Keepapitchinin, the Mormon History blog » The Trials of Cora Birdsall: part 2
 


The Trials of Cora Birdsall: part 2

By: Ardis E. Parshall - June 19, 2014

To understand what happened to Cora Birdsall, you need to understand something about land law in the United States.

Wait! Wait! Don’t go away – this is not too boring; it’s brief, and might give you something new to appreciate about Mormon history.

As the United States acquired new territory in western North America in the 19th century, the U.S. claimed ownership of the new territory in the name of the nation. There might already be people on the land when the U.S. acquired it (white people, that is; Indian rights were so often overlooked or violated that they really don’t enter into this story), or people might migrate to settle on the new land. These settlers did not own the land until the U.S. government said they did.

Several laws were passed in the 19th century to regulate the transfer of land ownership from the United States to individual property holders. You have no doubt heard of homesteading (regulated by the 1862 Homestead Act); there was an earlier Pre-emption Act, and an act that pertained specifically to Oregon Territory, and probably others of which I am not aware. Some of those laws required a would-be owner to pay a filing fee, or a per-acre fee when other conditions were met; settlers might have to reside on the land for a certain period, cultivate a certain number of acres, build a house, dig a well, install fencing, plant trees, or whatever other requirements were specified by the relevant law. When those conditions were met, ownership of the land transferred from the federal government to the individual settler.

Providing a way for settlers to acquire the land they lived on was usually high on the government’s priority list when new territories were conquered or purchased. The government wanted people on the land, and people would hesitate to move into a new territory and develop homes and farms if they couldn’t have a legal title to their land.

That didn’t happen in Utah. The first Mormon pioneers arrived in 1847 and just kept coming, but the federal government didn’t get around to providing any way for the Mormons to own the land they developed in Utah until 1869. This may be partly the fault of the Mormons themselves; just before the 1857-58 Utah war, official government surveyors were at work surveying the land preparatory to making it available for individual sale. The Mormons said the surveyors were corrupt; the surveyors said the Mormons were vicious; in any case, the surveyors fled Utah along with most of the rest of the federal appointees. Still, 1857 was a terribly long time after the 1847 arrival, and 1869 was a terribly long time after the 1858 settlement of the Utah War.

All during that time, no one in Utah held legal title to a square inch of ground. They went on building towns and developing farms and sawmills and grist mills, and fencing herd grounds – but there was always the very real risk that they would lose all their investment in time and labor and materials, if the federal government did not provide a way for the people who developed the land to own the land.

The Mormon settlers of Utah couldn’t wait decades for the federal government to do its job. They laid out towns, assigned city lots, surveyed farms, and fenced herd grounds without the blessing of the national government. When one settler sold “his” land to another, deeds were signed that were like deeds everywhere, but with one important difference: because the seller couldn’t actually sell the land, he sold the improvements he had made: houses, orchards, gardens, canals, whatever. Deeds were quitclaims rather than warranties – “I can’t sell you this because I don’t own it, but I do sell you whatever right I may have to it, plus the improvements I have placed upon it.”

The practices adopted by the Mormons had their genesis in policies established by Brigham Young following the Nauvoo exodus, when whole communities were established on the public domain in Iowa. Learning from the Kirtland experience to guard against land speculation, the cardinal Mormon land law expressed by Brigham Young at Garden Grove was, “No man shall hold more land than he can cultivate.” This principle was reiterated in the first days of the Salt Lake settlement: “No man should buy or sell land. Every man should have his land measured off to him … He might till it as he pleased, but he should be industrious and take care of it.”

When federal land law finally arrived in Utah, no one was surprised to find that the parcels offered for sale or homestead bore no relationship to the traditional property lines of the settlers. Your farm might fall on both sides of a federal quarter-section line, leaving you unable to homestead part of your farm. One parcel offered for sale by the federal government might contain the lands traditionally occupied by a dozen settlers, especially where Mormons tended to cluster in villages with everyone going out to farm relatively small pieces of the same nearby fields.

Mormons developed a body of traditional, home-grown law to deal with the situation, one that depended on following “equity,” “mercy”, and the “spirit”, rather than the strict letter of the federal law. When a Mormon purchased or filed a homestead on a federal parcel that included land traditionally occupied by his neighbors, he was bound by Mormon custom to transfer that land to its traditional owners when those traditional owners paid their proportional share of the fees owed to the government. Some, in fact, filed papers openly identifying themselves as “trustees” in order to secure title to temples and communally-held fields, although that violated the federal technicality that land could be homesteaded only by a person actually living there.

Many hundreds of examples in the land records demonstrate that, by and large, these transfers between the holders of federal title and the traditional possessors of the land were completed without a snag. When disputes did arise, the preferred method of arbitration between Mormons was, as with other types of disputes, the bishops’ courts. These courts could not rely on law alone, else the possessor of federal title would invariably be successful, leaving families who had worked and improved the land for years unfairly dispossessed. Bishops’ courts focused on equity rather than law – What were the verbal agreements and traditional uses? What did each party understand? What was fair? Of course, parties were bound to accept decisions of bishops’ courts only by their allegiance to the Church, and the only power such courts had to enforce their decisions was through extending or withdrawing Church fellowship. Although difficult to find, available records of such courts indicate that they successfully resolved many disputes. Bishops’ courts continued to arbitrate land disputes throughout the 1870s and ’80s, but with the approach of statehood and the pressure to make a clearer division between civil and ecclesiastical jurisdictions, the Church theoretically withdrew from land arbitration. By January 1896, when asked to clarify several points in its court system, the Church stated, “In cases involving title to lands … the Church courts would not consider them if requested to do so … it will not attempt the adjustment of any controversy where there might be a possibility of conflict with the laws of the land.”

This body of traditional Mormon land law had developed long before the Birdsalls moved to Utah in 1881. In 1882 when Isaac, not yet a Mormon, settled on land he wished to own, the land law he knew best was the Homestead Act under which he had acquired his quarter-section on the Nebraska prairie. According to the later testimony of Mary Margaret, “We wrote to the land office… and found that the land was vacant. We took the land.”

Taking the land was one thing. Holding it would prove to be another.

(Part 1) (Part 2) (Part 3) (Part 4) (Part 5) (Part 6) (Part 7) (Part 8)



18 Comments »

  1. Whatever makes you think that we’d find a discussion of property law boring? This has been the high point of my morning!

    Comment by Mark B. — June 19, 2014 @ 6:40 am

  2. Laces untying … first shoe getting ready to drop …

    Comment by Gary Bergera — June 19, 2014 @ 8:08 am

  3. This information could help to solve a few mysteries in my own family history. There are a couple of my ancestors who had radical changes of course that seemed unnatural to me. They occurred in 1869 and 1870. Not having an understanding of these land laws, it had not occurred to me that they may have been motivated by losing or gaining property rights. Unbelievable to think of all that developed in the first 22 years of settlement, without anyone holding a deed to the place they lived and/or worked.

    Comment by Carl C. — June 19, 2014 @ 8:19 am

  4. This is excellent!

    As a federal land law attorney myself, you are spot on. (Could you maybe explain this all to the Utah State Legislature?

    I only add one little detail we sometimes have fun with: a land patent (homestead, mining law, whatever) received from the federal government is only a quitclaim deed as well. It’s not that the feds don’t own it to convey it, we just won’t guarantee your title or defend against other claims for the land. This leaves the burden on the entryman (a legal term for a person entering the public lands)to prove his/her claim. It is intended as a “gender-neutral” term which I hope is not a hint as to where this story is going.

    Comment by Grant — June 19, 2014 @ 8:21 am

  5. One of the unusual aspects of California statehood was that all prior Mexican land grants were supposed to be respected. (In many cases, they weren’t.)

    Comment by LauraN — June 19, 2014 @ 8:48 am

  6. And you thought anybody would find a discussion of land titles boring???

    Comment by Mark B. — June 19, 2014 @ 8:59 am

  7. Yes, LauraN. Pursuant to the Treaty of Guadalupe Hidalgo, all former citizens of Mexico living within the land acquired by the US as a result of the War with Mexico were automatically US Citizens and their Mexican or Spanish land grants were to remain valid. There was much abuse in California and in New Mexico. My favorite irony of work was in New Mexico where Anglo ranchers were claiming rights under Guadalupe Hidalgo on federal public lands when their grandpas had cheated out the original grant holders. They usually lost. (oops, I hope I’m not giving any ideas to the Bundys or the residents of Blanding.)

    But it was cool in valid cases to see original land grants from “the King of Spain.”

    Comment by Grant — June 19, 2014 @ 8:59 am

  8. Well, this is a relief, to see not only the interest but to have the general endorsement of a couple of Those Who Know to my layman’s understanding of the situation. I’m hoping a psychologist or psychiatrist among the Keepa’ninnies is following this and will comment on later developments for the same reason.

    Carl C., I truly appreciate your comment. Family history and the broader field of history have so much to contribute to each other. We can’t understand history if we don’t understand human nature and people’s relationships; we can’t really understand family history in a vacuum without looking at what outside forces caused them to act as they did. I hope this does help you, and I’m very glad to have you make this point.

    Gary, yes, the first shoe is about to drop. I promise not to string everybody along much longer with ominous hints of horrors to come, but I think Cora’s dramatic story will flow much better now that we have her origins and this legal understanding under our belts, so that the real story doesn’t have to be interrupted once it gets rolling.

    Comment by Ardis E. Parshall — June 19, 2014 @ 9:52 am

  9. This is a cool post. It helps me understand a person I have been tracking.
    Robert Coleman, a young man from Tennessee, helped B. H. Roberts retrieve the bodies of Gibbs and Berry. At the time Robert was not a member of the Church, but it turns out that he later did get baptized and moved to Utah. Once there Robert entered into a homesteading land deal which ended in dispute with him on the losing side. I don’t have many details, but this helps me understand what might have happened. After the deal soured he drifted away from the Church and from the historical record. I’m sure he wasn’t the only one.

    Comment by Bruce Crow — June 19, 2014 @ 10:25 am

  10. Since they involve church courts, which are treated as confidential no matter how much time passes, it would likely be difficult to gather enough cases to make a real study. But I do wonder how many of the “sour deals” involved people who came from elsewhere and either were not told about or did not understand the Utah peculiarities until those peculiarities surfaced in a bishop’s court.

    Comment by Ardis E. Parshall — June 19, 2014 @ 10:54 am

  11. This is a useful summary. I’ve been meaning to write a guest post for awhile about the land claims in St. George in the early 1870s, since the filings are so interesting, although sometimes more in their entirety than in specifics, and perhaps I’ll get around to that this year.

    For those who are interested in more information on this topic, Thomas Alexander has a recent article in the Utah Historical Quarterly (Spring 2012):

    Conflict and Fraud: Utah Public Land Surveys in the 1850s, the Subsequent Investigation and Problems with the Land Disposal System

    Comment by Amy T — June 19, 2014 @ 11:11 am

  12. Oh, Tom Alexander! That guy beats me to EVERYthing! :)

    Comment by Ardis E. Parshall — June 19, 2014 @ 11:37 am

  13. This reminds me of Orson Scott Card’s speech/essay about the context of the Book of Mormon.

    http://www.nauvoo.com/library/card-bookofmormon.html

    In history, people don’t write about the cultural things like property ownership that are just normal life to them. But when we put our own norms into their stories, things don’t make sense. I had never thought about property ownership in Utah. The land was there and people showed up. Who cares?

    Here’s part of Card’s essay:

    “Even now, today, we have assumptions that we do not think to question. Assumptions about property ownership, for example, which are really not that widespread through time — but our fiction invariably assumes that people own the things they own and will continue to own them for quite some time. We even have the ludicrous assumption that after we’re dead we still have the right to control the disposition of our property, and pass it along to our heirs. What a silly notion, really — but it’s not questioned in our fiction. (Of course, now that I’ve questioned it, you’ll be aware of it — but even at this moment some of you are incapable of understanding how property could be handled any other way; you are so deeply involved in American culture of the 1990s you can’t even comprehend the Doctrine and Covenants.)”

    Comment by Carol — June 19, 2014 @ 11:55 am

  14. Thanks for the explanation of the land ownership issues. I knew that no one held title to lands in Utah when the pioneers arrived in 1847 and for some time thereafter, but I had no idea how it all worked out. Makes me think I should have looked for land issues when I had a chance to browse through Bleak’s “Annals of the Southern Utah Mission,” or whatever his historical collection was called, but I was looking for something else.

    Still, this was fascinating, despite the inward groan I had when I read “Land Law in the United States.” On the other hand, I am somewhat more aware of water rights issues in the west, and that is certainly not a dull topic, either, so I shouldn’t have been surprised.

    Now, though, I feel like I am watching Tippi Hedren in Hitchcock’s “The Birds,” screaming “Don’t go up the stairs!” But she does anyway, just as apparently Cora has some sort of equivalent experience.

    Comment by kevinf — June 19, 2014 @ 12:17 pm

  15. Someone (perhaps J.?) mentioned recently that the Bleak collection has been digitized, another of the great digital treasures of the Church History Library…

    …drum roll…

    Annals of the Southern Utah Mission (1850-1900)

    Comment by Amy T — June 19, 2014 @ 12:43 pm

  16. Amy, cool!

    Comment by kevinf — June 19, 2014 @ 12:46 pm

  17. For all of OSC’s criticism of our ties to notions of private property that can be controlled during life and beyond (except, of course, if our ownership is limited to a life estate!), we’d have to throw out a huge chunk of 19th Century English literature if it were not for all the excitement that land ownership brings.

    Throw out most of Jane Austen and almost all of Dickens for starters. Add Trollope to the heap. And a lot more that doesn’t come to mind.

    And then move into the 20th century, and delete that lovely scene in Two Kill a Mockingbird (I’d fix that typo but it’s such an amusing image that I hate to) where Scout assures Mr. Cunningham that “entails are bad.” And forget Downton Abbey and Kind Hearts and Coronets.

    So, it may run counter to the economy of God, but it makes for great art!

    Comment by Mark B. — June 19, 2014 @ 12:52 pm

  18. I join those commentators who said that they enjoyed this post. Property law was my favorite course in law school, and this was both informative and interesting.

    As for the serial nature of presenting this story, I have to say that I feel some kinship to with those 19th-century readers as they anxiously waited for the next installment to be published in their magazine/newspaper.

    Comment by David Y. — June 19, 2014 @ 1:56 pm

Leave a comment

RSS feed for comments on this post.
TrackBack URI