Partridge v. McKinney

2 Cal. Dist. Ct. 17

• Court: Shasta District Court
• Decided: September 15, 1857
• Status: Published

Opinion

Daingerfield, J.

— There must be proof of actual abandonment on the part of the plaintiff, or he must have absented himself for the period of five years before the law would presume an abandonment, if he had once established an ownership by.actual possession.

Leaving the claim, even for a day, with the intention of not returning, would be an abandonment. It is the intention alone which constitutes an abandonment until the statute of limitation applies, and unless an intention to abandon is shown by acts or words, the law will not presume it until such time as the plaintiff would be barred from maintaining an action for the recovery of the property in dispute. Inasmuch as Townsend was the agent of Partridge, no length of time would give him the right to the property so that he could deed it to another who had knowledge of the agency, for the property could never be abandoned as long as the rights of plaintiff were represented. Quifacit per aliumfacitper se. McKinney and Elmore, therefore, took no rights by deed from Townsend to any property claimed by plaintiff.

Judgment accordingly.