claim, leaving the possession he acquired by discovery, and before perfecting his right to the claim by a transfer from the government, and the relocator, or the one who finds the abandoned claim and relocates the same in his own right. Therefore, just what acts will constitute an abandonment is a question of frequent inquiry in these conflicts.1 Generally speaking, the right to any incorporeal hereditament, such as an easement or a right issuing out of real estate, may be lost or destroyed by abandonment. But no legal title to a corporeal hereditament can be lost by abandonment, after the same has vested, unless by estoppel or adverse possession for the statutory period of limitation.3

- At an early

§ 420. Under French and Spanish laws. day in this country, when the systems of laws in vogue in the different countries that held land in America governed the procedure of the individuals holding estates on the territory of these foreign governments, their procedure in given particulars was of practical importance, to the settler of their domains at least; but since the purchase of all this territory by the United States, the laws of these different countries have ceased to be of practical importance here, except for the instruction that can be drawn from a comparison of their laws with ours in given particulars. Under the French law, abandonment and forfeiture can only result upon grounds of public policy, to subserve the interests of the general public, and the government alone receives the benefit and can take advantage of the

1 No reason why abandonment be given a special meaning when applied to mining claim. Mallett v. U. S. Co., 1 M. M. R. 17.

2 Tiedeman R. P., § 605, and cases cited. Also all executory rights to a title. Ante, idem, § 739; Dikes v. Miller, 24 Tex. 424; King v. King, 3 Pa. St. 441; Barker v. Salmon, 12 Metc. 32.

8 Tiedeman R. P., § 739, pp. 559-560.

right. A legal action is necessary under the Spanish laws to work an abandonment or forfeiture of a mine and it is only by a denouncement that the miner can be deprived of his property in the case of an abandonment. This is, in substance, an action triable the same as actions under our own laws, determined on the pleadings, proof, and law submitted to the court, from whose decision the right of appeal is allowed within a given time." But under the laws of both of these countries, the title to the abandoned property would revert to the State or government; it alone could take advantage of the right and it took the property free from all conditions and charges to which it was subjected by the last occupant. It is only under our own liberal system of laws, where the land is held as much for the benefit of the individual citizen as the patrimony of the

3

1 See Blanchard & Weeks Ld. Cas., pp. 216, 217; Dupont Jur. des Mines; De Fooz, Hal. Introd. Sec. 8; De Fooz, Chap. 22; Reg. Prop. des Mines, Tome 2, p. 235; Dupont Jur. des Mines, Tome 1, p. 337.

2 Hal. Col., pp. 88, 227; Gamboa's Com. Cap. 18, Secs. 1-6; Blanchard & Weeks, pp. 218, 219.

3 Ante, idem. "The Spanish mining law of 1849 specifies five different kinds of forfeiture: 1st. Arising from failure to perform the conditions of the grant; 2d. Expiration of six months, from the date of concession, without the work being commenced; 3d. Failure to work, after the commencement of operations, for four consecutive months, or eight interrupted months, in the course of one year; 4th. When, by maldirection of the works, ruin is threatened, and the owner, on being required, shall not secure it within the time designated to him; 5th. When, by an avaricious manner of working, the subsequent enjoyment of the mineral is made difficult or impossible. In the second, third and fourth cases, superior force, which impedes the work, will constitute an exception, it being proved in due form." (Hal. Col., p. 514.) "When a grantee of mines shall come within any one of these five cases mentioned, in which the right to a mine is forfeited, (se pierde) the political chief, either by virtue of his office or by denouncement of a party, will make declaration of the termination (caducidad) of the grant by the proceedings particularly prescribed in the law." Gamboa's Com., Cap. 7, Secs. 4-7; Hal. Col. pp. 514, 564, 529; Hal. Introd., Sec. 8; Blanchard & Weeks Ld. Cas., p. 219.

government, that the individual is permitted to claim this right, the same as the general government.

§ 421. Question of intent material. Perhaps the best test for determining the question of abandonment, is the intent of the locator at the time when he left his claim.1 The intent, in fact, constitutes a necessary element to every abandonment, for without the intent to abandon, the mere leaving of property by one in possession would not amount to an abandonment.2 Nor would a continued absence, for a considerable length of time, constitute an abandonment of one's property, unless for the statutory period of limitation, from which an intent would be presumed as a matter of law, or unless a forfeiture should result, which would have practically the same effect upon the absentee's rights, for the absentee's intent to abandon his property, or facts sufficiently proven from which such intent could reasonably be presumed, must generally be present in order to constitute an abandonment. Lapse of time, however, together

3

1 Wade's Amer. Min. Laws, p. 76; Blanchard & Weeks Ld. Cas., p. 216 et sub.

2 St. John v. Kidd, 26 Cal. 263; King v. Edwards, 1 Montana, 235: 11 Colo. 380.

3 Tiedeman R. P., § 739, p. 559 et sub., and cases cited. "Abandonment is a question of intention." Weill v. Lucerne M. Co., 11 Nev. 200; M. M. D., p. 1. “If, in fact, a person intend to give up his claim and quit paying assessments in pursuance of that intention, it is an abandonment in fact." Oreamuno v. Uncle Sam G. & S. M. Co., 1 Nev. 215; M. M. D. 1. "The statements of a party alleged to have abandoned are evidence in his favor as disproving an intention to abandon." Noble v. Sylvester, 42 Vt. 146; M. M. D. 1. A right to mine, although not exclusive, is not lost by abandonment, where the grantee occasionally permits others to mine and prospect but does not himself conduct any operations during the statutory period, unless it appears that the exercise of the right to so mine was denied to him. Woodside v. Cicerene, 93 Fed. Rep. 1.

4 Blanchard & Weeks Leading Cases in Mines, Minerals and Mining Water Rights, p. 216; Richardson v. McNulty (a leading case), 24 Cal.

with other circumstances and facts, if for a sufficient period, would constitute very good evidence, and go a great way toward proving the intent of the locator to abandon his claim, but time is not an essential element to abandonment, and if the intent is present, an abandonment could take effect contemporaneous with the departure of the locator from his claim, for with the intent to abandon and a relinquishment of possession, the abandonment is complete and this could take effect the same instant.2

§ 422. Same- - Animus revertendi. Abandonment is a mixed question of law and fact, and if a person quits paying his assessments or stops work, in pursuance to an intent to desert the object of his expenditure or labor, it is an abandonment in fact. But proof of an intent to return overthrows an allegation of abandonment.5 Mere nonuser is not conclusive evidence of abandonment, and the animus revertendi is the final test of whether or not an abandonment did, in fact, occur. Accordingly, bringing suit to recover the property claimed to have been abandoned, and leaving tools or machinery upon the ground,"

339; Stephens v. Mansfield, 11 Cal. 365; McGarenty v. Byington, 12 Cal. 426; Hosford v. Metcalf (Iowa, 1901), 84 N. W. 1054.

1 Ante, idem. Myers v. Spooner, 9 M. M. R. 519.

2 Blanchard & Weeks Ld. Cases, supra; Karns v. Tanner, 5 M. M. R. 289; Dernz v. Ross, 1 M. M. R. 1; Mallett v. U. S. Co., 1 M. M. R. 17. Where the intent was to return on condition, abandonment held absolute. Trevastus v. Pearl, 111 Cal. 599.

3 Oreamuno Co. v. U. S. Co., 1 M. M. R. 32.

4 Ante, idem. Grove v. Davidson, 2 Id. 517.

5 Bell v. Bed Rock Co., 1 M. M. R. 45.

6 Seaman v. Vaudray, 13 M. M. R. 62; Dodge v. Marden, 1 Id. 63.

7 Stone v. Geyser Co., 1 M. M. R. 59.

8 Richardson v. McNulty, 1 M. M. R. 11.

9 Morenhout v. Wilson, 1 M. M. R. 53; Harkness v. Burton, 9 Id. 318. No abandonment would result where continued possession could be shown for six years. Ureka M. & M. Co. v. Knight, 133 Cal. 544; 65

have been held to be competent facts as evidence of an intent to return.

§ 423. Evidence of abandonment. - A party who relies upon an abandonment to build up a right in himself to the abandoned property, is generally under the necessity of establishing, by competent proof, the facts upon which the abandonment and his own asserted right depend.1 Abandonment is a mixed question of law and fact, and is properly submitted to the jury. The intention of the party alleged to have abandoned his property is the gist of the action, and before an abandonment can take place, it must appear that he left the same free to the appropriation of the next comer, without any intention to repossess or reclaim it and regardless of what may become of it in the future. Lapse of time, and other circumstances, in the absence of direct proof of the intention of the party alleged to have abandoned his property, are properly admitted to show such intent,5 although there would be no pre

3

Pac. Rep. 1091. There can be no such thing as a conditional abandon ment, as where party intended to return if the claim proved valuable: the abandonment is absolute. Trevaskis v. Pearl, 111 Cal. 599; 44 Pac. Rep. 246.

1 Doak v. Brubaker, 1 Nev. 217; Richardson v. McNulty, 24 Cal. 339; B. & W. L. C. 206.

2 Weill v. Lucerne M. Co., 11 Nev. 200; Karns v. Tanner, 66 Pa. St. 297; Doak v. Brubaker, supra; Oreamuno v. Uncle Sam G. &. S. M. Co., 1 Nev. 215.

3 Welll v. Lucerne Min. Co., supra; St. John v. Kidd, 26 Cal. 263; Mallett v. Uncle Sam M. Co., 1 Nev. 194; Warring v. Crow, 11 Cal. 366; Wade's Amer. M n. Laws, p. 59, § 33; McGarrity v. Byington, 12 Cal. 431.

Richardson v. McNulty (a leading case) 24 Cal. 339; Blanchard & Weeks Ld. Cas., p. 206.

5 Davis v. Gale, 32 Cal. 26; Wade Amer. Min. Laws, p. 59, § 33; Davis v. Butler, 6 Cal. 510; Warring v. Crow, 11 Cal. 366; Mallett v. U. S. G. & S. M. Co., 1 Nev. 189; McGarrity v. Byington, 12 Cal. 431.