(specially concurring).
Rather than to base this decision heavily upon the premise that Michael was not a “removal agency,” per SDCL 32-36-2(4), the more basic and sound reason to reverse should be employed, namely that the vehicle was not an abandoned motor vehicle.
I concur in the reversal but principally upon the basis that this motor vehicle was left on the family farm in rural Hudson, South Dakota by Michael Mahoney’s brother, Robert Mahoney, the latter gentleman being in the Veteran’s Administration Hospital at Sioux Falls, South Dakota, paralyzed from the neck down.
An “abandoned vehicle,” under South Dakota law, does not envision abandonment *898where one brother takes care of another brother’s motor vehicle upon the family farm, and dramatically where the brother-owner is paralyzed in the geographically close VA Hospital. SDCL 32-36-2(1) expresses:
“Abandoned motor vehicle,” any motor vehicle left on a public street or highway or left on private property without the permission of the landowner or tenant [.] (Emphasis added.)
Michael testified in these proceedings that he did not consider the vehicle to be “abandoned” until he decided that the Bank owed him over $1,300.00 for storage on the vehicle. Michael was not the owner, nor did he have a financial interest therein; the bank had the financial interest. Michael cannot legally formulate an intention to abandon property which does not belong to him. “An intention to abandon is an essential element of abandonment, and there can be no abandonment without such intention.” 1 C.J.S. Abandonment § 5 (1985). In Cundy v. Weber, 68 S.D. 214, 300 N.W. 17, 22 (1941), we held that “Abandonment of a property right results from a concurrence of an intention to surrender, and the actual relinquishment thereof. Conduct may support an inference of such an intention.” We have neither element before us.
SDCL ch. 32-36 pertains to “Abandoned, Derelict, and Junk Motor Vehicles and Scrap Metals.” Said chapter is applicable here. Thereunder, “removal-agency” includes, by definition per SDCL 32-36-2, a “private organization.” However, SDCL ch. 32-30 is applicable to “Stopping and Parking Restrictions,” such as removal of abandoned vehicles (SDCL 32-30-13); vehicles unattended for more than 24 hours (SDCL 32-30-12); vehicles blocking traffic or wrecked vehicles (SDCL 32-30-14). A “removal agency” under SDCL 32-30 is the highway patrol, sheriff, or peace officer (including a municipal peace officer; see SDCL 32-30-12.1). My point is this: If a farmer or rancher and his family are unwanted recipients of an abandoned vehicle on their ranch or farm in a rural setting or dwellers in a city lot, they are “a private organization;” the highway patrol, sheriff, or peace officer are not exclusively the “removal agency.” As the statute reads, the “removal agency” can be a “private or nonprofit organization.”
Therefore, I would put my academic eggs in this basket: A fair review of the facts in this case leads one to the conclusion that the motor vehicle was never abandoned. And I would leave the “removal agency” dissertation in the hen house.