Stone v. Geyser Quicksilver Mining Co.

Defendants’ instruction directed the jury to consider all the plaintiff’s acts indicating an absence of intention to preserve his rights. It should have authorized the jury to consider, along with other things, all acts showing an intention not to preserve his rights. It shifts the onus.

It is a negative pregnant. It gives the jury the Court’s permission to look only at acts making against the plaintiff, and to ignore everything in his favor.

It also authorized an inquiry on the part of the jury that was altogether officious. It told them the evidence should not only affirmatively show the animus revertendi, but it must go farther and show that the plaintiff was going to return to work the mine. As a matter of course, no such proof of the object of return was necessary. When a miner returns to his mine, all inquiry as to abandonment ends; if he does not work it, the default is another matter, and to be treated according to the rules concerning work.

The instruction is, also, in substance, that every seeming abandonment is real.

The question of abandonment never even arises until there is an appearance of abandonment, and, according to the instruction, whenever it arises, it is…