No notice of abandonment is necessary where owner loses his rights in a vessel by sale under decree of court of competent ju risdiction, in consequence of peril insured against ; 13 App. Cas. 160.
Abandonment may he made upon informa tion entitled to credit, but if made specula tively upon conjecture, it is null.
In the absence of any stipulation on the subject, no particular form of abandonment is required; it may be in writing or oral, in express terms or by obvious implication (but see 1 Campb. 541) ; but it must be absolute and unconditional, and the ground for it must be stated; 2 Phil. Ins. §§ 1678, 1679 et seq.; Bullard v. Ins. Co., 1 Curt. C. C. 148, Fed. Cas. No. 2,122 ; Bell v. Beveridge, 4 Dall. (U. S.) 272, 1 L. Ed. 830; Peirce v. Ins. Co., 18 Pick. (Mass.) 83, 29 Am. Dec. 567; see Macy v. Ins. Co., 9 Mete. (Mass.) 354; Citizens Ins. Co. v. Glasgow, 9 Mo. 416. Acceptance may cure a defect in abandon ment, but is not necessary to its validity ; 2 Phil. Ins. § 1689. Nor is the underwriter obliged to accept or decline. He may, how ever, waive it ; 2 Phil. Ins. § 1698. But it is not subject to be defeated by subsequent events; 2 Phil. Ins. § 1701; Peele v. Ins. Co., 3 Mas. 27, 61, Fed. Cas. No. 10,905 ; Hum phreys v. Ins. Co., 3 Mas. 429, Fed. Cas. No. 6,871; Rhinelander v. Ins. Co., 4 Cran. (U. I S.) 29, 2 L. Ed. 540; Schieffelin v. Ins. Co., ' 9 Johns. (N. Y.) 21. See supra. And the subject must be transferred free of incum brance except expense for salvage; Allen v. Ins. Co., 1 Gray (Mass.) 154; Depau v. Ins. Co., 5 Cow. (N. Y.) 63, 15 Am. Dec. 431. The right to abandon being absolute under proper circumstances, no acceptance is nec essary. It is only when the circumstances do not warrant abandonment that the ques tion of the validity of acceptance arises. If there is an acceptance it must be by some distinct and unequivocal act; 29 N. B. 510; but the insurer is not bound to signify ac ceptance and his silence justifies the conclu sion of non-acceptance; Peele v. Ins. Co., 3 Mas. 27, Fed. Cas. No. 10,905, per Story, J., whose ruling was followed L. R. 6 P. C. 224, in preference to 3 Brod. & B. 97, where it was held that the insurer must elect with in a reasonable time whether to accept. But if the insurer does not accept, either express ly or by some act amounting to it, he can not hold the assured to the abandonment ; Child v. Ins. Co., 2 Sandf. (N. Y.) 76 ;
whether the insurer accepts is a matter of construction of his words and conduct; Richelieu & 0. Nay. Co. v. Ins. Co., 136 U. S. 408, 10 Sup. Ct. 934, 34 L. Ed. 398; Badg er v. Ins. Co., 23 Pick. (Mass.) 347; Single ton v. Ins. Co., 132 N. Y. 298, 30 N. E. 839. See note, 45 L. Ed. 1, where the subject is examined. There may be an acceptance though there was not strictly a right of abandonment ; Copelin v. Ins. Co., 9 Wall. (U. S.) 461, 19 L. Ed. 739. It may be con structive and is implied from taking posses sion to raise and repair; Peele v. Ins. Co., 3 Mas. 27, Fed. Cas. No. 10,905; Gloucester Ins. Co. v. Younger, 2 Curt. 322, Fed. Cas. No. 5,487; but not from partial repairs and restoration of the property ; Marmaud v. Meliedge, 123 Mass. 173; Peele v. Ins. Co., 7 Pick. (Mass.) 254, 19 Am. Dec. 286; though in such case the return must be made in a reasonable time; id.; Reynolds v. Ins. Co., 22 Pick. (Mass.) 191, 33 Am. Dec. 727; Cop elin v. Ins. Co., 46 Mo. 211, 2 Am. Rep. 504; Norton v. Ins. Co., 16 Ill. 235 ; Copelin v. Ins. Co., 9 Wall. (U. S.) 461, 19 L. Ed. 739; Young T. Ins. Co., 24 Fed. 279. The effect of a valid abandonment is to put the insurer in the place of the insured with no greater right but entitled to all that can be saved; Insurance Co. v. Gossler, 96 U. S. 645, 24 L. Ed. 863; and the owner becomes the agent of the underkriter and is bound to protect his interest ; Columbian Ins. Co. v. Ashby, 4 Pet. (U. S.) 139, 7 L. Ed. 809; Richelieu & 0. Nay. Co. v. Ins. Co., 136 U. S. 408, 10 Sup. Ct. 934, 34 L. Ed. 398. See TOTAL Loss.
Of Public Highway. Non-user of public al ley for over 40 years in connection with af firmative acts of abandonment, justifies a finding that it cease to be a public highway ; Woodruff v. Paddock, 130 N. Y. 618, 29 N. E. 1021, id., 56 Hun 288, 9 N. Y. Supp. 381. En croachment on public highway outside of traveled track and use thereof by a private party for 10 years did not necessarily show abandonment of the highway ; Village of Grandville v. Denison, 84 Mich:54, 47 N. W. 600.