Davis v. Butler

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 *512the act, and the property is to him as though he had never owned or occupied it.

Judgment reversed and new trial ordered.