§ 1572. Burden of proof.-The burden of proof as to the issue of abandonment is usually upon the party that asserts it. The burden of proof in the sense of making out his case by proving ownership, or the like, may be and remain upon the plaintiff; and yet the burden of going forward with the evidence at the proper time, in order to defeat the plaintiff's prima facie case by showing an abandonment, may rest upon the defendant.15 It will not be presumed that an owner has abandoned valuable property, or that a highway, or the like, has been abandoned.16 Upon the same principle, a homestead right, when once acquired will not be presumed, without proof, to have been abandoned; and the burden is upon the party that claims that it has been abandoned. But it has been held that proof of an actual removal from the premises throws upon the person who claims the homestead the burden of showing an intention to return and occupy the premises as a homestead.18

§ 1573. Question of law or fact.-The question of abandonment is generally a question of fact, or a mixed question of law and fact, as distinguished from a question of law.19 But it may, in some cases,

marine insurance it has a special meaning. See also as to abandonment of an animal which will prevent recovery against a railroad company for killing it; Welty v. Indianapolis &c. R. Co., 105 Ind. 55, 4 N. E. 410; Ft. Wayne &c. R. Co. v. Woodward, 112 Ind. 118, 13 N. E.

260.

Tayon v. Ladew, 33 Mo. 205; Hicks v. Steigleman, 49 Miss. 377; Manhattan Life Ins. Co. v. Wright, 126 Fed. 82, 89; Providence &c. Co. v. Burke (Ariz.), 57 Pac. 641; Oreamuno v. Uncle Sam &c. Co., 1 Nev. 215; Moon v. Rollins, 36 Cal. 333, 95 Am. Dec. 181; Hall v. Lincoln, 10 Colo. App. 360, 50 Pac. 1047. See also, Hennessy v. Murdock, 137 N. Y. 317.

15 Muhle V. New York &c. R. Co., 86 Tex. 459, 25 S. W. 607-608. As to when defendant may show abandonment under general denial, see, Bell v. Red Rock Tunnel &c.

Co., 36 Cal. 214; Willson v. Cleaveland, 30 Cal. 192.

16 Hicks v. Steigleman, 49 Miss. 377; Shirk V. Chicago, 195 Ill. 298, 63 N. E. 193, 199, citing Elliott Roads and Streets (2nd ed.) § 872. See also, Dingwall v. County Com., 19 Colo. 415, 36 Pac. 148; Hennessy v. Murdock, 137 N. Y. 317; Manhattan Life Ins. Co. v. Wright, 126 Fed. 82, 89.

17 Boot v. Brewster, 75 Iowa 631, 36 N. W. 649, 9 Am. St. 515; Cooper v. Basham (Tex.), 19 S. W. 704.

18 Newman v. Franklin, 69 Iowa 244, 28 N. W. 579; Bell v. Greathouse, 20 Tex. Civ. App. 478, 49 S. W. 258.

10 Keane v. Cannovan, 21 Cal. 291, 82 Am. Dec. 738; Russell v. Davis, 38 Conn. 562; Landes v. Perkins, 12 Mo. 238; Langdon v. Templeton, 66 Vt. 173, 28 Atl. 866; Wiggins v. McCleary, 49 N. Y. 346; Oreamuno v. Uncle Sam &c. Co., 1 Nev. 215;

be a question of law for the court. This is the case where the facts are undisputed and but one reasonable inference can be drawn from them. Thus, where there is no dispute as to the facts, and it clearly appears that a party has thrown away an article and has declared that he has relinquished all rights to it, or where he has removed all improvements from a mining claim, or wild land, to which he has not yet acquired a legal title and has remained continuously absent for many years, and permitted it to return to its wild state without asserting any rights to it, and has done other acts to indicate an abandonment, and nothing indicative of ownership or claim to it, the question may become one of law for the court.20 So, if the law conclusively implies an abandonment from certain facts and those facts are proved without dispute or explanation, the question is one of law;21 and it is likewise evident that where there is no evidence even tending to show the existence of an element necessary, under the law, to constitute an abandonment, the court may declare as matter of law that there has been no abandonment.

§ 1574. Range of evidence.-The relinquishment or non-user of property, although it may not, of itself, be sufficient evidence of abandonment, may, of course, be shown in a proper case as one of the elements thereof.22 Indeed, the voluntary leaving or relinquishment is one of the essential elements that must be shown.23 The other essential element is the intent, and this must also be shown, but, as will hereafter appear, it may be shown by circumstantial as well as by direct evidence. It may, indeed, sometimes be inferred from lapse of time coupled with the act of relinquishment, or from the manner and

Brentlinger v. Hutchinson, 1 Watts
(Pa.) 46, 52; Parkins v. Dunham, 3
Strobh. (S. Car.) 224; Hatch v.
Dwight, 17 Mass. 289, 297, 9 Am.
Dec. 145; Schwartze v. Kuhn, 10
Me. 274, 25 Am. Dec. 239; North
Am. &c. Co. v. Adams, 104 Fed. 404;
Carr v. Foster, L. R. 3 Q. B. 581, 43
E. C. L. 876; Chicago &c. R. Co. v.
Clapp, 201 Ill. 418, 66 N. E. 223;
Muhle v. New York &c. R. Co., 86
Tex. 459, 25 S. W. 607.

20 Pairie v. Griffiths, 86 Fed. 452: Atchison V. McCulloch, 5 Watts (Pa.) 13; Wilson v. Watterson, 4

Pa. St. 214; Sample v. Robb, 16 Pa.
St. 305.

21 Brentlinger V. Hutchinson, 1 Watts (Pa.) 46; Clemmins v. Gottshall, 4 Yeates (Pa.) 330; Grant v. Allison, 43 Pa. St. 427.

22 Sieber v. Frink, 7 Colo. 148, 2 Pac. 901.

23 Utt v. Frey, 106 Cal. 392, 39 Pac. 807, 809; Cook v. McCord, 9 Okla. 200, 60 Pac. 497; Whitwell v. Wells, 24 Pick. (Mass.) 25; Wyman v. Hurlburt, 12 Ohio 81, 40 Am. Dec. 461.

circumstances of the relinquishment itself. All relevant evidence to show or rebut, the relinquishment or intention is generally admissible. Indeed, it has been stated in broad terms that upon this question, as upon a question of fraud, a wide range should be allowed; for it is generally from facts and circumstances that the truth is to be discovered, and “both parties should be allowed to prove any fact or circumstance from which any aid for the solution of the question can be derived." Thus, evidence of removal, making a sworn inventory, as an insolvent, which did not include the property in question, and knowledge of the taking possession of the property by another person under claim of title, without objection, has been held competent as tending to show an abandonment.25 So, on the other hand, evidence that an agent was left in charge,26 or to explain the apparent abandonment by showing that it was not voluntary, or the like, has also been held admissible.27 Both the acts and the declaration of the party claimed to have abandoned the property, made at the time of the alleged abandonment, are generally admissible on the question of abandonment.28

§ 1575. The act.-As already stated, in order to constitute an abandonment there must be both an actual relinquishment of the right or property, and an intention to abandon it. The act of relinquishment may be proved, in general, as any other act, and there

Willson v. Cleaveland, 30 Cal. 192, 201; Bell v. Red 'Rock Tunnel &c. Co., 36 Cal. 214; Moon v. Rollins, 36 Cal. 333, 95 Am. Dec. 181; Lockhart v. Wills, 9 N. Mex. 263, 50 Pac. 318. On an issue as to the abandonment of a railroad right of way where the company had ceased to operate its branch to a mine after the mine was exhausted and had torn up its tracks, evidence that the road was built merely to haul supplies and coal to and from the mine was held competent in a recent case. Chicago &c. R. Co. v. Clapp, 201 Ill. 418, 66 N. E. 223. To much the same effect is, Gill v. Chicago &c. R. Co., 118 Iowa 88, 90 N. W. 606.

* Barada v. Blumenthal, 20 Mo. 162; Sweeney v. Reilly, 42 Cal. 402.

28 Keane v. Canavan, 21 Cal. 293, 82 Am. Dec. 738.

27 Lockhart v. Wills, 9 N. Mex. 263, 50 Pac. 318; Livermore V. White, 74 Me. 452, 43 Am. Dec. 600; Welch v. Garrett, 5 Idaho 639, 51 Pac. 405; Utah &c. Co. v. Dickert &c. Co., 6 Utah 183, 21 Pac. 1002, 5 L. R. A. 259. See also, where party acts under mistake or ignorance: Ross v. Gould, 5 Greenl. (Me.) 204; Williams v. Champion, 6 Ohio 169. 28 Kercheval v. Ambler, 4 Dana (Ky.) 166; Dodge v. Marden, 7 Ore. 456; Perkins v. Blood, 36 Vt. 273. See also, Bliss v. Ellsworth, 36 Cal. 310; McMillan v. Warner, 38 Tex. 410; Benbow v. Boyer, 89 Iowa 494, 56 N. W. 544.

is nothing peculiar to this branch of the subject, so far as the admissibility of evidence is concerned. Lapse of time may be an important element in determining whether there has been an abandonment,29 but time is not an essential element, for the moment that the actual relinquishment and the intention concur the abandonment is usually complete.30

§ 1576. The intent.-The intention is usually the paramount subject or inquiry where abandonment is claimed.81 There must also be an act of relinquishment; but, while it alone or in connection with the circumstances may furnish evidence of an intention to abandon, there is no abandonment unless there is an intention to abandon or to relinquish the right or property.32 Direct evidence as to the intention is usually admissible,33 although it is not necessarily conclusive. But the intention is frequently proved by circumstantial evidence, and all the relevant and proper facts and circumstances of the case may be shown to prove or rebut an intention to abandon.34

$ 1577. What is sufficient evidence.-A Connecticut case35 illustrates the doctrine of the preceding section and is of importance in this connection as showing both what is sufficient evidence of an abandonment by the original owner and what is not sufficient to prove an abandonment by the finder and appropriator. In that case manure dropped in the street by horses was left there by the owners of the horses, as worthless to them, and the plaintiff raked it up into heaps intending to cart it away the next day, but before he could do so, the defendant took it and carted it away. It was held that the original owners had abandoned it and that the first appropriator had not abandoned it, and that he was entitled to maintain an action of trover against the defendant. If an article is purposely thrown away by the owner, this is sufficient evidence of its abandonment.36 So, where a mining claim was located in the name of four persons and the one who located it and was the only person who had anything to do with it, testified that after working it a while he decided it was worthless and destroyed the monuments and left with the intention of having nothing further to do with it, it was held that the claim was abandoned by all four. The non-user of a water right, and the diversion of the water to another ditch may, under certain circumstances, constitute an abandonment of the first ditch,88 but the mere non-user of the right for a time, or suffering the ditch to become obstructed, will not necessarily constitute an abandonment. Removal of a homestead with the intention of permanently residing and going into business

37

Ross v. Hellyer, 26 Fed. 413; Kimball v. Wilson, 59 Iowa 638; Lehman v. Bryan, 67 Ala. 558; Lockhart v. Wills, 9 N. Mex. 263, 50 Pac. 318, 320. See also, Elliott Roads and Streets (2nd ed.) § 156. Statements of the owner at the time the act was done have been held admissible for, as well as against, him in a dedication case; City of Denver v. Jacobson, 17 Colo. 497, 30 Pac. 246, 247. Acts and declarations at time of alleged abandonment also held admissible: Kercheval v. Ambler, 4 Dana (Ky.) 166.

Pac. 723. See also, Myers v. Spooner, 55 Cal. 257, evidence of abandonment sufficient to justify jury in so finding notwithstanding party testified he did not intend to abandon; Harkrader v. Carroll, 76 Fed. 474.

38 Hewitt v. Story, 51 Fed. 101, affirmed in 64 Fed. 510, 30 L. R. A. 265, where the subject is also treated in the note.

39 North Am. &c. Co. v. Adams, 104 Fed. 404; Utt v. Frey, 106 Cal. 392, 39 Pac. 807; Hall v. State, 77 N. Y. 282; Herriman &c. Co. v. Keel,

*Haslem v. Lockwood, 37 Conn. 25 Utah 96, 69 Pac. 719. See also,

500, 9 Am. R. 350.

* McGoon v. Ankeny, 11 Ill. 558. ST Kinney v. Fleming (Ariz.), 56

Butterfield v. O'Neill (Colo. App.), 72 Pac. 807.