Commissioned surveyors were not at liberty to refuse reasonable requests for surveys to be made, except in cases involving sickness or some other impediment recognized as legal. The law of 1666 provided that anyone violating this requirement was subject to a fine of 4,000 pounds of tobacco; for charging excessive fees, the fine was 200 pounds of tobacco that could be recovered in the Virginia courts.
Gabriel Hawley, Robert Evelyn, Thomas Loving, Edmund Scarborough, and Alexander Culpeper served as surveyor-general with the last named having Philip Ludwell as his deputy. Upon the chartering of the College of William and Mary surveyors were appointed by the institution, and the appointees were required to contribute to the trustees of the college one-sixth of the fees of the office. The trustees were permitted to delegate the appointments. Consequently in 1692 they designated Miles Cary as surveyor-general, who was instructed to make the selection of surveyors with the aid of a committee named by the trustees.
In addition to the fees of the surveyor, there were other charges that were made from time to time in obtaining a patent in Virginia. Under the company without a legal guide for the fees to be charged, the secretary of the colony apparently demanded at times as much as twenty pounds of tobacco or three pounds sterling when issuing a title for the individual dividends of fifty or 100 acres. Leaders of the company considered this fee unreasonable and took steps to prevent its collection.
Following the dissolution of the company, the Assembly set the fees of the secretary regarding land patents along with other authorized charges. In 1632 the secretary collected thirty pounds of tobacco for issuing a patent plus two pounds for each sheet required to record the document. In 1633 the fee for patents by the secretary was designated as fifteen shillings which could be collected either in tobacco or corn according to current price. Ten years later in 1643 the fee for a patent was again listed in terms of tobacco at fifty pounds with six pounds allowed for each recorded sheet. In lieu of four pounds of tobacco, the secretary was authorized to receive money at the rate of twelve pence for every four pounds of tobacco. At the March session of the legislature in 1657⁄58, the secretary's fees were further raised to eighty pounds of tobacco for issuing and recording a patent; thirty pounds was set as the fee for supplying a copy of the patent later; and fifteen pounds of tobacco was authorized for providing a certificate for land. These same fees of 1657⁄58 were repeated by law in 1661⁄62.
The stamp of the seal of the colony was required during much of the seventeenth century as the final step of approval for a patent, and during most of the time no fee was charged for this. However, under the governorship of Lord Howard which began in April, 1684, a charge of 200 pounds of tobacco was ordered for use of the seal for patents as well as all public documents such as commissions and proclamations. The proceeds from this fee were used by the Governor and were estimated by William Fitzhugh to equal 100,000 pounds of tobacco each year. However, such strong opposition was raised to the charge that it was dropped after 1689.
In addition to controversies over fees, there were many problems that arose in seventeenth-century Virginia over surveys and the identification of boundaries. Surveyors usually took the edge of a stream, either a river or creek, as the base line of the survey and then ran the boundaries for a specified distance along a line at right angle to the base. Terminal points were laid out and witnessed by neighboring owners with some distinguishing mark as a large stone or a tree with three or four chops. In 1679 a question was called to the attention of the Assembly as to the extent of the owner's rights along the water's edge. The case arose over the complaint of Robert Liny that part of his patent along the river had been cleared for fishing but the exercise of his fishing rights had been hampered by trespassing individuals who dragged their seines upon the river's edge, claiming that "The water was the kings majesties ... and therefore equally free to all his majesties subjects to fish in and hale their sceanes on shore...." In answer to this complaint, the Assembly declared that the rights of the patent holder extended into the stream as far as the low water mark, and any person fishing or seining without permission within these bounds was guilty of trespass.
More frequently problems arose as a result of defective surveys either in the first line along the edge of the stream or in a second and third line of patents that were laid out when all land along the streams had been occupied. Some of the surveys were inaccurate because of the lack of graduation on the compass; others were distorted by careless surveyors selecting convenient terminal points such as a tree, a road, or another stream and ignoring the accurate measurement of the line. As early as 1623⁄24, the Assembly ordered that individual land dividends be surveyed and the bounds recorded; and in case serious disputes arose over conflicting boundaries, appeal could be made to the Governor and Council. In an effort to prevent the holder of patents from having to pay for more than one survey of the same grant, the Assembly in 1642⁄43 stated that surveys made by commissioned surveyors were considered valid and bestowed full right of ownership without the necessity and expense of new surveys. Such a provision did not, however, resolve the problem that arose over errors made by commissioned surveyors, errors that may have led a person in good faith to construct buildings on a plot that was later determined to be a part of the patent of his neighbor. Several cases having arisen over this situation, the Assembly in 1642⁄43 and again in 1657⁄58 and 1661⁄62 provided that when one person had unknowingly erected constructions on another person's land, the original owner as shown by survey was to have the right to purchase the improvements at a price fixed by a twelve-man jury. If the amount proved too great for the original owner, then the person seating the land by mistake was to have the option of purchasing the land at a price set by the jury for its value before seating occurred. Beginning with the 1657⁄58 statement of the law, no consideration was to be given if construction had been made after legal warning had been given to desist.
Other legislation was designed to minimize the number of cases of this type that would arise. One provision made in 1646 required the person claiming to be the original owner of the land to file suit against his encroaching neighbor within five years for removal; otherwise possession of the land for five years without contest would prevent recovery by the original claimant. The law exempted orphans from the above provision and permitted them a five-year period after coming of age. A later enactment in 1657⁄58 repeated the provision on orphans and added to the exemption married women and persons of unsound mind. A second provision designed to prevent quarrels among neighbors required a person holding patent to land adjacent to a proposed grant to show the boundaries of his property within twelve months; otherwise the latest grant as surveyed would be valid and would take precedence over the old patent.
But these various laws did not prevent "contentious suites" from arising because of defective surveys when the lines were first run or because the restriction against resurveys did not resolve the boundary disputes. Conflicts continued if the surveyor had been negligent in marking clearly the boundaries, or if lines had become indistinct by the chops in trees filling out, by piles of stones being scattered, or by trees being removed. To prevent "the inconvenience of clandestine surveigh," the Assembly in 1661⁄62 enacted the law of processioning. By this provision the members of each community were to "goe in procession" once every four years to examine and renew, if necessary, the boundary lines. Boundaries acknowledged by the procession as correct were conclusive and prohibited later claims to change them. If controversy arose over the line, the two surveyors accompanying the party were to run the line anew, disputes were to be equitably settled, and the line so laid out to be final. For administration of processioning, the county court was to order the vestry to divide each parish into as many precincts as necessary, and the time set in 1661⁄62 for processioning was between Easter and Whitsunday (seventh Sunday or fiftieth day after Easter). The time was changed in 1691 to the months from September to March as a more convenient period. To assure enforcement of the law, provisions for penalties were included—1,200 pounds of tobacco for any vestry not ordering the processioning and 350 pounds of tobacco for individuals who failed to participate without good reason.
Still other problems concerning land patents related to two important conditions stipulated for perfection of the title to land—the first, "seating and planting," and the second, the collection of a quitrent. With the exception of some of the early grants, the patents of seventeenth-century Virginia required "seating and planting" of the tract within three years. As shown in the form used by Governor William Berkeley during the 1660's, if the patentee "His heirs or assignes doe not seate or plant or cause to be planted or seated on the sayd land within three years next ensueing, then it shall be lawful for any adventurer or planter to make choyse or seate thereupon." The time limit was extended as the exigency demanded. Because of losses from the Indian massacre of 1644, of the shortage of corn, and of the need for additional servants, the Assembly ruled that persons affected by the massacre were permitted three additional years to comply with the requirement for "seating and planting." Following the Indian disturbances of Bacon's Rebellion, the time period for plantations that were attacked was extended to seven years from the date the Assembly passed the act in 1676⁄77.