Custer weekly chronicle. [volume] (Custer City, S.D.) 1890-1931, 1911-09-16
RESIDENCE ON HOMESTEAD.
New Ruling Five Years Actual Resi-
dence Necessary--Instructions
Relating to Constructive
Residence.

Gentlemen: Below is quoted the in
structions dated August 4, 1911, from
the Acting Secretary of the Interior, in
regard to constructive residence during
the first six months of entries:
In the matter of proof submitted un-
der the homestead law, it seems that a
practice has existed according to entry
men, where residence is begun within
six months following the date of the
entry, credit for residence beginning
with the date of the entry. The result
is that where party takes up an actual
residence just at the expiration of the
six months following the making of his
entry, he is accorded constructive res.
idence for the intervening six months
and is thus permitted to secure title on
proof of residence of only four years
and six months.
There is clearly no statutory authority
recognizing the period of constructive
residence referred to. On the contrary,
the statute is specific in requiring five
years residence. By section 229l of the
Revised Statutes it is provided that
"No certificate, however, shall be
given, or patent issued therefor, until
the expiration of five years from the
date of such entry; and if at the expira
tion Of such time, or at any time within
two years thereafter, the person making
such entry; or if he be dead, his widow
or in case Of her death, his heirs or
devisee; or in case of a widow making
such entry, her heirs or devisee, in case
of her death, proves by two credible
witnesses that he, she, or they have re-
sided upon or cultivated the same for
the term of five years Immediately sue
ceeding the time of filing the affidavit,
and makes affidavit that no part of such
land has been alienated, except as pro-
vided in section 2228, and that he, she
or they will bear true allegiance to the
Government of the United States, shall
be entitled to a 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 allegiance, required to be made by
section 229l of the Revised Statutes,
may be made before the judge, or in his
absence, before the clerk, of any court
of record of the county and State, or
district and territory, in which the
lands are situated and if said lands are
situated in any unorganized county, such
proof may be made in a similar manner
in any adjacent county in said State or
territory; and the proof, affidavit, and
oath, when so made and duly sub
scribed, shall have the same force and
effect as if made before the register
and receiver of the proper land
district; and the same shall be trans
mitted by such judge, or the clerk of
his court, to the register and the re-
ceiver, with the fee and charges allowed
by law to him; and the register and re-
ceiver shall be entitled to the same fees
for examining and approving said testi
mony as are now allowed by law for
taking the same. That if any witness
making such proof, or the said applicant
making such affidavit or oath, swears
falsely as to any material matter con.
tanned in said proof, afidavits, or oaths,
the said false swearing being wilful and
corrupt, he shall be deemed guilty of
perjury, and shall be liable to the same
pains and penalties as if he had sworn
falsely before the register"
Hereunder homestead claim could
only be initiated by entry, and as con-
sequence, it is provided that no patent
shall issue until the expiration of five
years from date of the entry, and therein
it is also plainly required that the party
seeking to secure patent shall prove res
idence for the term of five years.
BY the third section of the Act OF
May IA, 1880 (2l Stat, l4l), it was pro-
vided:
That any settler who has settled, or
who shall hereafter settle on any of the
public lands of the United States,
whether surveyed or unsurveyed, with
the intention of claiming the same un-
der the homestead laws shall be al
lowed the same time to file his home
stead application and perfect his original
entry in the United States land Office az
is now allowed to settlers under the pre-.
emption laws to put their claims on
record, and his right shall relate back
to the date of settlement, the same as il
he settled under the pre-emption laws.
BY this section for the first time the
entryman's right was made to relate
back to the time of his settlement, and
while party can now claim credit for a
period of residence required by the
homestead law is in nowise affected
thereby.
The practice of according credit fol
constructive residence covering the pc
riod of six months following the allow
ance of the entry is, perhaps due t
an erroneous Interpretation of section
2297 of the Revised Statutes, by which
section it is provided that on proofto th'
satisfaction of the register and receive
that person had actually changed hi
residence or abandoned the land GOV
cred by his homestead entry for NOR,
than six months at any one time, then
in that event, the land so entered shal
revert to the Government. While sal,
lsection may protect homesteader from