Chapter III　SUBSEQUENT POSSESSION

A.Law of Finders

First Finders

1.A finder is a person who rightfully acquires possession，that is，a person who rightfully exercises the prerequisite physical control and appropriate intent，over personal property that has been lost，misplaced，abandoned，or hidden so as to be classified as treasure trove.

2.Lost property consists of personal property whose possession has been parted with casually，involuntarily or unconsciously.

3.Misplaced property refers to personal property which has been intentionally placed somewhere and then unintentionally left or forgotten.

4.Abandoned property consists of property that is no longer in the possession of the prior possessor who has intentionally relinquished，given up，or released the property.

5.Treasure trove consists of coin or money concealed in the earth or another private place，with the owner unknown.

6.Rights of a Finder At Common Law：

a） A finder of lost property acquires title as against all but the true owner.Since the concept of title is relative，a true owner might include a prior possessor.The finder is in a relationship with the true owner similar to that of bailor-bailee.Therefore，a finder can be guilty of conversion if the finder appropriates the property to his own use with knowledge of the true owner，or if he is reasonably able to discover the true owner and fails to do so.The prevailing rule is that if a person finds personal property on the land of another，the finder is entitled to the personal property unless he is a trespasser.

b） The finder of misplaced property is not entitled to retain the possession of the property as against the owner of the land on which the property was found.Rather，the owner of the “locus in quo” is deemed to be the bailee of the goods for the true owner.

c） The finder of abandoned property generally is entitled not only to possession but also to ownership as against all others.In the case of abandoned shipwrecks within the territorial waters of a state，however，there is a conflict of authority–some states holding that such property belongs to the state，and the others holding that it belongs to the finder.

d） In England，treasure trove escheated to the crown.In the United States，it is treated as lost property and belongs to the finder.

7.Many states have enacted statutes which give the finder greater rights to property than the finder had at common law.While these statutes differ widely，generally they eliminate the distinction between lost，misplaced and abandoned property and treasure trove，and award the found property to the finder in most cases.Frequently the statutes require the finder to deposit the found property with local authorities，post a notice attempting to advise the true owner the property has been found and award ownership to the finder if the true owner does not claim the property after some period of time.

McAvoy v.Medina

Supreme Judicial Court of Massachusetts，1866

11 Allen (Mass.） 548，87 Am.Dec.733.

Tort to recover a sum of money found by the plaintiff in the shop of the defendant.

At the trial in the superior court，before Morton，J.，it appeared that the defendant was a barber，and the plaintiff，being a customer in the defendant’s shop，saw and took up a pocket-book which was lying upon a table there，and said，“See what I have found.” The defendant came to the table and asked where he found it.The plaintiff laid it back in the same place and said，“I found it right there.” The defendant then took it and counted the money，and the plaintiff told him to keep it，and if the owner should come to give it to him； and otherwise to advertise it； which the defendant promised to do.Subsequently the plaintiff made three demands for the money，and the defendant never claimed to hold the same till the last demand.It was agreed that the pocket-book was placed upon the table by a transient customer of the defendant and accidentally left there，and was first seen and taken up by the plaintiff，and that the owner had not been found.

The judge ruled that the plaintiff could not maintain his action，and a verdict was accordingly returned for the defendant； and the plaintiff alleged exceptions.

DEWEY，J.It seems to be the settled law that the finder of lost property has a valid claim to the same against all the world except the true owner，and generally that the place in which it is found creates no exception to this rule.2 Parsons on Con.97.Bridges v.Hawkesworth，7 Eng.Law ＆ Ex.R.424.

But this property is not，under the circumstances，to be treated as lost property in that sense in which a finder has a valid claim to hold the same until called for by the true owner.This property was voluntarily placed upon a table in the defendant’s shop by a customer of his who accidentally left the same there and has never called for it.The plaintiff also came there as a customer，and first saw the same and took it up from the table.The plaintiff did not by this acquire the right to take the property from the shop，but it was rather the duty of the defendant，when the fact became thus known to him，to use reasonable care for the safe keeping of the same until the owner should call for it.In the case of Bridges v.Hawkesworth the property，although found in a shop，was found on the floor of the same，and had not been placed there voluntarily by the owner，and the court held that the finder was entitled to the possession of the same，except as to the owner.But the present case more resembles that of Lawrence v.The State，1 Humph.(Tenn.） 228，and is indeed very similar in its facts.The court there …[distinguished] between the case of property thus placed by the owner and neglected to be removed，and property lost.It was there held that “to place a pocket-book upon a table and to forget to take it away is not to lose it，in the sense in which the authorities referred to speak of lost property.”

We accept this as the better rule，and especially as one better adapted to secure the rights of the true owner.

In view of the facts of this case，the plaintiff acquired no original right to the property，and the defendant’s subsequent acts in receiving and holding the property in the manner he did does not create any.

Exceptions overruled.

Hannah v.Peel

King’s Bench Division

[1945] KB 509，[1945] 2 All ER 288，61 TLR 502，[1945] WN 161

[The defendant，Major Hugh Edmund Ethelston Peel，was the owner of a house in Shropshire which had been conveyed to him in 1938，but which he had never actually occupied.The house had remained unoccupied from the time the defendant bought it until after the outbreak of war，when it was requisitioned under the Defence Regulations.In Aug.，1940，the plaintiff，Duncan Hannah，while serving in the Royal Artillery，was stationed in the house and on August 21 he accidentally found a brooch，covered with dust and cobwebs，in an upstairs room which he was occupying at the time.From the condition of the brooch it must have been lost for some considerable time.On realising that the brooch might be valuable，the plaintiff handed the brooch to the police.In August，1942，the police delivered the brooch to the agents of the defendant who gave the chief constable an indemnity against any claim to the brooch.In October，1942，the defendant sold the brooch to a firm of jewellers for £66.The real owner had never been traced.The plaintiff claimed the brooch as the finder.The defendant contended that he was entitled to the brooch since he was the freeholder of the property on which it was found：since the defendant had never been in physical possession of the house and had no knowledge of the brooch until it was brought to his notice by the plaintiff，and since the true owner of the brooch had not been found，the plaintiff was entitled to the brooch or its value.]

BIRKETT，J.This is an interesting and a difficult point，and，in view of the conflicting state of the authorities，I thought I should like time to look into them.I am bound to say that my researches have been none too helpful，and，it would seem，there is need of an authoritative decision of a higher court.

The plaintiff says：“I claim the brooch as the finder of the brooch and I have a good title against all the world save only the true owner.” The defendant says：“My claim is superior to yours inasmuch as I am the freeholder.The brooch was found upon my property，although I was never in occupation，and my title，therefore，ousts yours and in the absence of the true owner I am entitled to the brooch or its value.” Unhappily the law is in a very uncertain state.Obviously my difficulties would be resolved if it could be said with certainty either that the law is that the finder of a lost article，wherever found，has a good title against all the world save the true owner，or that the law is that the possessor of land is entitled as against the finder to all chattels found on the land.But unhappily those two conflicting statements are by no means clear，and the state of the authorities gives some support to both of them.

Armory v.Delamirie which was referred to and relied upon by the plaintiff，is so well known that I need not read it in extenso.There：

The plaintiff being a chimney sweeper’s boy found a jewel and carried it to the defen dant’s shop (who was a goldsmith） to know what it was，and delivered it into the hands of the apprentice，who under a pretence of weighing it，took out the stones，and calling to the master to let him know it came to three-halfpence，the master offered the boy the money，who refused to take it and insisted to have the thing again； whereupon the appren tice delivered him back the socket without the stones.[An action was brought in trover against the master，and] these points were ruled：[the only one that affects this case] That the finder of a jewel，though he does not by such finding acquire an absolute property or ownership，yet he has such a property as will enable him to keep it against all but the right ful owner，and consequently may maintain trover.

Bridges v.Hawkesworth，the next case upon which the plaintiff relied，is in process of becoming almost equally as famous because of the disputation which ranged around it.It is now nearly 100 years old.The headnote reads：

The place in which a lost article is found does not constitute any exception to the general rule of law，that the finder is entitled to it as against all persons except the owner.

The case was an appeal against a decision of the county court judge at Westminster.The facts appear to have been that in 1847：

… the plaintiff，who was [a commercial traveller] called at Messrs.Byfield ＆ Hawkes worth’s on business，as he was in the habit of doing，and as he was leaving the shop he picked up a small parcel which was lying upon the floor.He immediately showed it to the shopman，and opened it in his presence，when it was found to consist of a quantity of Bank of England notes，to the amount of £65.The defendant，who was a partner in the firm of Byfield ＆ Hawkesworth，was then called，and the plaintiff told him he had found the notes，and asked the defendant to keep them until the owner appeared to claim them.

[Advertisements were put in the papers asking for the owner，but the true owner was never found.] No person having appeared to claim them，and three years having elapsed since they were found，the plaintiff applied to the defendant to have the notes returned to him，and offered to pay the expenses of the advertisements，and to give an indemnity.The defendant had refused to deliver them up to the plaintiff，and an action had been brought in the county court of Westminster in consequence of that refusal.

The county court judge decided that the defendant，the shopkeeper，was entitled to the custody of the notes as against the plaintiff，and gave judgment for the defendant.Therefore this appeal was brought which came before the court composed of Patteson and Wightman，JJ.，and there was a most interesting argument upon both sides.The court considered its judgment，which is exceedingly important in this case and is relied upon very strongly by counsel for the plaintiff.At p.1082 Patteson，J.，said：

The notes which are the subject of this action were incidentally dropped，by mere ac cident，in the shop of the defendant，by the owner of them.The facts do not warrant the supposition that they had been deposited there intentionally，nor has the case been put at all upon that ground.The plaintiff found them on the floor，they being manifestly lost by someone.The general right of the finder to any article which has been lost，as against all the world，except the true owner，was established in the case of Armory v.

Delamirie which has never been disputed.This right would clearly have accrued to the plaintiff had the notes been picked up by him outside the shop of the defendant； and if he once had the right，the case finds that he did not intend，by delivering the notes to the defendant，to waive the title (if any） which he had to them，but they were handed to the defendant merely for the purpose of delivering them to the owner，should he ap pear....The case，therefore，resolves itself into the single point on which it appears that the learned judge decided it，namely，whether the circumstance of the notes being found inside the defendant’s shop gives him，the defendant，the right to have them as against the plaintiff，who found them.

Patteson，J.，then discussed the cases and the argument，and said：

If the discovery had never been communicated to the defendant，could the real owner have had any cause of action against him because they were found in his house？ Certainly not.The notes never were in the custody of the defendant，nor within the protection of his house，before they were found，as they would have been had they been intentionally deposited there； and the defendant has come under no responsibility，except from the communication made to him by the plaintiff，the finder，and the steps taken by way of ad vertisement...We find，therefore，no circumstances in this case to take it out of the general rule of law，that the finder of a lost article is entitled to it as against all persons except the real owner，and we think that that rule must prevail，and that the learned judge was mistaken in holding that the place in which they were found makes any legal difference.Ourjudgment，therefore，is，that the plaintiff is entitled to these notes as against the defendant；

that the judgment of the court below must be reversed....

It is to be observed that neither counsel put any argument upon the fact that the notes were found in a shop.Counsel for the appellant assumed throughout that the shop was the same as a private house，and the judge spoke of the protection of his house.The case for the appellant，through his counsel，was that the shopkeeper never knew of the notes.The second thing to be observed is that there was no suggestion that the place where the notes were found was at all material； indeed，the judge in giving the judgment of the court expressly repudiated it and said：

...the learned judge was mistaken in holding that the place in which they were found makes any legal difference.

In those circumstances it is a little remarkable that in South Staffordshire Water Co.v.Sharman Lord Russell of Killowen，L.C.J.，in delivering the judgment，referred to Bridges v.Hawks-worth，and said：

The case of Bridges v.Hawkesworth stands by itself，and on special grounds； and on those grounds it seems to me that the decision in that case was right.Someone had accidentally dropped a bundle of bank-notes in a public shop.The shopkeeper did not know they had been dropped，and did not in any sense exercise control over them.The shop was open to the public，and they were invited to come there.[Stopping there one moment–that might be a matter of some doubt.Customers were invited there，but whether the public at large was might be open to some question.] A customer picked up the notes and gave them to the shopkeeper in order that he might advertise them.The owner of the notes was not found，and the finder then sought to recover them from the shopkeeper.It was held that he was entitled to do so，the ground of the decision being，as was pointed out by Patteson，J.，that the notes，being dropped in the public part of the shop，were never in the custody of the shopkeeper，or “within the protection of his house.”

Patteson，J.，never made one single word of reference to the public part of the shop and，indeed，went out of his way to say that the county court judge was wrong in holding that the place where they were found made any legal difference at all.That shows some of the difficulties with which one is confronted in a case of this kind.

… I think，however，that it is clear from Bridges v.Hawkesworth，so far as it affects the present case to-day，that the occupier of land does not in all cases possess an unattached thing on his land even though the true owner has lost possession of it.Bridges v.Hawkesworth may perhaps be the authority at least for that proposition.

With regard to the cases relied upon by the defendant the first was the South Staffordshire Water Co.v.Sharman.I am not sure that the first line in the headnote is strictly accurate，but it reads thus：

The possessor of land is generally entitled，as against the finder，to chattels found on the land.

I am not sure that this is accurate.The facts were that the defendant Sharman，while cleaning out，under the plaintiff’s orders，a pool of water on their land，found two rings [embedded in the mud at the bottom of the pool].He declined to deliver them to the plaintiffs，but failed to discover the real owner.In an action brought by the plaintiffs，the South Staffordshire Water Co.，against Sharman in detinue it was held that the plaintiff company were entitled to the rings.Lord Russell of Killowen said that in his view the county court judge (who gave judgment for the defendant on the authority of Bridges v.Hawkesworth ） was wrong，and the decision must be reversed and judgment entered for the plaintiffs.He said：

The plaintiffs are the freeholders of the locus in quo，and as such they have the right to forbid anybody coming on their land or in any way interfering with it.They had the right to say that their pool should be cleaned out in any way that they thought fit，and to direct what should be done with anything found in the pool in the course of such cleaning out.

It is no doubt right，as the counsel for the defendant contended，to say that the plaintiffs must show that they had actual control over the locus in quo and the things in it； but under the circumstances，can it be said that the Minster Pool and whatever might be in that pool were not under the control of the plaintiffs？ In my opinion they were….The principle on which this case must be decided，and the distinction which must be drawn between this case and that of Bridges v.Hawkesworth，is to be found in a passage in Pollock And Wright’s Essay On Possession In The Common Law，p.41：“The possession of land car ries with it in general，by our law，possession of everything which is attached to or under that land，and，in the absence of a better title elsewhere，the right to possess it also.[If that is right，it would clearly cover the case of the rings embedded in the mud of the pool，‘at tached to or under that land.’] And it makes no difference that the possessor is not aware of the thing’s existence...It is free to anyone who requires a specific intention as part of a de facto possession to treat this as a positive rule of law.But it seems preferable to say that the legal possession rests on a real de facto possession constituted by the occupier’s gen eral power and intent to exclude unauthorised interference.” That is the ground on which I prefer to base my judgment.There is a broad distinction between this case and those cited from Blackstone.Those were cases in which a thing was cast into a public place or into the sea–into a place，in fact，of which it could not be said that anyone had a real de facto possession，or a general power and intent to exclude unauthorised interference.

Lord Russell of Killowen，L.C.J.，then cited the passage I have already cited with regard to Bridges v.Hawkesworth，and continued：“It is somewhat strange”–I venture to echo those words–that there is no more direct authority on the question； but the general principle seems to me to be that where a person has possession of house or land，with a manifest intention to exercise control over it and the things which may be upon or in it，then，if something is found on that land，whether by an employee of the owner or by a stranger，the presumption is that the possession of that thing is in the owner of the locus in quo.

It is to be observed that Lord Russell of Killowen there is extending the quotation which he has made from Pollock And Wright’s essay on Possession in the Common Law，where the learned authors say that the possession of “land carries with it possession of everything which is attached to or under that land”.The Lord Russell adds possession of everything which may be on or in that land.The defendant said that the South Staffordshire Water Co. case was an authority in his favour and that this brooch，which was in the crevice by the window-sill，was covered by that authority.That case，too，has been the subject of some discussion.It puts the doctrine of the right of the finder on the ground that，if anyone finds a thing as the servant or agent of another，he finds it not for himself but for his employer.That seems a sufficient explanation of Sharman’s case.The rings found at the bottom of the pond were not in the possession of the company，but it seems that though Sharman was the first to obtain possession of them，he obtained them for his employers and could claim no title for himself.

The only other case relied upon by the defendant is Elwes v.Brigg Gas Co. There land had been demised to a gas company for 99 years with a reservation to the lessor of all mines and minerals.A prehistoric boat was embedded in the soil 6ft.below the surface and was discovered by the lessees in the course of excavating for the foundations of the gas works.It was held：

...that the boat，whether regarded as a mineral，or as part of the soil in which it was embedded when discovered，or as a chattel，did not pass to the lessees by the demise，but was the property of the lessor though he was ignorant of its existence at the time of granting the lease.

Chitty，J.，said：

The first question which does actually arise in this case is whether the boat belonged to the plaintiff at the time of the granting of the lease.I hold that it did，whether it ought to be regarded as a mineral，or as part of the soil within the maxim above cited，or as a chattel.If it was a mineral or part of the soil in the sense above indicated，then it clearly belonged to the owners of the inheritance as part of the inheritance itself.But if it ought to be regarded as a chattel，I hold the property in the chattel was vested in the plaintiff，for the following reasons.

He then gave the reasons.Later he said：

The plaintiff then，being thus in possession of the chattel，it follows that the property in the chattel was vested in him.Obviously the right of the original owner could not be es tablished； it had for centuries been lost or barred，even supposing that the property had not been abandoned when the boat was first left on the spot where it was found.The plaintiff，then，had a lawful possession，good against all the world，and，therefore，the property in the boat.In my opinion it makes no difference，in these circumstances，that the plaintiff was not aware of the existence of the boat.

The statement of Chitty，J.，that the plaintiff was entitled to the boat because he was in possession of the ground，was another authority，said the defendant，for his contention that the defendant was entitled to the brooch.

Those are the reasons which led me to say that the authorities are in a rather unsatisfactory state，and I observe that Salmond On Jurisprudence (9th Edn.，p.383），after referring to Elwes v.Brigg Gas Co.，and The South Staffordshire Water Co. says：

Cases such as these，however，are capable of explanation on other grounds，and do not involve any necessary conflict either with the theory of possession or with the cases already cited，such as Bridges v.Hawkesworth.The general principle is that the first finder of a thing has a good title to it against all but the true owner，even though the thing is found on the property of another person (Armory v.Delamirie，Bridges v.Hawkes-Worth）.

This principle however，is subject to important exceptions，in which，owing to the special circumstances of the case，the better right is in him on whose property the thing is found.

[He names three cases as the principal ones.] (1） When he on whose property the thing is found is already in possession not merely of the property，but of the thing itself； as in certain circumstances，even without specific knowledge，he undoubtedly may be...(2）...if anyone finds a thing as the servant or agent of another，he finds it not for himself，but for his employer...(3） A third case in which a finder obtains no title is that in which he gets possession only through a trespass or other act of wrongdoing.

I think it is fairly clear from the authorities that this proposition would not be doubted，viz.，that a man possesses everything which is attached to or under his land.Secondly，it would appear to be the law from the authorities I have cited，and particularly Bridges v.Hawkesworth，that a man does not necessarily possess a thing which is lying unattached on the surface of his land even though the thing is not possessed by someone else.But the difficulty arises because the rule which governs things an occupier possesses as against those which he does not has never been very clearly formulated in our law.He may possess everything upon the land from which he intends to exclude others；or，he may possess those things over which he has a de facto control.These things are not clearly laid down in cases.That is all that I think I can usefully say about the authorities.Neither do I think that a discussion of the merits helps at all.

There is no doubt that the brooch was lost in the ordinary connotation of that term，and from the appearance of the brooch when found，i.e.，the dirt and cobwebs，it had apparently been lost for a very considerable time.Indeed，from this correspondence it appears that at one time the predecessors in title of the defendant were considering making some claim.But the moment the plaintiff discovered that it might be of some value，he did the very proper thing，he took advice and handed it to the police.His conduct was most commendable and meritorious.

It is clear that the defendant，as I gather from the agreed statement of facts，was never physically in possession of these premises at any time.It is clear the brooch was never his in the ordinary acceptation of the term，in that he had the prior possession.He had no knowledge of it until it was brought to his knowledge by the finder.As I say，a discussion of the merits does not seem to help a great deal，but it is clear on the facts (i） that the brooch was lost in the ordinary meaning of words，(ii） it appears to me clear that the brooch was found by the plaintiff in the ordinary meaning of words，and (iii） it is clear that the true owner of the brooch has never been found.The defendant was the owner of the premises and had his notice drawn to this matter by the plaintiff who found the brooch.In all those circumstances I asked for a little time in order that I might consider these authorities which are very difficult to reconcile.The conclusion to which I have come is that I propose to follow the decision in Bridges v.Hawkesworth and I propose to give judgment in this case for the plaintiff.The brooch itself cannot now be returned，and the only matter of dispute in this case is whether the amount I should fix should be the sum of £66 or the sum of £88.£88 includes the profit which Spink made upon the sale of this brooch.£66 is the amount the defendant received.I propose to give judgment for the plaintiff for £66，with such costs as are permissible to a poor person.

Judgment for the plaintiff for £66 with costs.