Protester May Have Been Railroaded

Times Staff Writer

Amid the tangle of fact and myth surrounding a California legend, one thing is certain: The “charming dark-eyed beauty” who defied a powerful railroad was herself derailed and jailed, becoming Orange County’s first convicted felon.

The saga of Modesta Avila, however imperfect, has proved remarkably durable. In 1889, the year Orange County became a county, she was convicted of obstructing a railroad right-of-way, which she did to protest the Santa Fe Railroad’s noise, dirt and trespassing. Legend says she did it by stringing her laundry across the track.

More than a century later, in 2002, she inspired a group of activists protesting plans for a new railroad track through San Juan Capistrano’s historic district. They aired their political laundry by hanging a T-shirt on a clothesline strung across the tracks.


An opera recounting Avila’s story was composed and staged in 1986. And for the county’s centennial in 1989, the YWCA of Orange County included her among 30 notable women on its poster “Legacy of Courage.”

The opera, about an ordinary woman who stands up to corporate arrogance, only to be cruelly swept aside, was written by Costa Mesa biomedical engineer George G. Siposs. It was staged twice in Westminster.

Was the woman who served nearly three years in San Quentin really a lawbreaker, or simply a victim of political ambition? Was her conviction linked to her ethnicity, or was it punishment for unwomanly behavior? Or was the story a mixture of all these factors?

The mighty Santa Fe said that she had used a railroad tie to obstruct the track but that the tie had been removed before the train arrived. She died in San Quentin of a fever, just before her release date, at age 24.

Modesta Avila was born in 1867 in a tiny shack north of what would become the San Juan Capistrano depot. Her parents were farm laborers. She was one of the youngest of seven siblings, the only one who could read and write, thanks to the new local school.

At an age when most women were married and having children, Avila chose to live alone and independently on a three-acre plot on the family land, where she raised chickens.

There are conflicting stories about whether the Avila land had been sold, but the entire family still lived on the property -- including Modesta on her isolated plot.

In 1889, when Avila was 22, the tracks of Santa Fe’s California Central were laid right through the plot, just 15 feet from her front door. The noise from the train and its whistle disturbed her sleep and stopped her chickens from laying eggs. The rest of her family lived more than a football field’s distance from the tracks and evidently was undisturbed.

(The Santa Fe’s actions might have been perfectly legal. In any case, this was an era in which railroads were used to getting their way. More than a decade earlier, the Southern Pacific had tried hurriedly and stealthily to lay tracks on a weekend -- when courts were closed -- across the property of land baron James Irvine. Irvine sent shotgun-toting ranch hands out to block the crew, which retreated.) Avila decided something had to be done.

The stories say that in June 1889 Avila defiantly strung her wet laundry on a line across the Santa Fe tracks.

The railroad version centers on the loose railroad tie.

Historian Lisbeth Haas wrote in “Conquests and Historical Identities in California” that Avila hammered a fencepost upright into the earth between the rails and nailed onto it a note in English that read: “This land belongs to me. And if the railroad wants to run here, they will have to pay me $10,000.”

At the time, the incident was considered too trivial for railroad agent Max Mendelson to report. He removed the obstruction, as Avila sat on her doorstep watching, and he warned her not to interfere again. During their brief conversation, Avila either misunderstood Mendelson and believed the railroad would pay her, or the agent led her to believe that it would.

Celebrating her good fortune, she held a loud, lively dance for her friends and family in Santa Ana, where she was arrested for disturbing the peace. Haas wrote that, as Avila was being arraigned, she told the judge that she had just been enjoying her triumph over the railroad, and he ordered her released. She went home talking high and wide about how she had bested the railroad.

But on Oct. 15, she was arrested for the June incident, accused of obstructing a railroad track.

Orange County had just declared its independence from Los Angeles County, and the new jurisdiction was testing its strength. It had lost its first felony prosecution -- accused horse thief Juan Ring had been acquitted -- and county officials saw a sure-fire conviction in Modesta Avila.

Avila was already something of a three-strikes offender in the eyes of authorities. “Anglo Americans’ race and gender prejudices deeply colored their interpretations of Modesta Avila,” historian Haas wrote. Her unwed status, her independent ways and the fact that she had spent a month in a Los Angeles jail in 1888 for “vagrancy” -- a legal euphemism for prostitution -- were a godsend to prosecutors. “Her reputation was cited unfavorably more than once,” Haas wrote.

Her trial began on Oct. 22, 1889. The judge was James William Towner, a bearded, one-eyed Civil War hero. More than a decade earlier, when Victoria Woodhull had run for president on a free love and women’s suffrage platform, Towner had been a free love advocate. But by the time he sat on the Orange County bench, he was a law-and-order advocate.

The district attorney prosecuting Avila was Eugene Edwards. He was also the state assemblyman who had introduced the bill to create the new county of Orange.

In court, he said that a serious railroad accident had been averted only because someone had tipped off the railroad agent about an obstruction.

But the trial ended with the jury hung, 6 to 6.

Before her retrial, the kind of publicity familiar to followers of high-profile modern cases focused on Avila. A rumor went around that she was pregnant and a woman of low moral character.

When her supposed lover refused to sever his relationship with Avila, the rumor went, his boss fired him.

The second trial began within a week, and on Oct. 28, a second jury found her guilty. (Back then, most trials lasted hours -- not days, weeks or months.)

Was she, well, railroaded? According to her attorney, George Hayford -- a swindler, fraud and convicted wife-beater -- Avila was convicted “on her reputation and not on her deed.”

The all-male jury recommended leniency, but Towner sentenced her to three years in state prison.

Avila did not seem surprised. “When the judgment was rendered, she was not affected in the least, but left the room with a smile on her face,” a news account read.

In Hayford’s futile request for a pardon, he wrote what amounted to her epitaph: “Her real crime is that she is a poor girl not having sense enough to have been married....”

There is no record of Avila’s baby. Either it died or she had never really been pregnant.

State prison records list her as a “housekeeper” who was due to be discharged March 3, 1892, but who died of a fever a few months before then.

An obituary in a Santa Ana newspaper reported her demise, referring to her archly as “a well-known favorite of the Santa Ana boys” who had been “stricken down in the prime of her usefulness.”

But the newspaper added, “Those who are without sin throw the first stone.”