sumption of abandonment from mere lapse of time short of the statutory period.1 On the other hand, it is competent for the opposite party to prove, in rebuttal, any acts explanatory of his leaving, which would negative the allegation of abandonment, or go to show that it was accompanied with an intent to return. His statements made at the time of leaving would be competent evidence in his favor, as disproving an intention to abandon his property.3 And since the proof of one's intention must necessarily depend largely upon circumstantial evidence, the fact that tools had been left upon the ground might properly be considered as a circumstance consistent with an intent to return, and generally any other facts or circumstances of a similar nature, consistent with the issues, should go to the jury."

§ 424. By partners and cotenants. No doctrine is more thoroughly settled in the law of real property than that the possession of one partner or cotenant is the possession of all. So long as any one remains in possession

1 Partridge v. McKinney, 10 Cal. 181; Wade, p. 59; Mallett v. U. S. G. & S. M. Co., supra.

2 Bell v. Bed Rock Co., 36 Cal. 214.

3 Noble v. Sylvester, 42 Vt. 146. And it has been held that evidence of a refusal to sell on the part of plaintiff was competent to go in as tending to disprove abandonment. Bell v. Bed Rock Co., 33 Cal. 214. And a judgment in favor of the plaintiff and against a third party for possession of the same tract is admissible to rebut evidence of abandonment. Richardson v. McNulty, 24 Cal. 339; Wade Amer. Min. Laws, p. 60, § 33. 4 Harkness v. Burton, 39 Iowa, 101; Morenhout v. Wilson, 52 Cal. 263. 5 Ante, idem. Great latitude and range in the testimony should be allowed in the case of abandonment. Bell v. Bed Rock Co., 1 M. M. R. 45; 36 Cal. 214. "Leaving tools upon the ground considered as evidence against abandonment." Harkness v. Burton, 39 Iowa, 101; M. M. D. 1.

6 Tiedeman R. P., § 683. "Unless there is some decisive act to show an ouster, the possession of one tenant in commou of a mining claim inures to the benefit of all." Van Valkenburg v. Huff, 1 Nev. 142; M. M. D. 372.

of the common property there could be no abandonment or forfeiture of the property, for the possession of the one would inure to the benefit of all, and is in fact indivisible and in common. This is true not only as to third parties, but also as between the partners or cotenants themselves, and no abandonment or forfeiture could result in favor of one and against the others, where any one remained in possession, unless the possession of that one was clothed with all the essentials of an adverse possession, being open and notorious, exclusive and hostile. The absence of one or more of the cotenants for any period short of the statute of limitations, or even longer, unless adverse, would not operate as an abandonment of the interest of such tenants in favor of their cotenants, nor would there be any presumption of abandonment, so long as their cotenants continued in possession. But the length of time they were away, together with other facts and circumstances, would be competent evidence tending to

1 Sawyer v. Turner, 16 M. M. R. 260.

3

2 Susquehanna Co. v. Quick, 1 M. M. R. 202. See B. & W. Ld. Cas., p. 225. "But if one tenant in common, after having become associated with his cotenants in the development of the claim, voluntarily leaves it in the possession of his companions, and refuses to bear his proportion of the expenses incurred by them in the development of the same, and should afterwards bring his action to recover his interest, undoubtedly, upon a proper application, the equity side of the court would defer his recovery until he had paid his full proportion of the expense incurred in the development and improvement of the claim; and, on the other hand, if he had been successfully ousted from his possession or rights, the persons so ousting him, or those claiming under them, can acquire no title in the claim adverse to him short of the statute of limitations, and of course could not ask the interposition of equity." Mallett v. U. S. G. & S. M. Co., 1 Nev. 189; B. & W. L. C. 225.

3 Blanchard & Weeks Ld. Cas., pp. 224-225 et sub.; Coleman v. Clemens, 5 M. M. R. 247. The possession of one tenant in common inures to the benefit of all until such possession becomes adverse. Mallett v. Uncle Sam M. Co., 1 Nev. 194; M. M. D. 1.

prove an abandonment on the part of such absent tenants,1 and if, by the rules or articles of association, the absence of any cotenant was to work a forfeiture of his interest, after a stated period, then, after this period, a forfeiture would result of such absent tenant's interest, without further showing.2

3

§ 425. By lessee and licensee. - An abandonment of a mine by a lessee, or licensee, and a failure to work and pay royalty, is a termination of such lease or license, as effectually as if the same had been voluntarily surrendered. But the evidence upon which an abandonment of a lease or license could be predicated would necessarily vary, according to the nature of the ore or mineral to be mined under such lease or license. For instance, evidence that would justify a court in finding that there had been an abandonment of an oil, or gas lease, where the estate would be held to end when the unsuccessful search stopped," might not

1 Mallett v. U. S. G. & S. M. Co., 1 Nev. 189; Warring v. Crow, 11 Cal. 366; Strong v. Ryan, 46 Cal. 33.

2 Ante, idem. Van Schmidt v. Huntington, 1 Cal. 55; In re Brain, L. R., 18 Eq. 389. As to a forfeiture by a joint-stock company, see Westcott v. Minn. Min. Co., 23 Mich. 145. But see Wisconsin v. McNulty,

25 Cal. 230.

8 Van Meter v. Chicago &c. Com. Co., 88 Iowa, 92; Porter v. Noyes, 47 Mich. 55; Eaton v. Allegheny Co., 122 N. Y. 416; Buhl v. Thompson, 3 Penny. 267; Bostwick v. Coal Co., 129 Penn. 592; Riddle v. Melton, 147 Pa. 30; Borhart v. Lockwood, 152 Pa. 82; Cowan v. Radford Iron Co., 83 Va. 547; Hodgson v. Parkins, 84 Va. 706; Bluestone Coal Co. v. Bell, 38 W. Va. 297.

4 Beatty v. Gregory, 17 Iowa, 109; New Jersey Co. v. Wright, 32 N. J. Eq. 248; 9 M. M. R. 332.

Plummer v. Hillside C. & I. Co., 160 Pa. 483. Ceasing to bore for oil for an unreasonable time will operate as an abandonment of lease. Foster v. Oil & Gas Co., 90 Fed. Rep. 178.

6 Venture Oil Co. v. Fretts, 152 Pa. St. 451. A failure to proceed with a test for oil after a test well goes dry, is an abandonment of the lease. Aye v. Phil. Co., 193 Pa. St. 451; 44 Atl. Rep. 555. Lessee of

be sufficient evidence to terminate the rights of a lessee, under a developed coal lease, where the right to mine was measured in the agreement by a fixed rent or royalty.1 And, in any event, no failure to work by a lessee or licensee, short of the statutory period of limitations, could be taken advantage of by anyone, except the lessor or licensor.2

3

4

§ 426. Same - Tailings and water rights. To suffer tailings and slag to flow freely without effort to confine them, is strong evidence of an abandonment of all right thereto, and will be held to deprive the owner of any interest therein, unless the nature and topography of the country would render an artificial obstruction unnecessary," or there is other evidence to overcome the evidence of an intent to forsake the same. And permitting water to flow away, unrestrained, would also work an abandonment of any right thereto, and after the abandonment of such right no

stone quarry held not to have abandonded the same, so as to prevent recovery from one who buys it from the lessor and takes away the stone quarried by him. Russell v. Stratton (Pa.), 50 Atl. Rep. 975. Where lessee under an oil lease plugs his well and pulls the casing and takes down the rig from a two-year-old well but the lease binds him to drill another, he will not be held to have abandoned the lease. Aherns v. Gas Co., 188 Pa. St. 249; 41 Atl. Rep. 739 (1901). A lessee of an oil lease who quit the first well, because non-productive, held to abandon same. Stage v. Boyer, 183 Pa. St. 560; 38 Atl. Rep. 1035.

1 Plummer v. Hillside C. & I. Co., 160 Pa. 483.

2 Bartley v. Phillips, 165 Pa. 325. Same case, 179 Pa. 175. There is no abandonment of a license to mine, where zinc was excavated but it was not known it was of any value, as lead only was mined in the locality, and the zinc was afterwards found to be of value. Hosford v. Metcalf (Iowa, 1901), 84 N. W. 1054.

3 McGoon v. Ankeny, 1 M. M. R. 9.

4 Jones v. Jackson, 14 M. M. R. 72; Dougherty v. Creary, 1 M. M. R. 35.

5 Jones v. Jackson, supra.

6 Dougherty v. Creary, supra.

revivor would occur by an attempt to sell the lost right,1 any more than an attempted recapture of the water, after it had been captured by another appropriator.2 But an abandonment of water rights would not be implied by the sale of a claim whereon the same was used, and no nonuser alone, short of the period of the statute of limitations relating to real property, would, of itself, be sufficient to establish an abandonment of water rights.*

It has been held that

§ 427. Pleading abandonment. an abandonment could be shown under a general denial in an action of ejectment, since it involved a denial of the plaintiff's possession at the time of defendant's entry,5 although a forfeiture could not be taken advantage of under a general denial. The rules of pleading would seem to indicate that abandonment should be specially pleaded, however, since it is a legal conclusion from the facts that go to show the abandonment, but the necessity of specially pleading the action would be controlled, largely, by the code provisions and practice acts of the different States. The parties to the action are entitled to a definite issue, as well as the court, and in such action the issues

1 Davis v. Gale, 4 M. M. R. 604.

2 Barkley v. Tieleke, 4 M. M. R. 666.

8 Dodge v. Morden, 1 M. M. R. 63.

4 If the water right to a placer claim is abandoned, the claim would be held abandoned, as there can be no abandonment of the one without the other. Schwab v. Beam, 86 Fed. Rep. 41. "The law will not presume an abandonment of property in a dam and ditch for mining purposes from lapse of time." Partridge v. McKinney, 10 Cal. 181; M. M. D. 2.

5 Morenhout v. Wilson, 52 Cal. 263 (overruling Bell v. Brown, 22 Cal. 681).

6 Ante, idem.

' Wade's Amer. Min. Laws, § 8, pp. 8–9; Bell v. Brown, 22 Cal. 671, supra.