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Show 38 HISTORY OF PUBLIC LAND LAW DEVELOPMENT selection before he could afford to begin his improvements. This was not an easy task because a speculator's lands were unimproved and not easy to identify. Unless the settler feared a contest over his claim, it was not necessary for him immediately after selecting his land to file his entry at Williamsburg or Richmond: Virginia conceded squatter's prior rights to land and the settler could feel reasonably secure in his selection. When he had surveyed his land and roughly outlined it by metes and bounds, he was ready to file his entry at the land office. Such a haphazard system, which permitted individuals to run their boundaries as they saw fit so long as they did not encroach on others' possessions, and which rarely left permanent land markers, was bound to cause numerous conflicts over boundaries and overlapping claims. The courts of Virginia and Kentucky were to be cluttered with cases arising from the lack of a system of prior rectangular survey. In colonial America large and small urban centers such as Boston, Philadelphia, and Charleston developed; but the majority of the population wanted-rather than servants' fare in the towns-to strike out on their own into the "waste and unseated land" outside the populated communities. Land ownership and the development of productive farms were their objectives. Consequently, they scattered widely, frequently disregarding colonial decrees concerning the areas in which settlement was permitted. Nor were they sufficiently careful to avoid starting their improvements on land owned by absentees. Since there were no rectangular surveys with corners carefully marked, the only way private ownership could be determined was by improvements, the barest of which were tomahawk marks. But even such marks did not always deter settlers if there were not some clearing, a small hut, and possibly some fencing. Many large speculative grants bore no evidence of ownership and were subject to escheat in Virginia if not "seated" within 3 years. It is small wonder that, as the settlers looking for land increased in number, some should find after months, or even years, of labor that they were squatting upon land already granted to some man of means in Jamestown or Williamsburg. As early as 1642, Virginia's courts were hearing "diverse suits ... to the great trouble and molestation of the whole colony" over the rights of squatters or of persons with land titles, residing on land owned by persons with anterior titles. To meet the situation, the House of Burgesses adopted its first occupancy law to assure that a person who had mistakenly made improvements on land owned by others should be paid by the rightful owner the full value of his improvements, as determined by a local jury. If the value of the improvements exceeded the value of the land without them, the squatter was privileged to buy the land at a value determined by a jury.16 This was the first act protecting settlers who had innocently improved land owned by others from suffering the loss of their labor. This measure was re-enacted in 1657-8 and in 1661-217, and the principle of it was later accepted by Kentucky, Ohio, Illinois, and Missouri, by California in the mid-19th century, and by the Federal government in 1874. The recognition of settler's, including squatter's, rights thus became firmly ingrained in American land law. True, the later laws were less liberal; squatters had to prove color of title to gain the value of their improvements mistakenly placed on land owned by others.18 A second major development in Virginia land law, growing out of the "sundry suits, controversies, and debates" which "dayly do arise about claymes," occurred in 1646 when the Legislature enacted an adverse possession law: it provided that a person who had any pretence of title, but had not taken action to 18 Hening. Statutes, I, 260. 17 Hening, Statutes, I, 432 and II, 96. 18 Paul W. Gates, "Tenants of the Log Cabin," Mississippi Valley Historical Review, XLIX (June 1962), |
