abandonment

The surrender, relinquishment, disclaimer, or cession of property or of rights. Voluntary relinquishment of all right, title, claim and possession, with the intention of not reclaiming it. State v. Bailey, 97 N. J.Super. 396, 235 A.2d 214, 216.

The giving up of a thing absolutely, without reference to any particular person or purpose, as vacating property with the intention of not returning, so that it may be appropriated by the next comer or finder. The voluntary relinquishment of possession of thing by owner with intention of terminating his ownership, but without vesting it in any other person. Dober v. Ukase Inv. Co., 139 Or. 626, 10 P.2d 356, 357.

The relinquishing of all title, possession, or claim, or a virtual, intentional throwing away of property. Term includes both the intention to abandon and the external act by which the intention is carried into effect. In determining whether one has abandoned his property or rights, the intention is the first and paramount object of inquiry, for there can be no abandonment without the intention to abandon. Roebuck v. Mecosta County Road Commission, 59 Mich.App. 128, 229 N.W.2d 343, 345.

Generally, "abandonment" can arise from a single act or from a series of acts. Holly Hill Lumber Co. v. Grooms, 198 S.C. 118, 16 S.E.2d 816, 821.

Time is not an essential element of act, although the lapse of time may be evidence of an intention to abandon, and where it is accompanied by acts manifesting such an intention, it may be considered in determining whether there has been an abandonment. Ullman ex rel. Eramo v. Payne, 127 Conn. 239, 16 A.2d 286, 287.

"Abandonment" differs from surrender in that surrender requires an agreement, and also from forfeiture, in that forfeiture may be against the intention of the party alleged to have forfeited.

See also desertion

- discharge

- release

- waiver

- surrender

Actions, in general

Failure to prosecute or bring action within statutorily prescribed period (see limitation (statute of limitations)); failure to object to or submit jury instructions (Fed.R. Civil P. 51); failure to demand jury trial (Fed.R. Civil P. 38)

Adverse possession

To destroy continuity of adverse claimant's possession, there must be an intent to relinquish claim of ownership as well as an act of relinquishment of possession and mere temporary absence is not sufficient. Bruch v. Benedict, 62 Wyo. 213, 165 P.2d 561

Assignment of error

Failure to object at trial. Meyer v. Hendrix, 311 Ill.App. 605, 37 N.E.2d 445, 446.

Error not presented in brief. Roubay v. United States, C.C.A. Cal., 115 F.2d 49, 50.

Error not supported by point, argument or authority. Cone v. Ariss, 13 Wash,2d 650, 126 P.2d 591, 593.

See Fed.R.Civil Proc. 46 (Exceptions unnecessary).

Children.

Desertion or willful forsaking. Foregoing parental duties. Wright v. Fitzgibbons, 198 Miss. 471, 21 So.2d 709, 710.

See also desertion.

Contracts.

To constitute "abandonment" by conduct, action relied on must be positive, decisive, unequivocal, and inconsistent with the existence of the contract

Abandonment is a matter of intent. Lohn v. Fletcher Oil Co., 38 Cal.App.2d 26, 100 P.2d 505, 507, and implies not only nonperformance, but an intent not to perform which may be inferred from acts which necessarily point to actual abandonment.

Copyright.

"Abandonment" of a copyright turns on state of mind of copyright proprietor and occurs whenever he engages in some overt action which manifests his purpose to surrender his rights in the work and to allow the public to enjoy it. Rexnord, Inc. v. Modern Handling Systems, Inc., D.C.Del., 379 F.Supp. 1190, 1199.

Criminal acts.

"Abandonment" can relieve one of criminal responsibility where criminal enterprise is cut short by change of heart, desertion of criminal purpose, change of behavior, and rising revulsion for harm intended, and must occur before criminal act charged is in the process of consummation or has become so inevitable that it cannot reasonably be delayed. Pyle v. State, Ind., 476 N.E.2d 124, 126.

See Model Penal Code No. 5.01(4) (renunciation of criminal purpose).

Easements

To establish "abandonment" of an easement created by deed, there must be some conduct on part of owner of servient estate adverse to and inconsistent with existence of easement and continuing for statutory period, or nonuser must be accompanied by unequivocal and decisive acts clearly indicating an intent on part of owner of easement to abandon use of it. Permanent cessation of use or enjoyment with no intention to resume or reclaim. Intention and completed act are both essential. A mere temporary or occasional obstruction or use of an easement by the servient owner is not an "abandonment". Gerber v. Appel, Mo.App., 164 S.W.2d 225, 228.

Ground for divorce

"Abandonment" as cause for divorce must be willful and intentional without intention of returning, and without consent of spouse abandoned. This ground is commonly termed "desertion" in state divorce statutes.

See also desertion

Inventions.

The giving up of rights by inventor, as where he surrenders his idea or discovery or relinquishes the intention of perfecting his invention, and so throws it open to the public, or where he negligently postpones the assertion of his claims or fails to apply for a patent, and allows the public to use his invention. Electric Storage Battery Co. v. Shimadzu, Pa., 307 U.S. 5, 613, 616, 59 S.Ct. 675, 681, 83 L.Ed. 1071.

Leases in general.

To constitute an "abandonment" of leased premises, there must be an absolute relinquishment of premises by tenant consisting of act and intention.

Mineral leases.

"Abandonment" consists of an actual act of relinquishment, accompanied with the intent and purpose permanently to give up a claim and right of property.

A distinction exists between "abandonment" and "surrender" which is the relinquishment of a thing or a property right thereto to another, which is not an essential element of abandonment. Distinction also exists between elements of "abandonment" and those of estoppel. Neither formal surrender of oil and gas lease nor release is necessary to effectuate "abandonment", for example,

- failing to start work under the lease for more than 40 years, Chapman v. Continental Oil Co., 149 Kan. 822, 89 P.2d 833, 834;

- breach of implied obligation to proceed with search and development of land with reasonable diligence, Wood v. Arkansas Fuel Oil Co., D.C. Ark., 40 F.Supp. 42, 45;

- no drilling on leased land for more than two years, and failure to pay rentals, Rehart v. Klossner, 48 Cal.App.2d 40, 119 P.2d 145, 147;

- drawing of casing from well with no intention of replacing it, have all been held to constitute "abandonment".

But there must be an intention by lessee to relinquish leased premises, Carter Oil Co. v. Mitchell, C.C.A.OkL, 100 F.2d 945, 950, 951; or an intention not to drill, Carter Oil Co. v. Mitchell, C.C.A.Okl., 100 F.2d 945, 950, 951.

And ceasing of operations is not alone sufficient. Fisher v. Dixon, 188 Okl. 7, 105 P.2d 776, 777.

Office

Abandonment of a public office is a species of resignation, but differs from resignation in that resignation is a formal relinquishment, while abandonment is a voluntary relinquishment through nonuser. It is not wholly a matter of intention, but may result from the complete abandonment of duties of such a continuance that the law will infer a relinquishment. It must be total, and under such circumstances as clearly to indicate an absolute relinquishment; and whether an officer has abandoned an office depends on his overt acts rather than his declared intention. It implies nonuser, but nonuser does not, of itself constitute abandonment. The failure to perform the duties pertaining to the office must be with actual or imputed intention on the part of the officer to abandon and relinquish the office. The intention may be inferred from the acts and conduct of the party, and is a question of fact. Abandonment may result from an acquiescence by the officer in his wrongful removal or discharge, but, as in other cases of abandonment, the question of intention is involved. McCall v. Cull, 51 Ariz. 237, 75 P.2d 696, 698.

Patents.

There may be an abandonment of a patent, where the inventor dedicates it to the public use; and this may be shown by his failure to sue infringers, sell licenses, or otherwise make efforts to realize a personal advantage from his patent. Sandlin v. Johnson, C.C.A. Mo., 141 F.2d 660.

A person may not be deprived of a patent as a result of the earlier work of another if that work has been abandoned, supplemented, or concealed. 35 U.S.C.A. No. 102(g).

Property.

"Abandoned property" in a legal sense is that to which owner has relinquished all right, title, claim, and possession, but without vesting it in any other person, and with intention of not reclaiming it or resuming its ownership, possession or enjoyment in the future.Com. v. Carter, 236 Pa.Super. 376, 344 A.2d 899, 901.

There must be concurrence of act and intent, that is, the act of leaving the premises or property vacant, so that it may be appropriated by the next comer, and the intention of not returning. Relinquishment of all title, possession, or claim; a virtual intentional throwing away of property. Ex parte Szczygiel, Sup., 51 N.Y.S.2d 699, 702.

Rights in general.

The relinquishment of a right. It implies some act of relinquishment done by the owner without regard to any future possession by himself, or by any other person, but with an intention to abandon.

See waiver.

Trademarks and trade names.

There must be not only nonuser, but also an intent to abandon and to give up use of trademarks permanently. Neva-Wet Corporation of America v. Never Wet Processing Corporation, 277 N.Y. 163, 13 N.E.2d 755, 761.

Water rights.

As applied to water rights may be defined to be an intentional relinquishment of a known right. It is not based on a time element, and mere nonuser will not establish "abandonment" for any less time, at least, than statutory period, controlling element in "abandonment" being matter of intent. Hammond v. Johnson, 94 Utah 20, 66 P.2d 894, 899.

To desert or forsake right. The intent and an actual relinquishment must concur. Concurrence of relinquishment of possession, and intent not to resume it for beneficial use. Neither alone is sufficient. Osnes Livestock Co. v. Warren, 103 Mont. 284, 62 P.2d 206, 211