elsewhere, has also been held sufficient evidence of abandonment of the homestead, even though the owner intended at some time to return if his business elsewhere should prove unsuccessful. So, while mere non-user, without adverse possession, has been held insufficient to destroy an easement, especially when the easement was acquired by grant and not by prescription; yet it has often been held that nonuser accompanied by acts clearly evincing an intention to abandon, especially if such acts destroy the object or enjoyment of the easement, will be sufficient to show an abandonment." 41 § 1578. What is not sufficient evidence.-Where the lessee of a stone quarry, after taking out a large quantity of stone, left the stone taken out, together with his tools, upon the ground, and went away for two years to attend to other business, it was held that there was no abandonment, unless there was intention to abandon, and that the nature and value of the property and the fact that it was left because it could not be sold for an adequate price at the time tended to repel any abandonment and justified the jury in finding that there was none. So, in many cases, the non-user for many years of property condemned for railroad purposes has been held insufficient, of itself, to show an abandonment.43 The mere removal from a house does not establish an intent to abandon the ownership of it; nor does the mere failure to pay taxes on property necessarily show an intent to 40 Kimball V. Wilson, 59 Iowa 638; Conway v. Nichols, 106 Iowa 358, 76 N. W. 681; Wolf v. Hawkins, 60 Ark. 262; Smith v. Bunn, 75 Mo. 559; Lehman v. Bryan, 67 Ala. 558; Gregory v. Oates, 92 Ky. 532, 18 S. W. 231. "Freedom v. Norris, 128 Ind. 377, 27 N. E. 869; Steere v. Tiffany, 13 R. I. 568; Canny v. Andrews, 123 Mass. 155; Vogler v. Geiss, 51 Md. 407; Monaghan v. Memphis Fair &c. Co., 95 Tenn. 108, 31 S. W. 497; Stein v. Dahn, 96 Ala. 481; Fitzpatrick v. Boston &c. R. Co., 84 Me. 33, 24 Atl. 432; Reg. v. Chorley, L. R. 12 Q. B. 515, 64 E. C. L. 515. But see as to what is insufficient and as to what must be shown: Roby v. New York &c. R. Co., 142 N. Y. 176, 36 N. E. 1053; Hayford v. Spokesfield, 100 43 Struve v. Republican &c. R. Co., 2 Neb. 585, 89 N. W. 604; Morgan v. Des Moines &c. R. Co., 113 Iowa 561, 85 N. W. 902; St. Louis &c. R. Co. v. Foltz, 52 Fed. 627, 633; Southern Pac. R. Co. v. Burr, 86 Cal. 279, 24 Pac. 1032; Hummel v. Cumberland &c. R. Co., 175 Pa. St. 537, 34 Atl. 848; Gurney v. Minneapolis &c. R. Co., 63 Minn. 70, 65 N. W. 136. "Howard v. Fessenden, 14 Allen (Mass.) 124. abandon it.45 And the fact that a landowner has left his premises vacant and remained absent for several years, while it is admissible as evidence of abandonment, does not necessarily require that inference."" The removal of a fence for the purpose of replacing it with a better one does not show an intention to abandon the premises. The failure to operate a mine continuously does not necessarily amount to an abandonment, nor does an unsuccessful attempt to relocate a mining claim effect an abandonment of a prior valid location.49 § 1579. Non-user and misuser.-It seems to be the rule at common law that easements and other incorporeal hereditaments, acquired by user, might be lost by non-user, at least if the non-user were continned for the time necessary to acquire them;50 but when they were acquired by deed they could not be extinguished by mere non-user, without other evidence of intention to abandon, or unless adverse user or some element of estoppel were present. But this distinction has been denied in some cases,52 and it has often been held, although generally in other classes of cases, that abandonment may be inferred from non-user for many years. 53 Non-user is at least an element to be 51 "Keane v. Canovan, 21 Cal. 219, Vermont v. Miller, 161 Ill. 210, 43 82 Am. Dec. 738. "Judson v. Malloy, 40 Cal. 299; Langdon v. Templeton, 66 Vt. 173, 28 Atl. 866; Cravens v. Moore, 61 Mo. 178. But see, Crutsinger v. Catron, 10 Humph. (Tenn.) 24. Sweetland v. Hill, 9 Cal. 556. * Belk v. Meagher, 104 U. S. 279; Buffalo &c. Co. v. Crump, 70 Ark. 525, 69 S. W. 572. But see, as to leases: Parish Fork &c. Co. v. Bridgewater Gas Co., 51 W. Va. 583, 42 S. E. 655, 59 L. R. A. 566; Barnsdall v. Boley, 119 Fed. 191; Calhoon v. Nelly, 201 Pa. St. 97, 50 Atl. 967; Gadbury v. Ohio &c. Co. (Ind.), 67 N. E. 259. In locating mining claims, however, a certain amount of work is required and failure to perform it may work a forfeiture under the law. N. E. 975; Farrar v. Cooper, 34 Me. 394; Corning v. Gould, 16 Wend. (N. Y.) 530; Robie v. Sedgwick, 35 Barb. (N. Y.) 319; Canny v. Andrews, 123 Mass. 155. 51 Welsh v. Tayler, 134 N. Y. 450, 31 N. E. 896, 18 L. R. A. 535 and note; Kuecken v. Voltz, 110 I11. 264; Curran v. Louisville, 83 Ky. 628; Arnold v. Stevens, 24 Pick. (Mass.) 106, 35 Am. Dec. 217; Dill v. Camden Board &c., 47 N. J. Eq. 421, 10 L. R. A. 276; Heller v. Dailey, 28 Ind. App. 555, 63 N. E. 490. Temescal &c. Co. v. Salcide, 137 Robie v. Sedgwick, 35 Barb. (N. Cal. 211, 69 Pac. 1010. Y.) 319, 329; Clemmins v. Gottshall, * Peoria v. Johnson, 56 Ill. 45; 4 Yeates (Pa.) 330; Hartford 55 considered, with other circumstances, upon the question. But if it alone is not sufficient to show an intention to abandon, and abandonment is necessary, there must be other evidence of the intention.54 Thus, the mere non-user of a railroad right of way, or the like, has been held insufficient to constitute an abandonment unless an intention to abandon is also shown by the circumstances or other evidence." So, as to highways.50 But it has been held that the failure for over twenty years to operate a street railroad on a certain street raises a presumption of abandonment of the grant so far as concerns that street. In some jurisdictions the non-user of an old highway and the establishment of a new way in its place, will operate as an abandonment or discontinuance of the old way.58 But in nearly all states this matter is largely controlled by statute. The misuser of an easement or of a franchise, although it may constitute a ground for forfeiture in a proper case, is not of itself sufficient to constitute an abandonment.59 Bridge Co. v. East Hartford, 16 Conn. 149, 173; Muhle v. New York &c. R. Co., 86 Tex. 459, 25 S. W. 607, 608. 54 Lathrop v. Elsner, 93 Mich. 599, 53 N. W. 791; Butterfield v. Reed, 160 Mass. 361, 35 N. E. 1128; Barnes v. Lloyd, 112 Mass. 224; Langdon v. Templeton, 66 Vt. 173, 28 Atl. 866. 55 Townsend v. Michigan Cent. R. Co., 101 Fed. 757; Barlow v. Chicago &c. R. Co., 29 Iowa 276; Durfee v. Peoria &c. R. Co., 140 Ill. 435, 30 N. E. 686; Rutland R. Co. v. Chaffee, 71 Vt. 84, 42 Atl. 984; Northern Pac. R. Co. v. Smith, 171 U. S. 260, 18 Sup. Ct. 794; Southern Pac. R. Co. v. Hyatt, 132 Cal. 240, 64 Pac. 272; Virginia &c. R. Co. v. Crow, 108 Tenn. 17, 64 S. W. 485. 50 Kelly Nail &c. Co. v. Lawrence, 46 Ohio St. 544, 22 N. E. 639; Brown v. Hiatt, 16 Ind. App. 340, 45 N. E. 481; State v. Culver, 65 Mo. 607, 27 Am. R. 295. See also, Watkins v. Lynch, 71 Cal. 21; Little Rock v. Wright, 58 Ark. 142, 23 S. W. 876; Eureka v. Armstrong, 83 Cal. 623, 22 Pac. 928; Herald v. Moore, 79 Me. 271, 9 Atl. 734; Elliott Roads and Streets (2nd ed.) §§ 873, 874. 57 Louisville Trust Co. v. City of Cincinnati, 76 Fed. 296; Henderson v. Central &c. R. Co., 21 Fed. 358. But see, Wright v. Milwaukee &c. Co., 95 Wis. 29, 69 N. W. 791; Denison &c. R. Co. v. St. Louis &c. Co., 30 Tex. Civ. App. 474, 72 S. W. 201;. Columbus v. Columbus &c. R. Co., 37 Ind. 294. 59 Peoria v. Johnson, 56 Ill. 45; Warner v. Holyoke, 112 Mass. 362; Bowley v. Walker, 8 Allen (Mass.) 21; Stahr v. Carter, 116 Iowa 380, 90 N. W. 64; Brook v. Horton, 68 Cal. 554, 10 Pac. 204; Lyle v. Lesia, 64 Mich. 16, 31 N. W. 23; Nichols v. Sutton, 22 Ga. 369; Closson v. Hamblet, 27 Vt. 728; Millcreek Tp. v. Reed, 29 Pa. St. 195; State v. Reesa, 59 Wis. 206, 17 N. W. 873. See generally Maire v. Kruse, 85 Wis. 302, 26 L. R. A. 449, and extended note. 59 Roby v. New York &c. Co., 142 N. Y. 176, 36 N. E. 1053. The erec § 1580. Lapse of time.-As we have already said, non-user for any particular period of time is not an essential element of abandonment. Actual relinquishment accompanied by the necessary intention will operate as an abandonment at once. But, on the other hand, absence or non-user of property, without any intention to abandon it, will not constitute an abandonment even though years may elapse. Thus, absence from the premises for a number of years will not of itself necessarily constitute an abandonment, nor is the mere non-user of a portion of the right of way of a railroad for eight or ten years sufficient to constitute an abandonment if there is no intention to abandon. But lapse of time is generally a circumstance to be considered.62 As already shown, an easement may sometimes be lost by lapse of time; or lapse of time may lead to the inference of abandonment, and, with other circumstances, justify a finding to that effect. 61 tion of a warehouse and elevator on a right of way does not constitute an abandonment: Gurney v. Minneapolis &c. El. Co., 63 Minn. 70, 65 N. W. 136. Similar decisions have also been made where part of the property has been leased or devoted to other purposes: Peirce v. Boston &c. R. Co., 141 Mass. 481, 6 N. E. 96; Rutland R. Co. v. Chaffee, 71 Vt. 84, 42 Atl. 984; Southern Pac. R. Co. v. Burr, 86 Cal. 279, 24 Pac. 1032; Dillon v. Kansas City &c. R. Co., 67 Kans. 687, 74 Pac. 251; Durfee v. Peoria &c. R. Co., 140 Ill. 435, 30 N. E. 686; Roby v. New York &c. R. Co., 142 N. Y. 176, 36 N. E. 1053. See also, Proprietors of Locks &c. v. Railroad Co., 104 Mass. 1; 1 Elliott Railroads, §§ 52, 55; 3 Elliott Railroads. § 931. *Cravens v. Moore, 61 Mo. 178; Judson v. Malloy, 40 Cal. 299; Langdon v. Templeton, 66 Vt. 173, 28 Atl. 60 866. See also, Gassert v. Noyes, 18 61 Durfee v. Peoria &c. R. Co., 140 Ill. 435, 30 N. E. 686; Struve v. Republican &c. R. Co., 2 Neb. 585, 89 N. W. 604; Morgan v. Des Moines &c. R. Co., 113 Iowa 561, 85 N. W. 902. But see as to failure to comply with conditions in deeds and provisions for forfeiture and reverter: Gill v. Chicago &c. R. Co., 118 Iowa 88, 90 N. W. 606; Hickox v. Chicago &c. Co., 78 Mich. 615, 44 N. W. 143; Indianapolis &c. R. Co. v. Hood, 66 Ind. 580. 62 Judson v. Malloy, 40 Cal. 299; Jeffersonville &c. R. Co. v. O'Connor, 37, Ind. 95; Paine v. Griffiths, 86 Fed. 452; Patchin v. Stroud, 28 Vt. 394; Mallett v. Uncle Sam &c. Co., 1 Nev. 188, 90 Am. Dec. 484. § 1581. Burden of proof.-A plea in abatement is an affirmative plea, and the burden of proving it is on the defendant.1 Thus, to prove want of jurisdiction the evidence must show that the jurisdictional ground did not exist. So, where the plea is of another action pending, the burden of proving it is upon the party who pleads it.3 And this is also true, as a general rule at least, as to a plea of alienage.* § 1582. Question of law or fact.—A plea in abatement generally tenders an issue of fact, and must be proved like any other issue in the case; but a pure issue of law raised by plea in abatement is triable 1 Gilmer v. Grand Rapids, 16 Fed. 708; Woodward v. Stark, 4 S. Dak. 588, 57 N. W. 496; Kluteman v. Page, 3 Willson App. Cas. (Tex.) 203; Graves v. First Nat. Bank, 77 Tex. 555, 14 S. W. 163; Hart, Wiggin & Co. v. Kanady, 33 Tex. 720; Jewett v. Davis, 6 N. H. 518; Bellows v. Murray, 66 Me. 199. But see, Hawkins v. Albright, 70 Ill. 87. 2 Robertson v. Ephriam, 18 Tex. 118; Hopson v. Saswell, 13 Tex. Civ. App. 492, 36 S. W. 312; Gilmer v. Grand Rapids, 16 Fed. 708; Sheppard v. Graves, 14 How. (U. S.) 505; Henwood v. State, 11 Ind. App. 636, 39 N. E. 289. |