Haunted by history: colonial land trusts pose national threat.

Author:Martin, Thomas C.


Eighty-five-year-old James O'Hara ([dagger]) of Yorktown, Virginia, may have uncovered a glitch in colonial land conveyances that could open a proverbial Pandora's box of litigation throughout the United States. In his pursuit of a claim of right to an abandoned street in historic Yorktown, O'Hara and his attorney have traced the title of many unoccupied lands of Yorktown back to 1691, the year of the town's establishment. (1) Relying on the abundance of historical documents he amassed for his suit over the abandoned road, O'Hara developed another theory--that all of the unoccupied lands of Yorktown rightfully belong to the individual inhabitants of the town, not the county itself. (2) O'Hara threatens to have a court of law validate this theory in an attempt to prevent the development of Yorktown's waterfront area. (3)

O'Hara's threatened suit brings to light the possibility that any current inhabitant of an area originally established similarly to Yorktown could bring such a suit. The potential ramifications of such suits are far reaching and would likely entangle cities and counties across the country in complex litigation to determine the true ownership of lands once thought to be public.

Virginia's Colonial Assembly, the pre-Revolution incarnation of the commonwealth's present law making body, founded Yorktown in 1691 by passing the Act for Ports. (4) The Act for Ports set aside fifty-acre tracts of land in various port areas in southeastern Virginia, requiring that certain trustees be named in each designated area and assigning the trustees with dividing and selling the subject lands. (5) One of these tracts became Yorktown. (6)

O'Hara's theory is that the Yorktown inhabitants are the beneficiaries of this "trust," and that, when an act of the Virginia Assembly dissolved the trust in 2003, (7) the ownership rights in the public lands still held by the trustees vested in the town's inhabitants and not the county. (8) Although O'Hara intends to prevent only the waterfront lands of Yorktown from being developed, Yorktown is only one of the approximately twenty towns the Act for Ports created. (9) If O'Hara's theory is validated by a court of law, he will put all such towns at risk of similar claims. The potential repercussions of validating this theory would have an impact not only on the cities and towns of Virginia, but on any land in the United States ever set aside in trust for public use. Because of these latent ramifications, a court must find O'Hara's theory invalid.

This Note demonstrates that a theory such as O'Hara's must fail, not only as dictated by history and jurisprudence, but as a matter of public policy. Part I of this Note sets forth the origins and history of Yorktown and the board of trustees which governed it until the board was disbanded in 2003. Part II examines the political and social atmosphere in which the Yorktown Trust was established and postulates that the Colonial Assembly that formed the Yorktown Trust did not intend to make the residents of Yorktown the beneficiaries of the trust. (10) Part III explains how land put in trust for public use and so used for an extended period of time reverts to the general public rather than only to the inhabitants living adjacent to the land, despite any reversionary rights the original grantor may have intended for the subject land. Part IV addresses the potential consequences of giving credence to a theory such as O'Hara's, both locally and nationally. Finally, this Note concludes that both law and public policy demand that lands subject to public trusts be left to the general public rather than revert to the private individuals whose property immediately surrounds the land.


    1. The General Assembly

      On April 10, 1606, King James I granted patents to the Virginia Company to establish two American colonies, one northern colony and one southern colony, both of which were governed by the Council of Virginia. (11) The council was to govern the colonies in accordance with the laws of England and was prohibited from passing any ordinances that would affect "life or limb," (12) restrictions that were quite limiting. Within three years, however, a second charter was granted to the Company and the first legal code ever put into practice in English-speaking America was adopted. (13) It was not until 1619, however, that Virginia's constitution began to take its existing form. (14) In this year, the Company, "[i]n an effort to encourage immigration and to promote a better spirit among the colonists," reorganized the government. (15) The Company established "The General Assembly," giving it the authority to "make, ordain, and enact ... general laws and orders." (16) The original General Assembly membership was to consist of the Governor of Virginia, nineteen other members expressly named by the Company, (17) and "two burgesses out of every town, hundred, or other particular plantation, to be respectively chosen by the inhabitants." (18) Although the Company clearly gave the colonists a voice in the General Assembly through these burgesses, it expressly reserved not only the right to replace any of the nineteen members it placed on the board "from time to time," (19) but also the right of ultimate veto power, asserting that "no law or ordinance" made by the General Assembly had the authority of law without ratification by the King's Court in England. (20)

      The Virginia Company's role in the colony's governance, however, was short lived. By 1623, the Virginia Colony's operations were not yielding the profits that the Virginia Company originally expected, and representatives of the Company requested that the King form a commission to investigate the shortcomings of the undertaking and "recommend such changes in the government of Virginia" as required to punish those responsible and guarantee the future prosperity of the financial venture. (21) After a trial based on the commission's findings, the King effectively revoked the Company's charter in 1624, placing its powers in his own hands. (22) He assumed control of the colony by issuing a special commission to appoint a new governor, Sir Francis Wyatt, and establishing a council to exert his authority over the colony. (23)

      Although the King's replacement of the Company's government suggests that the General Assembly was dissolved, more likely the King-appointed governor and council merely took the place of the governor and council members that previously had been part of the General Assembly, leaving in place the burgesses elected from each town. (24) The fact that the Assembly did not lapse is evidenced by the King's acknowledgment of its competence by granting it authority in 1627 with respect to the tobacco trade. (25) Although the manner in which counties elected burgesses eventually changed, (26) the General Assembly kept essentially the same form, and Virginia was run by colonial rule until the Revolution in 1776.

    2. The Act for Ports

      In 1655, the General Assembly first attempted to encourage the development of hubs for trade in Virginia by passing general legislation that required each county to establish "one or two places and no more" through which all trade was to pass. (27) The Virginia colonists essentially ignored this legislation because the lack of proper facilities in the designated areas made it impractical for masters of shipping vessels to unload their merchandise in these areas. (28) After this failure, and concerned with the fact that colonists refused to plant any other crop than tobacco (the price of which had greatly declined), the General Assembly made another attempt to establish a port town by mandate in 1662. (29)

      On its face, the General Assembly's 1662 Act appears less ambitious than earlier attempts to create port towns in that most of its language focuses on the endeavor to build a single port town in James City. (30) To that end, the Assembly instructed the building of thirty-two brick houses in the town, (31) directing the counties to fund the construction by levying a tax of thirty pounds of tobacco on each inhabitant of the county. (32) The Assembly induced the building of storehouses alongside homes by offering to those undertaking such construction the land on which the buildings were erected free and in fee simple. (33) But the Act endeavored to do more; in the Act's last paragraph, the Assembly instructed that the thirty-pound levy be used to build towns on the York River, the Rappahannock River, the Potomac River, and at Accamack County, each in consecutive years. (34) This Act resulted only in the building of four or five houses in Jamestown, which the British head of Parliament seemed to believe was a success. (35) But this Act, too, was doomed to fail from the start, a failure which the Assembly apparently foresaw: the wording of the preamble demonstrated the Assembly's reluctance to adopt the enactment by drawing attention to the fact that it was under orders to do so. (36) Realizing the true need for port towns, and seemingly undaunted, the General Assembly made yet another attempt to mandate the creation of port towns in 1680. (37)

      Under the 1680 Act, sometimes referred to as the Cohabitation Act of 1680, the Assembly mandated that each county purchase fifty-acre tracts and put them under the control of designated "feofees in trust ... to and for the use of the county," requiring that the feofees sell these tracts only to those individuals that promised to build houses or warehouses on them. (38) Again, however, the strict requirements of this Act made complying with it economically...

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