had located the ground for quicksilver mining in 1860, and entered into possession and performed labor.

Plaintiff had acquired the title of his co-locators, and brought this action in 1874. The defendants had entered upon the same ground about 1871, for the same purpose. One of the issues was whether prior to the defendant's entry the claims had been abandoned by the plaintiff. The defendants had judgment, and the plaintiff appealed from the judgment and from an order denying new trial.

The other facts are stated in the opinion.

By the COURT:

The district judge charged the jury: "In examining the question of abandonment, the jury should consider all acts of the parties charged with abandoning, satisfactorily proven to them, and manifesting the absence of an intention in good faith to keep up and preserve any right of possession they may have acquired.

"Abandonment is a question of intention, to be gathered from the facts of the case, the acts of omission as well as commission of the party relying on prior possession alone, and every man is conclusively presumed to intend the natural and probable consequences of his own acts. The lapse of time is. a material element in abandonment, as is also the delay of the first occupant in asserting his claim to the possession against parties subsequently entering upon the premises and re-locating.

"When it is said that a party does not abandon if he intends to return, it is meant that he intends in good faith to return and develop his mine, and appropriate it to its proper

uses.

"If the jury believe from the evidence that the plaintiff or his grantors left the premises in controversy vacant and unoccupied for a series of years, and during that time exercised only casual acts of ownership upon the claims at long intervals, and that during that time no actual work was done toward working or developing the mine, either upon or in proximity to the claims, and that the defendants, finding the ground apparently abandoned, entered upon and located the same in pursuance of the mining laws of the district and the laws of Congress, and have continued to comply with said laws, and have, in good faith, reasonably believing said ground

had been abandoned, expended large sums of money in developing said mines, then you are authorized to find the fact of abandonment."

The charge can not be sustained.

The jury were informed that they were at liberty to rest a finding of abandonment-in part, at least-upon the circumstance, if proved, that defendant "reasonably believed" the mining ground to have been abandoned. It is impossible to determine how far the jury were influenced to find an abandonment by the evidence tending to show the belief of the members of the corporation defendant.

But, independent of this, the charge was erroneous in suggesting that there might be an intention to return to the personal occupation in bad faith. The question of abandonment. can never arise except where there has been possession, and then the animus revertendi is the simple test. The inducement which keeps alive the purpose to return, can not affect the decision of the question of abandonment.

The charge was also erroneous in that the court informed the jury that a presumption of fact was created by the proof of other facts. Such was, in effect, the instruction that, if certain facts were established, the jury would be authorized to find an abandonment. It is erroneous for the court to charge that the existence of facts developed in the evidence, “raises a reasonable presumption" of the existence of another fact: People v. Walden, 51 Cal. 588. To say to the jury that they would be authorized to find a fact because of the existence of another, is but saying, in another form, that the existence of the latter raises the reasonable presumption of the existence of the former, since the jury can find the former only as a presumption from the existence of the latter.

It is a very different thing from saying that one fact tends to prove another. It is the duty of the court to pass upon questions as to the admissibility of evidence, but it is solely the province of the jury to determine questions of fact, and this includes the duty of ascertaining the existence of a fact from the existence of other facts, without the aid of any rule of law: 1 Greenl. on Ev. 48.

Judgment and order reversed, and cause remanded for a new trial.

SEYMOUR V. WOOD ET AL.

(53 California, 303. Supreme Court, 1878.)

New trial. The plaintiff in ejectment for a mining claim obtained a verdiet, although the evidence clearly established that he had abandoned the claim: held, that the verdict should have been set aside.

J. N. THORNE, for appellants, who were defendants below.

HUPP & CROWLEY, for respondent, who was plaintiff below.

Appeal from District Court of Nevada County, Fourteenth Judicial District.

The plaintiff admitted, on cross-examination, that for several years he had followed mining in Mexico, and during that period had not worked the claim in controversy. The machinery had been removed. The defendants were in possession under a patent, to the issue of which the plaintiff had made no opposition, although aware of the application. The question of abandonment was submitted to the jury, and the jury returned a verdict for the plaintiff, upon which judgment was rendered. Defendants moved for a new trial, which being denied, they appealed.

By the COURT:

The verdict of the jury is attacked on the ground that the evidence affirmatively established that plaintiff had abandoned the premises in question. Upon looking into the record, we are of opinion that the verdict should have been set aside and a new trial granted on that ground. The abandonment was clearly established at the trial.

Judgment and order reversed, and cause remanded for a new trial. Remittitur forthwith.

'NOTE. Such an issue was manifestly irrelevant and trifling, if the defendant held under a patent: Ferris v. Coover, 10 Cal. 591.

DODGE V. MARDEN ET AL.

(7 Oregon, 456. Supreme Court, 1879.)

Water rights excluded in patent. Where patent issues reserving the water rights mentioned in § 2339, U. S. Revised Statutes, the claimant of such rights continues to own them; but his right may become divested by abandonment.

Non-user, not abandonment. Such water right can not be divested by non-user alone short of the period of the Statute of Limitations relating to real property.

Abandonment, in connection with sale. The sale of mining claims to a stranger is not necessarily an abandonment of the water used on such claims.

Abandonment defined-How affected by statute. The word abandon, means to desert or forsake. It implies an action of the will and an intent. Such intent may be inferred from the acts and declarations of the party to be charged. And in addition to actual abandonment, the statute requires it to be followed by non-user for one year, before the original owner is deemed to have lost all title therein.

Appeal from Jackson County.

The action was brought to restrain respondents from using a certain water ditch, and for other relief.

Appellant owns the real estate over which the ditch runs. This ditch was constructed in 1866, by one Ralls, before title passed from the United States. Respondents are licensees of Ralls. Appellant claimed that the water rights of Ralls had become lost by abandonment. The facts relied on to prove such abandonment are stated in the opinion.

E. B. WATSON AND J. A. STRATTON, for appellant.

A. C. JONES and STRAHAN & BURNETT, for respondents.

BOISE, J. It being admitted in the pleadings that the appellant is the owner in fee of the land described in the complaint over which the ditch complained of is constructed, he would have the right to have the respondents restrained in the use of it to his damage, unless they show that they are using it by some right which in law subjects the land to some right in the respondents to convey the water over the land of the appellant.

The respondents claim that one M. V. Ralls, under whom they occupy and use this ditch and water, has such a right, vested in him by virtue of an act of Congress of July 26, 1866, section 2339 of the Revised Statutes of the United States, which provides: "Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing or other purposes, have vested and accrued, and the same are recog nized and acknowledged by the local customs, laws and decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right-of-way for the construction of ditches and canals, for the purposes herein specified, is acknowledged and confirmed. But whenever any person, in the construction of any ditch or canal, injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage."

Section 2340 provides as follows: "All patents granted, or pre-emption or homesteads allowed, shall be subject to any vested and accrued water rights, etc., acquired under the preceding section.” The first question is: Did Ralls acquire such a right? It is admitted that he became the owner of this ditch and water right and occupied and used it prior to 1866, and that he, or persons under him, used it for conveying water for mining purposes in 1866-7. The title to the land now owned by the appellant was then in the United States. The patent to it from the United States to the appellant reserves the water rights mentioned in section 2339, above quoted, so that Ralls would still be the owner and entitled to use this ditch unless he has lost such right by abandonment. The second and important question in this case is, has Ralls lost this right by abandonment? It is claimed by the appellant that the fact that he did not use it for a period of about ten years is sufficient evidence to prove an abandonment. The right being one belonging to real property, could not be lost. by non-user alone, short of the period for the limitations of actions to recover real property, which is twenty years: 1 Nev. 188; 6 Cal. 510; 10 Id. 181. But such a right might be shown to have become extinguished by an act of abandonment, showing that Ralls had intentionally abandoned the same. It is claimed by the appellant that the bill of sale