146 F. 660 | 9th Cir. | 1906
after stating the case as above, delivered the opinion of the court.
' We find no merit in the contention that the trial court should have instructed the jury to return a verdict for the plaintiff in error. The evidence was not disputed that the defendant in error arrived in Nome, July 14, 1899, and that on August 12th of that year she staked the lot in question and placed a location notice thereon, and that thereafter she dug a ditch around the lot, put a fence around it, and put up thereon a tent with a board floor and frame, and that she lived on the lot until November 1, 1899, when she left Nome for the States. She testified that she left the lot in charge of Capt. Tronsen, who lived near by, and also asked a friend, a Mrs. Rauna, to watch the lot for her; that she left in the tent personal property, consisting of a bed, bedding, stove, cooking utensils, chairs, and a table, all in charge of Capt. Tronsen, who promised to look after them until she returned the following spring; that she said to him: “All these things I leave here to hold my lot”; that on June 14; 1900, at the opening of navigation, she returned to Nome, went to her lot and found it occupied, and found that it had been sold to others. She testified that she did all that she could in the summer of 1900 to regain possession of her lot; that there were four persons who said that they owned the lot; that in November of that year she brought suit against one of them, and recovered a judgment; that the plaintiff in error told her that he had nothing to do with the lot and to look to Lampe; that Lampe told her he had a lawyer and was going to fight; that both Lampe and the plaintiff in error refused to do anything about it; that in 1901 she was ill and had to leave Nome; that she came back in 1903 and was, and for a long time remained, sick. The only testimony in the record tending to show that the defendant in error intended to abandon her property when she left it in the fall of 1899, is that of Capt. Tronsen who said that when she went away, she told him that if he wanted the lot he could take it. In view of the admissions made by Capt. Tronsen on his cross-examination,
It is assigned as error that the court, after instructing the jury that the plaintiff in the action must establish by a preponderance of the evidence each of the allegations of her complaint, and that otherwise the verdict should be for the defendant, proceeded to charge as follows: “On the other hand the defendant must, by a preponderance of the evidence in the case, establish the abandonment set up as a defense to entitle him to your verdict. If he do not so prove an abandonment, your verdict should be for plaintiff.”
It is urged against this instruction that it gave the plaintiff in error the benefit only of the defense of abandonment, and that it excluded consideration of his other defenses. It is evident, however, from reading the instruction which is complained of, that it was directed solely to the particular defense of abandonment, and the jury must have so understood, for the court elsewhere fully instructed them that if they believed from the evidence that Lampe found Tronsen in the quiet, peaceable, and exclusive possession of the lot, residing thereon, and claiming to own the same, and that Lampe in good faith, having made such reasonable inquiries as a prudent man would do under like circumstances, and obtaining no information or notice of plaintiff’s claim, purchased said lot from Tronsen and his co-owner, and paid a valuable consideration therefor, and thereafter Lampe for a valuable consideration sold and conveyed the lot to the defendant, who purchased the same in like good faith after like reasonable inquiry, and without any notice of plaintiff’s rights or claims, the verdict should be for the defendant. The plaintiff in error was thus given the benefit of his other defenses. This is a sufficient answer to the contention. But there is another answer, and that is that the facts set forth in the other defenses would, if true, constitute no defense to the cause of action alleged in the complaint. They do not show
It is urged that the court erred in instructing the jury that the burden of proof on the issue of abandonment was upon him who alleged abandonment. The plaintiff in error cites Sabariego v. Maverick, 124 U.S. 261-300, 8 S.Ct. 461-482,'31 L.Ed. 430, in which the court said: “It follows that in cases where the proof on the part of the plaintiff does not show a possession continuous until actual dispossession by the defendant or those under whom he claims,
The language so used was applied to the particular facts in the case then before the court, and it expresses the doctrine that if the plaintiff’s possession is not continuous until actual dispossession by the defendant or those under whom he claims, the burden of proof to rebut the presumption of abandonment is placed upon the plaintiff. But, in the present case, the proof was, and there was no evidence to contradict it, that the possession of the defendant in error was continuous up to the time of her dispossession by Tronsen. Abandonment consists in the intention to abandon and the external act by which the intention is carried into effect. Stevens v. Norfolk, 42 Conn. 377; Livermore v. White, 74 Me. 452, 43 Am.Rep. 600. According to all the testimony the defendant in error was in possession up to the time when she left Nome, and she testified that she then placed Tronsen in possession as her agent. It is not shown that there was any time when the premises were unoccupied. The evidence of abandonment upon which the plaintiff in error relied was Tronsen’s testimony that when she left Nome the defendant in error said to him: “You can take the lot,” and that two or three weeks later he concluded to take up her offer and took possession. In brief, the whole proof of the purpose of the defendant in error to leave the property without the intention to return consists in the words which she is said to have uttered to Tronsen and the fact that she went away from Nome. It is too plain to require discussion that where a defendant in such an action as this, relies upon the words of the former possessor to show an intentiori to abandon, the burden of proof is upon him to prove that the words were spoken, and that in the absence of facts sufficient to shift the burden of proof, it must always rest upon him who asserts the abandonment. 1 Cyc. 7; Tayon v. Ladew, 33 Mo. 205. This is not a case such as Sabariego v. Maverick, in which the premises were left unoccupied and possession was not demanded by the former possessor for so long a period as to require proof that he did not intend to abandon. In this connection the plaintiff in error argues that the fact that the present action was not commenced until four years after the return of the plaintiff in error
The plaintiff in error assigns as error the following instruction: “If she left the property in 1899 under circumstances, as shown by her acts and' declarations, such as evidenced no intention to retain the property, then there was abandonment; if, on the other hand, she left it under such circumstances as showed an intention to retain it, then there was no abandonment.”
The objection made to this instruction is that it told the jury that the intention to abandon must have existed at the time when the defendant in error left the property, and the plaintiff in error contends that if at any time subsequent thereto up to the time of bringing the action she
We find no error for which the judgment should be reversed.
It is accordingly affirmed.