equity jurisdiction, and can not possibly be brought within it, the objection to the jurisdiction can be taken at any time; but the rule is, in respect to all other cases, that if a party submit to the jurisdiction without objection until the decree is entered, he has waived the question of jurisdiction, and can not raise it in the appellate court. McDonald v. Crockett, 2 McCord Ch., 135; Ludlow v. Simond, 2 Caines' Cases, p. 37; Burroughs v. McNeill 2 Devereux & Bat. Eq., 297; Leroy v. Platt, 4 Paige's Ch., 77; Miller v. Furse, Bailey's Ch., 181. In the case at bar the subject-matter of the litigation was within the jurisdiction of the court. Upon the face of the bill the court might properly have entered a decree perpetually enjoining the defendant froin committing the acts complained of, and until the filing of the answer no purely legal issue arose. By submitting that issue to the court, the appellant has waived the question of jurisdiction, and can not now raise it. And since there was no palpable defect of jurisdiction, the error, if any, is cured.

In respect to the ruling of the court in sustaining the exceptions to the original answer of the defendant, we fail to see that defendant was deprived of any substantial right by this ruling. The same matters of defense were set up by him in an amended answer, and relied upon in the trial; and if any error was committed by the court in sustaining the exceptions, the defendant has waived it by pleading over.

Considering the case upon the merits, we are called upon to decide whether the decree is warranted by the evidence produced before the court. This presents the question of the abandonment of the mining claim and ditch by the original proprietors. Willett and his co-tenants were the original appropriators of the placer mine and water rights; they constructed the ditch, and were in the actual occupancy of the property from 1870 or 1871, up to the latter part of 1872; during this time they were vested with certain possessory rights, which, as against all other claimants, except the government, amounted to title; this title was good and sufficient so long as they remained in possession and complied with the federal, State and local laws and regulations.

But these are rights which may be divested, either by sale, gift or abandonment; no sale or gift was made until long after

the appropriation of the property by the appellees; it therefore only remains to inquire if the property was abandoned prior to such appropriation. Abandonment is a matter of intention, and operates instanter. Where a miner gives up his claim and goes away from it, without any intention of repossessing it, and regardless of what may become of it, or who may appropriate it, an abandonment takes place, and the property reverts to its original status as part of the unoccupied public domain. It is then publici juris, and open to location by the first comer; no subsequent sale by the former locator in such case, after other rights have intervened, will convey any right or title to the grantee, for his rights being wholly divested by the abandonment, he has none to convey. Richardson v. McNulty, 24 Cal., 339; Davis v. Butler, 6 Cal., 510.

The evidence shows that neither Wesley Willett, James Willett, nor Samuel Hammett occupied the property since 1872; nor is there any competent testimony showing that they ever authorized any one to look after the property for them, or to exercise any control over it. All that appears in the testimony about Stone, of Granite, acting for them, is hearsay. Stone was not a witness in the cause, and it appears that he was even ignorant of the residence of Willett, as he was unable to furnish the appellant his address when he desired to purchase the ditch.

The possession of Watt and McKay can not be said to be the possession of Willett; they were not lessees, but appear to have worked on their own account, and for their own profit during their occupancy of the premises; they likewise abandoned it prior to the entry of the appellees in August, 1875.

Appellant subsequently ascertained the address of Wesley Willett, who was in the state of Texas, and procured from him a deed of the ditch. In our view of the case, this deed is of no effect whatever; at the time of its execution Willett had no interest to convey.

In regard to the claim of the appellant, that he made a prior appropriation of the water, we have to say, that in our judg ment, the acts relied upon by him are not sufficient to constitute an appropriation of the water right in controversy.

Finding no substantial error in the record, the decree will be affirmed. Decree affirmed.

DAVIS V. BUTLER.

(6 Cal., 510. Supreme Court, 1856.)

Abandon

Abandonment, independent of the Statute of Limitations. ment may consist of a single act or a series of acts. It determines the right of the party, so that the property becomes to him "ag though he had never owned or occupied it." And it is independent of the Statute of Limitations.

Appeal from the County Court of Amador.

This action was brought before a justice of the peace to try the right to a mining claim, and came by appeal to the county

court.

Verdict for plaintiff. Defendant, on appeal to this court, based his case upon the fact that an instruction asked by defendant, upon the question of abandonment, had been given, subject to a qualification stated in the opinion of the court.

SMITH & HARDY, for appellant.

ROBINSON, BEATTY & BOTTS, for respondent.

Argument for appellant.

If a party abandon his claim or privilege in or to anything, he loses control over it, and has no rights afterward and it may be taken by any one, no matter whom. French v. Braintree Man. Co., 23 Pick. 216.

If A, being the owner of property, abandon it, he loses all right of property in it. McGoon v Ankeny, 11 Ill. 558.

The law of abandonment in this State should be even stronger than elsewhere. Here few men have title, save by occupancy, and an abandonment of such a title is always more readily inferred than where titles are perfect and held by deed. Argument for appellee.

"Given, subject to the seventeenth section of the Statute of Limitations," etc., we suppose means that the law does not presume an abandonment, in a shorter period of time than that specified in the statute as the limitation to bringing an action for the recovery of personal property. Such we think,

is the law. A party may, in a moment, abandon property but the abandonment must be shown by some act or circunstance clearly indicating the intent of the party. Our law does not presume abandonment of personal property in less than three years, the time limited in the seventeenth section of the Act of Limitations.

Mr. Chief Justice MURRAY, delivered the opinion of the Court. Mr. Justice HEYDENFELDT and Mr. Justice TERRY concurred.

On the trial of this cause, the following instruction was asked: “That if the jury found from the testimony that the plaintiff had abandoned his interest in the claim in controversy, and did not intend to return and work it before the commencement of this suit, he could not recover," which was given with this qualification: "subject to the seventeenth section of the Statute of Limitations, which permits an action to be brought for the recovery of personal property, any time within three years."

The qualification was erroneous; the inference of abandonment may arise from a single act, as well as from a series of acts, continued through a long space of time. It is a fact to be determined from the particular circumstances of the case. A party, after having abandoned his claim, will not be permitted to come in within the time allowed by the statute for commencing civil actions, and re-assert or resume his former interest, to the prejudice of those who may have afterwards appropriated it.

The statute was not designed to operate on such cases, giving a man a right for a term of years, in the premises against his express wishes.

The abandonment determines the right of the party from the day of the act, and the property is to him as though he had never owned or occupied it.

Judgment reversed and new trial ordered.

McGoon v. ANKENY.

(11 Ill., 558. Supreme Court, 1850.)

Slag. A party who, having made slag, and considering it worthless, casts it away with the intention of abandoning it, thereby divests himself of the title.

Sale of chose in action. The owner of slag can not sell and transfer a good title to it, when in the adverse possession of another who claims it as his own; he has but a right of action against the person in possession which is not the subject of legal transfer.

This was an action of assumpsit, brought by Ankeny against McGoon, in the Jo Daviess Circuit Court, to recover the value of a quantity of slag, of which Ankeny claimed to be the owner. The suit was taken before Sheldon, Judge, and a jury, at a special term in October, 1849, when a verdict was found for the plaintiff Ankeny, for the sum of $523.60. A motion was made for a new trial, which was allowed, unless Ankeny would remit $220, which he consented to do; and, thereupon, judgment was rendered for plaintiff for the sum of $303.60. McGoon appealed to this court. The facts upon which the opinion is based, are sufficiently stated by it.

E. S. LELAND, for appellant.

M. Y. JOHNSON, for appellee.

Opinion by Mr. Justice CATON.

Without knowing something more of the nature of the lease from the government to the smelters who made this slag, it is impossible for us to say whether the general property in the material which they worked continued in the government or not, as was insisted by the counsel for the appellant, nor is the question of abandonment properly before us. It is undoubtedly true, that if those who made the slag, considering it entirely worthless, cast it away with the intention of aban doning it, they thereby divested themselves of their title to it, and could have no more cause to complain when it was taken by another than as if they had never owned it, unless they reclaimed it, without violating the rights of others, and before