GEORGE C. MOON v. WILLIAM ROLLINS, and MARTIN CONDREY, 36 Cal. 333

By the Court, Sawyer, C. J. : The first point made is, that the evidence is insufficient to justify the findings, in several particulars specified. We do not think we should be justified in setting aside the findings on this ground. In Richardson v. McNulty, 24 Cal. 345, we said, on the question of title by possession and of abandonment: “By the act of occupancy the plaintiff made it his, and manifested his intention to do so. Once his, it continues his until he manifests his intention to part with it in some manner known to the law.

He may sell it, or give it to another, or transfer it in any other mode authorized by law, (thereby preserving the continuity of possession,) or he may abandon it. In doing the latter he must leave it free to the occupation of the next Comer, whoever he may be, without any intention to repossess it or reclaim it for himself in any event,- and regardless and indifferent as to what may become of it in the future.

When this is done a vacancy in the possession is created, and the land once more reverts to its former condition, and becomes once more publiei juris, and then, and not until then, an abandonment taken place.” So in St. John v. Kidd, 26 Cal. 272, we said: “Whereas the principal question involved in the defense of abandonment is one of intention, was the ground left by the locator without any intention of returning, or making any further use of it?” In Lawrence v.

Fulton, the Court substantially held that lapse of time does not of itself constitute an abandonment, but that it is only a circumstance for the jury to consider in determining the question whether there was an abandonment; or, in other words, the question is one of intent. So in Waring v.

Grow, 11 Cal. 369, where the District Court instructed the jury that, on a question of abandonment, “the intention alone governs,” and that, if the party in possession “left with the intention of returning, he might do so at any time within five years, provided there was no rule, usage, or custom of miners of such notorious character as to raise a presumption of an intention to abandon.” This was held, on appeal, to “ present the law fairly and clearly to the jury.” (11 Cal. 372.) It was only necessary for the purpose of the case to go so far, and nothing was said as to a period of time beyond five years.

But if a party may return in five years, it is not apparent why he may not return in five years and one month or two months, unless an adverse possession has barred the right of entry. It is a question of intention, and has been so held over and over again, and not a question of time, except so far as the jury are entitled to consider lapse of time in connection with other circumstances of claim, or non-claim, and acts of ownership and dominion, or a want of such acts, for the purpose of ascertaining the intention. In Keene v.

Cannovan, 21 Cal. 293, the plaintiff’s grantor had been in possession up to January, 1851, when his building was burned, and it does not appear that he ever afterwards occupied, or even fenced it. In fact it does appear that he was not in possession after the Summer of 1852. The action was commenced in 1860, some nine years after the fire.

The District Court charged the jury that the question before them was one of prior possession, as neither party showed title, that if they found a prior possession in said plaintiff’s grantor, it was sufficient to maintain the action, unless abandoned, “that the question of abandonment was one of intention, of which they were to judge exclusively.” Plaintiff had judgment, and, on appeal, the Court, by Mr.

Chief Justice Field, say: “ The charge to the jury on the subject of abandonment was correeti The charge was that the question of abandonment ivas one of intention, of which the jury was to judge exclusively, and that in order to do so they must take into consideration all the facts and circumstances before them. The question was correctly stated; it was plainly one of intention to be gathered from the facts. There was little evidence on the subject, none from which the Court would have been warranted in taking it from the jury.

There are eases, undoubtedly, in which an abandonment may be inferred from the lapse of time, and the delay of the first occupant in asserting his claim to the possession against parties subsequently entering upon the premises. But in such cases the leaving of the premises must have been voluntary, and without any expressed intention to resume the possession. In the case at bar, it appears that when Mondolet ceased to occupy in person the premises he left an agent in charge of them.

This circumstance is of itself sufficient to rebut the presumption of abandonment arising from the fact that he ceased to occupy them, and to render the question, whether in fact he did or did not abandon them, one for the consideration of the jury.” And on petition for rehearing the Court say: “ The possession of Mondolet was evidence of seizin in fee in him, and no further or higher evidence of title was required to enable the plaintiff., claiming through him, 'to recover, until the defendant had shown an anterior possession, or had traced title from a paramount source.” It must also be remembered, that after title by possession is once shown, there is no presumption of its loss, but an abandonment must be made to appear affirmatively by the party relying upon it to defeat a recovery.

Thus it has been uniformly held down to and including Bell v. Bedrock Tunnel and Mining Company, ante, 214, that abandonment is a question, of intention, to be ascertained by the jury from a consideration of all the circumstances of the case. And “upon a question of abandonment a wide range should be allowed, for it is generally only from facts and circumstances that the truth is to be discovered, and both parties should be allowed to prove any fact or circumstance from which any aid for the solution of the question can be derived.” (Willson v.

Cleaveland, 30 Cal. 202.) Upon an examination of the cases cited, it will be found that slight circumstances have been allowed to rebut the inference of abandonment, arising from long disuse. In this case there was evidence amply sufficient to show a possession once acquired by plaintiff’s grantors, and the Court so found. There was then left only the question oí abandonment, and on this question also the Court found in favor of plaintiff, on a better ease for plaintiff than was presented in Keane v. Cannovan, and amply sufficient to prevent us from setting aside the finding on that point.

The land was conveyed from time to time for large sums of money— as high as one thousand five hundred dollars—sometimes through sales under execution, and sometimes on sales by the owner. The plaintiff himself paid a large sum of money for the land, and only obtained it after a long correspondence and negotiation with the party claiming to be the owner, in New York. These facts indicate no purpose to abandon. The claim asserted was evidently well known and respected till defendant entered.

There is also evidence tending strongly to show that defendant himself recognized the right of plaintiff’s grantors, and that the purchase was made by plaintiff upon an arrangement with defendant, with money borrowed by plaintiff for the express purpose, upon a loan negotiated by defendant himself, and that defendant, in taking possession, acted in bad faith toward plaintiff.

There is, it is true, conflicting testimony upon this point, but the finding upon the whole case is for the plaintiff, and we find no sufficient ground for setting aside the findings on the questions litigated, of prior possession and abandonment. An intent to abandon was certainly not affirmatively shown. Unless we are prepared to overthrow the doctrine that abandonment is a question of intention, to be determined by the jury from the evidence, and to overrule the cases cited, the judgment in this case must be affirmed on this point.

Defendant, Rollins, derived title to a part of the land claimed in the complaint from one McKenna, who died some years before the trial. The testimony of plaintiff, Moon, was objected to as incompetent, on the ground that Rollins is the representative of a deceased party. But the Court found in favor of defendant, Rollins, as to the McKenna lot. Conceding Moon to be incompetent to testify, so far as that lot is concerned, since Rollins succeeded as to that lot, he could not have been injured by Moon’s testimony with respect to it.

It is not pretended that Rollins is the representative of a deceased party, with respect to the lots recovered by Moon, and as to those he was a competent witness. We think there is no error on the question of damages. The judgment in the case of Sindle v. McKenna, and the proceeding under it, putting the plaintiff* in possession, were relevant on the question of possession, to show the fact that he was put in possession. Judgment affirmed. Mr. Justice Sprague expressed no opinion.