by John M. Robortella
Pre-emption Line and Land Surveys in the Phelps and Gorham Purchase in New York State
For centuries, questions have lingered about the survey of the Preemption Line, which was the eastern boundary of the Phelps and Gorham land purchase in western New York State. The line was to have run due north from the 82nd milestone on the Pennsylvania border along a geographic meridian to Lake Ontario. Oliver Phelps planned to make his land office headquarters at Kanadesaga, a Seneca settlement near present-day Geneva, NY. According to reckoning by eye even on the most rudimentary maps of the day, a line drawn north from the 82nd milestone on the Pennsylvania line would pass through Seneca Lake. The Indian settlement would be just west of the line and on the Phelps and Gorham Purchase.
“Pre-emption” is a real estate term meaning the right to acquire land where its ownership is unknown.
Mr. Phelps hired an experienced surveyor of impeccable credentials – Col. Hugh Maxwell (1733–1799), a Revolutionary War veteran – to make the survey. But in Col. Maxwell’s trial survey of June 1788 and his formal survey in July and August of that year, the Pre-emption Line veered to the west. He realized from the trial survey that the course was not following a meridian. He reached the vicinity of present-day State Routes 5 & 20 about four miles west of Kanadesaga and the north end of Seneca Lake, and writes that “ … the general course for fifteen or sixteen miles is bearing west of north.” He did not realize that the general course was bearing west of north from the very start of the survey at the Pennsylvania line. He was closer to a meridian when he ran the formal survey, coming out about a mile west of the settlement and the lake, but the line was still bearing west.
From the results of the trial survey, Mr. Phelps became aware that the line was not where he thought it would be. Without hesitation, he instructed William Walker, his land agent, to move headquarters to Canandaigua, about 15 miles west and a settlement that was certain to be on the Purchase.
Why was Col. Maxwell’s important survey line skewed to the west? Early historians could only speculate on the answer. Some say it was the surveyor’s error, that he did not compensate for the variance between due north on a meridian and the magnetic north pole to which his compass pointed. Others suggested it was fraud – that members of a competing land company infiltrated the survey team and deliberately ran the line to the west to keep the settlement of Kanadesaga outside of the Phelps and Gorham Purchase. Still others wrote that the colonel went to Geneva for supplies, or became ill and went home to Massachusetts, and that his assistants made the error in his absence.
Col. Maxwell kept a notebook of his surveys. When he completed his work in 1789, he took it with him to his home in Heath, MA. It remained in his possession until his death, when it was passed down to his children and grandchildren. Historians writing during the period from 1788 to 1882 perhaps never knew that the notebook existed. It is not cited in any of the published literature until 1882 when Charles F. Milliken, editor of the Ontario County Times, a Canandaigua, NY weekly newspaper, met two of Col. Maxwell’s granddaughters, Abby and Thyrza Maxwell. They made available to him the survey field notes and the letters that Col. Maxwell had written to his wife from western New York. Mr. Milliken transcribed portions of these documents for publication. Another grandchild, William Monroe Maxwell, sent the original notebook to Mr. Milliken in Canandaigua where he and George S. Conover studied it and published excerpts and reports in the Times in 1883 and 1884.
Into the Phelps and Gorham Purchase
Western New York State is the ancestral home of the Seneca, one of the six nations of the Iroquois Confederacy. European interest and influence were felt here as early as the 1600s and sovereignty over the region was in immediate conflict. Because of “off-hand grants by two English kings,” as author Arch Merrill described, New York State and the Commonwealth of Massachusetts both claimed the Genesee Country – the land between Seneca Lake And Lake Erie. Mr. Merrill wrote, “Massachusetts based her claim on a grant by Charles I in 1629 to the Massachusetts Bay Colony of a strip of land extending to the Pacific Ocean. New York claimed the territory by reason of a grant made by Charles II to his brother the Duke of York in 1664.”
The conflicting grants were not an immediate problem. The king and duke had never been here. There were no roads, towns or improvements, and the Seneca remained in possession of the land. There were few visitors.
But the situation changed during Revolutionary times. George Washington sent General Sullivan and his army into western New York to forcibly remove the Native Americans. Villages, cropland and orchards were destroyed. The Seneca fled to the west. This land was now the frontier of the new nation, and its settlement became a priority for the government.
Massachusetts petitioned the Continental Congress in 1784 under Article IX of the Articles of Confederation to resolve the ownership dispute, but before the Federal court could act, the legislatures of New York and Massachusetts appointed representative commissioners with full authority to settle the land claim issue themselves. Their meeting, known as the Hartford Convention, opened on November 30, 1786, in Hartford, CT. In a remarkably short period of time, on December 16 of that year, they reached an agreement – Massachusetts would receive the pre-emption right of the soil, that is, the right to offer the land for sale after the Indian title had been cleared. After the land was sold, New York State would receive sovereignty. News of the agreement was first published in The Massachusetts Gazette on Tuesday, March 13, 1787, and Friday, March 16, 1787.
The commissioners established the eastern boundary of the settled land claim as a meridian line extending north from the 82nd milestone on the Pennsylvania – New York state line to Lake Ontario. It became known as the Pre-emption Line.
Two New England investors and their respective associates – Oliver Phelps and Nathaniel Gorham – both wanted to buy the land from Massachusetts. They knew that whoever made the first purchase would buy at its lowest price. The property could then be surveyed into towns and lots, improved with roads, and sold in smaller parcels at a profit.
Col. Hugh Maxwell: The Christian patriot
Col. Hugh Maxwell, the surveyor hired by Oliver Phelps to establish the Pre-emption Line and the boundaries of the towns in the Phelps and Gorham land purchase in western New York State, was a deeply religious man and a Revolutionary War veteran who was wounded in action at the battle of Bunker Hill. He was known as the “Christian patriot” even before his granddaughter wrote a memoir of his life of that title. No doubt his high standing and reputation, along with his surveying education (limited though it was) and experience in New England, led Mr. Phelps to offer him the chief surveyor’s position. Apparently always in need of money, Col. Maxwell readily accepted.
Col. Maxwell was an educated man, at least more educated than many of his neighbors and the only one among his siblings with any formal schooling. He was interested in politics, followed British and American governmental affairs, and ignited the spark of liberty among his family and fellow citizens. Generous to a fault, he was always spending what little money he had and could never seem to get ahead financially. During the post-Revolutionary War years, he built a well-to-do home for his family, bought more farmland, borrowed money for his youngest son’s education, loaned money (that was never repaid) to friends, and was unsuccessful in his application for a lifetime government pension – to which he felt entitled – because of his war injuries.
He was born on April 23, 1733, in Minterburn, County Tyrone, Ireland, the third of seven children born to Hugh Maxwell (1699 or April 8, 1700–March 19, 1759) and Sarah Corbett Maxwell (1693?–1769). His descendants have traced the Maxwell family lineage to Robert Maxwell of Selkirk, Ireland, 1355.
The colonel’s father was a Scotch Protestant – a Calvinist – and was opposed to the established church of Ireland. Just six weeks after Hugh was born, Hugh Sr., along with his two brothers and two sisters, left Ireland and brought his family to America. A great-great- granddaughter, Mary Eunice Maxwell, described the voyage as tedious. Upon their arrival in New England, Hugh Sr.’s two brothers headed south and his two sisters went to New Hampshire. Hugh Sr., his wife and three children settled in Bedford, MA. In the years after their arrival, four more children were born.
Hugh Sr. died in 1759, “by a fall from a horse,” according to a family history. He is buried in Bedford:
Hugh Maxwell March 19 1759 Aged 59 Years My body turned into dust My dust it shall arise In resurrection of the just To sound Jehovah’s praise
Of the seven Maxwell children, only Hugh “went to school for a short time to learn surveying, which he later practiced with success,” Mary Eunice Maxwell wrote. He took his family’s teachings to heart and wrote in a journal, “My parents early taught me the principles of liberty and religion which have supported me through many difficulties and hardships.” (In all of the letters he wrote to his wife from western New York during his surveying days, Col. Maxwell always restated his deep religious convictions.)