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.