who, since the said first day of January, in the year one thousand seven hundred and seventy eight, have actually settled on any waste or unappropriated lands on the said western waters, to which no other person hath a just or legal right or claim, shall be entitled to the preemption of any quantity of land, not exceeding four hundred acres, to include such settlement at the state price to other purchasers. And all those who, before the said first day of January, in the year one thousand seven hundred and seventy eight, had marked out or chosen for themselves, any waste or unappropriated lands, and built any house or hut, or made other improvements thereon, shall also be entitled to the preemption upon the like terms, of any quantity of land, to include such improvements, not exceeding one thousand acres, and to which no other person hath any legal right or claim; but no person shall have the right of preemption for more than one such improvement; provided they respectively demand and prove their right to such preemption, before the commissioners for the county, to be appointed by virtue of this act within eight months, pay the consideration money produce the auditor’s certificate for the treasurer’s receipt for the same, take out their warrants from the register of the land office within ten months, and enter the same with the surveyor of the county, within twelve months next after the end of this present session of assembly; and thereafter duly comply with the rules and regulations of the land office. All locations made by officers and soldiers upon the lands of actual settlers, shall be void, but the said officers, soldiers, or their assignees, may obtain warrants on producing the commissioners certificate of their several rights, and locate their claims on other waste and unappropriated lands. To prevent the locations of those claiming under warrants for preemption, from interfering with such as claim under certificates for settlements, and to give due preference to the latter, so far as respects their rights to tracts of land not exceeding four hundred acres; the register of the land office shall particularly distinguish all preemption warrants by him issued, and no county surveyor shall admit any such warrant to be entered or located in his books, before the expiration of ten months as aforesaid. And where any such warrant shall not be entered and located with the county surveyor, within the before mentioned space of twelve months, the right of preemption shall be forfeited, and the lands therein mentioned may be entered for by any other person holding another land warrant; but such preemption warrant may, nevertheless, be located upon any other waste or unappropriated lands, or upon the same lands where they have not in the mean time been entered for by some other.
VI. And be it farther enacted, that all persons claiming lands, and suing out grants upon any such surveys heretofore made; either under entries with the surveyor of any county, or under any order of council, or entry in the council books, for which rights have not formerly been lodged in the secretary’s office, and also those suing out grants for tracts of lands upon the western waters, not exceeding four hundred acres herein allowed them in consideration of their settlements, or under former entries with the county surveyor, for lands upon the eastern waters, shall be subject to the payment of the usual composition money under the former government, at the rate of ten shillings sterling for every hundred acres, to be discharged in current money, at the rate of thirty three and one third per centum exchange, before the grant issues, and to no other charge or imposition whatsoever, save the common office fees. And to all such persons, their heirs or assigns, who having title to land under the former government, had not only surveyed the same, but had lodged their certificates of survey, together with their rights, in the secretary’s office; and although no caveat has been entered, have not obtained patents, grants shall issue in consideration thereof, upon the payment of the office fees only.
VII. And whereas it hath been represented to the general assembly, that upon lands surveyed for sundry companies by virtue of orders of council, many people have settled without specific agreement, but yet under the faith of the terms of sale publicly offered by the said companies or their agents at the time of such settlements, who have made valuable improvements thereon: be it enacted and declared, that all persons so settled upon any unpatented lands, surveyed as before mentioned, except only such lands as before the settlement of the same, were notoriously reserved by the respective companies for their own use, shall have their titles confirmed to them by the members of such companies, or their agents, upon payment of the price at which such lands were offered for sale when they were settled, together with interest thereon from the time of the respective settlements, provided they compromise their claims with the said companies, or lay them before the commissioners for their respective counties, to be appointed by virtue of this act, and have the same tried and determined by them, in manner herein after directed: and provided also, that where any such survey contains more than four hundred acres, no one settler shall be entitled to a greater quantity than three hundred acres, unless he takes the whole survey, to include his settlement, and leave the remainder in one entire and convenient piece where the same is practicable.
VIII. And whereas the claims of various persons to the lands herein allowed to the inhabitants, in consideration of their settlements, and of those who, by this act, are entitled to preemption at the state price, as well as of the settlers on the lands surveyed for sundry companies by orders of council as aforesaid, may occasion numerous disputes, the determination of which depending upon evidence, which cannot, without great charge and trouble, be collected, but the neighborhood of such lands will be most speedily and properly made by commissioners in the respective counties; be it enacted, that the counties on the western waters shall be allotted into districts, to wit: the counties of Monongalia; Yohogania, and Ohio, into one district; the counties of Augusta, Botetourt, and Greenbrier, into one district; the counties of Washington and Montgomery, into one other district; and the county of Kentucky, shall be another district; for each of which district, the governor, with the advice of the council, shall appoint four commissioners under the seal of the commonwealth, not being inhabitants of such district (any three of whom may act) to continue in office eight months from the end of this present session of assembly, for the purpose of collecting, adjusting, and determining such claims, and four months thereafter for the purpose of adjusting the claims of settlers on lands surveyed for the aforesaid companies. Every such commissioner; before he enters on the duties of his office, shall take the following oath of office: “I A. B. do swear that I will well and truly serve this commonwealth in the office of a commissioner for the district of for collecting, adjusting, and settling the claims, and determining the titles of such persons as claim lands in the said district, in consideration of their settlements; of such as claim preemption to any lands therein, and also of such settlers as claim any lands surveyed by order of council, for sundry companies, according to an act of general assembly, entitled an act for adjusting and settling the titles of claimers to unpatented lands, under the former and present government, previous to the establishment of the commonwealth’s land office; and that I will do equal right to all manner of people, without respect of persons; I will not take by myself, nor by any other person, any gift, fee, or reward for any matter done, or to be done by virtue of my office, except such fees or salary as the law shall allow me; and finally in all things belonging to my said office, I will faithfully, justly, and truly, according to the best of my skill and judgment, do equal and impartial justice, without fraud, favor, affection, or partiality. So help me God.” Which oath shall be administered by any of the said commissioners to the first of them in nomination, who shall be present, and then by him to the others. The said commissioners shall have power to hear and determine all titles claimed in consideration of settlements to lands, to which no person hath any other legal title, and the rights of all persons claiming preemption to any lands within their respective districts, as also the rights of all persons claiming any unpatented lands, surveyed by order of council for sundry companies, by having settled thereon under the faith of the terms of sale publicly offered by such companies or their agents and shall immediately upon receipt of their commissions, give at least twenty days previous notice by advertisements at the forts, churches, meeting houses, and other public places in their district, of the time and place at which they intend to meet, for the purpose of collecting, hearing, and determining the said claims and titles, requiring all persons interested therein, to attend and put in their claims, and may adjourn from place to place, and time to time, as their business may require; but if they should fail to meet at any time to which they shall have adjourned, neither their commission nor any matter depending before them shall be thereby discontinued, but they shall proceed to business when they do meet, as if no such failure had happened. They shall appoint and administer an oath of office to their clerk; be attended by the sheriff, or one of the under sheriffs of the county; be empowered to administer oaths to witnesses or others, necessary for the discharge of their office; to punish contempt, enforce good behavior in their presence, and award costs, in the same manner with the county courts; they shall have free access to the county surveyor’s books, and may order the same to be laid before them, at any time or place of their sitting, and shall pay to such surveyor, out of the fees received by them for certificates, the sum of three pounds for every day he shall attend, and to the sheriff for the like attendance, two pounds for each day’s attendance. In all cases of disputes upon claims for settlement, the person who made the first actual settlement, his or her heirs or assigns, shall have the preference. In all disputes for the right of preemptions for improvements made on the land, the persons, their heirs or assigns respectively, who made the first improvement, and the persons to whom any right of preemption on account of settlement or improvements shall be adjudged, shall fix the quantity at their own option at the time of the judgment, so as not to exceed the number of acres respectively allowed by this act, or to interfere with the just rights of others. The clerk shall keep exact minutes of all the proceedings of the commissioners, and enter the names of all the persons to whom either lands for settlement or the right of preemption as the case is, shall be adjudged with their respective quantities and locations, and also the names of all such persons to whom titles shall be adjudged for lands within the surveys made by order of council for any company with the quantity of acres adjudged, and in what survey; and if the same is only part of such survey, in what manner it shall be located therein, the name or style of the company, and the price to be paid them, with the time from which the same is to bear interest. Upon application of any person claiming a right to any lands in virtue of this act, and complaining that another pretends a right in opposition thereto, the said clerk shall issue a summons, stating the nature of the plaintiffs claim and calling on the party opposing the same, to appear at a time and place certain therein to be named, and show cause why a grant of the said lands may not issue, or a title be made to the said plaintiff: the said summons shall be served on the party by the sheriff of the county where he resides, or wherein he may be found, and such service being returned thereon, and the party appearing or failing to appear, the commissioners may proceed to trial, or for good cause shown, may refer such trial to a farther day. The clerk shall also have power at the request of either party, to issue subpoenas for witnesses to appear at the time and place of trial, which shall be had in a summary way without pleadings in writing, and the court in conducting the said trial, in all matters of evidence relative thereto, and in giving judgment, shall govern themselves by such rules and principles of law or equity, as are applicable to the case, or would be the rule of evidence or of decision, were the same before the ordinary courts of law or equity; save only as far as this act shall otherwise have specially directed. Judgment when rendered shall be final, except as herein after excepted, and shall give to the party in whose favor it is, a title against all others who were parties to the trials; and if after such judgment rendered, the party against whom it is, shall enter the said lands forcibly, or forcibly detain the same, it shall be lawful for the said commissioners or any one of them, or any justice of peace for the county, to remove such force, in like manner as if it were committed on lands holden by grant actually issued. The said commissioners shall deliver to every person to whom they shall adjudge lands for settlement, a certificate thereof under their hands, and attested by the clerk, mentioning the number of acres, and the time of settlement, and describing as near as may be, the particular location, noting also therein the quantity of adjacent land to which such person shall have the right of preemption. And to every other person to whom they shall adjudge the right of preemption to any lands; they shall in like manner deliver a certificate, specifying the quantity and location of such land, with the cause for preemption, with a memorandum for the information of the party in each certificate of the last day on which the lands therein respectively mentioned can be entered with the county surveyor: for every hundred acres of land contained within the said certificates, the party receiving the same, shall pay down to the commissioners the sum of ten shillings, besides a fee of ten shillings to the clerk for each certificate so granted; and the said certificates produced within the times herein before respectively limited to the surveyor of the county, or to the register of the land office, with the auditors certificate of the treasurer’s receipt for the payment due on the preemption, as the nature of the case may require, shall entitle the person respectively receiving them, to an entry and survey, or a warrant for the said lands, in such way, and on such terms as are herein before prescribed. And to prevent frauds or mistakes, the said commissioners immediately upon having completed the business in their district, shall transmit to the register of the land office, under their hands, and attested by their clerk, an exact list or schedule in alphabetical order, of all such certificates by them granted, and a duplicate so signed and attested to the county surveyor for their information. They shall in like manner, and upon payment of the same fees, deliver to every person to whom they shall adjudge, a title to any unpatented land, surveyed for any company by order of council, a certificate mentioning the number of acres to which they have adjudged the title, what particular survey the same is in, and for what company made, the price to be paid such company, and the date from which the same is to bear interest, and where there is a greater quantity of land contained in the survey, describe as near as may be, the manner the land to which they have adjudged title, shall be laid off and bounded; and shall also immediately upon having completed the business in their district, transmit to the clerk of the general court, under their hands and attested by their clerk, a list or schedule in alphabetical order, containing exact copies of all such certificates by them granted, to remain in the said clerk’s office for the information of the said companies, and as evidence and proof of the respective titles.
IX. Provided nevertheless, that if the parties, their heirs or assigns, to whom such titles shall have been adjudged, shall not within six months at farthest, from the time of their respective judgments in their favor, pay or tender to the company to whom the same is due, or their agent, the price and interest so fixed by the said commissioners, the title of every person so owing, shall be forfeited, and shall be from thence forward to all intents and purposes, null and void; anything herein to the contrary thereof notwithstanding. The said commissioners for every day they shall be actually employed in the execution of their office, shall be allowed the sum of eight pounds each; they shall be accountable for all the money they shall have received upon issuing certificates as aforesaid, except the fee to the clerk, and shall settle a fair account upon oath, with the auditors, and receive from the treasurer whatever balance may appear due to them thereon, or pay to him any balance which shall be by them due to the commonwealth. The clerk and sheriff shall receive for their services, the fees heretofore allowed by law for the like services in the county court, and the witnesses the same allowance for their attendance, to be paid by the party, and collected in like manner as is directed in the ordinary cases of the same nature, and the clerk shall have the same power of issuing executions as the clerks of the county courts; Provided that the clerk shall not be allowed any farther or other fee for entering and issuing a certificate than is herein before mentioned. But as by this summary mode of proceeding, some persons at a great distance may not have timely notice, and may be unable to appear in support of their claims, for remedy whereof, Be it enacted, that no grant shall issue upon any of the claims determined by the said commissioners until the first day of December, 1780, and in the mean time, any such person injured by their determination, his or her heirs or assigns, may enter a caveat against a grant thereupon, until the matter shall be heard before the general court, and may petition the said general court to have his or her claim considered; and upon its being proved to the court that he or she labored under such a disability at the time of the meeting of the commissioners thereupon, the court shall grant him or her a hearing in a summary way, and if it shall appear upon trial, that the petitioners claim is just, such court may reverse the former determination, and order a grant to issue for such land or any part thereof, on the terms herein before mentioned, to the person to whom they shall adjudge the same.
X. And be it farther enacted, that all claims for lands upon surveys under any order of council or entry in the council books, shall by the respective claimers be laid before the court of appeals; which shall meet for that purpose on the sixteenth day of December next, and shall adjourn from day to day until the business be finished; or if it be proved to the court that any such claimer is unable to attend and prosecute his claim, or for other just cause to them shown, they may order such claim to be tried before them on some future day. All such claims shall be heard and determined in a summary way, without pleadings in writing, upon such evidence as in the opinion of the court, the nature of the case may require; and no such claim shall be valid, but such only as shall be so heard and established by the said court of appeals, and on their certificate that any such claim hath been by them established, the register is hereby required to issue a warrant or grant thereupon, according to the nature of the case, and the rules and regulations of the land office; and the attorney general is hereby required to attend the said court on behalf of the commonwealth.
XI. Provided always, that nothing herein contained shall extend to officers, soldiers, or their assignees, claiming lands for military service. The register of the land office shall regularly record all land warrants issued by virtue of this act; they may be executed in one or more surveys, and may be exchanged or divided so as best to suit the purposes of the party, and shall remain in force until lands shall have been actually obtained for them, in the same manner with the warrants to be issued by virtue of the before recited “Act for establishing a land office”. And when the said register shall make out a grant to any person or persons for lands due to him, her, or them, by virtue of this act, he shall recite therein as the consideration, the rights and cause for which the same became due, according to an act of general assembly, passed in the year of our Lord one thousand seven hundred and seventy nine, entitled “An act for adjusting and settling the titles of claimers to unpatented lands under the former and present government, previous to the establishment of the commonwealth’s land office"; and if any part thereof is due in consideration of the ancient composition money, or the new purchase money paid to the commonwealth, the same shall be properly distinguished, and in every other respect the grant shall be drawn and pass in the form and manner prescribed by law for future grants of lands from the commonwealth.
XII. And whereas at the time of the late change of government, many caveats against patents for lands which had been entered in the council office, were depending and undetermined, Be it enacted, that all such caveats, with the papers relating thereto, shall be removed into the clerk’s office of the general court, there to be proceeded on and tried in the manner directed by law for future caveats; but the same shall be determined according to the laws in force at the time they were entered; and upon the determination of any such caveat, a grant shall issue in the name of the person to whom such land shall be adjudged, his or her heirs or assigns, upon producing to the register of the land office, within three months at farthest from the time of such judgment, an authentic copy thereof, together with the auditor’s certificate of the treasurer’s receipt for the ancient composition money due thereon, at the rate of exchanger herein before mentioned; but where the person recovering had before paid rights into the secretary’s office, a grant shall issue in consideration thereof upon payment of the office fees only.
REF: “The Statutes at Large, Being a Collection of All the Laws of Virginia”, Volume X, Edited by William Waller Hening, 1822, pp 35-30.