by Steven Stoll
The mere act of selling land took on different meaning in western Virginia. Imagine a game with hundreds of rules but all sorts of exceptions. Every squatter making a bid for ownership and every absentee with a colonial deed navigated the most fraudulent, dysfunctional, and maddeningly complicated property regime in the United States. Virginia had no clear entry procedure and no standardized method of survey, leading to shingled boundaries and multiple grants of the same land to different people. Agrarians thrived when the legal crevices they could exploit were as deep and rich as the geographical ones they inhabited.54
The reason that so many of them lived with impunity on private land was that much of that land belonged to a handful of people, none of whom did anything with it. Whether settlers knew it or not, they had likely trespassed on one of the largest estates in the history of North America. Its first owner was Wilson Cary Nicholas, a Virginia Federalist who served as U.S. senator and governor of Virginia. Like George Washington, Nicholas didn’t buy this domain. Virginia gave it to him. He likely owned 1 million acres by 1795, including almost the entire drainage of the Guyandotte River in what became McDowell County and the Flat Top Coalfield. A year later, he sold it to Robert Morris, the financier and signer of the Declaration of Independence. Morris already owned 500,000 acres in Virginia. His grants and purchases throughout the southern mountains likely summed to more than 8 million acres. Why did the legislators and governors of Virginia give all that land away?
They knew it had no value. Little of it could be planted in cotton or any other commodity crop. Granting made sense for more than one reason. The original thirteen states owned nothing but land, but they found no buyers. From the point of view of politicians and boosters, leaving it alone would have forfeited it to the Shawnee. It would have defined millions of acres as a dead asset, a wilderness liability. Turning all those hollows into profit-making space first required turning them into real estate. Legal property required owners to pay property taxes, ensuring at least some revenue. A tax burden, it was hoped, would encourage the grantees to kick-start the transformation of quiet woods into profit-making space. Virginia’s leadership anticipated some form of development at some time in the future, even if they didn’t know what that would be. But without a doubt, the tangle of watersheds would earn nothing if it remained the property of the state.
Yet while all that land made financiers important, it did not make them rich. Morris found out the hard way that they call it speculation for a reason: using land to store value is risky. Other capitalists invested in trade. New England merchants opened up communication with China at around the same time, accumulating the capital they would advance into manufacturing after 1815. But Morris, the would-be baron of the wilderness, couldn’t squeeze enough money out of his fiefdom to pay his debts. He declared bankruptcy in 1798 and spent the next two and a half years in Philadelphia’s Prune Street Jail. He died broke in 1806. Albert Gallatin, Thomas Jefferson’s secretary of the Treasury, understood better than Morris that speculation kept land locked away from the only people who actually increased its worth—settlers. Gallatin also knew that the people he and Jefferson championed did not wait for legislators to act before they went where they pleased and took what they wanted.55
Morris lost a kingdom that he had never ruled. The swidden-and-cabin folk hunted deer, gathered ramps, and planted corn and beans as though the forest belonged to them. A variety of use-right customs continued under the awareness and without the knowledge of absentee owners. For about a century, households came and went in hollows that they used without paying anyone. Use without ownership triumphed over ownership without use. Squatter households eventually claimed to own land they had improved, establishing boundaries with neighbors as best they could. They wrote their own deeds or asked a literate relative to do it for them. Often they filed these deeds at the county courthouse, but not always. Sometimes they paid taxes on land owned by absentees as a way to establish a claim to it, but not always. All deeds were written in the language of geographical features, by the English practice of describing land by metes (or terminal points) and bounds (like rivers). Deeds give us a sense of how people understood the capillary landscape. One farm embraced an area from the white oaks by the bend in the creek, west to the smooth rock, fifty rods north to the three chestnut trees, then east as far as the dogwood on the top of the spur, southeast to a walnut stump, and back to the oaks.
Sometime around 1820, William “Billy” Floyd Belcher and Sarah Elizabeth Kingery Belcher moved with their four children from Tazewell, Virginia, through Peeled Chestnut Gap to enter the Appalachian Plateau. They settled at a place known today as Big Four, taking up the north side of Elkhorn Creek, part of a vast tributary system. They built a cabin on a riverbank once owned by Robert Morris. Did they know about Morris’s bankruptcy and death? They might have. Perhaps they moved when they did with the expectation that land locked up for decades no longer had an owner. They had reason to think this. After Morris died, his creditors seem to have concluded that his only asset was worthless. They wrote off their losses, allowing the entire estate to be forfeited to the Commonwealth of Virginia for nonpayment of taxes. Between 1815 and 1832, the whole thing sat in a fund for schools. But then the state changed course. In 1832, Virginia released all of Morris’s delinquent land. Anyone willing to pay the back taxes, plus interest, could buy whatever they wanted. Land not redeemed (meaning its taxes were paid) by 1838 would be exposed to sale without qualification. This might have been what the Belchers had been waiting for.56
The Belchers proliferated. They moved along Elkhorn Creek, spreading out over an area of about two hundred square miles. Billy Belcher might never have owned an acre of land in his life, but his son did. Between 1850 and 1857, William Belcher, Jr., received full title to 326 acres, all located on the ridge separating Tug Fork from Elkhorn Creek. Some mountaineers became landowners, but most continued to trade their own deeds for land with disputed or overlapping titles. They might have believed that after the breakup of the Nicholas and Morris estates, ownership had reverted to them. They were wrong.57
The game of squatting in the crevices worked only as long as absentee landowners remained remote and unwitting. This is what began to change. First, landowners asked legislatures to secure their titles, whether or not they visited their land or did anything with it. In 1826, lawmakers in Kentucky wrote one of the first laws intended to fortify the rights of absentees: “It is of great concern to the quiet and happiness of society … that the tenure of landed estates in this Commonwealth should be fixed and stable.” Kentucky, they promised, would act to “confirm existing interests.” Second, new investors moved into West Virginia after 1832. They paid the back taxes on old grants and organized some of the first companies for cutting lumber and mining iron. Few of them actually extracted anything, but what is important is that they operated with a new model, not speculation but direct extraction. The Belchers and Tottens were also on the move. Their children needed farms of their own, as would their children after them. But the deeds they wrote and traded conflicted with the ones written in law offices in Wheeling, Charleston, and Richmond. As the two classes—agrarian and capitalist—ran into each other with increasing frequency, they ended up in court. By the 1840s, the Commonwealth of Virginia confronted the problem of whose deeds—indeed, which species of deed—would prevail.58
All rights to property come from governments, which modify these rights to serve their most powerful constituents. English common law recognizes the jus and the seisina, the title that comes from law and the one derived after years of illegal but flagrant occupancy, called adverse possession. The Commonwealth of Virginia acknowledged that people high in the hills who had never paid for their farms made legitimate claims to land that had been neglected by absentees. At this point, the General Assembly could have strengthened the principle of adverse possession. They could have granted title to anyone who demonstrated that a distant owner had failed to put up a fence or turn a spade
in ten or fifteen years. But politicians, many of whom were owners themselves, were not about to transfer millions of acres to the Belchers and Tottens. They were not about to reinforce the rights of households over those of capitalists at the moment when extraction looked to be technologically feasible. The political leadership needed a legal device that acknowledged certain rights without delivering outright ownership.
Judges throughout the southern mountains began to promulgate an inferior right of occupancy, a kind of squatter’s title. In the 1820s and 1830s, courts in Kentucky, Alabama, and North Carolina used the phrase “color of title,” meaning the appearance or façade of ownership. Said one judge, “Color of title is a legal fiction … a device whereby to secure to the settler that which strongly appealed to their inherent sense of fairness.” The Commonwealth of Virginia passed a law to this effect in 1849. This and other laws began to define officially deeded and recorded real estate as having a senior patent. Anyone who lived in a hollow that belonged to someone else could regard that land as property in practice but not in fact. This was called a junior patent, really just a use-right that extended only to areas plowed and planted, only to the homeplace. Residents with color of title did not own the land they tilled, but they could “buy” and “sell” their use-rights nonetheless. In other words, color of title created a second-class market that actually reinforced the first-class status of the one dominated by elites. The system bought time for absentees, allowing them to form their companies and cut their deals without having to worry about who actually owned a piece of land. None of this meant that a household couldn’t challenge an absentee, but it made success less likely.59
Color of title handed them an incalculable tool in the structural war. But dispossession in the southern mountains, like in England and Ireland a century earlier, followed more than one script: freely agreed-upon purchase, trickery and bamboozlement, judicial process, environmental destruction, and handcuffs.
One of the most important methods involved fracturing the meaning of land itself. William H. Edwards acquired more than eighty thousand acres in the upper Kanawha Valley. With other investors located in New York, Philadelphia, and England, he incorporated the Paint Creek Coal and Iron Mining and Manufacturing Company in 1849. Nine years later, Edwards prepared suits to remove the residents. But he had a problem. Challenges to deeds and ejectments jammed the county courts. Edwards might have won every dispute, but each required its hearing and trial, committing him to years of litigation. His attorneys might have advised him to find another way. As the first of his ejectment cases was about to begin, he made an offer to the defendants. He would not contest their deeds if they gave him rights to the minerals beneath their fields and woodlots. Likely bewildered and misled into thinking that they had prevailed, many of the residents compromised their already compromised titles.
Edwards did not invent this practice, though he might have been the first to use it in the southern mountains. (There is reference to “spirited adventurers” in Cornwall, England, in 1811 who bought rights to search for silver.) At first, mountaineers probably didn’t know what it would mean for Edwards to exercise his right. Excavating coal requires access to the surface. It requires roads cut through hollows, dams spanned across creeks, and hillsides blown to gravel. What they actually owned, in effect, amounted to little or nothing as a consequence of what they traded away. The same thing happened all over western Virginia and elsewhere in Appalachia during the 1840s and 1850s. In some places, major disputes over who owned what had been resolved by the time full-throttle industrialization began. More than a century later, Cody Dickens of Raleigh County, West Virginia, remembered how the Rowland Land Company arrived while his father was hoeing corn. “They went on top that mountain, where he was hoeing corn … and they said well … make a deal with you … You make us a deed to the mineral rights, and we’ll make you a clear deed to the surface. That’s the way the Rowland Land Company got it all. The old people didn’t know what they was doing.”60
But the old people had their reasons. They sold their subterranean real estate to relieve the stress of debt, environmental depletion, and vanishing outlets for the sale of their diminishing yields. They liquidated this asset for the same reasons they worked for wages—to replace the hard money that no longer flowed through their hands. As the historian Robert Weise explains, “They did so with an eye toward shoring up the fleeting independence and elusive security that defined the household economy. For them, mineral sales meant a new way to deal with the continuing problem of debt.” Weise makes the point that many compromised their titles as a way of saving their farms.61
Then came the Civil War, and the explorations of the Confederate cartographer Jed Hotchkiss. When the Philadelphia capitalists asked Hotchkiss to conduct a formal survey of Flat Top Mountain, he hired a former Confederate captain and civil engineer named Isaiah Welch to do the groundwork. Sniffing around McDowell County, Welch documented a seam thirteen feet thick at Laurel Creek. Flat Top Coal organized and made its first delivery in 1883. Then the company pivoted. It renamed itself the Flat Top Land Trust and set out to acquire surface and mineral rights, which it then leased to coal operators. It established offices at Pocahontas, Virginia, but immediately set out to acquire property on the other side of the state line, in McDowell County, West Virginia, especially along the Tug Fork River and Elkhorn Creek, homeplace of the Tottens and the Belchers.62
Agents performed surveys and examined deeds against country records. They set out to catch every error and missed step that would make a given tract vulnerable. But they found local practices perplexing, if not maddening. Wrote one investigator, “It would seem that all the lands of James M. Totten [father of T. K. Totten] were forfeited [by failure to pay taxes] because none of them appear to have been consecutively on the books. While the lands entered year to year are so entirely different in quantity as to puzzle one how they came there.” One tract changed hands in one configuration one year, then as two smaller tracts the next year within the same family. Then it was deeded to other family members who were not named. Then it disappeared from the books for a year before reappearing. A farm might be described in a deed as having one owner, then appear in county records under a different name. “How could land certified by the [tax] auditor as having been forfeited and not redeemed be alternatively redeemed?” Perhaps someone with local influence had let his taxes lapse and asked the help of an aspiring officeholder or his cousin or someone who owed him a favor. The company’s complaints suggest the kinship ties and procedural informality of local government.63
A deed might seem like an impersonal legal instrument, but local deeds told stories and traced the transfer of land between and within families. Between 1875 and 1895, members of the Belcher family made at least one hundred exchanges, with approximately seventy-five of those between individuals named Belcher. One farm went from Tobias to Andrew in 1871 and to another relative in 1875. Owen deeded to Tobias, who turned it over to Henry, who turned it over to John T., who turned it over to Andrew. Belchers also traded land with Lamberts and Tottens. Since the families were intertwined by marriage, cabins and their adjoining fields and woods ping-ponged inside the same group. These documents sometimes mentioned money but not often, because they recorded transfers, which were not necessarily the same thing as sales. The notion that mountain people did everything on a handshake and never wrote things down isn’t true. They seemed to have written deeds obsessively even if some of these documents remained within the family, never entering into county records.64
The Belchers and the Tottens also sold land to mining companies. A series of letters reveal direct dealings between highlanders and the Flat Top Land Trust, sometimes through speculators. In one instance, John C. Belcher wrote to the trust after the sale of his father-in-law’s farm. He asked permission for the elderly man to live out his life there. Belcher had spoken to a manager the year before, in 1882, at the courthouse in McDowell County. “You told me that I could have the ben
efit of the orchard and the grazing of the place[.] he wants to cultivate some ground[,] if you have no objection[.] [he will] take care of the fencing as well as he can[.] write to me as soon as possible[.] yours truly[,] John C. Belcher.” The letter illustrates a common arrangement in the process of dispossession: use-rights separated from ownership as an intermediate step to removing people.65
A second letter is more complicated but reveals all sorts of relationships often invisible to historians. A member of the Belcher family wrote on behalf of a family member or a neighbor. The recipient was James W. Davis, a land speculator and attorney who represented Flat Top: “Enclosed you will find leases of Hill H. Cecil. Cecil is on your land in a House he built some time ago and left it and another man had taken possession and sold his improvements to a Mr Edwards. Mr Edwards wants Cecil to give him possession[.] you will have to decide between them … Truly yours[,] G. W. Belcher.”
Cecil had rented out land owned by Davis, who appears not to have known that Cecil lived there. Cecil then sold or abandoned it to another man, who sold it to Edwards. (He could have been the same William H. Edwards who was buying up land in the same region at the time.) Edwards did some due diligence and found that the last recorded deed belonged to Cecil. Three weeks later, Belcher again wrote to Davis, telling him that Edwards had “taken out a warrant from a justice in McDowell and has dispossessed Cecil.” In other words, Edwards convinced a judge to uphold his deed.66
The land belonged to Davis, but that didn’t stop three people from exchanging deeds for it. And yet, something else was going on. Someone in the Belcher family decided to tell Davis the whole story. Did they want to stop Edwards? Or did they take pleasure in grinding the whole mess in Davis’s face? There is no way of knowing. The point is that speculators and financiers didn’t have control over their property. If Edwards believed he had title, then he and Davis would have had to fight it out in court. In the meantime, the next person to move into the cabin probably hunted at will and planted a garden.67
