ARK.] HALL V. WALKER. 435
HALL V: WALKER. 4-3989 Opinion delivered October 14, 1935. 1. ABAND0NMENT 1 HQUESTION FOR JURY.— Whether there had'been an abandonment of a lease of land held to be a questiorhof fact to be determined by the conduct of the party charged . therewith. 2. ABA NDONAkENTLEASE.—Evidence . held ' to suPport a -finding that machinery left by a lessee on leaied preMises for . a Period of fiVe years after termination of. the lease;- after being requested by the owner of ,the premises 'to move the machinery, held to constitute an abandonment: . •• Appeal from Mississippi Circuit -Court, Chickasawba Di strict ; 0. E. , Keck,. Judke; affirmed. • Action by W: -W. Hall against John B. Walker. From a judgment in' favor of • • the ! defendant, plaintiff, has appealed. . Gladish4 Young, for appellant. • Holland & Barham, for appellee.- . • J. This iS an action•in -replevin brought by' ajvellant against appellee 'to . recover Some second-hand-machinery. *originated- in -the municipal court of Blytheville' on -December 12; 1934, where appellant -failed to recoVer. -He ap'peaIeditto the Circuit court with like restilt,• and the• case is -now here: by appeal, and the same result' must follow.- .:. The facts are as - follows : In the fall; of 1927; appellant leaed- three acres of land, 'adjar-cent to Osceola, from Mrs.;Jessie Driver foi- a•period of three years,. and placed cer, tain machinery thereon for the purpose of operating-a • Sawmill, at an annual rental of $100:per year.. After occupyihg the . property three or four months, the lease was terminated . early • in Jai-Mary, 1928, by Mutual consent i ,,appellant paying . Mrs. •Driver $150 to be released therefrom. At that time, or shortly thereafter, a large portion of the sawmill machinery was removed from the land. The machinery involved in this litigation, consisting of two second-hand planers and a cut-off saw frame, was not removed but was left on the property belonging to Mrs. Driver, although she repeatedly requested him to move same. It remained undisturbed until in the summer of 1933, when she sold same to
436 HALL V. WALKER. [191 appellee for a price, as she remembers, of $25, but as ap-pellee says only $15. Both she and appellee considered the property practically valueless except for junk. The circuit court held that appellant could not recover the property because the proof showed that he had abandoned same and that he was barred by limitations. As was said in Hughes v. dordell, 174 Ark. 757, 296 S. W. 735 : "The first question presented is one of fact as to whether there had been an actual abandonment of the lease in controversy. As to whether or not there has been an abandonment as a matter of fact, in any given case, is largely a queStion of intent to be determined, to be sure, by the conduct of the party charged . with the abandonment." In other words, .this question is one of fact. The case was tried before the circuit court sitting as a jury, and if there is any substantial evidence to support the judgment it must be affirmed just the same as if tried by a jury. The evidence shows, as above stated, that the lease was canceled early in. January, 1928. Appellant admits that.he had no agreement with Mrs. Driver by which he was permitted to- leave the . property on the leased premises, and he further admits that Mrs. Driver requested him to move the property, from her premises, which he failed to do for more than five years, and only when he discovered that it had been removed and was in the possession of appellee did he take any action regarding same. This is substantial evidence to support the court's 'finding that appellant had abandoned the property. This being true; the judgment must be sustained, and it becomes unnecessary to discuss the question of the statute of limitations. No error appearing, the judgment must be affirmed.
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