Benjamin Harrison Smith, Land Titles, and the West Virginia Constitution

Perhaps no single person in West Virginia’s history has been as influential in the creation of a legal framework to provide clear titles for land transfers as Benjamin Harrison Smith. This history of quieting land titles shows the primary role played by Smith, and provides a new interpretation of the impact of the 1862 and 1872 West Virginia Constitutional Conventions as they relate to waste and unappropriated land, delinquent land, and forfeited land.¹

The quieting of land titles refers to the process of settling ownership conflicts. It provides for clear and marketable title to land. Clear title to lands in western Virginia had been an ongoing problem since the eighteenth-century land grants to large land companies such as the Ohio Company, the Greenbrier Company, and the Loyal Company.²

This history of quieting land titles in West Virginia adds a new dimension to the established historical narrative of absentee landowner exploitation and the victimization of smaller local landowners. Who held title to the land was just as important to local businesses and farmers as it was to industrialists. The point for the current discussion is not the ills of absentee landowner exploitation, but rather to explain how the legal infrastructure was put in place that allowed land to be owned and developed without fear of a clouded title by some land patentee in Virginia, Maryland, or New York. However, the quieting of claims on land titles did become one of the foundations for local and regional economic development as West Virginia moved into the period of dramatic growth between the 1880s and the 1920s. The state’s economic development, especially its natural resources, has been largely predicated on the basis of property law as defined, interpreted, litigated, and implemented by Smith, his contemporaries, and the major West Virginia law firms which followed.³

Benjamin Harrison Smith was a central player in clarifying and reaf-firming landowners’ rights in a time of westward expansion and poorly defined landownership laws. He was one of the first to formally address the fundamental difference between smaller local landowners and the large out-of-state landowners. He was active in strengthening land title law whether it be as a legislator, as a practicing lawyer, or as a delegate to constitutional conventions.

William A. MacCorkle referred to Smith as one of the lawyers who “practically wrote the land law of Virginia so far as it applied to western Virginia.”⁴ W. S. Laidley said that Smith made the study of land laws a lifetime effort. Laidley’s description of the environment within which Smith practiced law is telling and helps explain why Smith felt compelled to reform the system. “In Virginia and especially in the western part, where there was much speculation in lands, the mode of acquiring title to land was probably more loose and uncertain than elsewhere, and the land law of forfeiture of title for non-payment of tax, the law of possession under the statue of limitation, made the subject complicated.”⁵ MacCorkle put it more succinctly, “The land law of West Virginia is peculiar, and many of the statutes were made for the land west of the Alleghenies.”⁶

Historical Context of West Virginia Real Property Title Law

George Washington’s experience provides an interesting illustration of Laidley’s and MacCorkle’s observations. In 1769, Washington petitioned the colonial government requesting 200,000 acres as bounty lands for himself and other soldiers who had enlisted in the First Virginia Regiment in 1754 under terms of a proclamation set forth by then Governor Dinwiddie. Washington would spend much of the rest of his life defending encroachments on the titles to the 60,200 acres which he held in his name at the time of his death. Included in these holdings, as Joseph J. Ellis states, was the “Motherlode,” two huge tracts on the Ohio and Great Kanawha.⁷ Washington was acting as an individual owner, but his motivation and concerns were similar to the land companies. The Greenbrier Company, as an example, had in excess of tens of thousands of acres in...