The Powder River County examiner and the Broadus independent. [volume] (Broadus, Mont.) 1919-1935, 1922-04-07
enolT TANKS O. HOMESTEAD MATTERS
By COLA W.. SHEPARD, United States Commissioner
THE BURDEN OF PROOF
#ssss TALK NO. ~
copyrighted 1924 by Cola W. Shep-
ard. Colony, Wyo.. ana published In the
Powder River County Examiner thru
special arPAuGement.J

ard, Colony. Wyo.. ana puoNsneo IN tno
Powder River County Examiner thru
special arrAnGement.l
Section 1889 the Revised Statutes
sets forth the classes Ct people VINO
take up homesteads in the United
States, and Section 1890 requires that
before any such person shall De al
lowed to enter a tract OF lana uhoer
the homestead laws he or she shail
make an affidavit as to certain iacts
regarding his or her qualifications ana
intentions. and shall file such aHdavit
and an application for the land IN tne
proper land office. whereupon the en-
try will be allowed if the land be
then subject to this form of entry and
there be no adverse claim or other OBJ
jectiCn.
When a tract of land has been reg
ulany entered it is set aside Tor the
use and occupation of the entrEman
80 long as he continues to comply with
the laws under which the entry
made, and no other person Will De al
lowed to enter that land so long as
such entry exists. The entrymah Is
supposed to ascertain for himself just
what is required of him under the va
rious land laws and to proceed in his
own way to make compliance with the
laws. The land department does not
watch or supervise him. but unless
prcof is produced to the contrary ev-
cry entryman is supposed to be max
ing full compliance with the law.
AS it would be an injustice to per-
init one person to enter a tract of land
and hold it indefinitely without going
the required work CIR making the re-
pr,al,y Ep1
other person from entering the land.
Section 2297 was enacted. which pro-
vides a means of cancelling sucn en-
try upon due proof that the entryman
has failed to reside en- the land ac-
cordins to law. Any person who wishes
to have an entry cancelled must first
prove that the entryman is in default,
and the burden of proof is upon the
contestant and net upon the entry,nan.
The entryman is supposed to be COM
plying with the law until it is rosi-
lively proven otherwise. and there are
numerous eases where the entrymen
We're clearly in default and had failed
to comply with the law, but owing to
the difficulty CT proving such nom
compliance it was impossible to secure
the cancellation of the entries. thus
the government protects the entryman
by throwing the burden of proof on
the person who seeks cancellation of
his entry The entryman does not have
to prove that he is complying with the
law That is inferred unless the con-
trary is proven.
Having protected the entryman dur
ing the life of his entry by throwing
the burden of proof upon any who
might wish to attack his entry. the
government then proceeds to protect
its own interests by causing the en-
tryman to prove that he has July
complied with the law before issuing
a patent tc' him. Section 22a1 sfeci-
tically provides that no patent shall
issue until three years from the date
of entry. hut if at any time after
three years and before five years from
the date of the entry the claimant
shall prove. by his own testimony and
that of two witnesses. that he mas
fully complied with the law. then a
patent shall be issued for the land en-
tered.
IL will be noted that the government
the entryman has complied with the
law or not, but waits for him to p, rove
that he has before taking any action
toward issuing a patent. The burden
of proof is upon the entryman. The
land office may crosseNamne him and
his witnesses and cause him to fur
nish more evidence if he fails TO clear
ly prove his compliance, but ordi nar-
lily the entry1nan gives a notice when
he Is ready to submit proof. He
chooses his own time the officer be-
fore whom he wishes to make proof.
and the witnesses he will use. When
he appears on the date set he is asked
a set CT regular questions which are
intended to bring out the facts re-
sarding his compliance with the law
but he may submit as much other ev-
idence as he chooses. and in almost
any shape. He may. il he deems it
necessary. supplement his proof with
photographs or ex-parte affidavits,
and he may make such other sworn
to show his compliance with the law
When he has made his prof. all the
evidence is examined and if his proof
shows full compliance with the law
and there is no evidence to the con-
trary. the entry is approved fer patent
The land department seldom makes an
investigation on the ground to see
whether the entryman's statements are
true. unless the question is raised by
the ming of contest or protect. If
the entryman fails to make a proper
showing in his proof the patent will
not be issued until he furnishes a sat
isfactory proof, for the burden of
proof is upon him.