by Scott Powell, 1925
Contributed by Linda Fluharty.
CONTEST FOR POSSESSION OF ROUND BOTTOM Pages 90-95.
CONTEST FOR POSSESSION OF ROUND BOTTOM
One of the many suits at law for the possession of land in the Ohio Valley was that for the possession of Round Bottom.
The first settlement made in it was made in connection with the settlement in the Flats of Grave Creek by Joseph, James and Samuel Tomlinson; they were followed by Michael Cresap about two years after they had made the first improvement in it. Tomlinson brothers made their improvement in the upper end and the Cresap improvement was made about the middle of the bottom.
A slight dispute arose between the Tomlinson brothers and the heirs of Michael Cresap but it was soon adjusted to the satisfaction of both parties and for years after that they thought that they were the owners of that fine bottom but were destined to be disappointed and to lose the land.
Joseph Tomlinson in a sworn statement of his knowledge of the settlement of Round Bottom, gave quite an interesting story of early life in the west.
He stated that he and two brothers, Samuel and James, arrived at the Flats of Grave Creek in March about the year 1770 or 1771, in search of a home for their father's family. They were much pleased with the land about the flats and took up some land there and went own to Round Bottom where they found that no claim had been taken up and they made an improvement at the upper end of the bottom.
From there Joseph Tomlinson went down the river to examine land and fell in with Colonel Crawford who was surveying some military lands between the Little Kanawha and Big Sandy rivers. He engaged with Colonel Crawford as a hand and continued until the surveying was completed.
The work being completed, the surveying party returned back up the river, and in July reached Round Bottom. Before they reached the bottom Mr. Tomlinson learned that it was the intention of Colonel Crawford to make a survey of Round Bottom and he objected to any survey being made as he and his brothers were interested in it as they had taken up a claim and intended to make improvements immediately. Colonel Crawford stated that Colonel Washington had requested him to make a private survey of the bottom and that it would be reported as such and he would not be injured by the survey being made, pledging his word to the same.
Mr. Tomlinson still objected to the survey but it was made. He went along as a spectator and saw the lines run along the river and no more. It stopped at that and there was no other survey made by Colonel Crawford from that time until he was brought by David Rogers to that section of the country in 1775, to survey some military land for him on the Ohio River near the Flats of Grave Creek and at Fish Creek.
Mr. Tomlinson stated that in the year 1772, Michael Cresap of Old Town, sent fourteen men to make improvements in Round Bottom and they made two improvements on the banks of the river about the middle of the bottom but did not fence them. From there they went down the river to make improvements on other land claimed by Mr. Cresap.
In the spring Mr. Cresap sent Francis Purcell and family to Round Bottom to make improvements and take care of his interest. Mr. Purcell cleared six acres of land, fenced it, built a cabin and raised a crop of corn on the ground. He remained there until the spring of 1774, when the breaking out of Dunmore's War, drove the settlers from this section to Old Fort Redstone on the Monongahela River.
In February 1775, the Tomlinson family returned to the Flats of Grave Creek and from that time, Joseph Tomlinson, said he never was away except occasionally for a short time on business or when Indians compelled settlers to leave their homes for a time, but in every case he returned as soon as possible. He stated that his brother James spent the first three years after their arrival on the Ohio River on Round Bottom and that he had frequent intercourse with Mr. Purcell. His brother was only three and one-half miles from his home on Grave Creek.
Michael Cresap died in 1775 and some time after his death there was a dispute about the land, and appears that the Cresap heirs wanted to hold the entire bottom. Mrs. Cresap was notified to be present or send a representative to meet Mr. Tomlinson at a meeting of the commissioners that the General Assembly of Virginia would send out to adjust claims. They were to meet at the Morgan settlement, near where Morgantown now stands. This meeting was held in the year 1779, and a nephew of Mrs. Cresap was there and he and Mr. Tomlinson agreed to divide the bottom as nearly equal as possible without regard to improvements, by a line from the river to the hill. The commissioners ordered the clerk to make a note of the agreement and so state the same on their certificates, which was done and the matter was thought to be adjusted for all time.
The Cresap heirs were to take the lower end and the Tomlinson brothers were to take the upper end. Each party now considered that the matter has been adjusted satisfactorily, were free to make such improvements as they desired and circumstances would permit.
Mr. Tomlinson stated that no other survey of land was made by Colonel Crawford, after he came to the Ohio River, as he kept a careful watch on every survey, being afraid some one would make a survey of it and give them trouble. They rested a number of years believing that they had a clear title to the land they claimed in Round Bottom.
On the eighth of August 1798, Archibald McClean purchased from General Washington all of that tract of land and received a deed for it. The tract purchased by Mr. McClean was to contain 587 acres be the quantity more or less tor $5,870, making the price ten dollars per acre.
From old letters, some of which are yet in the possession of descendants of Mr. McClean, and court records, it appears there were two conditions in the proposition of General Washington to Mr. McClean in the negotiation for the sale of the land. General Washington offered to sell him 587 acres, be the quantity more or less, for $5,870 or he would have the land resurveyed and Mr. McClean abide by the survey and pay for the land found to be contained in it. Mr. McClean chose the first proposition and closed the deal. By a careful survey some years after it was found that the tract contained 1293 acres.
That fall and the following spring Mr. McClean sent tenants to the land to clear it and make improvements and then found that others claimed the land which he had bought and paid for. He leased a large tract in the lower end to Jonathan Roberts who proceeded to improve it.
A suit was soon started and was many years in court before it was settled and when concluded and a decision was rendered it confirmed the claim of General Washington and confirmed the title of Mr. McClean to the land.
Michael Cresap, Jr., son of Michael Cresap who caused the first improvement to be made in Round Bottom in Cresap's name, in a bill of complaint in a chancery case against Archibald McClean and Jonathan Roberts, stated that his father died in 1775 and that in his will he bequeathed Round Bottom to the three daughters, Mary, Elizabeth and Sarah, who were minors at the time of the death of their father. He stated that one Luther Martin married Mary and in the year 1781 he got a certificate of right of settlement and had a survey made in 1784 and the same year the plot and certificate of the survey were returned to the Register's office and in July, 1785, General Washington entered a caveat which was dismissed in 1787 and a grant was issued to Luther Martin and his wife and her two sisters, Elizabeth and Sarah Cresap.
In the final disposition of the estate of his father, he acquired the land of the said Luther Martin and the two Misses Cresap., He stated that he was in peaceful possession of the land for a long time until Archibald McClean came to the place with a deed from General Washington. He made the charge of fraud on the part of General Washington in getting the title to the land. He seemed to think that he obtained the field notes of a private survey and made a plat which covered 587 acres ana sold the tract to Mr. McClean. He stated that the tract contained 1293 acres, A suit was started in the early part of the last century and was carried through the various courts and was not decided until the twenty-eighth of April, 1834.
The case was decided in the Supreme Court of Appeals in the city of Richmond on the above date and in favor of the claim of General Washington. This decision made the claim of Mr. McClean valid.
Mr. McClean, in his answer to the bill of complaint filed by Mr. Cresap, stated the two conditions offered him in the purchase of the land and he chose the first and took the land at the price and knew nothing of any one making any claim to the land until after he came into the neighborhood of it. At the time he made the purchase he had no reasons to suspect that any claim existed accept that of General Washington.
He stated that Washington received his patent for the Round Bottom on the thirtieth of October, 1785, and the land contained in the boundaries of the tract was 1293 acres, and as for the surplus land it was a matter between the Commonwealth of Virginia and the patentee. Washington had been granted the land contained within the boundaries which he had purchased and he had a right to all found therein. The survey upon which the patent was issued to General Washington, was founded upon a military warrant and made before an act was passed appropriating any land to actual settlers.
The case was in court many years and was fought with determination by both sides. The courts were supposed to settle questions of the validity of claims of parties to disputes and it appears that the higher courts only confirmed the decision of the lower courts. It was only one of the many suits that grew out of the peculiar manner in which land was taken up by settlers and others at an early day in the regions of the Ohio Valley on the east and south side of the Ohio River. Washington was one of the soldiers of the French and Indian war and a grant of two hundred thousand acres of land in the western part of Virginia was appropriated and granted them for service rendered in that war, and it appears that the claim to Round Bottom grew out of that grant. It has often been stated that nearly all the early surveys contained more land than the amount reported in the survey.
Mount Vernon, Va., August 2, 1798.
The annual meeting of the Potomack Company requires my attention in Alexandria today. It will be held, I presume at Gadsby's; if so, I shall be there from ten o'clock until three -- also shall be ready to see you at any hour between the earliest and the later.
Enclosed is the Patent for the 587 acre tract (with plat thereof on the back); and a memorandum of my understanding of our agreement; by which the writings are to be drawn.
Mr. Keith has usually done this kind of business for me, and I presume would draw the writing between us as accurately as any other, but it is indifferent to me who the draughtsman is, if professional, and can be correct.
The lease as proposed is prepared to an absolute sale. The usual covenants to enforce building, planting orchard, making meadows-re-enter in case of non-performance, it must be inserted, for although the privilege of becoming the purchaser in fee in seven years is greater, it is no less incumbent on me to attend to the property while the right remains unalienated. To render it unnecessary hereafter to see that these covenants are complied with and to avoid difficulties in securing the Renter, were my inducements for suggesting the alternative or final bargain on the terms proposed in the mem, but I repeat, that I am equally ready to execute the mem.
I am Sir, Y's Very H'bly Serv.,
AIR. ARCH McCLEAN. GEO. WASHINGTON.