What is ABANDONMENT? Definition of ABANDONMENT in Black's Law Dictionary
The surrender, relinquishment, disclaimer, or cession of property or of rights. Stephens v. Mansfield, 11 Cal. 363 (land) ; Munsey v. Marnet Oil & Gas Co. (Tex.Civ.App.) 199 S.W. 686, 689 (oil lease) ; Shepard v. Alden, 201 N.W. 537, 539, 161 Minn. 135, 39 A.L.R. 1094 (bowling alleys) ; Union Grain & Elevator Co. v. McCammon Ditch Co., 240 P. 443, 445, 41 Idaho 216 (water rights).
The giving up of a thing absolutely, without reference to any particular person or purpose, as throwing a jewel into the highway; leaving a thing to itself, as a vessel at sea; vacating property with the intention of not returning, so that it may be appropriated by the next corner. 2 Bl. Comm. 9, 10; Judson v. Malloy, 40 Cal. 299, 310. Intention to forsake or relinquish the thing is an essential element, to be proved by visible acts. Sikes v. State, Tex.Cr.App., 28 S.W. 688; Jordan v. State, 107 Tex.Cr.R. 414, 296 S.W. 585, 586 (auto parts) ; Kunst v. Mabie, 72 W.Va. 202, 77
S.E. 987, 990 (uncut timber) ; Dow v. Worley, 126 Okl. 175, 256 P. 56, 60 (oil and gas lease) ; Duryea v. Elkhorn Coal & Coke Corporation, 123 Me. 482, 124 A. 206, 208.
The voluntary relinquishment of possession of thing by owner with intention of terminating his ownership, but without vesting it in any other person. Dober v. Ukase Inv. Co., 139 Or. 626, 10 P. 2d 356, 357. The relinquishing of all title, possession, or claim, or a virtual, intentional throwing away of property. Foulke v. New York Consol. R. Co., 228 N.Y. 269, 127 N.E. 237, 238, 9 A.L.R. 1384 (package in subway car).
Abandonment in law depends upon concurrence of intention to abandon and some overt act or failure to act which carries implication that owner neither claims nor retains any interest. Stinnett v. Kinslow, 238 Ky. 812, 38 S.W.2d 920, 922.
"Abandonment" includes both the intention to abandon and the external act by which the intention is carried into effect. In determining whether one has abandoned his property or rights, the intention is the first and paramount object of inquiry, for there can be no abandonment without the intention to abandon. Boatman v. Andre, 44 Wyo. 352, 12 P.2d 370, 373. Generally, "abandonment" can arise from a single act or from a series of acts. Holly Hill Lumber Co. v. Grooms, 16 S.E.2d 816, 821, 198 S.C. 118.
Time is not an essential element of "abandonment," although the lapse of time may be evidence of an intention to abandon, and where it is accompanied by acts manifesting such an intention, it may be considered in determining whether there has been an abandonment. Ullman ex rel. Eramo v. Payne, 127 Conn. 239, 16 A.2d 286, 287.
Mere nonuser is not necessarily an abandonment. Harnett v. Dickinson, 93 Md. 258. 48 A. 838 (home); Welsh v. Taylor, 131 N.Y. 450, 31 N.E. 896, 18 L.R.A. 535: Phillis v.
Gross, 32 S.D. 438. 143 N.W. 373, 378 (contract for deed). See, however, Corkran, Hill & Co. v. A. H. Kuhlemann Co., 136 Md. 525, 111 A. 471, 474 (trademark). Distinguished from neglect: City of Vallezo v. Burrill, 64 Cal.App. 399, 221 P. 676 (pipe line).
"Abandonment" differs from surrender in that surrender requires an agreement, Noble v. Sturm, 210 Mich. 462, 178 N.W. 99, 103; and from forfeiture, in that forfeiture may be against the intention of the party alleged to have forfeited, Gila Water Co. v. Green, 29 Ariz. 304, 241 P. 307, 308.
In the Civil and French Law it is the act by which a debtor surrenders his property for the benefit of his creditors; Merlin, Repert. See Abandonment for Torts.
Actions, In General
Failure for indefinite period to prosecute action or suit, Morris v. Phifer State Bank, 90 Fla. 55, 105 So. 150, unless caused by an injunction, Barton v. Burbank, 138 La. 997, 71 So. 134. By statute in some states a definite time has been stated which will render a suit abandoned and subject to dismissal. Public Utilities Commission v. Smith, 298 Ill. 151, 131 N.E. 371, 375.
Failure to submit issue by instruction, Unterlachner v. Wells, 317 Mo. 181, 296 S.W. 755, 756; failure to perform conditions necessary to valid appeal or writ of error, Lewis v. Martin, 210 Ala. 401, 98 So. 635; Board of Public Instruction for Marion County v. Goodwin, 89 Fla. 379, 104 So. 779; failure to take issue upon garnishee's answer, Phelps v. Schmuck, 151 Kan. 521, 100 P.2d
67, 71.
Assignments of Error
Not argued. Meyer v. Hendrix, 311 Ill.App. 605, 37 N.E.2d 445, 446.
Not presented in brief. Roubay v. United States, Q.C.A.Cal., 115 F.2d 49, 50.
Not supported by point, argument or authority. Cone v. Ariss, 13 Wash.2d 650, 126 P.2d 591, 593.
Bankrupt's Property
In re Mirsky, C.C.A.N.Y., 124 F.2d 1017.
Building Restrictions
Violations of restrictive covenant, Meyer v. Stein, 284 Ky. 497, 145 S.W.2d 105, 107.
Cemeteries
No new burials and neglect of graves, Andrus v. Remmert, 136 Tex. 179, 146 S.W.2d 728, 730;
casual use for farming purpos,s, In re Gundry, 294 Mich. 221, 292 N.W. 709, 711 ; 1 disuse as to new interments, failure to cut grass r care for headstones, In re Board of Transpor ation of City of New York, 251 N.Y.S. 409, 413, 14 Misc. 557.
Children
Desertion or willful forsaking. Cannon v. State, 53 Ga.App. 264, 185 S.E. 364, 366. Foregoing parental duties. Wright v. Fitzgibbons, Miss., ?1 So.2d 709, 710. Withdrawal or neglect of parental duties. In re Potter, 85 Wash. 617, 149 P. 23. Relinquishment of parental claims. Glendinning v. McComas, 188 Ga. 345, 3 S.E.2d 562, 563. Separation agreement committing custody of child to father. Gardner v. Hall, 132 N.J.Eq. 64, 26 A.2d 799, 809. Separation from the child and failure to supply its needs. State v. Clark, 148 Minn. 389, 182 N.W. 452, 453. Criminal offense, separation from child, and failure to supply its needs. Curtis v. State, 48 Ga.App. 135, 172 S.E. 99, 100. Defeating recovery for wrongful death. In re Schiffrin's Estate, 272 N.Y.S. 583, 585, 152 Misc. 33,
Compensation Claims
Failure to file application for hearing. Hanks v. Southern Public Utilities Co., 210 N.C. 312, 186 S.E. 252.
Condemnation Proceedings
Dismissal of a petition. Will County v. Cleveland, 372 Iii. 111, 22 N.E.2d 929, 930. Failure of commissioners to report, Kean v. Union County Park Commission, 129 N.J.Eq. 67, 18 A.2d 279, 280, or judgment determining invalidity. City of Los Angeles v. Abbott, Cal., 12 P.2d 19, 22; failure to pay moneys adjudged, Detroit International Bridge Co. v. American Seed Co., 228 N.W. 791, 795, 249 Mich. 289.
Construction Work
Cessation of operation and intent of owner and contractor to cease operations permanently, or at least for definite period, or some fair notice or knowledge of abandonment by lien claimant, actual or implied. Block v. Love, 136 Or. 685, 1 P.2d 588, 589.
Contracts
To constitute "abandonment" by conduct, action relied on must be positive, unequivocal, and inconsistent with the existence of the contract, Mood v. Methodist Episcopal Church South, Tex. Civ.App., 289 S.W. 461, 464. Abandonment is a matter of intent, Lohn v. Fletcher Oil Co., 38 Cal. App.2d 26, 100 P.2d 505, 507, and implies not only nonperformance, but an intent not to perform which may be inferred from acts which necessarily point to actual abandonment, Losei Realty Corporation v. City of New York, 254 N.Y. 41, 171 N.E. 899.
Copyrights
Commonlaw rights, Tamas v. 20th Century Fox Film Corporation, Sup., 25 N.Y.S.2d 899, 901; sale and delivery of uncopyrighted painting to stateowned public institution, Pushman v. New York Graphic Soc., Sup., 25 N.Y.S.2d 32, 34; copyrighted lectures not delivered to general public, but only to paying audiences and classes, National Institute for Improvement of Memory v. Nutt, D.C.Conn., 28 F.2d 132, 134.
Crops
Sharecropping tenant's willful failure to cultivate crops, Heaton v. Slaten, 25 Ala.App. 81, 141 So. 267, 268.
Ditches
Town's nonuser for a short period after permitting ditch to be blocked was insufficient. Foster v. Webster, Sup., 44 N.Y.S.2d 153, 156. Mere nonuser does not constitute. Musselshell Valley Farming & Livestock Co. v. Cooley, 86 Mont. 276, 283 P. 213, 218. After prescriptive right attached, water shortage in subsequent years rendering use of ditch unnecessary would not constitute. Bowman v. Bradley, 270 P. 919, 922, 127 Or. 45.
Domicile
Permanent removal from, Stafford v. Mills, 57 N.J.L. 570, 31 A. 1023.
Easements
To establish "abandonment" of an easement created by deed, there must be some conduct on part of owner of servient estate adverse to and inconsistent with existence of easement and continuing for statutory period, or nonuser must be accompanied by unequivocal and. decisive acts clearly indicating an intent on part of owner of easement to abandon use of it. Richardson v. Tumbridge, 111 Conn. 90, 149 A. 241, 242.
Permanent cessation of use or . enjoyment with no intention to resume or reclaim. Welsh v. Taylor, 134 N.Y. 450, 31 N.E. 896, 18 L.R.A. 535; Corning v. Gould, 16 Wend., N.Y., 531. Intention and completed act are both essential. Town of Orlando v. Stevens, 90 Okl. 2, 215 P. 1050, 1051.,
Goodman v. Brenner, 219 Mich. 55, 188 N.W. 377; bricking up of the openings for stairway and halls of adjoining buildings, Miller v. Teer, 220 N.C. 605, 18 S.E.2d 173, 178; where object of use of dedicated property wholly fails, Dallas County v. Miller, 140 Tex. 242, 166 S.W.2d 922. But mere nonuser is not sufficient. Smelcer v. Rippetoe, 24 Tenn.App. 516, 147 S.W.2d 109, 113, 114; O'Barr v. Duncan, 187 Ga. 642, 2 S.E.2d 82, 83; right of way acquired by grant. Burnham v. Mahoney, 222 Mass. 524, 111 N.E. 396, 398; Raleigh, C. & S. Ry. Co. v. McGuire, 171 N.C. 277, 88
S.E. 337, 339. Where owner of building had easement in adjoining wall, wrecking building preparatory to erection of a new building, did not cause loss of easement. Joel v. Publix-Lucas Theater, 193 Ga. 531, 19 S.E.2d 730, 736. And a mere temporary or occasional obstruction or use of an easement by the servient owner is not an "abandonment". Gerber v. Appel, Mo.App., 164 S.W.2d 225, 228. However nonuser of railroad crossing for more than 20 years, and conveyance of strips of land adjoining original right of way to railroad in fee simple, without reservation, constituted abandonment of easement in crossing. Cityco Realty Co. v. Philadelphia, B. & W. R. Co., 158 Md. 221, 148 A. 441, 444.
Employment
During Christmas holidays, notwithstanding a call at employer's office and discussing business, Stinson v. Dairymen's League Co-op. Ass'n, 186 A. 687, 688, 14 N.J.Misc. 671. Deviation from route,
Loper v. Morrison, 145 P.2d 4, 23 Cal.2d 600; truck driver unnecessarily permitting passenger to drive, Ginther v. J. P. Graham Transfer Co., 33 A. 2d 923, 924, 348 Pa. 60. Contra where truck driver remained on driver's seat, directing operation of truck, and watched passenger's driving, Ginther v. J. P. Graham Transfer Co., 27 A.2d 712, 714, 149 Pa.Super. 635; and where truck driver became sick, Matzek v. United Storage & Trucking Co., 186 A. 193, 122 Pa.Super. 146. Truck drivers becoming intoxicated and remaining from work, Naylon v. State, Ct.C1., 40 N.Y.S.2d 587, 590; Coal miner contrary to orders, riding on an empty car, Soroka v. Philadelphia & Reading Coal & Iron Co., 138 Pa.Super. 296, 10 A.2d.904, 907. But
automobile driver's choosing longer route by paved highways to pick up a needed change of clothing at home did not constitute an "abandonment" of his employment. Mitchell v. Mitchell Drilling Co., 154 Kan. 117, 114 P.2d 841, 844.
Exceptions on Appeal
Not argued in brief, Currin v. Currin, 219 N.C. 815, 15 S.E.2d 279, 282. Not set out in brief, Star Mfg. Co. v. Atlantic Coast Line R. Co., 222 N.C. 330, 23 S.E.2d 32, 40. Not complaining of rulings on exceptions, Buckalew v. Brockner, La:App., 11 So.2d 720, 722. Failing to answer appeal to re-urge exception, John Myers Implement Co. v. De Boer, La.App., 9 So.2d 832, 833. Filing answers without insisting on decision on exceptions to jurisdiction ratione personae, Weaver v. Mansfield Hardwood Lumber Co., La.App., 4 So.2d 781, 782.
Family
Where father during three or four months following his departure contributed only $32 to support of wife and three minor children, Howton v. Howton, 51 Cal.App.2d 323, 124 P.2d 837, 839. Contra where father helped to support family, In re Hess' Estate, 257 N.Y.S. 278, 282, 143 Misc. 335.
Franchises
'Inferior service and lack of any service for few short intervals held insufficient to show "abandonment" of ferry franchise. McConnell v. Crittenden County, 250 Ky. 359, 63 S.W.2d 329.
Highways
Where public ceases to use street or highway under circumstances indicating intent to abandon, Grand Trunk Western R. Co. v. City of Flint, D. C.Mich., 55 F.2d 384, 386. But short sections of highway, discontinued by state highway commission upon relocating highway, were not aban Boned. Mosteller v. Southern Ry. Co., 220 N.C. 275, 17 S.E.2d 133, 135. And cultivation of highway for short period by abutting landowners was not an "abandonment" of highway. Chicago & E. I. Ry. Co. v. Road Dist. No. 10, 353 Ill. 160, 187 N.E. 155, 157.
Homesteads
Removal with an intention never to return constitutes an "abandonment", and nothing less does. Farmers' State Bank of Georgetown v. Roberts, Tex.Civ.App., 59 S.W.2d 1089. Must be voluntary action, Wood v. Wood, 203 Ark. 344, 157 S.W.2d 36, 38. Temporary absence with intention to return, Brewer v. Brewer, 268 Ky. 625, 105 S.W.2d 582, 584. Absence of a design of permanent abandonment, Lanier v. Lanier, 95 Fla. 522, 116 So. 867, 868. Absence by necessity, Hinds v. Buck, 177 Tenn. 444, 150 S.W.2d 1071, 1072; sickness, In
re Dunlap's Estate, 161 Or. 93, 87 P.2d 225, 229; advancing years and inability to care for selves, Gulf Production Co. v. Continental Oil Co., Tex., 132 S.W.2d 553, 573, 576; to rent to winter tourists, Collins v. Collins, 150 Fla. 374, 7 So. 443, 444. A deed with reservation of a life estate did not constitute "abandonment" of homestead. Arighi v. Rule & Sons, 41 Cal.App. 852, 107 P.2d 970, 972. Nor did filing of suit to partition land. Carr v. Langford, Tex.Civ.App., 144 S.W.2d 612, 613.
Husband
The act of a husband or wife who leaves his or her consort willfully, and with an intention of causing perpetual separation. People v. Cullen, 153 N.Y. 629, 47 N.E. 894, 44 L.R.A. 420.
Wife's leaving husband for a trip to Europe of less than two months against husband's wishes, did not constitute. In re Boesenberg's Estate, 37 N.Y.S.2d 194, 196, 179 Misc. 3.
Abandonment as cause for divorce must be willful and intentional without intention of returning, and without consent of spouse abandoned. Hickey v. Hickey, 152 Wash. 429, 277 P. 994, 995. Husband forcibly expelling wife from home, Tenorio v. Tenorio, 44 N.M. 89, 98 P.2d 838, 847. Refusal to talk to husband did not establish. Wyahllyeth v. Wyahllyeth, 182 Md. 663, 32 A.2d 380, 381. Wife refusing without good cause to accompany husband when moving, Ventrano v. Vetrano, 54 N.Y.S.2d 537, 539.
Word "abandoned," within statute providing that no wife who has abandoned husband shall have right of election to take against provisions of husband's will, has meaning ascribed thereto in matrimonial litigations, and carries no connotation of infidelity. Adultery of abandoned wife did not constitute "abandonment". In re Green's Estate, 280 N.Y.S. 692, 702, 155 Misc. 641.
A wife who told husband to get out of wife's home, and made no effort to effect a reconciliation, was not entitled to appointment as administratrix of his estate. In re Banaszak's Estate, 1 N.Y.S.2d 15, 164 Misc. 829.
Where husband paid wife living apart in caring for their child, she had not abandoned husband so as to preclude the recovery of an industrial pension for his death. Johnson v. Department of Labor and Industries of Washington, 3 Wash.2d 257, 100 P.2d 382, 385. But wife who had, prior to husband's death, left husband, resisted efforts toward a reconciliation, and instituted annulment proceedings, was not entitled to compensation for husband's death. La Fountain v. Industrial Accident Commission, 13 Cal.App.2d 130, 56 P.2d 257, 258.
Insured Property
A relinquishment or cession of property by the owner to the insurer of it, in order to claim as for a total loss. Chicago S. S. Lines v. U. S. Lloyds, C.C.A.I11., 12 F.2d 733, 738.
The term is used only in reference to risks in navigation; but the principle is applicable in fire insurance, where there are remnants, and sometimes, also, under stipulations in life policies in favor of creditors. Cincinnati Ins. Co. v. Duffield, 6 Ohio St. 200, 67 Am. Dec. 339.
Inventions
The giving up of rights by inventor, as where he surrenders his idea or discovery or relinquishes the intention of perfecting his invention, and so throws it open to the public, or where he negligently postpones the assertion of his claims or fails to apply for a patent, and allows the public to use his invention. Electric Storage Battery Co. v. Shimadzu, Pa., 59 S.Ct. 675, 681, 307 U.S. 5, 613, 616, 83 L.Ed. 1071.
Disclaimer of claim of patent, Triumph Explosives v. Kilgore Mfg. Co., C.C.A.Md., 128 F.2d 444, 448; delaying 12 years after reducing shoe to practice before applying for patent, Salisbury v. Pediforme Shoe Co., D.C.N.Y., 31 F.Supp. 3, 7; omitting for many years to take any step to reinstate or renew rejected application, Na-Mac Products Corporation v. Federal Tool Corporation, c.c.A.m., 118 F.2d 167, 171; acquiescing in rejection of claims in patent application for device shown in later application for patent, Na-Mac Products Corporation v. Federal Tool Corporation, C.C.A.Ill., 118 F.2d 167, 171; Na-Mac Products Corporation v. Federal Tool Corporation, D.C.Ill., 36 F.Supp. 426, 430. But mere lapse of time before an inventor applies for a patent is not sufficient. Imperial Brass Mfg. Co. v. Bonney Forge & Tool Works, D.C.Pa., 38 F. Supp. 829, 832. Patent application was not filed until 21/2 years after date of conception of invention, Chicago Rawhide Mfg. Co. v. National Motor Bearing Co., D.C.Cal., 50 F.Supp. 458, 460. Nor is disclosing invention to individuals with purpose of interesting them in production or manufacture. Pennington Engineering Co. v. Houde Engineering Corporation, D.C.N.Y., 43 F.Supp. 698, 706.
Leases in General
To constitute an "abandonment" of leased premises, there must be an absolute relinquishment of premises by tenant consisting of act and intention. Schnitzer v. Lanzara, 115 N.J.L. 332, 180 A. 234.
Closing up butcher shop with intention of giving up business and in removing all perishable merchandise, although tenant retained key and did not notify landlord of intention to vacate premises, held an "abandonment" and not a "surrender" of premises. Schnitzer v. Lanzara, 115 N.
J.L. 332, 18 A. 234. Refusal by lessee of lessor's offer to reconstruct burned building, Girard Trust Co. v. Tremblay Motor Co., 291 Pa. 507, 140 A. 506, 512. But tenants surrendering premises pursuant to notice of forfeiture did not "abandon" premises. Becker v. Rute, 228 Iowa 533, 293 N.W. 18, 21.
Marriage
Withdrawal or denial of marital obligations without just cause, Reppert v. Reppert, Del.Super., 13 A.2d 705, 1 Terry 492.
Mineral Leases
"Abandonment" consists of an actual act of relinquishment, accompanied with the intent and purpose permanently to give up a claim and right of property. A distinction exists between "abandonment" and "surrender" which is the relinquishment of a thing or a property right thereto to another, which is not an essential element of abandonment. Distinction also exists between elements of "abandonment" and those of estoppel. Neither formal surrender of oil and gas lease nor release is necessary to effectuate "abandonment." Sigler Oil Co. v. W. T. Waggoner Estate, Tex.Civ. App., 276 S.W. 936, 938. Voluntary, intentional relinquishment of known right. Pure Oil Co. v. Sturm, 43 Ohio App. 105, 182 N.E. 875, 882.
Failing to start work under the lease for more than 40 years, Chapman v. Continental Oil Co., 149 Kan. 822, 89 P.2d 833, 834; breach of implied obligation to proceed with search and development of land with reasonable diligence, Wood v. Arkansas Fuel Oil Co., D.C.Ark., 40 F. Supp. 42, 45; no drilling on leased land for more than two years, and failure to pay rentals, Rehart v. Klossner, 48 Cal.App.2d 40, 119 P.2d 145, 147; drawing of casing from well with no intention of replacing it, Seaboard Oil Co. v. Commonwealth, 193 Ky. 629, 237 S.W. 48, 50. But there must be an intention by lessee to relinquish leased premises, Carter Oil Co. v. Mitchell, C.C.A.Okl., 100 F.2d 945, 950, 951; or an intention not to drill, Carter Oil Co. v. Mitchell, C.C.A.Okl., 100 F.2d 945, 950, 951. And ceasing of operations is not alone sufficient. Fisher v. Dixon, 188' Okl. 7, 105 P.2d 776, 777. Doing no substantial work for about one year immediately preceding suit to cancel lease, but remaining in possession and doing some work, Deace v. Stribling, Tex.Civ.App., 142 S.W.2d 564, 567; disconnection of well for a brief interval while well was being drilled to a greater depth, Cole v. Philadelphia Co., 345 Pa. 315, 26 A.2d 920, 923; abandoning work on unproductive well was not an abandonment of leased premises. Smith v. Tullos, 195 La. 400, 196 So. 912, 914.
Mining Claims
Relinquishment of a claim held by location without patent, where the holder voluntarily leaves his claim to be appropriated by the next corner, without any intention to retake or resume it, and regardless of what may become of it in the future. O'Hanlon v. Ruby Gulch Mining Co., 48 Mont. 65, 135 P. 913, 918. The term includes both the intention to abandon and the act by which the abandonment is carried into effect. Peachy v. Frisco Gold Mines Co., D.C.Ariz., 204 F. 659, 668.
Abandonment takes place whenever locator leaves claim without intention of holding it. Crane v. French, 39 Cal. App.2d 642, 104 P.2d 53, 60. But mere absence from claim, is not sufficient. Crane v. French, 39 Cal.App.2d 642, 104 P.2d 53, 60. And one co-owner's abandoning his interest is not an "abandonment" of entire claim. Crane v. French, 39 Ca1.App.2d 642, 104 P.2d 53, 60.
Motions
Motion not called to court's attention until final hearing, Williams v. Smith, 149 Fla. 735, 6 So.2d 853, 854. Grounds not insisted on, Meador v. Nowell, 67 Ga.App. 564, 21 S.E.2d 312, 314; not argued in brief, In re Horton's Estate, 154 Kan. 269, 118 P. 2d 527, 531. Rulings not urged on appeal, Spears v. Brown Paper Mill Co., La.App., 9 So.2d 332, 334. Admitting sufficiency of evidence to sustain verdict, Copeland v. State, 66 Ga.App. 142, 17 S.E.2d 288, 289. But service of answer after making of motion to strike out portions of a complaint was not an "abandonment" of the motion. Russo v. Signode Steel Strapping Co., Sup., 37 N.Y.S.2d 166.
Office
Abandonment of a public office is a species of resignation, but differs from resignation in that resignation is a formal relinquishment, while abandonment is a voluntary relinquishment through nonuser. State v. Harmon, 115 Me. 268, 98 A. 804, 805.
It is not wholly a matter of intention, but may result from the complete abandonment of duties of such a continuance that the law will infer a relinquishment. Wilkinson v. City of Birmingham, 193 Ala. 139, 68 So. 999, 1002. It must be total, and under such circumstances as clearly to indicate an absolute relinquishment; and whether an officer has abandoned an office depends on his overt acts rather than his declared intention. Parks v. Ash, 168 Ga. 868, 149 S.E. 207, 209. It implies nonuser, but nonuser does not, of itself constitute abandonment. The failure to per form the duties pertaining to the office must be with actual or imputed intention on the part of the officer to abandon and relinquish the office. The intention may be inferred from the acts and conduct of the party, and is a question of fact. Abandonment may result from an acquiescence by the officer in his wrongful removal or discharge, but, as in other cases of abandonment, the question of intention is involved. McCall v. Cull, 51 Ariz. 237, 75 P.2d 696, 698.
Temporary absence is not ordinarily sufficient to constitute an "abandonment of office". State v. Green, 206 Ark. 361, 175 S.W.2d 575, 577. Responding to mandatory call for military service in emergency conditions, Caudel v. Prewitt, 296 Ky. 848, 178 S.W.2d 22, 25. And failure of former officers to assert right while decision of eligibility of elected successors was pending, was not an "abandonment" creating vacancy. State v. Levy Court of New Castle County, Del., 3 W.W.Harr. 554, 140 A. 642, 645.
Oil Wells
Where owner ceased working on well to work elsewhere to procure money to do further work on well, well was not abandoned. Jones v. Jos. Greenspon's Son Pipe Corporation, 313 Ill.App. 651, 40 N.E.2d 561.
Patents
There may be an abandonment of a patent, where the inventor dedicates it to the public use; and this may be shown by his failure to sue infringers, sell licenses, or otherwise make efforts to realize a personal advantage from his patent. Ransom v. New York, 4 Blatchf. 157, 20 Fed.Cas. 286.
Pleadings
The filing of a second amended complaint which was complete in itself and which did not reserve to itself any part of the original complaint or first amended complaint constituted an "abandonment" of the two former complaints. Seely v. Gilbert, 16 Wash.2d 611, 134 P.2d 710, 712. Crosscomplainant by failing to take proper steps in trial court to have judgment that was silent on issues tendered by cross-complaint and answer thereto corrected did not thereby "abandon" crosscomplaint. Brown v. National Life Ins. Co. of Washington County, Vt., 112 Ind.App. 684, 46 N.E.
2d 246, 249.
Prescriptive Rights
Non-use alone is insufficient. Burkman v. City of New Lisbon, 246 Wis. 547, 19 N.W.2d 311, 313;
Smelcer v. Rippetoe, 24 Tenn.App. 516, 147 S.W.2d 109, 113, 114.
Privileges
Witness before grand jury who answered questions and immediately asked to retract answers, and thereupon asserted his privilege, did not "abandon" right to claim the privilege. United States v. Weisman, C.C.A.N.Y., 111 F.2d 260, 261.
Property
"Abandoned property" in a legal sense is that to which owner has relinquished all right, title, claim, and possession, with intention of not reclaiming it or resuming its ownership, possession or enjoyment. Jackson v. Steinberg, Or., 200 P.2d 376, 377, 378.
There must be concurrence of act and intent, that is, the act of leaving the premises or property vacant, so that it may be appropriated by the next comer, and the intention of not returning. Cohn v. San Pedro, L. A. & S. L. R. Co., 103 Cal.App. 496, 284 P. 1051, 1052. Relinquishment of all title, possession, or claim; a virtual intentional throwing away of property. Ex parte Szczygiel, Sup., 51 N.Y.S.2d 699, 702. Actual relinquishment, gas in pipe was not abandoned. Hein v. Shell Oil Co., 315 Ill.App. 297, 42 N.E.2d 949, 952. Nor was a sewing machine and phonograph left with landlady as security. Dickens v. Singer Sewing Mach. Co., 140 So. 296, 298, 19 La.App. 735.
Property for Special Purposes
Moving of church to erect drilling rig held not "abandonment of use for church purposes." Abandonment meant to wholly discontinue church use, and additional use was not sufficient. Skipper v. Davis, Tex.Civ.App., 59 S.W.2d 454, 457.
Merger of churches was not. Bridgeport-City Trust Co. v. Bridgeport Hospital, 120 Conn. 27, 179 A. 92, 94. Nor where intention was that nonconforming use as a fraternity house would be resumed. State ex rel. Morehouse v. Hunt, 235 Wis. 358, 291 N.W. 745, 751, 752. Nor mere cessation of a nonconforming use in zoned area for a reasonable period. Beyer v. Mayor and Council of Baltimore City, Md., 34 A.2d 765, 768, 769. Nor a discontinuance of a garage during war while owner served in army and on return postponed repossession for garage purposes due to city's using building. State v. Murray, 195 Wis. 657, 219
N.W. 271, 272. But removal of manufacturing equipment from manufacturing plant, was. Francisco v. City of Columbus, Ohio App., 31 N.E.2d 236, 243. And also disposing of all machinery, taking down smokestack and using property for storage purposes, notwithstanding vague intention of resuming slaughter house business. Beyer v. Mayor and City Council of Baltimore City, 182 Md. 444, 34 A.2d 765, 768, 769.
Dedicated use must wholly fail. Kirchen v. Remenga, 291 Mich. 94, 288 N.W. 344, 350, 351. Erection of buildings on park lands without objection of adjoining owners was not sufficient. Kirchen v. Remenga, 291 Mich. 94, 288 N.W. 344, 350, 351. Nor city's permitting a citizen's rock garden on small portion of street improvement tract. Kendrick
V. City of St. Paul, 213 Minn. 283, 6 N.W.2d 449, 451. Nor diverting parkway to roadway. Ford v. City of Detroit, 273 Mich. 449, 263 N.W. 425, 426. Nor tearing down school building for salvaging material for erection of a waiting station for school children. McCullough v. Swifton Consol. School Dist., 202 Ark. 1074, 155 S.W.2d 353. Nor temporary disuse of school when land was offered for sale, later rescinded. Bernard v. Bowen, 214 N.C. 121, 198 S.E. 584.
Railroad Property
"Abandon" means to relinquish or give up with intent of never again resuming or claiming one's rights or interests in, to give up absolutely, to forsake entirely, to renounce utterly, to relinquish all connection with or concern in. Capital Transit Co. v. Hazen, 93 F.2d 250, 251, 68 App.D.C. 91. Abandonment did not mean a partial disuse with an intention to complete station on a contingency, but meant a final relinquishment, or giving up with out intention of resuming. Wheeling & L. E. Ry. Co. v. Pittsburgh & W. V. Ry. Co., C.C.A.Ohio, 33 F.2d WO, 392. And to constitute an "abandonment" of right of way, there must be not only an actual relinquishment of the property, but an intention to abandon it. Abens v. Chicago, B. & Q. R. Co., 388 Ill. 261, 57 N.E.2d 883, 887.
Nonuser is a fact in determining it, but, though continued for years, is not conclusive. Arlington Realty Co. v. Keller, 105 N.J.Eq. 196, 147 A. 437, 438. Plowing up servient estate is not enough. Les v. Alibozek, 269 Mass. 153. 168 N.E. 919, 922, 66 A.L.R. 1094. Nor proposal to deliver and receive freight by motortrucks. New York Dock Ry. v Pennsylvania R. Co., D.C.Pa., 1 F.Supp. 20, 21. But failure to maintain and use that part of railroad on land conveyed constituted "abandonment." Atlantic Coast Line R. Co. v. Sweat, 177 Ga. 698, 171 S.E. 123, 129.
Remedies
Election of one of two inconsistent remedies, Lumber Mutual Casualty Ins. Co. of New York v. Friedman, 176 Misc. 703, 28 N.Y.S.2d 506, 509.
Rights in General
The relinquishment of a right. It implies some act of relinquishment done by the owner without regard to any future possession by himself, or by any other person, but with an intention to abandon. Dyer v. Sanford, 9 Mete., Mass., 395, 43 Am. Dec. 399.
It Is properly confined to incorporeal hereditaments, since legal rights once vested must be divested according to law. But equitable rights may be abandoned. Great Falls Co. v. Worster, 15 N.H. 412; Cox v. Colossal Cavern Co., 210 Ky. 612, 276 S.W. 540; Inhabitants of School Dist. No. 4 v. Benson, 31 Me. 381, 52 Am. Dec. 618.
Ship and Freight
Act by which shipowner surrenders ship and freight to a trustee for benefit of claimants. See 46 U.S.C.A. § 185; Ohio Transp. Co. v. Davidson S. S. Co., 148 F. 185, 78 C.C.A. 319.
In France and other countries it is the surrender to a person having a claim arising out of a contract made with the master. American Transp. Co. v. Moore, 5 Mich. 368.
Taxing Power
Delegation of taxing power by legislature to city was not "abandonment of taxing power". Mouledoux V. Maestri, 197 La. 525, 2 So.2d 11, 16.
Trade-marks and Trade Names There must be not only nonuser, but also an intent to abandon. Rockowitz Corset & Brassiere Corporation v. Madame X Co., 248 N.Y. 272, 162 N. E. 76, 78; Manz v. Philadelphia Brewing Co., D.C. Pa., 37 F.Supp. 79, 81. To give up use of trademarks permanently. Neva-Wet Corporation of America v. Never Wet Processing Corporation, 277 N.Y. 163, 13 N.E.2d 755, 761.
Disuse not sufficient in itself. Sherwood Co. v. Sherwood Distilling Co., 177 Md. 455, 9 A.2d 842, 845. Nor using owner's name. Bunte Bros. v. Standard Chocolates, D.C. Mass., 45 F.Supp. 478, 480. However, nonuser with extensive use by another is sufficient. Sherwood Co. v. Sherwood Distilling Co., 177 Md. 455, 9 A.2d 842, 845. But not where receiver continuously operated trade-mark licensee's property. American Dirigold Corporation v. Dirigold Metals Corporation. C.C.A.Mich., 125 F.2d 446, 454. Nor sale of all physical assets of manufacturing company by trustee in bankruptcy. Reconstruction Finance Corporation v. J. G. Menihan Corporation, D.C.N.Y., 28 F.Supp. 920, 923.
Trusts
State aid for hospital, with stipulation for beds for emergency cases, did not establish an "abandonment of trust". Noble v. First Nat. Bank of Anniston, 241 Ala. 85, 1 So.2d 289, 291.
Water Rights
"'Abandonment," as applied to water rights may be defined to be an intentional relinquishment of a known right. It is not based on a time element, and mere nonuser will not establish "abandonment" for any less time," at least, than statutory period, controlling element in "abandonment" being matter of intent. Hammond v. Johnson, 94 Utah 20, 66 P.2d 894, 899. To desert or forsake right. The intent and an actual relinquishment must concur. Central Trust Co. v. Culver, 23 Colo. App. 317, 129 P. 253, 254. Concurrence of relinquishment of possession, and intent not to resume it for beneficial use. Neither alone is sufficient. Osnes Livestock Co. v. Warren, 103 Mont. 284, 62 P.2d 206, 211.
Not using water when there was no water in creek because of another user's obstruction of flow and appropriation of all the water did not constitute. New Mexico Products Co. v. New Mexico Power Co., 42 N.M. 311, 77 P.2d 634, 641. Nor did milling company's permitting water's use by upper irrigators. Hutchinson v. Stricklin, 146 Or. 285, 28 P.2d 225, 230. Nor permitting upper appropriators to erect dam and store water. Irion v. Hyde, Mont., 81 P. 2d 353, 356. Nor change of place of use of decreed water right. Harris v. Chapman, 51 Idaho 283, 5 P.2d 733, 737. Nor failure to use all water to which entitled. Horse Creek Conservation Dist. v. Lincoln Land Co., 54 Wyo. 320, 92 P.2d 572, 577. Use of only enough water to water stock. because supply was insufficient to irrigate land. Federal Land Bank v. Morris, 112 Mont. 445, 116 P.2d 1007, 1010. But right to use a particular quantity of water may be abandoned by failure to apply such water to a beneficial use for an unreasonable period of time. Cundy v. Weber, 68 S.D. 214, 300 N.W. 17, 22.
Wife
Abandonment justifying divorce is a voluntary, unjustified, and final separation of one of married parties from the other, accompanied by an intention to terminate the marital relation, or an unjustified refusal to resume suspended cohabitation, as where husband left his wife because his children by former marriage could not live peaceably with second wife. Schwartz v. Schwartz, 158 Md. 80, 148 A. 259, 263.
Refusal by husband of request by sick wife without means of support, to return to home held "abandonment" as respects disorderly conduct. People v. Schenkel, 252 N.Y.S. 415, 418, 140 Misc. 843. Contra where separation agreement existed. People v. Gross, 291 N.Y.S. 597, 601, 161 Misc. 514. Where parties separated by agreement, and husband, in lieu of periodic payments for wife's support, made conveyance constituting valuable consideration, held not "abandonment" as respects husband's statutory right against wife's will. In re McCann's Estate, 281 N.Y.S. 445, 155 Misc. 763; or even if wife was justified in leaving husband on account of his cruel treatment, there must be a desertion without consent. In re Stolz' Estate, 260 N.Y.S. 906, 145 Misc. 799. But while there can be no "desertion" for divorce where parties are apart by consent, yet there may be an "abandonment" as respects separate maintenance, although the separation originated and continued by consent of parties. Pierson v. Pierson, 189 A. 391, 395, 15 N.J.Misc. 117. And as respects maintenance, husband's conduct rendering wife's condition unendurable constitutes "abandonment." Carder v. Carder, 227 Mo.App. 1005, 60 S. W.2d 706. Cruel treatment, Fallon v. Fallon, 111 N.J. Eq. 512, 162 A. 406, 408. Husband's refusal of wife's request to resume living with her, Clark v. Clark, 176 A. 81, 83, 13 N.J.Misc. 49; or refusal to receive wife at his residence, is an "abandonment" of her. Hockaday v. Hockaday, 182 La. 88, 161 So. 164. But not a husband's removal from wife's home after wife had instituted separation action, Kenneson v. Kenneson, 36 N.Y.S.2d 676, 685, 178 Misc. 832; or where husband moved out on command of wife's father. Anonymous v. Anonymous, 24 N.Y.S.2d 613, 618. Mere failure to support wife is not an abandonment within Divorce Act. Biddle v. Biddle, 104 N.J.Eq. 313, 145 A. 639, 640; but failing to provide wife with necessities, etc., is. Cooper v. Cooper, 176 Md. 695, 4 A.2d 714, 716. And convict sentenced for life did not abandon wife. In re Lindewall's Will, 18 N.Y.S.2d 281, 284, 259 App. Div. 196.
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