1. Meaning of term abandonment.-Abandonment is a word which
has acquired a technical meaning, and there can be no reason why it
should receive a different signification when applied to a mining claim
than that which it his received in the books. Mallett v. Uncle Sam
Co.,
17
2. Abandonment defined-How affected by statute.-The word aban-
don, means to desert or forsake. It implies an action of the will and an
intent. Such intent may be inferred from the acts and declarations of
the party to be charged. And in addition to actual abandonment, the
statute requires it to be followed by non-user for one year, before the
original owner is deemed to have lost all title therein. Dodge v. Mar-
den,
3. Intention.-In determining the question of ab indonment, the in-
tention is the first and paramount object of inquiry. Mallett v. Uncle Sam
Co.,
4. Intent negatived-Leaving too's—Indian hostilities.-The fact that
the locators of a claim were driven away by hostile Indians, leaving their
tools at another mine in the vicinity, and did not return, partly because
of the necessary expenditure of money, and also because they thought that
they had performed sufficient work thereon to entitle them to hold it,"
held (in terms without analysis), to be substantially a negation of the
intent to abandon. Morenhaut v. Wilson,
53
5. Intention-Law and fact.-Abandonment is a mixed question of
law and fact. 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 Co. v. Uncle Sam Co.,
6. Question of intent.-Abandonment is a matter of intention and op-
erates instanter. Derry v. Ross,
7. Intention to return.-There must be a leaving of the claim, without
any intention of returning or making any further use of it, to sustain the
allegation of abandonment. Bell v. Bed Rock Co.,
8. Animus revertendi.—There can not be abandonment except where
there has been previous possession, and then the animus revertendi is the
simple test. The inducement which keeps alive the purpose to return
can not affect the question of abandonment. Stone v. Geyser Co.,
9. Bringing suit is evidence of intent.-Upon the question of abandon-
ment, the fact that the party charged with abandoning brought suit for
the premises, although against parties not connected with the present
controversy, is evidence upon the question of his intent; and the record of
such suit is proper evidence to prove such fact—and in such case the court
should by charge limit the effect of the record to its proper object.-Rich-
ardson v. McNulty,
10. Belief. The fact that a re-locator believed the ground to be aban-
doned can not be considered as evidence of abandonment. Stone v. Gey-
ser Co.,
11. Lapse of time.—Time is not an essential element of abandonment;
the moment the intention to abandon and the relinquishment of posses-
sion unite, the abandonment is complete. But lapse of time may be a
strong circumstance in connection with other circumstances, to prove the
intention to abandon. Bare lapse of time short of the statute of limita-
tions, unconnected with other circumstances, is no proof of abandonment.
Mallett v. Uncle Sam Co.,
12. Abandonment will not be presumed from the lapse of time (shown
in this case: Mallett v. Uncle Sam Co.,
13. Desertion equivalent to abandonment.—When 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 aban-
donment 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 to 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. Derry v. Ross,
1
14. Abandonment a legal issue.—Where abandonment is averred and
denied, the issue raised is an issue at law; and where such an issue is
framed in an injunction case, final decree should be deferred until such is-
sue be decided in a court of law; but if the parties proceed to trial with-
out objection before the chancellor upon such issue, his decree can not be
questioned for want of jurisdiction. The rule that consent can not give
jurisdiction, does not apply where the parties and subject-matter are both
within the jurisdiction. Id.
15. Abandonment proved under general issue.-Evidence of abandon-
ment is admissible under general denial of title. Bell v. Bed Rock
Co.,
16. Range of testimony.-Latitude should be allowed in cases of aban
donment, analogous to the rule in cases of fraud. Id.
17. Non-user not abandonment.-Water rights can not be divested by
non-user alone short of the period of the statute of limitations relating
to real property. Dodge v. Marden,
18. Abandonment, in connection with sale.-The sale of mining claims
to a stranger is not necessarily an abandonment of the water used on such
claims. Id.
19. Abandonment divests title.-The possessory title to a mining
claim may be divested by abandonment as well as by gift or sale. Derry
v. Ross,
20. Abandonment independent of the statute of limitations.-Aban-
donment 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 "as though
he had never owned or occupied it." And it is independent of the statute
of limitations. Davis v. Butler,
7
21. Abandonment and gift distinguished.—In abandonment the land
must be left free to the next comer, without intent to repossess; the land
reverts to its former condition publici juris; transfer and abandonment are
inconsistent terms, and if the transaction amount to a gift it is a transfer
and not an abandonment; but the mere desire that another should take
his place, does not amount to a gift. Richardson v. McNulty,
22. Offer to purchase.-An offer by the re-locating party to purchase
the title alleged to have been abandoned, and the refusal to accept such
offer, is evidence upon the question of intent. Bell v. Bed Rock Co., 45
23 Slag.-A party who, having made slag, and considering it worth-
less, casts it away with the intention of abandoning it, thereby divests him-
self of the title. McGoon v. Ankeny,
9
24. Presumption of fact from fact.-A jury can not rightfully be told
that they are authorized to find the fact of abandonment from the exist-
ence of other facts which do not necessarily raise a presumption of, but
only tend to prove an abandonment. Stone v. Geyser Co.,
59
25. New trial.-The plaintiff in ejectment for a mining claim obtained a
verdict, although the evidence clearly established that he had abandoned
the claim: Held, that the verdict should have been set aside. Seymour
v. Wood,
62
26. Abandonment of tailings and water.—Water and tailings allowed to
flow from a flume and abandoned, may be appropriated; but no obliga-
tion rests upon parties who have so abandoned their water and tailings to
continue so to do, even if persons below have, at expense, erected works
to catch and appropriate such water and tailings. Dougherty v. Creary,
See FORFEITURE; ANNUAL LABor.
1. Mine owners' liability.—A statute of the State of Illinois provided that
under certain circumstances, mine owners should construct escapement
shafts from their mines, and for a willful violation of the act should be liable
for any direct damage occasioned thereby, and in case of loss of life a
right of action should accrue to the widow of the person killed.
A coal company worked three coal veins through a single shaft, in vio-
lation of the statute. A fire occurred in the main shaft above the second
level where H. was at work, and in the attempt to escape he fell to the
third level and lost his life. Held, that the company was liable to the
widow of H., though the fire was accidental, and though there was no real
danger, the alarm on the part of H. being natural in the absence of any
escapement shaft. A party having given another reasonable cause for
alarm, can not complain that the person so alarmed has not exercised cool
presence of mind, and thereby find protection from responsibility for dam-
ages resulting from the alarm. Wesley Co. v. Healer,
1. Account stated-Evidence.-An account stated is in the nature of a new
promise or undertaking, and in this case was properly admitted as written
evidence of a contract or obligation on the part of the defendant to pay in
gold coin of the United States. Carey v. Philadelphia Co.,
349
2. Parties to account.-Where all the stockholders have not been made
parties, but no objection has been interposed on that ground, the point
will be considered waived, and an account decreed. Neall v. Hill, 80
3. Account essential, in action between partners.-An action by one
partner against his copartners, praying judgment for a specific sum, not
asking for an account or a dissolution, but dependent upon an investiga-
tion of all the partnership transactions, is a proceeding so irregular
that it must be reversed, although no exceptions were taken below. Rus-
sell v. Ford,
Excluded stockholder against fraudulent associates.-A member
of a ditch company, whose rights are ignored by the other members, who
have also conspired to procure a sale of the property for taxes, is entitled
to an account upon such a showing, and to a decree affirming his interest.
Smith v. Fagan,
87
5. Account against mortgagee in possession for dividends on stock.
-Defendant held salt block No. 140, as collateral security. A company
was organized to work the salines, into which the owners could put their
respective blocks at a rental in stock or could take stock and work under
the company, or could lease to the company generally. Defendant leased
this block (with others of his own) for stock, on which he received div-
idends. Held, that he must account for such dividends as the earnings of
the property. 2. That the relation of the parties was sufficient to sup-
port a trust, without further consideration. Chapman v. Porter, 102
6. Plaintiff out of possession.-An account of the profits of coal
mines can not be decreed in favor of a party out of possession. He must
bring his ejectment. Sayer v. Pierce,
7. Account incident to injunction.—An account for waste done is in-
cidental to injunction to restrain future waste. Ackerman v. Hartley, 74
8. Fraud.-Account opened and general account decreed against an
agent who was also tenant to his principal, for fraud both in allowing the
use of certain levels in the mines of which he was agent to be used in
working adjoining mines without accounting to his principal, and also
for fraudulent misrepresentations in obtaining the lease and concerning
the product of the mine. Beaumont v. Boultbee,
263
9. Steward taking lease, must account as a confidential agent.-The
character of agent accompanying him in his situation as tenant, deprives
him of the benefit of an objection that might be competent to another per-
son; as the laches of the plaintiff in not bringing forward the demand at
an earlier period; affirming on rehearing same case: 5 Vesey, 485. Ante
253. Id.
10. Account restricted to period within limitation act-Burden of
proof.-Where by underground workings the defendant had taken the
coal of his neighbor, the court limited the account to six years, but in-
timated that the amount wrongfully abstracted being proved, the onus of
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