American Falls press. [volume] (American Falls, Idaho) 1907-1937, 1911-09-07
RELATING TO
CONSTRUCTIVE Residence
changes in Homestead Regulations
AFFECTING Length of Residence.
Under date of August 1S tha do

VI .AC luteTlOF sent 10 rel
Istefs and receivers of land offices
ene following circular relating tc
constructive residence during the
llrst SIX months of entries:
In the matter of proof submitted
under the homestead law il seem
that a practice has existed accordina
TO entrymen, where residence is be-
gun within six months following
the date of entry credit for resi-
dence beginning with the date of
the entry The result is that where
a party takes up an actual residence
just at the expiration of six months
following the making of his entry,
he is accorded constructive resi-
oence Tor the intervening six months
and is thus permitted to secure title
on proof of residence for period
OF only four years and six months
Inere is clearly no statutory au-
thorlty recognizing the period
or constructive residence referred to.
On the contrary, the statute is spe-
clf1c in requiring years residence
by section 2291 of the Revised Stat
utes it is provided that
No certificate, however, shall be
given or patent issued therefor. un-
til the expiration of five years from
the date of such entry; and if at the
expiration of such time, or at any
time within two years thereafter
the person making such entry; of if
he be dead, his widow; or in case
of her death, his heirs or deyisee:
or in case of a widow making entry
her heirs or devisee, in case of her
death, proves by two credible wit
nesses that he, she of they have re-
sided upon or cultivated the same
Tor the term of five years, immedi-
ately succeeding the time of filing tn
affldav1t, and makes affidavit that
no part of such land has been alieni-
ated, xecept as provided in section
22SS, and that he, she or they will
bear true allegiance to the govern
ment of the United States; then in
such case he, she or they, if at that
time citizens of the UnitedStates,
shall be entitled to patent, as in
other cases provided by law. That
the proof of residence, occupation
or cultivation, the affidavit OF non
alienation, and the oath of allegi-
ance, required to be made by sec
tion 229l, of the Revised Statutes,
may be made before the judge, or
in his absence before theclerk of
any court of record OF the county or
state, or district and territory, in
which the lands are situated; and
II said lands are situated in any un-
organized county such proof may be
made in a similar manner in any
adjacent county i'll said state or ter
ritory; and the proof, affidavit and
oath, when so made and duly sub
scribed, shall have the same force
q c m
lister and receiver of the proper land
district; and the same shall be trans
mitted by said judge, or the clerk
of his court, to the register and re-
ceiver with the fee charges allowed
by law to him; and the register and
receiver shall be entitled to the sam
fees for examining and approving
said testimony as are now allowed
bv law for taking the same. That
if any witness making such proof,
or the said applicant making such
fidavit, or oath, swears falsely as to
any material matter contained in
said proof. affidavits or oaths, the
said false swearing being willful and
corrupt, he shall be deemed guilty |
of perjury, and shall be liable to the
same pains and penalties at if>he ha |
sworn falsely before the register"
Hereunder homestead claim |
could not only be initiated by entry, |
and, as a consequence, it is provided |
that no patennt shall issue until the |
expiration of five years from date
of entry, and therein it is also plain
ly required that the party seeking to
secure patent shall prove residence
for the term of five years.
By the third section of the act of
May IA, 1880, 81 Stat, 141, it was
provided:
THAT any settler who has settled,
or who may hereafter settle on any ]
of the public lands of the United1
States, whether surveyed or unsut-
veyed. with the intention of claiming
the same under the homestead laws,
shall be allowed the same time to I'll
his homestead application and peri
feet his original entry in the United
States land office as is now allowfd
to settlers under the preemptfon.
laws to put their claims on record,
and his right shall relate back tothe
date Of settlement, the same as If
he settled under the premption laws.
BY this section for the first time ,
the entryman's right was made TO re-
late back to the time Of settlement, /
and while a party can now claim
credit for a period of residence pre-
-eding the allowance of his entry,
vet the five-year period of residence
required by the HOMESTEAD law is in !
nowise affected thereby. i
The practice of according credit
Tor constructive residence covering
period of six months following the
allowance CT tie entry is, perhaps, J.,
iue to an erroneous Interpretation ,
IF section 2297 of the Revised stat +
ltes, by which section it is provided :
hat on proof satisfactory to the reg !
ster and receiver that person had r
changed his residence or .
the land covered by MS :
homestead entry for more than SIX d
months at a time, then, in that even \
he land so entered shall reverttotne b
government. While said section may d
,ro+oax =, homacfoadar from contest :.