cjs on abandonment

Corpus Juris SecundumDatabase updated September 2011

Abandonmentby Francis C. Amendola, J.D.

Correlation Table

Summary

Scope:This title deals with the general relinquishment of property or other rights of any kind by abandonment, as

distinguished from dedication, surrender, or waiver. This title additionally discusses the effect of abandonmentby way of extinguishment of title or right.

Treated Elsewhere:Estrays, C.J.S., Animals §§ 244 to 262Reversion of property to the state, C.J.S., EscheatFinding and taking possession of lost goods of another, C.J.S., Finding Lost GoodsEstablishment of and action on lost instruments in writing, C.J.S., Lost InstrumentsReward for the recovery of lost goods, C.J.S., Rewards and Bounties § 28Wrecks, abandonment of vessels and goods, C.J.S., Shipping § 521

Research References:

A.L.R. Library

A.L.R. Index: Abandonment of Property or Right

West's A.L.R. Digest, Abandoned and Lost Property 1 to 5

Westlaw. © 2011 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

CJS ABAND SUM

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CJS ABAND SUM 1 C.J.S. Abandonment Summary

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

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Topic Summary Correlation Table

§ 1. Generally

West's Key Number Digest

West's Key Number Digest, Abandoned and Lost Property 1.1"Abandonment" of property or of a right is generally defined as the voluntary relinquishment thereof by its

owner or holder, with the intention of terminating his or her ownership, possession, and control, and withoutvesting ownership in any other person.

In general, the term abandonment has been variously defined as the relinquishment,[1] or absolute relin-quishment,[2] or renunciation[3] of a right, or of property. The term "abandon" means to give up absolutely,[4]to forsake entirely,[5] to renounce utterly,[6] to relinquish all connection with or concern in,[7] or to desert,[8]and, when applied to personal property, also includes an intent by the owner to leave the property free to be ap-propriated by any other person.[9]

More specifically, abandonment has been defined as the intentional relinquishment of a known right;[10]the relinquishment of a right by the owner thereof without any regard to future possession by himself or herselfor any other person,[11] and with the intention to forsake and desert the right;[12] the voluntary[13] and inten-tional relinquishment of a right to property;[14] or the relinquishment of all title, possession, or claim to or ofproperty[15] with the intention of not reclaiming it or resuming its ownership,[16] or virtually throwing itaway.[17]

Additionally, the term "abandonment" has been defined as the voluntary relinquishment of a right or prop-erty by its owner with the intention of terminating his or her ownership, and without vesting ownership in anyother person;[18] the giving up of a thing absolutely, without reference to any particular person or purpose;[19]or the relinquishment of property to which a person is entitled, with no purpose of again claiming it, and withoutconcern as to who may subsequently take possession.[20]

Abandoned property."Abandoned property" is property over which the owner has relinquished all right, title, claim, and posses-

sion[21] with the intention of terminating his or her ownership,[22] but without vesting ownership in any otherperson,[23] and with the intention of not reclaiming it or resuming its ownership, possession or enjoyment.[24]

Property is "abandoned" when its owner, intending to relinquish all rights to the property, leaves it free tobe appropriated by any other person;[25] or when it is thrown away, or its possession is voluntarily forsaken bythe owner, in which case it will become the property of the first occupant.[26] Property may also be said to be"abandoned" when it is involuntarily lost or left without the hope and expectation of again acquiring it, and then

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it becomes the property of the finder, subject to the superior claim of the owner.[27] On the other hand, propertyis not "abandoned" unless the owner voluntarily and intentionally relinquishes all rights to it.[28]

CUMULATIVE SUPPLEMENT

Cases:

"Abandonment of property" is the voluntary relinquishment thereof by its owner with the intention of ter-minating his ownership, possession and control and without vesting ownership in any other person. Griffis v.Davidson County Metropolitan Government, 164 S.W.3d 267, 199 Ed. Law Rep. 509 (Tenn. 2005).

[END OF SUPPLEMENT]

[FN1] U.S.— U.S. v. Alpine Land and Reservoir Co., 27 F. Supp. 2d 1230 (D. Nev. 1998); Zych v.Unidentified, Wrecked and Abandoned Vessel, Believed to be SB Lady Elgin, 755 F. Supp. 213 (N.D.Ill. 1990).

Cal.—Cerro de Alcala Homeowners Assn. v. Burns, 169 Cal. App. 3d Supp. 1, 216 Cal. Rptr. 84 (App.Dep't Super. Ct. 1985).

Fla.—Meeks ex rel. Estate of Meeks v. Florida Power & Light Co., 816 So. 2d 1125 (Fla. Dist. Ct. App.5th Dist. 2002), review granted, 837 So. 2d 408 (Fla. 2003) and decision approved, 863 So. 2d 287 (Fla.2003).

Neb.—Mueller v. Bohannon, 256 Neb. 286, 589 N.W.2d 852 (1999).

[FN2] Ohio—Davis v. Suggs, 10 Ohio App. 3d 50, 460 N.E.2d 665 (12th Dist. Clinton County 1983).

Tex.—City of Anson v. Arnett, 250 S.W.2d 450 (Tex. Civ. App. Eastland 1952), writ refused n.r.e.

[FN3] Iowa—Kladivo v. Melberg, 210 Iowa 306, 227 N.W. 833 (1929).

[FN4] Idaho—Consolidated AG of Curry, Inc. v. Rangen, Inc., 128 Idaho 228, 912 P.2d 115 (1996).

Okla.—Dycus v. Belco Industries, Inc., 1977 OK CIV APP 39, 569 P.2d 553 (Ct. App. Div. 2 1977).

Tex.—Railroad Com'n of Texas v. Waste Management of Texas, Inc., 880 S.W.2d 835 (Tex. App. Aus-tin 1994).

[FN5] Tex.— Railroad Com'n of Texas v. Waste Management of Texas, Inc., 880 S.W.2d 835 (Tex.App. Austin 1994).

Act of forsaking or leaving

La.—New Orleans Bank & Trust Co. v. City of New Orleans, 176 La. 946, 147 So. 42 (1933).































[FN8] U.S.—Nunley v. M/V Dauntless Colocotronis, 863 F.2d 1190 (5th Cir. 1989).

Tex.—Railroad Com'n of Texas v. Waste Management of Texas, Inc., 880 S.W.2d 835 (Tex. App. Aus-tin 1994).

Maritime law

Maritime law characterizes abandonment as the act of leaving or deserting property without the hope ofever recovering it or the intention of returning to it.

Ill.—People ex rel. Illinois Historic Preservation Agency v. Zych, 186 Ill. 2d 267, 238 Ill. Dec. 23, 710N.E.2d 820 (1999).

Total desertion

Ky.—Sandy River Coal Co. v. Champion Bridge Co., 243 Ky. 424, 48 S.W.2d 1062 (1932).



Defined as intent

"Abandonment" is the intent to leave, quit, renounce, resign, surrender, relinquish, vacate, or discard,and denotes the absolute giving up of an object, often with the further implication of its surrender to themercy of something or someone else.

Idaho—Consolidated AG of Curry, Inc. v. Rangen, Inc., 128 Idaho 228, 912 P.2d 115 (1996).

[FN10] Ill.—Pieszchalski v. Oslager, 128 Ill. App. 3d 437, 83 Ill. Dec. 663, 470 N.E.2d 1083 (5th Dist.1984).

Mont.—State v. Holmes, 212 Mont. 526, 687 P.2d 662 (1984).

R.I.—Jakober v. E. M. Loew's Capitol Theatre, Inc., 107 R.I. 104, 265 A.2d 429 (1970).

[FN11] Tex.—Texas Water Rights Commission v. Wright, 464 S.W.2d 642 (Tex. 1971).

[FN12] U.S.—U.S. v. Orr Water Ditch Co., 256 F.3d 935 (9th Cir. 2001), cert. denied, 535 U.S. 1096,122 S. Ct. 2291, 152 L. Ed. 2d 1050 (2002) and cert. denied, 535 U.S. 1096, 122 S. Ct. 2292, 152 L.Ed. 2d 1050 (2002).

Tex.—Lopez v. State, 797 S.W.2d 272 (Tex. App. Corpus Christi 1990), writ denied, (Dec. 12, 1990).

[FN13] U.S.—U.S. v. Alpine Land and Reservoir Co., 27 F. Supp. 2d 1230 (D. Nev. 1998); Zych v.Unidentified, Wrecked and Abandoned Vessel, Believed to be SB Lady Elgin, 755 F. Supp. 213 (N.D.























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Ill. 1990).

Neb.—Mueller v. Bohannon, 256 Neb. 286, 589 N.W.2d 852 (1999).

Voluntary act

The term "abandonment" generally refers to a voluntary act.

N.M.—United Water New Mexico, Inc. v. New Mexico Public Utility Com'n, 1996 –NMSC– 007, 121N.M. 272, 910 P.2d 906 (1996).

[FN14] Neb.—Mueller v. Bohannon, 256 Neb. 286, 589 N.W.2d 852 (1999).

Specific intent required

"Abandonment" of property is a technical legal concept requiring evidence of a specific intent to relin-quish a known right.

Tex.—City of Houston v. Van De Mark, 83 S.W.3d 864 (Tex. App. Texarkana 2002), reh'g overruled,(Aug. 13, 2002) and review denied, (Jan. 16, 2003).

[FN15] U.S.—U.S. v. Cowan, 396 F.2d 83 (2d Cir. 1968).

Abandoned property

Ohio—Doughman v. Long, 42 Ohio App. 3d 17, 536 N.E.2d 394 (12th Dist. Butler County 1987).

[FN16] N.J.—State v. Bailey, 97 N.J. Super. 396, 235 A.2d 214 (App. Div. 1967).

N.Y.—Kalisch–Jarcho, Inc. v. City of New York, 58 N.Y.2d 377, 461 N.Y.S.2d 746, 448 N.E.2d 413(1983).

Abandoned property

Ohio—Doughman v. Long, 42 Ohio App. 3d 17, 536 N.E.2d 394 (12th Dist. Butler County 1987).


Ohio—Davis v. Suggs, 10 Ohio App. 3d 50, 460 N.E.2d 665 (12th Dist. Clinton County 1983).

Abandoned property

Ark.—Routh Wrecker Service, Inc. v. Wins, 312 Ark. 123, 847 S.W.2d 707 (1993).

[FN18] Cal.—Cerro de Alcala Homeowners Assn. v. Burns, 169 Cal. App. 3d Supp. 1, 216 Cal. Rptr.84 (App. Dep't Super. Ct. 1985).

Minn.—Application of Berman, 310 Minn. 446, 247 N.W.2d 405 (1976).

Or.—Rich v. Runyon, 52 Or. App. 107, 627 P.2d 1265 (1981).






















Abandoned property

Property is "abandoned" where the owner voluntarily and intentionally relinquishes all rights to it.

Pa.—Com. v. $7,000.00 in U.S. Currency, 742 A.2d 711 (Pa. Commw. Ct. 1999).

[FN19] La.—Dickens v. Singer Sewing Mach. Co., 19 La. App. 735, 140 So. 296 (2d Cir. 1932).

Mont.—Moore v. Sherman, 52 Mont. 542, 159 P. 966 (1916).

[FN20] U.S.—Nippon Shosen Kaisha, K.K. v. U. S., 238 F. Supp. 55 (N.D. Cal. 1964).

La.—Powell v. Cox, 92 So. 2d 739 (La. Ct. App. 2d Cir. 1957).

[FN21] Ohio— Doughman v. Long, 42 Ohio App. 3d 17, 536 N.E.2d 394 (12th Dist. Butler County1987).

Relinquishment of all right, title and interest

Iowa—Benjamin v. Lindner Aviation, Inc., 534 N.W.2d 400 (Iowa 1995).

Manifest intention

"Abandoned property" is property whose owner has manifested an intention to relinquish all title, pos-session, or claim to the property.

Alaska—Brooks Range Exploration Co., Inc. v. Gordon, 46 P.3d 942 (Alaska 2002).

[FN22] Iowa—Ritz v. Selma United Methodist Church, 467 N.W.2d 266 (Iowa 1991).

Property discarded or voluntarily forsaken

Idaho—Corliss v. Wenner, 136 Idaho 417, 34 P.3d 1100 (Ct. App. 2001).

[FN23] Idaho—Corliss v. Wenner, 136 Idaho 417, 34 P.3d 1100 (Ct. App. 2001).

[FN24] Ohio— Doughman v. Long, 42 Ohio App. 3d 17, 536 N.E.2d 394 (12th Dist. Butler County1987).

[FN25] Ill.— Hendle v. Stevens, 224 Ill. App. 3d 1046, 166 Ill. Dec. 868, 586 N.E.2d 826 (2d Dist.1992).

[FN26] Ark.—Terry v. Lock, 343 Ark. 452, 37 S.W.3d 202 (2001).

[FN27] Ark.—Terry v. Lock, 343 Ark. 452, 37 S.W.3d 202 (2001).

[FN28] Pa.— In re Funds in Possession of Conemaugh Tp. Sup'rs, 724 A.2d 990 (Pa. Commw. Ct.1999), order aff'd, 562 Pa. 85, 753 A.2d 788 (2000).

























CJS ABAND § 1

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§ 2. Distinctions


West's Key Number Digest, Abandoned and Lost Property 1.1Abandonment is distinguished from all other modes of parting with property or rights by its purely volun-

tary character and by its failure to transfer title to, or ownership of, the thing abandoned to any other person.

Abandonment, as one of the means of parting with title to, or ownership of, property,[1] is distinguishablefrom all other modes of divesting ownership by its essential characteristic of voluntary relinquishment.[2] Inabandoning property or a right, the owner relinquishes it without being pressed by any necessity, duty, or utilityto himself or herself, but simply because he or she no longer desires to possess it,[3] and without passing thetitle or ownership to any other person and without concern as to who, if anyone, may become the owner of thething abandoned by subsequently appropriating it.[4]

Abandonment in the property law sense and abandonment in the constitutional sense have been subject to adistinction, in that in the law of property the question is whether the owner has voluntarily, intentionally, andunconditionally relinquished his or her interest in the property so that another, having acquired possession, maysuccessfully assert his or her superior interest, whereas in connection with the law of search and seizure thequestion is whether a person has, in discarding the property, relinquished his or her reasonable expectation ofprivacy so that search or seizure is reasonable.[5] Thus, the test for abandonment in the search and seizure con-text is distinct from the property law notion of abandonment in that it is possible for a person to retain a propertyinterest in an item, but nonetheless to relinquish his or her reasonable expectation of privacy in the object.[6]

Forfeiture.While the terms "forfeiture" and "abandonment" are comparable, there is a plain, fundamental distinction

between the two concepts, in that abandonment is voluntary in character, and essentially a matter of intention, sothat to effectuate it there must necessarily be an intention to abandon, while forfeiture is an enforced and invol-untary loss of a right, and intention is not an essential element of it, but, on the contrary, a forfeiture may, and inthe usual case does, occur against, and contrary to, the intention of the party possessing the right.[7]

Loss.While the actual result of an abandonment of property and of a loss thereof may be practically the same to

the person parting with the property and the person into whose possession it eventually comes,[8] distinctionsexist at common law between property that is abandoned, lost, or misplaced such that property is "abandoned"where the owner intentionally relinquishes possession and rights in the property, while property is "lost" where







the owner parts with its possession unwittingly and is no longer aware of its location, and is "mislaid" where theowner intentionally puts it in particular place then forgets it and leaves it.[9] Additionally, one who abandonsproperty parts with the title thereto, and a person who subsequently reduces the property to possession is entitledto hold it even as against the former owner, whereas the loss of property does not divest the owner's title thereto,and the finder acquires no rights as against him or her.[10]

Repudiation.Although "abandonment" has been said to be synonymous with, or equivalent to, "repudiation," the two

terms have distinct technical meanings, abandonment being the relinquishment of a right, while repudiation isthe renunciation of a duty.[11]

Surrender.Although the courts have often treated the terms "surrender" and "abandonment" similarly, abandoning a

right or thing, without regard to who, if anyone, may thereafter appropriate or possess it, is essentially differentfrom the surrender of such right or thing to an ascertained and designated person; and relinquishing it or discard-ing it because it is regarded as utterly useless or valueless, at least to the abandoning owner, is clearly not theequivalent of surrendering or yielding it up to another, as a valuable right or thing, under pressure of superiorforce or in recognition of a greater right.[12]

Waiver.Although both an abandonment and a waiver must be voluntary and intentional,[13] and some courts regard

a waiver as a species of abandonment,[14] as a general rule, a distinction between the terms exists in that awaiver, unlike an abandonment, operates to the benefit of another person having a right, or a possible right or in-terest, in the same property, whether by contract or otherwise.[15]

Bailment.By definition, the concepts of abandonment and bailment of property cannot co–exist, since "abandonment"

is a relinquishment of the owner's legal right to a thing, while bailment requires an owner of the object (the bail-or) and a possessor (the bailee).[16]

[FN1] Nev.—Goldfield Consol. Milling & Transp. Co. v. Old Sandstrom Annex Gold Mining Co., 38Nev. 426, 150 P. 313 (1915).

[FN2] Cal.—City of Los Angeles v. Abbott, 129 Cal. App. 144, 18 P.2d 785 (2d Dist. 1933).


[FN3] U.S.—Katsaris v. U.S., 684 F.2d 758 (11th Cir. 1982).

Iowa—Pearson v. City of Guttenberg, 245 N.W.2d 519 (Iowa 1976).


Unilateral action

Abandonment is entirely unilateral and it requires action only by the possessor of the right, title, or in-










terest which is to be abandoned and the attitude of others is immaterial.

Ariz.—Mason v. Hasso, 90 Ariz. 126, 367 P.2d 1 (1961).


Subject to appropriation by first taker

Under Missouri law, "abandonment" is the voluntary relinquishment of the ownership of property sothat the property ceases to be the property of any person and becomes subject of appropriation by thefirst taker.

U.S.—In re Usery, 158 B.R. 470 (Bankr. W.D. Mo. 1993).

[FN5] Minn.—State v. Oquist, 327 N.W.2d 587 (Minn. 1982).

S.C.—State v. Dupree, 319 S.C. 454, 462 S.E.2d 279 (1995).

Subjects of search and seizure protection and prohibition, generally, see C.J.S., Searches and Seizures§§ 8 et seq.

[FN6] Ind.—Long v. Dilling Mechanical Contractors, Inc., 705 N.E.2d 1022 (Ind. Ct. App. 1999).

[FN7] Cal.—City of Los Angeles v. Abbott, 129 Cal. App. 144, 18 P.2d 785 (2d Dist. 1933).

Kan.—Storm v. Barbara Oil Co., 177 Kan. 589, 282 P.2d 417 (1955).

[FN8] Or.—Ferguson v. Ray, 44 Or. 557, 77 P. 600 (1904).

[FN9] Wash.—State v. Kealey, 80 Wash. App. 162, 907 P.2d 319 (Div. 2 1995), as amended on denialof reconsideration, (Feb. 26, 1996).

Determination of mental state

Classification of property as "lost," "abandoned," or "mislaid" requires that the court determine the in-tent or mental state of the unknown party who at some time in the past parted with the ownership orcontrol of the property.

Conn.—Favorite v. Miller, 176 Conn. 310, 407 A.2d 974 (1978).

[FN10] Operation and effect of abandonment, see § 15.

[FN11] Ind.—Parker Land & Imp. Co. v. Ayers, 43 Ind. App. 513, 87 N.E. 1062 (Div. 1 1909).

[FN12] N.J.—Hagan v. Gaskill, 42 N.J. Eq. 215, 6 A. 879 (Ch. 1886).

Surrender and abandonment of leases is discussed in C.J.S., Landlord and Tenant §§ 192 to 207.

[FN13] Tex.—Raulston v. Everett, 561 S.W.2d 635 (Tex. Civ. App. Texarkana 1978).
















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[FN15] Del.—McCabe v. Baltimore Trust Co., 37 Del. 116, 180 A. 780 (Super. Ct. 1935).

[FN16] Fla.—Meeks ex rel. Estate of Meeks v. Florida Power & Light Co., 816 So. 2d 1125 (Fla. Dist.Ct. App. 5th Dist. 2002), review granted, 837 So. 2d 408 (Fla. 2003) and decision approved, 863 So. 2d287 (Fla. 2003).


CJS ABAND § 2

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§ 3. Distinctions—Distinguished from sale, gift, or other transfer


West's Key Number Digest, Abandoned and Lost Property 1.1Abandonment is distinguished from a sale, gift, or other transfer by the fact that the former does not pass

title and possession to another, but interrupts their continuity, while the contrary is true of the latter.

The term "abandonment" does not include a sale, gift, or other transfer of property,[1] since in any transac-tion of the latter character the continuity of possession is preserved, and the concept of abandonment is, there-fore, necessarily excluded.[2]

By definition, there cannot be an abandonment to a particular person,[3] or for a consideration;[4] accord-ingly, there cannot be an abandonment as a means of transferring property or its ownership from one person toanother.[5] On the other hand, where for any reason a transaction intended as a sale or transfer fails as such, itcannot be converted into, or treated as, an abandonment of the property.[6]

Abandonment can be distinguished from other particular acts and transactions such as neglect,[7] laches,[8]estoppel,[9] and dedication to public use.[10]

[FN1] N.C.—Oxford Orphanage v. Kittrell, 223 N.C. 427, 27 S.E.2d 133 (1943).

[FN2] N.C.—Oxford Orphanage v. Kittrell, 223 N.C. 427, 27 S.E.2d 133 (1943).

Tex.—City of San Antonio v. Ruble, 453 S.W.2d 280 (Tex. 1970).

[FN3] Mont.—Moore v. Sherman, 52 Mont. 542, 159 P. 966 (1916).

Abandonment by parent to child

Cal.—Dresser v. Allen, 25 Cal. App. 124, 142 P. 911 (2d Dist. 1914).

[FN4] Cal.— Stephens v. Mansfield, 11 Cal. 363, 1858 WL 769 (1858) (overruled in part on othergrounds by, Richardson v. McNulty, 24 Cal. 339, 1864 WL 579 (1864)).

[FN5] Cal.—Dresser v. Allen, 25 Cal. App. 124, 142 P. 911 (2d Dist. 1914).















[FN6] Cal.—McLeran v. Benton, 43 Cal. 467, 1872 WL 1191 (1872).

[FN7]

Affirmative action not required

Cal.—City of Vallejo v. Burrill, 64 Cal. App. 399, 221 P. 676 (3d Dist. 1923).

[FN8]

Defeat of intention

(1) While abandonment and laches both result in subsequent inability to enforce a right, they are radic-ally different in their natures; abandonment effectuates intention, while laches defeats intention; aban-donment is voluntary, while laches operates an unwilling person.

Ind.—Schaffner v. Benson, 90 Ind. App. 420, 166 N.E. 881 (1929).

Me.—Duryea v. Elkhorn Coal & Coke Corp., 123 Me. 482, 124 A. 206 (1924).

(2) In granting relief on the ground of abandonment, a court assumes to base its action on the will of theparty, but in granting relief on the ground of laches, the action is against the party's will.

Cal.—Wm. Wolff & Co. v. Canadian Pac. Ry. Co., 123 Cal. 535, 56 P. 453 (1899).

[FN9]

Will or intention

Abandonment, a legal concept quite different from equitable estoppel, depends upon the will or inten-tion of the allegedly abandoning party whereas estoppel operates against an unwilling person.

Iowa—Town of Marne v. Goeken, 259 Iowa 1375, 147 N.W.2d 218 (1966).

[FN10]

Gift to public

Tex.—Shahan v. Northern Texas Traction Co., 266 S.W. 850 (Tex. Civ. App. Austin 1924), writ dis-missed w.o.j., (Jan. 14, 1925).


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§ 4. Elements


West's Key Number Digest, Abandoned and Lost Property 1.1Abandonment involves an intention to abandon, and an act or omission by which such intention is carried

into effect. In order that there may be an abandonment, these elements must concur.

Abandonment of property or of a right necessitates the concurrence of two elements, namely, an intention torelinquish or give up such property or right, and an external act, or an omission to act, by which such intention iscarried into effect.[1] Therefore, to constitute an abandonment of property, there must be a concurrence of theintention to abandon and actual relinquishment.[2]

Abandonment is complete at the moment the intention to abandon and the relinquishment of possessionunite.[3] Thus, time is not generally considered an essential element of abandonment.[4] Lapse of time,however, may be evidence of an intention to abandon.[5]

Personal property is abandoned by the owner's relinquishing possession of it with the intention to give uphis or her property rights.[6] One generally relinquishes personalty when he or she voluntarily makes it availablefor someone else's disposition.[7] Thus, abandonment is a virtual throwing away without regard as to who maytake over or carry on.[8] Under statute in some jurisdictions, abandonment of personal property may result fromacts of the owner or from the owner's failure to bring an action for the recovery of the personalty within a spe-cified time.[9]

To abandon land, there must be a concurrence of the act of leaving the premises or property vacant and un-occupied, and the intention of not returning.[10] The owner must leave the property free to be occupied by thenext comer, whoever he or she may be, without any intention to repossess it, or reclaim it for himself or herself,and without regard as to what may become of it in the future.[11] Abandonment of land is proven by evidence ofan intention to abandon without an intention to again possess it.[12]

Estoppel is generally not considered to be an element of abandonment, nor a factor entering into it.[13]However, some authorities require that in order for a person to divest himself or herself of a title to property,there must exist circumstances of estoppel and limitation, in addition to the intent to relinquish his or her claim.[14]








Cases:

Common law abandonment has two basic elements: (1) the intent to abandon, and (2) some external act bywhich the intent to abandon is effectuated. Griffis v. Davidson County Metropolitan Government, 164 S.W.3d267, 199 Ed. Law Rep. 509 (Tenn. 2005).

[END OF SUPPLEMENT]

[FN1] U.S.— Hoelzer v. City of Stamford, Conn., 933 F.2d 1131 (2d Cir. 1991); In re Seizure of$82,000 More or Less, 119 F. Supp. 2d 1013 (W.D. Mo. 2000).

Cal.—Cash v. Southern Pacific R. Co., 123 Cal. App. 3d 974, 177 Cal. Rptr. 474 (2d Dist. 1981).

Mich.—Sparling Plastic Industries, Inc. v. Sparling, 229 Mich. App. 704, 583 N.W.2d 232 (1998).

Ohio—Long v. Noah's Lost Ark, Inc., 158 Ohio App. 3d 206, 2004 –Ohio– 4155, 814 N.E.2d 555 (7thDist. Mahoning County 2004).

Pa.—J.W.S. Delavau, Inc. v. Eastern America Transport & Warehousing, Inc., 2002 PA Super 336, 810A.2d 672, 48 U.C.C. Rep. Serv. 2d 1296 (2002), appeal denied, 573 Pa. 704, 827 A.2d 430 (2003).

Personal property

Abandonment of personal property such as a car requires an intention to abandon or relinquish accom-panied by some act or omission to act by which such intention is manifested.

Conn.—Sanchez v. Forty's Texaco Service, Inc., 5 Conn. App. 438, 499 A.2d 436 (1985).

Sufficient act

A sufficient act is one that manifests a conscious purpose and intention of the owner of personal prop-erty neither to use nor to retake the property into his or her possession.

Ala.—Bruner v. Geneva County Forestry Dept., 865 So. 2d 1167 (Ala. 2003).

Mo.—City of St. Peters v. Hill, 9 S.W.3d 652, 109 A.L.R.5th 799 (Mo. Ct. App. E.D. 1999).

Manifest act

"Abandonment" requires a manifest act which expresses the intent of the owner to forsake his or herproperty.

Ark.—Routh Wrecker Service, Inc. v. Wins, 312 Ark. 123, 847 S.W.2d 707 (1993).

[FN2] Ind.—Right Reason Publications v. Silva, 691 N.E.2d 1347 (Ind. Ct. App. 1998).

Confluence of intention and action




















U.S.—Johnson v. Smithsonian Inst., 189 F.3d 180, 44 Fed. R. Serv. 3d 855 (2d Cir. 1999).

Concurrence of act and intent

"Abandonment" means a voluntary act involving a concurrence of act and intent, the act being the relin-quishment of possession and the intent being the manifestation not to resume beneficial use of it, andneither element alone is sufficient.

Mont.—Rieman v. Anderson, 282 Mont. 139, 935 P.2d 1122 (1997).

[FN3] Mo.—Herron v. Whiteside, 782 S.W.2d 414 (Mo. Ct. App. W.D. 1989).


[FN4] Md.—Merryman v. Bremmer, 250 Md. 1, 241 A.2d 558 (1968).

S.C.—Witt v. Poole, 182 S.C. 110, 188 S.E. 496 (1936).

[FN5] Evidence of abandonment, see § 13.

[FN6] Conn.—Sanchez v. Forty's Texaco Service, Inc., 5 Conn. App. 438, 499 A.2d 436 (1985).

Parting with property forever

Abandonment of personal property is the intention to part with the property forever.

Fla.—State v. Schultz, 388 So. 2d 1326 (Fla. Dist. Ct. App. 4th Dist. 1980).

Severed coal

Coal or coal by–products, when severed from the earth, become personal property which may be aban-doned when left on the land of another with the intention of abandoning them.

U.S.—In re G.M.P. Land Co., 33 B.R. 729 (Bankr. E.D. Pa. 1983).

[FN7] Ind.—Long v. Dilling Mechanical Contractors, Inc., 705 N.E.2d 1022 (Ind. Ct. App. 1999).

[FN8] Ohio—Long v. Noah's Lost Ark, Inc., 158 Ohio App. 3d 206, 2004 –Ohio– 4155, 814 N.E.2d555 (7th Dist. Mahoning County 2004).

[FN9] Ga.—Walden v. Jones, 252 Ga. App. 692, 556 S.E.2d 566 (2001), cert. denied, (Apr. 15, 2002).

[FN10] Cal.—Wood v. Etiwanda Water Co., 147 Cal. 228, 81 P. 512 (1905); Cohn v. San Pedro, L.A.& S.L.R. Co., 103 Cal. App. 496, 284 P. 1051 (3d Dist. 1930).

[FN11] W.Va.—Mitchell v. Carder, 21 W. Va. 277, 1883 WL 3152 (1883).

[FN12] Mo.—Moore v. Missouri Friends of Wabash Trace Nature Trail, Inc., 991 S.W.2d 681 (Mo. Ct.App. W.D. 1999).























[FN13] Cal.—Wm. Wolff & Co. v. Canadian Pac. Ry. Co., 123 Cal. 535, 56 P. 453 (1899).

Estoppel distinguished from abandonment, see § 3.

[FN14] Ark.—Hendrix v. Hendrix, 256 Ark. 289, 506 S.W.2d 848 (1974).


CJS ABAND § 4

END OF DOCUMENT









§ 5. Elements—Intent


West's Key Number Digest, Abandoned and Lost Property 2An intention to abandon is an essential element of abandonment, and there can be no abandonment without

such intention.

A necessary element of abandonment is an intention to relinquish or part with property or a right,[1] and notto reclaim it or resume its possession at any future time.[2] However, it has been held that intent is an element ofabandonment only if the claim survives a motion for summary judgment, and heretofore only in cases involvingpersonal property.[3] In determining whether or not property or a right has been abandoned, various authoritieshave declared that abandonment is primarily,[4] a matter of intention.[5] Such assessments, however, are notcompletely accurate, for a mere intention to abandon, if not coupled with relinquishment of possession or cessa-tion of user, is not sufficient to constitute an abandonment, for which there is also required some act or omissionby which such intention is carried into effect.[6]

Nevertheless, there can be no abandonment where there is no intention to abandon, or unless such intentionexists;[7] and in determining in any particular case whether there has been an abandonment, the intention is thefirst and paramount object of inquiry.[8] Thus, mislaid property,[9] or property left by oversight or inadvert-ence,[10] is not abandoned.

The reasons for abandoning property, and the motives inducing the abandonment, are not elements orfactors of the abandonment, and in this sense the abandoning owner's intentions are not material.[11] Further-more, since abandonment of property or a right is clearly distinguishable from the transfer thereof, and there canbe no such thing as an abandonment to a particular person, an intent to transfer title to, or any interest in, theproperty or right is not an element of abandonment.[12]


Cases:

The common law definition of abandonment, requiring the intent to abandon and some external act bywhich the intent to abandon is effectuated, applies where reversion of a fee simple determinable is based uponabandonment and where the term is not otherwise defined. Griffis v. Davidson County Metropolitan Govern-ment, 164 S.W.3d 267, 199 Ed. Law Rep. 509 (Tenn. 2005).






http://www.westlaw.com/KeyNumber/Default.wl?rs=dfa1.0&vr=2.0&CMD=KEY&DocName=1k2



[END OF SUPPLEMENT]

[FN1] U.S.—Mombro v. Louis Capano & Sons, Inc., 526 F. Supp. 1237 (D. Del. 1981).


Wash.—Nelson v. Pacific County, 36 Wash. App. 17, 671 P.2d 785 (Div. 2 1983).

Owner

For abandonment, it is the owner who must have the intent to terminate his or her title, and it is notenough that a custodian in whose hands the owner entrusted it intentionally discarded it.

N.C.—State v. West, 293 N.C. 18, 235 S.E.2d 150 (1977).

[FN2]

Intent to relinquish permanently


[FN3] Pa.—Pocono Springs Civic Ass'n, Inc. v. MacKenzie, 446 Pa. Super. 445, 667 A.2d 233 (1995).

[FN4] Mo.—Wilson v. Wheeler Farms, Inc., 591 S.W.2d 287 (Mo. Ct. App. S.D. 1979).

Essence of claim

In case of abandonment, the intent to abandon is the very essence of the claim.

Colo.—Allard Cattle Co. v. Colorado & S. Ry. Co., 187 Colo. 1, 530 P.2d 503 (1974).

Primary element

The primary element to be established is an actual intent to relinquish the rights being abandoned.



Ga.—Keilholtz v. State, 261 Ga. App. 1, 581 S.E.2d 660 (2003).

Pa.—Com. v. Wetmore, 301 Pa. Super. 370, 447 A.2d 1012 (1982).

[FN6] D.C.—Goins v. U.S., 475 A.2d 362 (D.C. 1984).

Mich.—Roebuck v. Mecosta County Road Commission, 59 Mich. App. 128, 229 N.W.2d 343 (1975).

Specific act required

















"Abandonment" is voluntary relinquishment of possession of an object by its owner with the intentionof terminating his or her ownership, and the intent to abandon must be clear and must be accompaniedby some specific act of abandonment.

Or.— State v. Pidcock, 89 Or. App. 443, 749 P.2d 597 (1988), decision aff'd, 306 Or. 335, 759 P.2d1092 (1988).

[FN7] Mo.—Cole County v. Board of Trustees of Jefferson City Free Library Dist., 545 S.W.2d 422(Mo. Ct. App. 1976).


[FN8] Mo.—Cole County v. Board of Trustees of Jefferson City Free Library Dist., 545 S.W.2d 422(Mo. Ct. App. 1976).


[FN9] Md.—Kimbrough v. Giant Food Inc., 26 Md. App. 640, 339 A.2d 688 (1975).

Mislaid property distinguished

"Mislaid property" is property voluntarily put in a certain place by the owner who then overlooks orforgets where the property is, and such property differs from "lost property" in that the owner voluntar-ily and intentionally misplaces mislaid property in the location in which it is eventually found by anoth-er.

Iowa—Benjamin v. Lindner Aviation, Inc., 534 N.W.2d 400 (Iowa 1995).

[FN10] N.Y.—Foulke v. New York Consol. R. Co., 228 N.Y. 269, 127 N.E. 237, 9 A.L.R. 1384 (1920).




CJS ABAND § 5

END OF DOCUMENT
























§ 6. Elements—Intent—Intent may be express or implied


West's Key Number Digest, Abandoned and Lost Property 2Intention to abandon may be manifested by express declarations, or by acts or conduct, and may be inferred

from the circumstances.

An intention to abandon property or a right may be shown either expressly or by implication.[1] Accord-ingly, such an intention need not appear by express declaration.[2] While the intent to abandon is ordinarily as-certained from the acts and conduct of the owner or holder,[3] such intent may be inferred as a fact from the sur-rounding circumstances,[4] including words spoken, acts done, and other objective facts.[5] Indeed, all relevantcircumstances existing at the time of the alleged abandonment should be considered.[6]

In determining whether property or a right was intended to be abandoned, it is proper to consider, and togive due weight to, the nature of the property or right, and the conduct of the owner in relation to it,[7] and alsothe fact, where it is a fact, that at the time the question comes up for determination such property or right is be-ing adversely used by another, or others.[8] Lapse of time and nonuse by the owner may give rise to an inferenceof intent to abandon,[9] although neither is sufficient, by itself, to constitute an attempt to abandon.[10]

[FN1] Colo.—Upper Harmony Ditch Co. v. Carwin, 189 Colo. 190, 539 P.2d 1282 (1975).

Express or implied act

"Abandonment" occurs by an express or implied act of leaving or deserting property without hope of re-covering it and without the intention of returning to it.

U.S.— Columbus–America Discovery Group, Inc. v. Unidentified, Wrecked and Abandoned SailingVessel, 742 F. Supp. 1327, 31 Fed. R. Evid. Serv. 1046 (E.D. Va. 1990), rev'd on other grounds, 974F.2d 450, 24 Fed. R. Serv. 3d 14 (4th Cir. 1992).

[FN2] Kan.—Botkin v. Kickapoo, Inc., 211 Kan. 107, 505 P.2d 749 (1973).

Tex.—Raulston v. Everett, 561 S.W.2d 635 (Tex. Civ. App. Texarkana 1978).

[FN3] Ala.—Milford v. Tennessee River Pulp & Paper Co., 355 So. 2d 687 (Ala. 1978).















Wash.—Martinson v. Publishers Forest Products Co., 11 Wash. App. 42, 521 P.2d 233 (Div. 1 1974).



S.C.—Historic Charleston Foundation v. Krawcheck, 313 S.C. 500, 443 S.E.2d 401 (Ct. App. 1994).

All relevant facts and circumstances

U.S.—U.S. v. Sylvester, 848 F.2d 520 (5th Cir. 1988).

[FN5] Ga.—Keilholtz v. State, 261 Ga. App. 1, 581 S.E.2d 660 (2003).

Acts of owner

Mont.—Hawkins v. Mahoney, 1999 MT 296, 297 Mont. 98, 990 P.2d 776 (1999).

[FN6] Ga.—Keilholtz v. State, 261 Ga. App. 1, 581 S.E.2d 660 (2003).

[FN7] U.S.—Universal Minerals, Inc. v. C. A. Hughes & Co., 669 F.2d 98 (3d Cir. 1981).

Ala.—Milford v. Tennessee River Pulp & Paper Co., 355 So. 2d 687 (Ala. 1978).


[FN8] Me.—McLellan v. McFadden, 114 Me. 242, 95 A. 1025 (1915).

[FN9] U.S.—Bemis v. RMS Lusitania, 884 F. Supp. 1042 (E.D. Va. 1995), aff'd, 99 F.3d 1129 (4th Cir.1996).

[FN10] Sufficiency of evidence of abandonment, see §§ 12, 13.


CJS ABAND § 6

END OF DOCUMENT























§ 7. Intent—Acts and omissions


West's Key Number Digest, Abandoned and Lost Property 3To be effectual, an act of abandonment may be express or implied, and it must be voluntary, decisive of a

relinquishment of the property or right to be abandoned, and inconsistent with further ownership or controlthereof.

While an act of abandonment, to be effectual as such, and of any avail to one seeking to take advantage ofit, may be express or implied,[1] it must be voluntary,[2] and must be appropriate to the purpose of effectuatingthe intention to abandon.[3] In order to constitute abandonment, there must be some clear and unmistakable af-firmative act or series of acts indicating a purpose to repudiate ownership,[4] or relinquish a right,[5] or incon-sistent with any further claim of title or ownership.[6] In other words, an unequivocal and decisive act or acts ofrelinquishment must be evident.[7]

In the case of tangible property, there must be actual relinquishment of possession, to such extent that theproperty is left free and open to be appropriated by the next comer,[8] either by discarding it, or throwing itaway,[9] or permitting another so to do,[10] or by allowing it to be carried away by natural forces.[11]

Abandonment does not require the performance of a ritual,[12] and, generally speaking, any voluntary actintended as a disownment and in full relinquishment of property or a right amounts to an abandonment, or lossof the actor's title or interest, so as to bar him or her from further claim to the thing abandoned.[13]


Cases:

The act or acts which evince the intent to abandon must have been voluntary. Griffis v. Davidson CountyMetropolitan Government, 164 S.W.3d 267, 199 Ed. Law Rep. 509 (Tenn. 2005).

[END OF SUPPLEMENT]

[FN1] U.S.—Bunge Corp. v. Agri–Trans Corp., 542 F. Supp. 961 (N.D. Miss. 1982), judgment aff'd inpart, vacated in part on other grounds, 721 F.2d 1005 (5th Cir. 1983).











Inference or express deed

A claimant may prove abandonment by inference as well as by express deed.

U.S.—Fairport Intern. Exploration, Inc. v. Shipwrecked Vessel, 72 F. Supp. 2d 795, 163 A.L.R. Fed.687 (W.D. Mich. 1999), aff'd, 245 F.3d 857, 2001 FED App. 0120P (6th Cir. 2001).

Under law of finds

The key to ownership of sunken property under the law of finds is whether the owner has abandoned theproperty, and abandonment can be express or implied.

U.S.—Bemis v. RMS Lusitania, 884 F. Supp. 1042 (E.D. Va. 1995), aff'd, 99 F.3d 1129 (4th Cir. 1996).

[FN2] Me.—Lewis v. Maine Coast Artists, 2001 ME 75, 770 A.2d 644 (Me. 2001).

Mo.—In re Usery, 158 B.R. 470 (Bankr. W.D. Mo. 1993).


Absence of coercion or pressure essential

U.S.—Katsaris v. U.S., 684 F.2d 758 (11th Cir. 1982).

[FN3] Ariz.—McFadden v. Wilder, 6 Ariz. App. 60, 429 P.2d 694 (1967).

[FN4] Iowa—Pearson v. City of Guttenberg, 245 N.W.2d 519 (Iowa 1976).

Mich.—Emmons v. Easter, 62 Mich. App. 226, 233 N.W.2d 239 (1975).

Clear intent to repudiate ownership required

Me.—Lewis v. Maine Coast Artists, 2001 ME 75, 770 A.2d 644 (Me. 2001).

Under law of finds

U.S.—Adams v. Unione Mediterranea Di Sicurta, 220 F.3d 659 (5th Cir. 2000).

[FN5] Me.—Lewis v. Maine Coast Artists, 2001 ME 75, 770 A.2d 644 (Me. 2001).

[FN6] Ala.—Quinnelly v. City of Prichard, 292 Ala. 178, 291 So. 2d 295 (1974).

Ala.—Fuller v. Martin, 41 Ala. App. 160, 125 So. 2d 4 (1960).

[FN7] Ala.—Fuller v. Martin, 41 Ala. App. 160, 125 So. 2d 4 (1960).

Idaho—Weaver v. Stafford, 134 Idaho 691, 8 P.3d 1234 (2000).


Nonuser























Under California law, abandonment of property requires non–use accompanied by unequivocal and de-cisive acts showing an intent to abandon.

U.S.—U.S. v. Crawford, 239 F.3d 1086, 56 Fed. R. Evid. Serv. 388 (9th Cir. 2001), as amended, (Feb.14, 2001).

Cal.—Pacific Gas & Electric Co. v. Zuckerman, 189 Cal. App. 3d 1113, 234 Cal. Rptr. 630 (3d Dist.1987).

[FN8] U.S.—Summers v. Atchison, T. & S.F. Ry. Co., 2 F.2d 717 (E.D. Mo. 1924).

Okla.—Dow v. Worley, 1926 OK 453, 126 Okla. 175, 256 P. 56 (1927).

[FN9] Pa.—Fidelity–Philadelphia Trust Co. v. Lehigh Valley Coal Co., 294 Pa. 47, 143 A. 474 (1928).

[FN10] Mo.—St. Louis Dairy Co. v. Northwestern Bottle Co., 204 S.W. 281 (Mo. Ct. App. 1918).




Mo.—Wirth v. Heavey, 508 S.W.2d 263, 14 U.C.C. Rep. Serv. 873 (Mo. Ct. App. 1974).


CJS ABAND § 7

END OF DOCUMENT

















§ 8. Intent—Acts and omissions—Nonuser


West's Key Number Digest, Abandoned and Lost Property 3Nonuser of property or a right is not of itself an abandonment, but where the intention to abandon exists, no-

nuser is a sufficient act of relinquishment.

The mere nonuser of property over a period of time, when unaccompanied by any other acts indicating anintention to relinquish or abandon title thereto or ownership thereof, does not amount to an abandonment,[1] al-though it may be evidence of abandonment.[2] Thus, before abandonment of property may be found, it is neces-sary to establish nonuser accompanied by unequivocal and decisive acts showing an intention to abandon,[3]since an intent to abandon is not found from mere nonuse.[4]

Generally, it cannot be said as a matter of law that the absence of an owner from his or her land for any spe-cified period of time divests his or her title or constitutes an abandonment.[5] Similarly, the mere suspension ofthe exercise of a right, without evidence of an intention to abandon it, is not sufficient to destroy the right.[6]

Where, however an intention to abandon is shown by other circumstances and conditions, nonuser is a suffi-cient act of relinquishment, and effectuates the abandonment.[7]

[FN1] Cal.—Cash v. Southern Pacific R. Co., 123 Cal. App. 3d 974, 177 Cal. Rptr. 474 (2d Dist. 1981).



Duration of nonuser

Nonuse, even for lengthy periods of time, is, of itself, insufficient to show an "abandonment" of a right,especially where the acts manifest an intent contrary to abandonment.


Evidence of clear determination required












Nonuse of property is not enough to establish abandonment, unless coupled with affirmative evidenceof a clear determination to abandon.

Iowa—Allamakee County v. Collins Trust, 599 N.W.2d 448 (Iowa 1999).

[FN2] Nonuser as evidence of abandonment, see § 12.

[FN3] Cal.—Pacific Gas & Electric Co. v. Zuckerman, 189 Cal. App. 3d 1113, 234 Cal. Rptr. 630 (3dDist. 1987).

Clear intent to abandon required

Nonuse must be accompanied by some act showing clear intent to abandon.

Mich.—Ludington & Northern Ry. v. Epworth Assembly, 188 Mich. App. 25, 468 N.W.2d 884 (1991).

Discontinuance of use

To constitute abandonment, it must appear that there was a discontinuance of use with the intent to re-linquish a right to use property.

S.C.—Historic Charleston Foundation v. Krawcheck, 313 S.C. 500, 443 S.E.2d 401 (Ct. App. 1994).

Intent, generally, see § 5.

[FN4] Mont.—Rieman v. Anderson, 282 Mont. 139, 935 P.2d 1122 (1997).

[FN5] Me.—Doherty v. Russell, 116 Me. 269, 101 A. 305 (1917).

Remaining incommunicado

A landowner who gave powers of attorney to an agent did not abandon his or her interest in property,despite a ten–year absence from the property during which the landowner contributed nothing towardthe payment of the mortgage or maintenance, failure to communicate with agent for more than twoyears after execution of a second power of attorney, and the inability of the agent to locate the landown-er, where it was not unusual for a landowner to remain incommunicado and where the landowner gaveno indication in the correspondence concerning the second power of attorney that he or she intended toabandon his or her interest in the property.

Md.—King v. Bankerd, 55 Md. App. 619, 465 A.2d 1181 (1983), judgment aff'd, 303 Md. 98, 492 A.2d608 (1985).

[FN6]

Right–of–way

The fact that railroad companies presently did not make use of all of a right–of–way did not constituteabandonment of unused property, since they may at some time want to use more land for side tracks orother railroad purposes, and until then they would be entitled to have the land clear and unobstructed.















Cal.—Cash v. Southern Pacific R. Co., 123 Cal. App. 3d 974, 177 Cal. Rptr. 474 (2d Dist. 1981).

[FN7] Iowa—Ray Coal Mining Co. v. Ross, 169 Iowa 210, 151 N.W. 63 (1915).


CJS ABAND § 8

END OF DOCUMENT








§ 9. Intent—Acts and omissions——Particular acts considered


West's Key Number Digest, Abandoned and Lost Property 3Various acts or omissions have been determined by the courts to constitute or not to constitute abandon-

ment.

The courts have determined that various acts or omissions to act, without more, do not constitute an aban-donment.[1] Nonpayment of taxes on land does not of itself amount to an abandonment thereof,[2] but wheresuch failure is long continued, it may be evidence of an abandonment.[3]

Failure or neglect to assert a valid title to land does not of itself amount to an abandonment of it, or operateto extinguish it.[4] Also, a present assertion of ownership of property, i.e., a present claim of title and right topossession thereof, with regard to previously unclaimed property, within a statutorily prescribed time, by theperson or persons appearing to be entitled to such property, precludes such property from being consideredabandoned.[5]

In various other instances, the courts have found that particular acts or omissions do constitute abandon-ment.[6]

[FN1] U.S.—Mucha v. King, 792 F.2d 602 (7th Cir. 1986); Katsaris v. U.S., 684 F.2d 758 (11th Cir.1982).

Ark.—Hendrix v. Hendrix, 256 Ark. 289, 506 S.W.2d 848 (1974).

Ill.—McMillin v. Economics Laboratory, Inc., 127 Ill. App. 3d 517, 82 Ill. Dec. 328, 468 N.E.2d 982(3d Dist. 1984).

Okla.—Champlin Exploration, Inc. v. Western Bridge and Steel Co., Inc., 1979 OK 108, 597 P.2d 1215(Okla. 1979).

Long lost property

In admiralty law, when a previous owner claims long lost property that was involuntarily taken from hisor her control, the law is hesitant to find an abandonment, and an inference of abandonment is permit-















ted, but only when no owner appears.

U.S.—Sea Hunt, Inc. v. Unidentified Shipwrecked Vessel or Vessels, 221 F.3d 634 (4th Cir. 2000).

Burial items

The fact that descendants or fellow tribesmen of deceased Indians resolved, for some customary, reli-gious, or spiritual belief, to bury certain items along with the bodies of the deceased Indians did not res-ult in the abandonment of those items.

La.—Charrier v. Bell, 496 So. 2d 601 (La. Ct. App. 1st Cir. 1986), writ denied, 498 So. 2d 753 (La.1986).

Failure to return for truck


Failure to remove property

Tex.—Stanley v. Helton, 451 S.W.2d 299 (Tex. Civ. App. Fort Worth 1970).

[FN2] Colo.—Board of County Com'rs of Pitkin County v. Blanning, 29 Colo. App. 61, 479 P.2d 404(1970).

Failure to report ownership to tax assessor

Conduct of a corporate defendant in ceasing to pay taxes on property and failing to report its ownershipto the tax assessor was insufficient to raise the issue of abandonment.

Ark.—Mikel v. Development Co., Inc., 269 Ark. 365, 602 S.W.2d 630 (1980).

Refusal to pay taxes

Evidence that landowners did not use property, refused to pay taxes, offered to sell, and mailed noticeof abandonment to all interested parties did not establish that landowners abandoned property.

Pa.—Pocono Springs Civic Ass'n, Inc. v. MacKenzie, 446 Pa. Super. 445, 667 A.2d 233 (1995).

[FN3] Evidence of abandonment, see §§ 12, 13.


[FN5]

Action in conversion

A person could not be deemed to have abandoned property where an action was brought against theholder of such property in conversion, such an action being an assertion of ownership.

N.Y.—Price v. Hoyle, 82 Misc. 2d 174, 368 N.Y.S.2d 126 (County Ct. 1975).

















[FN6] U.S.—Universal Minerals, Inc. v. C. A. Hughes & Co., 669 F.2d 98 (3d Cir. 1981).

U.S.—Bunge Corp. v. Agri–Trans Corp., 542 F. Supp. 961 (N.D. Miss. 1982), judgment aff'd in part,vacated in part on other grounds, 721 F.2d 1005 (5th Cir. 1983).

La.—Swain v. Hymel, 377 So. 2d 888 (La. Ct. App. 4th Cir. 1979).

Depositing property on another's land

Where coal silt was of no commercial value during the time that a coal company was depositing it uponadjacent property, at the time the adjacent property was conveyed to a third party, the coal company didnot request permission from the third party to use the property for storage of the silt nor did the coalcompany communicate with the third party in any manner regarding the silt deposits in question, did notnotify the third party of its claim to the silt until the third party had applied to the department of envir-onmental resources for a permit to mine silt, never kept any records whatsoever regarding the silt inquestion, and never performed any maintenance on the silt or on the site on which the silt was depos-ited, the coal company abandoned the silt and had no ownership rights in it.

U.S.—In re G.M.P. Land Co., 33 B.R. 729 (Bankr. E.D. Pa. 1983).


CJS ABAND § 9

END OF DOCUMENT

CJS ABAND § 9 C.J.S. Abandonment § 9










§ 10. Subjects of abandonment


West's Key Number Digest, Abandoned and Lost Property 1.1Any right, title, or interest in property may be abandoned, except a perfect legal title to a corporeal heredita-

ment.

As a general rule, every right or interest in, title to, and ownership of, property may be lost by abandon-ment,[1] with the exception of a perfect legal title to a corporeal hereditament.[2]

Of course, one can abandon only property owned by himself or herself,[3] and he or she cannot abandonthat which he or she has never possessed or which never actually existed,[4] nor can he or she, by abandoninghis or her own property or interest, cause the loss or divestiture of the title or interest of another.[5]

Personal property.It is well settled that personal property may be abandoned, and ownership of it thereby lost.[6]

Corporeal and incorporeal hereditaments.At common law, while an incorporeal hereditament may be lost by abandonment,[7] perfect legal title to a

corporeal hereditament cannot be abandoned, or lost by abandonment, operating alone, and dissociated from oth-er acts or circumstances.[8] So far as land is concerned, there can be an abandonment only in a case where thetitle is imperfect, or less than absolute,[9] or where the abandonment is accompanied by circumstances of estop-pel and limitation.[10]

The doctrine of abandonment has, therefore, no application to a fee simple.[11] Title vested in a granteecannot be affected or transferred by his or her act in departing from the land and leaving it unoccupied, or other-wise ceasing to exercise dominion over it.[12] Nevertheless, inchoate rights and equitable rights in land may beabandoned, and so may mere possessory rights and rights acquired by a user of property.[13] Public, as well asprivate, rights are within these rules, and are subject to abandonment the same as any others.[14]


[FN2] Ky.—United Mining Co. v. Morton, 174 Ky. 366, 192 S.W. 79 (1917).

[FN3]









Former owner

After the date of its taking, in a condemnation proceeding, property was not thereafter subject to aban-donment by its former owners.

Pa.—Com., Dept. of Transp. v. Seltzer, 18 Pa. Commw. 127, 334 A.2d 834 (1975).

[FN4] Colo.—Conley v. Dyer, 43 Colo. 22, 95 P. 304 (1908).

[FN5]

Abandonment by mortgagor cannot affect mortgagee's interest

Or.—Moore v. United Elkhorn Mines, 64 Or. 342, 127 P. 964 (1912).

[FN6] N.C.—Kitchen v. Wachovia Bank & Trust Co., N.A., 44 N.C. App. 332, 260 S.E.2d 772 (1979).

Culm or refuse

Culm or refuse severed from its original place is personal property which may be abandoned when de-posited on the land of another with the intention of abandoning it.

U.S.—Gilberton Contracting Co. v. Hook, 255 F. Supp. 687 (E.D. Pa. 1966).

Topsoil or fill

Severed earth materials, like topsoil or fill, are personal property which if not removed from the owner'sland following their taking can be found to have been intentionally abandoned.

Conn.—Toffolon v. Town of Avon, 173 Conn. 525, 378 A.2d 580 (1977).

Intent

Intent is an element in the doctrine of abandonment only if a claim survives motion for summary judg-ment, and heretofore, only in cases involving personal property.


[FN7] Cal.—Gerhard v. Stephens, 68 Cal. 2d 864, 69 Cal. Rptr. 612, 442 P.2d 692 (1968).


Cal.—Gerhard v. Stephens, 68 Cal. 2d 864, 69 Cal. Rptr. 612, 442 P.2d 692 (1968).


Real property

Perfect legal title to real property cannot be lost by abandonment.

Me.—Town of Sedgwick v. Butler, 1998 ME 280, 722 A.2d 357 (Me. 1998).















Minn.—Denman v. Gans, 607 N.W.2d 788 (Minn. Ct. App. 2000).


[FN9] Pa.—Parks v. Pennsylvania R. Co., 301 Pa. 475, 152 A. 682 (1930).

[FN10] Ark.—Maroney v. City of Malvern, 320 Ark. 671, 899 S.W.2d 476 (1995).

[FN11] Cal.—Gerhard v. Stephens, 68 Cal. 2d 864, 69 Cal. Rptr. 612, 442 P.2d 692 (1968).

Me.—Town of Sedgwick v. Butler, 1998 ME 280, 722 A.2d 357 (Me. 1998).

Md.—Cristofani v. Board of Educ. of Prince George's County, 98 Md. App. 90, 632 A.2d 447, 86 Ed.Law Rep. 898 (1993).

S.C.—Fender v. Heirs at Law of Smashum, 354 S.C. 504, 581 S.E.2d 853 (Ct. App. 2003), cert. gran-ted, (June 24, 2004).

Adverse possession

(1) Generally, an interest in real property cannot be abandoned, and a fee owner can be divested of titleonly through adverse possession.

Vt.—In re Petition of Doering, 165 Vt. 603, 686 A.2d 101 (1996).

(2) Generally, in the absence of adverse possession, title to real property cannot be divested by aban-donment.

Colo.—Martinez v. Continental Enterprises, 730 P.2d 308 (Colo. 1986).

[FN12] S.C.—Fender v. Heirs at Law of Smashum, 354 S.C. 504, 581 S.E.2d 853 (Ct. App. 2003), cert.granted, (June 24, 2004).

[FN13] S.C.—Fender v. Heirs at Law of Smashum, 354 S.C. 504, 581 S.E.2d 853 (Ct. App. 2003), cert.granted, (June 24, 2004).

[FN14] S.C.—Andrews v. McDade, 201 S.C. 24, 21 S.E.2d 202 (1942).


CJS ABAND § 10

END OF DOCUMENT




















§ 11. Pleading


West's Key Number Digest, Abandoned and Lost Property 1, 4A party relying on an abandonment must ordinarily plead facts showing that the property or right was aban-

doned.

A party to an action who relies on an abandonment must plead facts which show an intention to abandon theproperty and not to reclaim or reoccupy it.[1]

The primary element to be established concerning the abandonment of a property interest is an actual intentto relinquish the rights being abandoned.[2]

[FN1] S.D.—Cundy v. Weber, 68 S.D. 214, 300 N.W. 17 (1941).

Wyo.—North Am. Uranium, Inc. v. Johnston, 77 Wyo. 332, 316 P.2d 325 (1957).

[FN2] Wash.—Nelson v. Pacific County, 36 Wash. App. 17, 671 P.2d 785 (Div. 2 1983).


CJS ABAND § 11

END OF DOCUMENT














§ 12. Evidence


West's Key Number Digest, Abandoned and Lost Property 4Generally, abandonment will not be presumed and the burden of proving such abandonment is on one as-

serting it.

Generally, an intention to abandon property, or a right, will not be presumed,[1] at least where the conductof the owner or holder can be explained consistently with an intention to hold or continue to claim the thing.[2]Some authorities have even held that there is a presumption that one does not intend to abandon property ofvalue.[3]

However, if the thing alleged to have been abandoned is shown to have been considered valueless by itsowner and by the general opinion of the community, the presumption that the owner did not intend to abandon itcannot arise.[4] Furthermore, conduct on the part of the owner inconsistent with an intention to continue toclaim the property or right may, in fact, raise a presumption or inference of abandonment.[5] A presumption ofabandonment may arise in certain circumstances under statute independent of common–law principles.[6]

Burden of proof.The burden of proving abandonment is on the person asserting it.[7] The party asserting abandonment is re-

quired to establish that the property or right has been relinquished by its owner or holder, with the intention ofabandoning it,[8] and with no intention of returning to or reclaiming it.[9] Abandonment requires affirmativeproof of the intent to abandon coupled with acts or omissions implementing the intent.[10] Thus, both the intentto relinquish property and external acts putting that intention into effect must be shown.[11]

However, once it is established that material deposited upon the property of another was of no use and nocommercial value during the time it was being deposited, it is incumbent upon the party opposing a determina-tion of abandonment to prove affirmatively that the person or entity that allegedly abandoned the material actu-ally intended to retain ownership of the material, in light of all of the circumstances of the case.[12]

Proof by circumstantial evidence.Like any other fact, abandonment may be shown by circumstances,[13] or it may be proved by the actions

or conduct of the parties.[14]








Cases:

Abandonment is a defense to an action for conversion; however, in Alabama, there is a presumption that onedoes not intend to abandon property of value. Horne v. TGM Associates, L.P., 56 So. 3d 615 (Ala. 2010).

The burden of proving abandonment falls on the party asserting it. Griffis v. Davidson County MetropolitanGovernment, 164 S.W.3d 267, 199 Ed. Law Rep. 509 (Tenn. 2005).

Proof of intention to abandon is, of necessity, largely circumstantial; it may be inferred from the acts andconduct of the owner, which are clearly inconsistent with an intention to continue the use of the property, andfrom the nature and situation of the property, without the positive testimony of the owner in affirmation of thefact. Griffis v. Davidson County Metropolitan Government, 164 S.W.3d 267, 199 Ed. Law Rep. 509 (Tenn.2005).

[END OF SUPPLEMENT]

[FN1] U.S.—U.S. v. Robinson, 430 F.2d 1141 (6th Cir. 1970).

Ill.—Michael v. First Chicago Corp., 139 Ill. App. 3d 374, 93 Ill. Dec. 736, 487 N.E.2d 403 (2d Dist.1985).

La.—Armstrong v. Armstrong, 493 So. 2d 253 (La. Ct. App. 3d Cir. 1986), writ denied, 496 So. 2d 353(La. 1986).

Direct and affirmative proof required

U.S.—Hoelzer v. City of Stamford, Conn., 933 F.2d 1131 (2d Cir. 1991) (applying New York law).

[FN2] D.C.—Peyton v. U. S., 275 A.2d 229 (D.C. 1971).

Mo.—Russell v. Allen, 496 S.W.2d 290 (Mo. Ct. App. 1973).

[FN3] Ala.—Bruner v. Geneva County Forestry Dept., 865 So. 2d 1167 (Ala. 2003).

[FN4] U.S.—In re G.M.P. Land Co., 33 B.R. 729 (Bankr. E.D. Pa. 1983).

Ala.—Shabazz v. Payne, 607 So. 2d 238 (Ala. Civ. App. 1992).


Rebuttable presumption

A prison inmate who had escaped rebutted the presumption that he had abandoned personal property heleft at prison, which arose by reason of his escape, when upon his apprehension and return he claimedthe property, which had been labeled and stored by prison authorities, and had not been acquired byanyone else.























[FN6]

Unclaimed refunds

A statute, providing that all property which was held or owing in State in the ordinary course of theholder's business and which has remained unclaimed by its owner for more than seven years after it be-came payable or distributable is presumed abandoned, applied to unclaimed refunds, which were fortickets for a cancelled concert and which were unclaimed more than seven years after the concert can-cellation.

Tenn.—Presley v. City of Memphis, 769 S.W.2d 221 (Tenn. Ct. App. 1988).

[FN7] Fla.—Brown v. Reynolds, 872 So. 2d 290 (Fla. Dist. Ct. App. 2d Dist. 2004).

Ill.—Michael v. First Chicago Corp., 139 Ill. App. 3d 374, 93 Ill. Dec. 736, 487 N.E.2d 403 (2d Dist.1985).


Actual abandonment

The party asserting abandonment must also prove actual abandonment, which cannot be inferred fromnonuse alone.

Pa.—Metzger v. Bensalem Tp. Zoning Hearing Bd., 165 Pa. Commw. 351, 645 A.2d 369 (1994).

[FN8] Fla.—State v. Green, 456 So. 2d 1309 (Fla. Dist. Ct. App. 3d Dist. 1984).

Actual acts

(1) To prove abandonment, actual acts of relinquishment accompanied by an intention to abandon mustbe shown.


(2) To prove abandonment, both the owner's intent to abandon property and some affirmative act oromission demonstrating that intention must be shown.

U.S.—Hoelzer v. City of Stamford, Conn., 933 F.2d 1131 (2d Cir. 1991).

By inference or express deed

A claimant may prove abandonment by inference as well as by express deed.

U.S.—Fairport Intern. Exploration, Inc. v. Shipwrecked Vessel, 72 F. Supp. 2d 795, 163 A.L.R. Fed.687 (W.D. Mich. 1999), aff'd, 245 F.3d 857, 2001 FED App. 0120P (6th Cir. 2001).

[FN9] Fla.—State v. Green, 456 So. 2d 1309 (Fla. Dist. Ct. App. 3d Dist. 1984).

[FN10] Ohio—Long v. Noah's Lost Ark, Inc., 158 Ohio App. 3d 206, 2004 –Ohio– 4155, 814 N.E.2d
















555 (7th Dist. Mahoning County 2004).

Physical acts

To show "abandonment," a party must prove intent to abandon and physical acts carrying that intent in-to effect.

U.S.—Zych v. Unidentified, Wrecked and Abandoned Vessel, Believed to be SB Lady Elgin, 755 F.Supp. 213 (N.D. Ill. 1990).

[FN11] Mich.—Ludington & Northern Ry. v. Epworth Assembly, 188 Mich. App. 25, 468 N.W.2d 884(1991).


[FN13] U.S.— Columbus–America Discovery Group, Inc. v. Unidentified, Wrecked and AbandonedSailing Vessel, 742 F. Supp. 1327, 31 Fed. R. Evid. Serv. 1046 (E.D. Va. 1990), rev'd on other grounds,974 F.2d 450, 24 Fed. R. Serv. 3d 14 (4th Cir. 1992).


Circumstantial evidence

A finding of abandonment must be supported by strong and convincing evidence, but it may, and oftenmust, be determined on basis of circumstantial evidence.


[FN14] U.S.—U.S. v. 79.95 Acres of Land, More or Less, in Rogers County, State of Okl., 459 F.2d185 (10th Cir. 1972); Columbus–America Discovery Group, Inc. v. Unidentified, Wrecked and Aban-doned Sailing Vessel, 742 F. Supp. 1327, 31 Fed. R. Evid. Serv. 1046 (E.D. Va. 1990), rev'd on othergrounds, 974 F.2d 450, 24 Fed. R. Serv. 3d 14 (4th Cir. 1992).

How intention to abandon may be manifested, see § 6.


CJS ABAND § 12

END OF DOCUMENT


























§ 13. Evidence—Weight and sufficiency


West's Key Number Digest, Abandoned and Lost Property 4Abandonment must be clearly proved, by competent evidence, either of affirmative and conclusive acts, or

of facts from which no other inference can reasonably arise than that of relinquishment with intention to aban-don.

Evidence to support a claim of abandonment must be clear, unequivocal and decisive.[1] It must be strongand convincing,[2] direct and affirmative,[3] or else be such as reasonably produces the exclusive inference of arelinquishment of the property or right in question with the intention of abandoning it.[4] Mere nonuse of prop-erty,[5] lapse of time without claiming or using property,[6] or temporary absence of the owner,[7] unaccompan-ied by any other evidence showing intention to abandon generally is not enough to constitute an abandonment.[8] However, such facts are competent evidence of an intent to abandon and, as such, are entitled to weight whenconsidered with other circumstances,[9] although even then such evidence is not conclusive, but may be contra-dicted and overcome by other evidence.[10]

Evidence of the nonpayment of taxes is not, alone, sufficient to prove an abandonment;[11] but nonpaymentof taxes may be evidence of abandonment where coupled with other facts or circumstances showing an intentionto abandon.[12]

Where there is no evidence of any intention to abandon property, or a right,[13] or of any act of abandon-ment,[14] or, a fortiori, where the evidence affirmatively shows an intention not to abandon,[15] an abandon-ment is, obviously, not established.

The evidence in particular cases has been held sufficient or insufficient to establish abandonment.[16]

[FN1] U.S.—In re Seizure of $82,000 More or Less, 119 F. Supp. 2d 1013 (W.D. Mo. 2000).

Mo.—Hoffman Management Corp. v. S.L.C. of North America, Inc., 800 S.W.2d 755 (Mo. Ct. App.W.D. 1990).

Full and clear evidence

Miss.—Hudson v. Moon, 732 So. 2d 927 (Miss. 1999).











Evidence of intent to abandon

Wash.—Olin v. Goehler, 39 Wash. App. 688, 694 P.2d 1129 (Div. 2 1985).

Abandonment of real property

Ark.—Maroney v. City of Malvern, 320 Ark. 671, 899 S.W.2d 476 (1995).

[FN2] U.S.—Chemical Sales Co., Inc. v. Diamond Chemical Co., Inc., 766 F.2d 364 (8th Cir. 1985).


La.—Armstrong v. Armstrong, 493 So. 2d 253 (La. Ct. App. 3d Cir. 1986), writ denied, 496 So. 2d 353(La. 1986).

Strong and convincing evidence of intent to abandon



Affirmative evidence of intent

Essential element of abandonment is intention to abandon, which must be established affirmatively byfacts.

Tex.—Morgan v. Fox, 536 S.W.2d 644 (Tex. Civ. App. Corpus Christi 1976), writ refused n.r.e., (Oct.6, 1976).

Actual acts of relinquishment

(1) In order to establish "abandonment" of property, actual acts of relinquishment accompanied by in-tention to abandon must be shown.

Iowa—Pearson v. City of Guttenberg, 245 N.W.2d 519 (Iowa 1976).

(2) It is not enough that owner's acts give reasonable cause to others to believe that property has beenabandoned, actual relinquishment and intent must be shown.

Kan.—Botkin v. Kickapoo, Inc., 211 Kan. 107, 505 P.2d 749 (1973).


Strong and convincing evidence to infer intent

Intention to abandon may be inferred only from strong and convincing evidence.

Mo.—Wilson v. Wheeler Farms, Inc., 591 S.W.2d 287 (Mo. Ct. App. S.D. 1979).





















Duration of nonuser

Nonuse, even for lengthy periods of time, is, of itself, insufficient to show an "abandonment" of a right,especially where the acts manifest an intent contrary to abandonment.



Md.—Merryman v. Bremmer, 250 Md. 1, 241 A.2d 558 (1968).


[FN8] Ohio—Long v. Noah's Lost Ark, Inc., 158 Ohio App. 3d 206, 2004 –Ohio– 4155, 814 N.E.2d555 (7th Dist. Mahoning County 2004).


Evidence of clear determination required

Nonuse of property is not enough to establish abandonment, unless coupled with affirmative evidenceof a clear determination to abandon.


Unequivocal and decisive acts

Under California law, abandonment of property requires nonuse accompanied by unequivocal and de-cisive acts showing an intent to abandon.

U.S.—U.S. v. Crawford, 239 F.3d 1086, 56 Fed. R. Evid. Serv. 388 (9th Cir. 2001), as amended, (Feb.14, 2001).

Cal.—Pacific Gas & Electric Co. v. Zuckerman, 189 Cal. App. 3d 1113, 234 Cal. Rptr. 630 (3d Dist.1987).

Intent to abandon not found from nonuse

(1) For there to be abandonment of a property interest, there must be an intent to abandon, and an intentto abandon is not found from mere nonuse.




















(2) "Abandonment" of property is a technical legal concept requiring evidence of a specific intent to re-linquish a known right, whereas nonuse is simply a fact that may be proven by objective evidencewithout evidence of an intent to relinquish.

Tex.—City of Houston v. Van De Mark, 83 S.W.3d 864 (Tex. App. Texarkana 2002), reh'g overruled,(Aug. 13, 2002) and review denied, (Jan. 16, 2003).



[FN10]

Prima facie case

While nonuse for a long period of time is evidence of an intention to abandon, it is not conclusive butmerely establishes prima facie case, and the presumption established by nonuse can be rebutted.

Colo.—Upper Harmony Ditch Co. v. Carwin, 189 Colo. 190, 539 P.2d 1282 (1975).

[FN11] Vt.—Sowles v. Minot, 82 Vt. 344, 73 A. 1025 (1909).

[FN12] Ark.—Gill v. Dunn, 196 Ark. 1178, 116 S.W.2d 612 (1938).

Indicative factor

Indicative factors of abandonment include failure to make payments for a long period of time, failure topay taxes, failure to retain possession, and failure to assert rights in property.

Minn.—Mulvihill v. Finseth, 396 N.W.2d 889 (Minn. Ct. App. 1986).

[FN13] La.—Bickham v. Bussa Oil & Gas Co., 152 So. 393 (La. Ct. App. 2d Cir. 1934).

[FN14] La.—Bickham v. Bussa Oil & Gas Co., 152 So. 393 (La. Ct. App. 2d Cir. 1934).

[FN15] Ill.—Kee & Chapell Dairy Co. v. Pennsylvania Co., 214 Ill. App. 1, 1919 WL 1573 (1st Dist.1919), aff'd, 291 Ill. 248, 126 N.E. 179 (1920).

Agent on premises

Nev.—Goldfield Consol. Milling & Transp. Co. v. Old Sandstrom Annex Gold Mining Co., 38 Nev.426, 150 P. 313 (1915).


Conn.—Favorite v. Miller, 176 Conn. 310, 407 A.2d 974 (1978).

Mich.—Emmons v. Easter, 62 Mich. App. 226, 233 N.W.2d 239 (1975).

Abandonment by assignee




















Evidence did not support finding that assignee of working interest in oil and gas lease on property thatwas to be condemned abandoned its equipment after condemnation proceeding.

U.S.—Paul v. U.S., 21 Cl.Ct. 415 (Cl.Ct. 1990), aff'd 937 F.2d 623 (Fed. Cir. 1991).

Nonpayment of warehouseman

Evidence of a property owner's eight–month failure to pay a warehouseman was insufficient to supportthe trial court's conclusion that the property owner, who always paid sporadically, had abandoned theproperty.

D.C.—Kearns v. McNeill Bros. Moving and Storage Co., Inc., 509 A.2d 1132, 1 U.C.C. Rep. Serv. 2d856 (D.C. 1986).

Absence of possession

Intent to abandon zippered plastic bag found near defendant's automobile at scene of accident could notbe implied by duration of defendant's absence from possession.

U.S.—U.S. v. Markland, 489 F. Supp. 932 (D. Conn. 1980), order rev'd on other grounds, 635 F.2d 174(2d Cir. 1980).

Sufficiency of acts or omissions to effectuate abandonment, see § 7.


CJS ABAND § 13

END OF DOCUMENT














§ 14. Trial


West's Key Number Digest, Abandoned and Lost Property 4Abandonment is a question of fact for the jury, except where the facts are undisputed and only one inference

can be drawn therefrom, in which case it may be decided as a matter of law.

The question of abandonment is ordinarily one of fact,[1] to be determined by the jury under all the circum-stances of the case.[2] It is not a question of law,[3] although it has been said to be a question of mixed law andfact.[4] A determination of abandonment is a factual determination and cannot be disturbed absent a finding thatthe trial court was clearly wrong.[5]

However, abandonment may be declared as a matter of law where all the essential elements are admitted orindisputably proved and the inferences to be drawn from them are certain and free from doubt.[6] On the otherhand, where the evidence is, as a matter of law, insufficient to show abandonment, the court may, likewise, de-termine the question without submitting it to the consideration of the jury.[7]


Cases:

Amendment shortening the period after which state law imposed a presumption of abandonment on travel-er's checks, thereby accelerating the date at which the issuer of an unclaimed traveler's check must remit the out-standing funds to the state, was rationally related to legitimate legislative purpose of revenue raising, and there-fore did not violate substantive due process. U.S.C.A. Const.Amend. 14; KRS 393.060. American Exp. TravelRelated Services Co., Inc. v. Kentucky, 641 F.3d 685 (6th Cir. 2011).

Traditional rational basis test, rather than heightened rational basis scrutiny, applied to substantive due pro-cess challenge to amendment shortening the period after which state law imposed a presumption of abandon-ment on traveler's checks, thereby accelerating the date at which the issuer of an unclaimed traveler's check mustremit the outstanding funds to the state; thus, revenue raising was a legitimate legislative purpose for purposesof such analysis. U.S.C.A. Const.Amend. 14; KRS 393.060. American Exp. Travel Related Services Co., Inc. v.Kentucky, 641 F.3d 685 (6th Cir. 2011).

The inquiry whether abandonment has occurred is predominantly a factual determination based upon all therelevant circumstances. Griffis v. Davidson County Metropolitan Government, 164 S.W.3d 267, 199 Ed. LawRep. 509 (Tenn. 2005).







http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000583&DocName=USCOAMENDXIV&FindType=L

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http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000010&DocName=KYSTS393.060&FindType=L





[END OF SUPPLEMENT]

[FN1] Ala.—Johnson v. Northpointe Apartments, 744 So. 2d 899 (Ala. 1999).

Miss.—Cavanaugh v. O'Connell, 732 So. 2d 912 (Miss. 1999).


As question of intent

Fla.—Brown v. Reynolds, 872 So. 2d 290 (Fla. Dist. Ct. App. 2d Dist. 2004).

[FN2] N.C.—Kitchen v. Wachovia Bank & Trust Co., N.A., 44 N.C. App. 332, 260 S.E.2d 772 (1979).

Pa.—Lawson v. Simonsen, 490 Pa. 509, 417 A.2d 155 (1980).

Utah—Gurgel v. Nichol, 19 Utah 2d 200, 429 P.2d 47 (1967).

Question of intent for trier of fact

Fla.—Brown v. Reynolds, 872 So. 2d 290 (Fla. Dist. Ct. App. 2d Dist. 2004).

[FN3] S.D.—Phillis v. Gross, 32 S.D. 438, 143 N.W. 373 (1913).

[FN4] Tenn.—Charleston, S.C. Mining & Mfg. Co. v. American Agr. Chemical Co., 126 Tenn. 18, 150S.W. 1143 (1911).

[FN5] La.—Walters v. Greer, 726 So. 2d 1094 (La. Ct. App. 2d Cir. 1999).


[FN7] Conn.—Sharkiewicz v. Lepone, 139 Conn. 706, 96 A.2d 796 (1953).

Tex.—Faubian v. Busch, 240 S.W.2d 361 (Tex. Civ. App. Amarillo 1951), writ refused n.r.e.


CJS ABAND § 14

END OF DOCUMENT





















§ 15. Operation and effect


West's Key Number Digest, Abandoned and Lost Property 5Abandonment divests title or ownership forthwith. Abandoned personalty becomes the property of the per-

son first appropriating it with the intention to possess. An abandoned title to, or interest in, realty, at the com-mon law, goes to the rightful owner of the property.

An abandonment of property or a right divests the title and ownership of the owner as fully and completelyas would a conveyance,[1] from the time of the act of abandonment.[2] Therefore, while the term "loss" has adifferent connotation from "abandonment," and can be distinguished therefrom,[3] an abandonment may be saidto amount to the loss, in the more general sense of that word, of the abandoning owner's interest in, or title to,the property or right abandoned, so as to bar him or her from further claim to it,[4] except as he or she, like any-one else, may thereafter appropriate it and make it his or her own if it has not already been appropriated by an-other.[5] Specifically, while a person who abandons property is held to have lost any ownership interest in prop-erty, an ownership in goods is not relinquished by losing or misplacing them.[6] One who has abandoned prop-erty does not regain legal possession or ownership of it by mere declarations as to its probable future value andindefinite suggestions as to what he or she may do with it in time to come.[7]

Personal property, upon being abandoned, ceases to be the property of any person,[8] unless and until it isreduced to possession with the intent to acquire title to, or ownership of, it.[9] Such property may, accordingly,be appropriated by anyone,[10] if it has not been reclaimed by the former owner,[11] and ownership of it vestsby operation of law,[12] in the person first lawfully appropriating it and reducing it to possession with the inten-tion to become its owner,[13] provided such taking is fair.[14] A person appropriating abandoned property,[15]or any third person whom he or she may allow to take it,[16] has a right to such property superior to that of theformer owner. Abandonment of property divests the owner of his or her ownership, so as to bar him or her fromfurther claim to it;[17] except that he or she, like anyone else, may appropriate it once it is abandoned if it hasnot already been appropriated by someone else.[18] Abandonment of personalty constitutes a complete defenseto conversion and likewise to any cause of action in which the plaintiff's ownership is essential.[19]

Some authorities have held that personalty abandoned on the land of another becomes the property of theowner of such land.[20] However, in other instances different authorities have held that abandoned personaltydoes not become the property of the owner of such land where another first takes actual possession thereof.[21]

Real property.







At common law, a title to, or interest in, land, where it is capable of being abandoned, is not, on abandon-ment, transferred either to an adverse claimant[22] or to the person who first seizes the land after the abandon-ment,[23] but falls back to the rightful owner,[24] which may be the state, by virtue of its power of eminent do-main.[25] The extinction, however, of the interest or title abandoned may have the effect of making a younger orconflicting title valid.[26] Abandonment of realty operates to disentitle the person abandoning the property to re-claim it.[27]

Abandonment, in respect to real property, i.e., the release of an ancillary right in realty by the failure to util-ize it, creates no title.[28] Rather, the abandonment removes the encumbrance, leaving an unencumbered feesimple ownership of land.[29] Abandonment, as applied to less than a fee interest, at best creates a reversion ofan abandoned right to the fee owner.[30] Thus, under the theory of abandonment, an abandoned property rightreverts to the fee simple owner of land.[31]


N.C.—Kitchen v. Wachovia Bank & Trust Co., N.A., 44 N.C. App. 332, 260 S.E.2d 772 (1979).

[FN2] Colo.—Derry v. Ross, 5 Colo. 295, 1880 WL 165 (1880).

Abandonment as complete at moment intention and act of relinquishment unite, see § 4.

[FN3] Abandonment distinguished from loss, see § 2.

[FN4] N.H.—Coulombe v. Gross, 84 N.H. 212, 148 A. 582 (1930).


[FN6] Wash.—State v. Kealey, 80 Wash. App. 162, 907 P.2d 319 (Div. 2 1995), as amended on denialof reconsideration, (Feb. 26, 1996).


[FN8] U.S.—Bemis v. RMS Lusitania, 884 F. Supp. 1042 (E.D. Va. 1995), aff'd, 99 F.3d 1129 (4th Cir.1996).


Subject to appropriation by first taker

Mo.—In re Usery, 158 B.R. 470 (Bankr. W.D. Mo. 1993).

[FN9] Ind.—Schuler v. Langdon, 433 N.E.2d 841 (Ind. Ct. App. 3d Dist. 1982).


High degree of control required for possession

U.S.—Bemis v. RMS Lusitania, 884 F. Supp. 1042 (E.D. Va. 1995), aff'd, 99 F.3d 1129 (4th Cir. 1996).





















[FN10] U.S.—Bemis v. RMS Lusitania, 884 F. Supp. 1042 (E.D. Va. 1995), aff'd, 99 F.3d 1129 (4thCir. 1996).

Ind.—Schuler v. Langdon, 433 N.E.2d 841 (Ind. Ct. App. 3d Dist. 1982).


[FN12] U.S.—Treasure Salvors, Inc. v. Abandoned Sailing Vessel Believed to Be Nuestra Senora DeAtocha, 408 F. Supp. 907 (S.D. Fla. 1976), judgment aff'd and modified on other grounds, 569 F.2d 330(5th Cir. 1978).

[FN13] U.S.—Bemis v. RMS Lusitania, 884 F. Supp. 1042 (E.D. Va. 1995), aff'd, 99 F.3d 1129 (4thCir. 1996); Rickard v. Pringle, 293 F. Supp. 981 (E.D. N.Y. 1968).







N.C.—Kitchen v. Wachovia Bank & Trust Co., N.A., 44 N.C. App. 332, 260 S.E.2d 772 (1979).

[FN16] Ga.—Holland v. Johnson, 22 Ga. App. 162, 95 S.E. 762 (1918).




[FN20] Ind.—Schuler v. Langdon, 433 N.E.2d 841 (Ind. Ct. App. 3d Dist. 1982).

Foundation or wall

Where a foundation or wall along the side of a lot was shifted by an earthquake so that it lay within theboundaries of the adjoining lot, and the original owner refused to remove it, and abandoned it, suchfoundation or wall thereupon became the property of the owner of such adjoining lot, and he had a rightto rest a building upon it.

Cal.—Kafka v. Bozio, 191 Cal. 746, 218 P. 753, 29 A.L.R. 833 (1923).

Waste or tailings

































Where mine waste or tailings were abandoned by being cast upon land not belonging to owner of suchtailings, they became property of owner of land upon which they were so deposited.

Pa.—Fidelity–Philadelphia Trust Co. v. Lehigh Valley Coal Co., 294 Pa. 47, 143 A. 474 (1928).

[FN21] Tex.—Hubert v. Collard, 141 S.W.2d 677 (Tex. Civ. App. Austin 1940), writ dismissed, judg-ment correct.


[FN23] Ark.—Sharpp v. Stodghill, 191 Ark. 500, 86 S.W.2d 934 (1935).

Pa.—Parks v. Pennsylvania R. Co., 301 Pa. 475, 152 A. 682 (1930).



[FN26] Pa.—Bear Valley Coal Co. v. Dewart, 95 Pa. 72, 1880 WL 13425 (1880).

[FN27] Ark.—Sharpp v. Stodghill, 191 Ark. 500, 86 S.W.2d 934 (1935).

[FN28] Md.—Cristofani v. Board of Educ. of Prince George's County, 98 Md. App. 90, 632 A.2d 447,86 Ed. Law Rep. 898 (1993).





CJS ABAND § 15

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Topic Summary

Correlation Table

ABANDONMENT

............................................................................

1................................................................................. Deleted2................................................................................. §13................................................................................. §2, §34................................................................................. §45................................................................................. §5, §66................................................................................. §7, §8, §97................................................................................. §108................................................................................. §119................................................................................. §1210............................................................................... §1311............................................................................... §1412............................................................................... §15


CJS ABAND COR

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CJS ABAND COR Page 11 C.J.S. Abandonment Correlation Table


















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