Early Lexington Case Goes to the Supreme Court

Spring being the season for the U.S. Supreme Court to hand down its decisions, it may be interesting to look back at an early decision that involved the estate of one of Lexington’s famous founders and the town’s trustees.

Of course, it involved water.

The facts of McConnell v. Trustees of Town of Lexington (1827) demonstrate the confused state of affairs in early land claims by settlers in what became Lexington.
In 1773, while what we know as Kentucky was still a county of the Virginia Colony, the assembly passed what was called “the land law.” It reserved 640 acres for those who settled a “station” (village) in the western lands. The act stipulated that lots would be laid out for the new towns and divided among the settlers. The intent was to solve the problem of conflicting overlaid (or “shingled”) land claims.

In Lexington’s case, an additional 70 acres was added to the initial reserve of 640 acres. These were laid off as lots and adjoining streets. In May 1782, the legislature of the now-Commonwealth of Virginia passed an act establishing the 710-acre area and conveying the land to the Trustees of the Town of Lexington. The trustees were empowered to deed the lots to those already settled, as well as to future purchasers of available lots.
As was the common practice, the town was laid out in a pattern of “in lots” and “out lots.” An in lot was for the purpose of building a home or business. The accompanying out lot was designated for agricultural purposes. Each lot was numbered, and typically, an in lot and out lot of the same number were paired.

That, at least, was the plan. The execution left something to be desired.
The first problem was with the settlers that preceded the platting. Those who had come first might not wish to have their claim subdivided, or could demand multiple lots as their choosing.
The second problem was the paired numbering of in lots and out lots. Not every case followed this structure – something that would cause confusion in future years.
Third, and most serious, was the lack of proper record keeping. As Chief Justice John Marshall (yes, that John Marshall) wrote for the unanimous decision of the Court:
“The entries of the orders made by the trustees seem to be in great confusion. This may be well accounted for by the then situation of that country. Sometime in the year 1784 or 1785, Robert Parker, then clerk of the board of trustees, was ordered to transcribe their old books. Many of their entries were made on small scraps of paper and on backs of old letters. The book then made out is said to be lost. There is, however, a book of records. The imperfect and confused state of the books made it necessary to resort to the testimony of witnesses to supply facts which the books do not disclose.”

Nothing like getting a group of landowners together to testify as to who owned what forty-five years in the past.

Be that as it may, this is the approach the Supreme Court took in 1827 when it upheld an appeal challenged by Alexander McConnell from the decision of the Seventh Circuit and District Court of Kentucky.

The original suit was filed by McConnell, brother and heir to James McConnell, one of the founders of Lexington who was killed by American Indians in 1782. Alexander waited thirty-three years before filing a claim that James owned In Lot 43 and Out Lot 43.
Early on, the current owners of the property in question were dismissed from the suit, but the town trustees remained as defendants. It seems that, following James’ death, the trustees issued the following order:

“At a meeting of the board of trustees for the Town of Lexington, September 30, 1782, No. 43 in and out lot granted to James McConnell, to be appraised, and the valuation thereof redound to the heirs of said McConnell, deceased.”

(Interestingly, this matter had first been discussed by the trustees on Aug. 14, 1782, but was delayed because the following night the siege at Bryan’s Station began, and four days later the Battle of Blue Licks was fought.)

But the trustees insisted that order did not convey ownership of the property to James. And that the year prior, the trustees had given James the right to operate a tannery on the lot, which also included one of the public wells. The lot, being located inside the stockade that stood on the southwest corner of Mill and Main streets, was considered prime property. The reason why the trustees gave McConnell the right to establish his tannery there was to attract other tradesmen. (In 1787, the trustees granted part of the same lot to John Bradford on which to establish the Kentucke Gazette, the first newspaper west of the Alleghenies. In 1790 or 1791, the trustees established a market house on the lot.)

In fact, the trustees testified their Sept. 30 order was intended to establish the value of the improvements McConnell had made to the lot, not the lot itself.
In the end, Chief Justice Marshall determined that a clerical error had been made that indicated James McConnell owned the lot referred to as “McConnell’s Tan Yard,” and the records “plainly show that in lot No. 18, and out lot No. 38, were granted to James McConnell. …There was no error in dismissing the plaintiff’s bill, and the decree is ‘Affirmed with costs.’”


This article was originally published in Business Lexington on September 9, 2009, and is used with permission. Jamie Millard, the author, was at the time President of the Lexington History Museum, Inc.

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