Donald J. Weidner1

One Week Orientation Program: Substantive Class Component

• Five Property Classes• Review Session Before Exam• Traditional Essay Exam

– Under time pressure

• Exam Post-Mortem• Substance to be Covered: The Finders Cases

– In each case, a “right of occupancy” is claimed– Many of the opinions

• cite one another or • have been cited to the court by the attorneys arguing the case

– Your task is to be able to do what the attorneys have done

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Goddard v. Winchell (1892)

• The aerolite case.• What is the state’s “Supreme Court?”• What is “an action in replevin?”• What were the findings of fact by the lower

court?• Is the defendant asserting his rights:

– Claiming that the meteor is his because he paid for it in good faith?; or

– Claiming that he purchased and received a transfer of all of the rights of the finder?

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Goddard v. Winchell (cont’d)• Was the defendant’s purchase one that was

made in good-faith?• What does good faith mean in this context?

– Does it refer to one who takes free of knowledge or notice of a fact that could support a claim of another?

• Does that describe the purchaser here?– Does it refer to one who takes in the belief that his or

her claim is the best?• Are there any facts that indicate the purchaser’s good faith in

this sense?– A deep discount might suggest otherwise, but here?

• A purchaser, even a good faith purchaser ( or “BFP,” from bona fide purchaser), can ordinarily only assert such rights as the seller had.

• Was the finder-neighbor-seller a trespasser?

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Goddard v. Winchell (cont’d)• What were the conclusions of law by the

district court?• Why was it a “conclusion of law” (rather

than a finding of fact) that “the aerolite became a part of the soil”

• What was the error alleged upon appeal?– Essentially, the basic error complained of is that

the trial court applied an inappropriate rule of law.

• What are the relevant rules of law?– All “ancient” and “of undoubted merit”

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Goddard v. Winchell (cont’d)

• The opinion contains two statements of the rule being asserted by the owner of the locus in quo (place in which the item was found):

1. Whatever is affixed to the soil belongs to the soil

• Quicquid plantatur solo, solo cedit.

2. A permanent annexation to the soil, of a thing in itself personal, makes it a part of the realty.

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Goddard v. Winchell (cont’d)• The opinion contains three statements of the

rule for the finder:1. Occupancy is the taking possession of those things

which before belonged to nobody.2. The finder of lost articles, even though they are

found on the property, in the building, or with the personal effects of third persons, is the owner thereof against all the world except the true owner.

3. Whatever movables are found upon the surface of the earth, or in the sea, and are unclaimed by any owner, are supposed to be abandoned by the last proprietor, and as such are returned into the common stock and mass of things; and therefore they belong, as in a state of nature, to the first occupant or finder.

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Goddard v. Winchell (cont’d)

• The “movable” rule causes most students the greatest confusion. Let’s look again:– Whatever movables are found upon the surface of

the earth, or in the sea, and are unclaimed by any owner, are supposed to be abandoned by the last proprietor, and as such are returned into the common stock and mass of things; and therefore they belong, as in a state of nature, to the first occupant or finder.

• Proceeding through the words of the rule– First, is it not clear that a 66-pound stone is

“movable?”• Hoagland certainly took it away quickly

Goddard v. Winchell (cont’d)

• No, it is not clear. Said the court:– “movables” does not mean “that which can be

moved.”– Rather, it refers to “such things as are not naturally

parts of earth or sea, but are on the one or in the other.”

– “what nature has placed” [on/in?] the earth “at its formation” “or through the natural processes” of “acquisition and depletion” “is a part of the earth” and not a movable.

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Goddard v. Winchell (cont’d)• The court is setting aside the “movables”

rule both by (a) focusing on the words of the rule and by (b) distinguishing the facts of this case from the facts of the cases that awarded a movable to a finder.– “In determining which of these rules is to

govern in this case, it will be well for us to keep in mind the controlling facts giving rise to the different rules.”

• Although the court does not tell us about the facts of those cases.

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Goddard v. Winchell (cont’d)• Based on the words of the “movables” rule,

what else might the OLQ have argued to avoid its application?– Building upon “upon?”– Building upon “unclaimed by any owner?”– Building upon “supposed to be

abandoned by the last proprietor?” – Building upon “returned to the common

stock”– Building upon “occupant?”– Building upon “finder?”

Goddard v. Winchell (cont’d)

• Consider a similar approach to other statements of the rule that defines when the finder wins.– Occupancy is the taking of possession

of the things that before belonged to no one.

– The finder of lost articles on the property or in the building of another is the owner as against all the world but the true owner.

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Goddard v. Winchell (cont’d)• What reason did the Iowa Supreme Court

give for holding for the OLQ?

• The court analogized to cases “by which the owners of riparian titles are made to lose or gain by the doctrine of accretions.“– This aerolite looks like other rocks or soil brought by

nature, specifically an enlargement of the property of the OLQ brought about by accretion.

• Hence, it should be treated the same as soil added to land by accretion, that is, as belonging to the OLQ.

• Note 2 asks: “Was the court’s reliance on the analogy of accretion sound?”– What is analogy?

• “A form of reasoning in which one thing is inferred to be similar to another in a certain respect, on the basis of known similarities in other respects.”

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Goddard v. Winchell (cont’d)• The language of accretion is drawn from riparian (related to

the bank of a natural watercourse) rights doctrine concerning situations in which title to a person’s land is described as bounded by a stream or other body of water.– What happens to land ownership when the stream described as the

boundary changes course?

• Riparian rights doctrine distinguishes between– Accretion (“accretive changes”)

• Accretive changes are gradual, over time

– Avulsion (“avulsive changes”)• Avulsive changes are sudden.

• Are the riparian rights cases distinguishable from the finders cases?– Do the riparian rights cases involve finders?– Do the finders cases involve disputes about title to land between

competing fee owners?

• How do you decide which rule of law to apply?

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Goddard v. Winchell (cont’d)• Who should win and why?

– What are the reasons for the rules?• What are the conflicting considerations?

– Recall the court asked: “who shall attempt to determine what part of the rocks . . . are of meteoric acquisition?”

• State more directly the court’s concern.– Who do you think (the finder or the OLQ) introduced the fact

that “from six to seven hundred of these stones fall to our earth annually”?

– Which way does that fact cut in your mind and why?– Analogize to the situation in which, on its way into the

ground, the meteorite crashes through a building owned by the OLQ.

– Is the tenant’s interest important?– What were the “enlightened demands of the time”

asserted by finder?

Goddard v. Winchell (cont’d)

• Is there a response to the “enlightened demands of the time” argument?

• Is there anything in the opinion that suggests the “market” will direct the asset to its highest and best use?– “The aerolite is of the value of $101, and this

fact, if no other, would remove it from uses where other and much less valuable materials would answer an equally good purpose.”

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Goddard v. Winchell (cont’d)• Note 3 asks: What result would an Iowa court

reach if all the facts were the same except that the object in question is a remnant of a space vehicle launched by one making no claim to it?

• Can you state the difference between the holding of Goddard (the rule of the case) and its dictum?

• Goddard itself said (without citing specific case authority), to look beyond the dictum to the holding:– “In determining which of these rules to govern in this

case, it will be well for us to keep in mind the controlling facts giving rise to the different rules . . . .”

– “we have in mind the facts giving rise to the rules cited . . . .”

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Note 6 on Page 96• Suppose that a valuable pool of oil lies under land

owned by Neighbor N and extends under land owned by Driller D. Driller D drills a well on D’s land and commences pumping oil, a consequence of which is that oil under N’s land moves to D’s well.– Has D taken N’s oil under Goddard? Yes?

• The court in Goddard would not let the finder take the aerolite even though was first to physically control it

– Goddard tells us the oil is not “movable”• Part of nature’s formation? Indeed, the oil was buried

more deeply and thoroughly than the aerolite.• Some say: no, D did not take N’s oil because D

was the first to reduce it to possession, relying on an analogy to the law of capture of wild animals. – Wild animals are migratory and not the property

of anyone until someone reduces them to possession

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Note 6 on Page 96 (cont’d)

• Others say: no, although N originally owned the oil, the ownership passed from N to D when the oil migrated under D’s land and was extracted by D as part of D’s exercise of D’s “correlative rights” of land ownership.

• Why are courts reluctant to impose liability upon the driller who causes drainage of oil or gas from beneath another’s land?

• Given that the answer of both these theories, is “no” (D has not taken N’s oil) does it ever matter which of the two theories you choose?

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Note 7 on Page 96• In order to store “extraneous gas,” Storer S pumps

it into S’s own land. Some of the gas migrates and becomes stored under neighbor N’s land.– May N tap a well into the storage area and withdraw the

extraneous gas?• Is the analogy to wild animals appropriate?

– “Courts have held that the ownership acquired by a possessor of a wild animal is terminated if an animal escapes [or is let loose].”

» Does S’s ownership terminate when S pumps it below ground?» Can you distinguish the two situations?

– If N may not tap into the well and claim the gas as her own, may N enjoin the storage of the extraneous gas (enjoin a trespass)?

– If N may not enjoin the storage of the gas, may N recover money damages from S for the use of N’s land for storage?

• S has released a wild animal? Cases split.

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The Bramble Bush

There was a man in our town and he was wondrous wisehe jumped into a BRAMBLE BUSH and scratched out both his eyes—and when he saw that he was blind with all his might and mainhe jumped into another one and scratched them in again.

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Eads v. Brazelton (1861)

• Ship sank. Plaintiff located it 27 years later, in December, 1854, and placed range markers on trees to later locate the wreck and raise its cargo.

• Plaintiff arrived with his diving boat the next month, in January, 1855, and fastened a buoy to a weight that rested on the wreck.– With the intention of putting his boat over it the next day.– He was detained by other business and by the danger and

difficulties (the need to make repairs to the boat and to the cargo lifting apparatus).

• Defendants, 9 months later, stopped a boat near the shore, allegedly searched for and found the wreck, placed their boat over it, and commenced raising the lead.– There was “no satisfactory evidence” that the defendants used the

plaintiff’s tree markers to locate the wreck.– Nor was it established that the defendants knew the plaintiffs were

about to begin work on the wreck.

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Eads v. Brazelton (cont’d)

• What does it mean that the plaintiff “filed his bill on the chancery side of the” court?

– This reflects the distinction between law versus equity

• What is the relief requested?1. To enjoin the defendant, the “second finder,” from

interfering with the plaintiff, the “first finder”

2. To declare the plaintiff “first finder” the owner of the wreck.

3. To obtain compensation for what defendant “second finder” took from the wreck.

. What result in the court below?

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Eads v. Brazelton (cont’d)• The Supreme Court said the lead was “wholly

abandoned by the owners.”– Intent is key to abandonment

• Is that conclusion that the lead was abandoned a finding of fact or a conclusion of law?– “the law would so imply from the [27 year] term of the

loss and from the fact of its having been covered by an island [with trees growing from 30-40 feet tall].”

– “All reasonable hope of acquiring the property must have been given up”

– No effort was made to save the cargo while it was being covered up by the island.

– Was the mere passage of time sufficient? • Was that a holding of this case?

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Eads v. Brazelton (cont’d)• What if the court had not been willing to say

the property was abandoned? – Is it not clear that, if the property were not

abandoned, the plaintiff could not sue?• Because there is a “true owner” out there?

– The property presumably was not “lost”– See the term “qualified ownership” (Note 2)?

• Is the following language the “black letter” rule of the case?– “The occupation or possession of property lost,

abandoned or without an owner must depend upon an actual taking of the property with the intent to reduce it to possession.”

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Eads v. Brazelton (cont’d)• Note 6 asks whether the decision in Eads would

have been different if the defendants had relied upon the first finder’s buoys and tree markings.

• FACTS: I awakened on my boat in its slip in Carrabelle to discover that Mel Fisher’s fleet had been driven into port by a storm. Assume that my next-slip neighbor found out where Mel had been anchored offshore, presumably over the wreck of a ship that sunk laden with treasure. – May my neighbor and I put our dive tanks in our boat,

zip out to the site before Mel gets back to it, and start raising treasure?

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Eads v. Brazelton (cont’d)• To decide my Carrabelle situation, is it

appropriate to analogize to the wild animal cases?

• Note 5. Pierson v. Post. A hunter and his hounds were closely pursuing a fox on public land when the fox happened to run near a person who shot and killed the fox and carried it away. If the hunter sues the killer to recover the fox, or its value, what result in light of Eads?

• In the wild animal cases, – Probable capture by the first hunter is not enough for

the first hunter to recover– Practically inevitable capture is enough for the first

hunter to recover (at least according to some)

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Eads v. Brazelton (cont’d)• What does Eads say Mel Fischer must do to

defeat my claim?– Marking the trees and affixing a temporary buoy were

“not acts of possession; they only indicated Brazelton’s desire or intention to appropriate the property.”

– On the other hand: “Brazelton’s act of possession need not have been manual; he was not obliged to take the wreck or the lead between his hands; he might take such possession of them as their nature and situation permitted”

• There must be “an actual taking” but you do not have to “take” either the wreck or the lead in your hands?

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Eads v. Brazelton (cont’d)• More from Eads:

– “Placing his boat over the wreck, with the means to raise its valuables and with persistent efforts directed to raising the lead, would have been keeping the only effectual guard over it, would have been the only warning that intruders—that is, other longing occupants—would be obliged to regard, and would have been such acts of possession as the law would notice and protect.”

– What about the actual taking? • By actual taking we do not mean you must actually take

• Why was mere discovery not enough to give the first finder ownership rights?

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Goddard Revisited • Eads was cited as authority by the finder

(by the finder’s purchaser) in Goddard v. Winchell.– Assume you are the Judge in Goddard and

that you feel bound by precedent.• You believe in stare decisis

– Is it not clear that Eads says that the finder of the aerolite should win?

• See Note 2: Do different fact situations in which prior possession has conferred ownership raise varying policy issues?

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Armory v. Delamirie (1722) • What is a “King’s Bench?”• What is a “Strange?”• A chimney sweeper’s boy found a jewel [it is not

clear whether he found the jewel while he was working] and delivered it to the Defendant’s shop and into the hands of Defendant’s apprentice. The apprentice took out the stones and apparently told both the boy and the master that the empty socket was worth three halfpence. The boy refused to accept this amount but the apprentice only delivered back to the boy the socket without the stones.

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Armory v. Delamirie (cont’d)• What does it mean that this action is “in

trover” against the master?– “Originally, an action for damages against a

person who had found another’s goods and wrongfully converted them to his own use. Subsequently, the action became the remedy for any wrongful interference with or detention of the goods of another.”

• In short, the Plaintiff says: you wrongfully interfered with my property

– Based on the foregoing, what difficulty did the boy face bringing an action in trover?

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Armory v. Delamirie (cont’d)• What did Mr. Strange report as the “rules” of the case?

1. 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 rightful owner, and consequently may maintain trover.• Stated differently: The finder had a qualified but protectable

property interest in the jewels

2. The master (shop owner) is answerable for the servant’s (apprentice’s) behavior.

3. Measure of damages: value of the “jewel of the finest water” that would fit.

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Armory v. Delamirie (cont’d)

• Is this a holding of “qualified ownership,” even though the term is not used?

• Note the result: A person who did not own the stone got to recover its value from someone who did not take it.

Goddard Revisited

• The (purchaser from the) finder in Goddard argued that Armory v. Delamirie should control.– If you represent the OLQ in Goddard, what are the

ways you might distinguish Armory?• 4 or 5 ways?

• The finder in Goddard cited Eads to the court.– If you represent the OLQ in Goddard, how would

you distinguish Eads?

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Bridges v. Hawkesworth (1851)

• T was a traveler for a large firm with which shopkeeper S had dealings. T, who had been in S’s shop on business, picked up a small parcel lying on the floor. It contained bank notes. T asked S to hold the notes to deliver them to the TO.

• Three years passed, no TO appeared, and T sued to get the notes back.

• The lower court said shopkeeper S was entitled to keep them as against traveler T.

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Bridges v. Hawkesworth (cont’d)

• Although the appellate court said: “There is no authority . . . in our law directly in point,” it reversed.

• It found no way to take the case out of the general rule of Armory v. Delamirie, which it said was:– “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.”

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Bridges v. Hawkesworth (cont’d)• Did Bridges read Armory too broadly?

– If you are the OLQ in Bridges, how do you distinguish Armory?

• Court analogized to the situation if T had found the parcel outside the shop.

• Saying that, if found outside the shop, Armory would control to give T the right as against all the world except the TO

• Is it not clear that the result should not differ simply because the parcel was found inside the shop?

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Bridges v. Hawkesworth (cont’d)• Who should win and why?

• Notice finder T’s argument (that the OLQ did not acquire a property right):– “It was well asked on the argument, if the

defendant [shopkeeper] has the right, when did it accrue to him? If at all, it must have been antecedent to the finding by the plaintiff [travelling salesman], for that finding could not give the defendant any right.”

• What does Eads v. Brazelton say is required to acquire a property right by occupancy?

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Bridges v. Hawkesworth (cont’d)• Notice the court’s continuing “what ifs”, or

analogies:– “If the notes had been accidentally kicked into the

street, and then found by someone passing by, could it be contended that the defendant was entitled to them, from the mere fact of their having been originally dropped in his shop?”

– “If the discovery had not been communicated to the defendant [shop owner], could the real owner have had any cause of action against him, because they were found in his house?”

• “Certainly not,” said the court.

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Bridges v. Hawkesworth (cont’d)• What is the relevance of the following:

– “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.”

• Do you see why it might have mattered if the notes had come under the shopkeeper’s protection?

• On the other hand, should the fact that they had not come under the shopkeeper’s protection be dispositive?

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Yet Another Look at Goddard

• Bridges was also cited by the finder in Goddard v. Winchell.– If you were the judge in Goddard, and felt

bound by precedent, is it not clear that Bridges would compel a finding for the finder?

– What do Eads and Armorie and Bridges combined say a judge should do in Goddard?

• Assume a new judge is anxious to follow both the letter and the spirit of precedent in order to apply the law rather than make law.

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South Staffordshire Water Co. v. Sharman (1896)

• 45 Years after Bridges v. Hawksworth (travelling salesman won the notes he found on shop floor)

• Plaintiffs, fee owners in possession, employed the defendant, plus other workers, to clean out a pool. While so employed, the defendant found two gold rings “in the mud” at the bottom of the pool.

• Although OLQ demanded the rings, finder delivered them to the police, who advertised the finding but could not locate the TO. The police then returned the rings to finder.

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South Staffordshire (cont’d)• What does it mean that the plaintiffs were

“owners of the fee simple in possession?” • What is an action in detinue?

– Detinue is a very old cause of action. Originally, only lay to recover chattels bailed to the defendant. Thus, it was based upon the assumption of a consensual transaction. Eventually, it came to sound in tort rather than in contract. At one point, the defendant got to “wage his law.”

– Relief: Plaintiff received the chattels or their value, at the option of the defendant.

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South Staffordshire (cont’d)• The Appellate Court stated: “there was no

special contract.”– Is this a matter that could have been

determined by the contract between the OLQ and the pool cleaner?

– If the parties could have agreed either way, are we looking for a contractual provision to be applied by default, like a default setting on a computer?• A default rule to fill a gap in the contract

versus a mandatory rule that must be applied no matter what the contract states

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South Staffordshire (cont’d)• Court below said finder won, based on

– Armorie v. Delamarie (chimneysweep) and– Bridges v. Hawkesworth (traveling salesman)

• What was the Appellate Court’s starting point to reverse and conclude that OLQ wins?– The OLQ in possession has a right to exclude others

from the land and to direct pool cleaning as it sees fit.• Why wasn’t that the starting point in Goddard?

• Appellate Court reversed, even though it accepted the “black letter” rule urged by the finder:– “the plaintiffs [OLQ] must show that they had actual

control over the locus in quo and the things in it.”

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South Staffordshire (cont’d)• Given the requirement of actual control over

the place and the things in it, how could an unwitting OLQ show both control and intent to control?

• Court cited an Essay on Possession:– “The possession of land carries 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.”

• i.e., possession of land carries with it the possession of everything attached to or under it unless it does not? Or, does this say check title?

– Were the rings “attached to or under” the land?

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South Staffordshire (cont’d)• The Essay continues:

– “And it makes no difference that the possessor is not aware of the thing’s existence . . . . It . . . seems preferable to say that the legal possession rests on a real de facto possession constituted by the occupier’s general power and intent to exclude unauthorized interference.

• That is, power and intent to exclude generally is sufficient to presume intent to control particular items, even if the particular items are unknown?

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Distinguishing Bridges• How did the South Staffordshire distinguish Bridges?

– Keeper of a “public shop” “did not know [the notes] 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.”

– The notes, “being dropped in a public part of the shop, were never in the custody of the shopkeeper, or ‘within the protection of his house.’”

• Bridges never used the terms “public” or “private”• Note 1 to South Staffordshire asks: “Is it realistic to

say that a shop owner does not control and intend to control the entire shop, including those portions to which the public are invited?” (how the court seemed to distinguish Bridges).

• How else might you distinguish Bridges?

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Back again to Goddard• How would Goddard v. Winchell (1892) be decided

under the South Staffordshire (1896) principle:– “[W]here 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.”

• Answers the Bridges question: when did the OLQ’s property right arise.

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South Staffordshire (cont’d)• How do you identify a manifest intention to

exercise control over “the things which may be upon or in” a house or land?

• How do you rebut the presumption that possession is in the OLQ?– By showing that the public was let in

(Bridges)?– What if only a portion of the public is invited

in, such as those who purchase tickets?

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Pyle v. Springfield Marine Bank (1946)

• Note 1. A bond was found on the floor of a room in a bank to which only those who rent safe deposit boxes were given access.

• Who should win, and why, as between the bank and the finder of the bond?– Finder should win because the place is public?

– OLQ bank should win because the place is

private (so held the court)?

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Pyle v. Springfield Marine Bank (cont’d)

• Is there a better reason for deciding for the bank than that the place is private?– The bank undertakes to provide a secure area

and is liable if it does not?• Arguably distinguishing it from Bridges v.

Hawkesworth

– Independent of potential bank exposure to liability, the interests of the TO may be better protected by leaving it with the bank?

• What if the finder is a bank employee?

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Parker v. British Airways Board (1982)

• Gold bracelet was found on the floor of a British Airways executive lounge, available only to holders of first-class tickets or members of the airline’s “Executive Club.”

• How could finder possibly win after South Staffordshire’s general possession theory?– Because there was no “manifest intention to exercise

control over [the land or building] and the things which may be upon or in it”?

• The airline’s “control was in general exercised on the basis of classes or categories of user . . . . But this control has no real relevance to a manifest intention to assert custody and control over lost articles. There was no evidence that they searched for such articles regularly or at all.”

– Was the presumption of control effectively rebutted?– Because the airline is a tenant rather than an OLQ?

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Hannah v. Peel (1945)

• 49 years after South Staffordshire• OLQ of seven years had never been in physical

possession. House was requisitioned and the OLQ was compensated @ 250 pounds a year. A Lance-Corporal touched something at the top of a window frame while adjusting a black-out curtain in a bedroom used as a sick bay. He dropped it on an outside window ledge. The next day he saw that it was a brooch covered with cobwebs and dirt. He brought it home, and his wife told him to take it back, it might be of value.

• He left it with the police, who, after 2 years, delivered it to OLQ.

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Distinguishing South Staffordshire• If you represent the finder in Hannah v.

Peel, how do you distinguish South Staffordshire (OLQ won over pool cleaner who found the gold rings)? – OLQ here was never in physical possession?– OLQ here turned control over to someone else,

who was in physical possession?– The finder here was not an employee of the

OLQ?– The brooch was not in the soil (mud)?

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Distinguishing Bridges v. Hawkesworth

• If you represent the OLQ in Hannah v. Peel, how do you distinguish Bridges v. Hawkesworth (finder of bank notes on shop floor beat owner of shop)? – this was a private place—a bedroom—not a “public

place” – If the house was public, it was made so by involuntary

means (or, in service of the nation)?– If the house was public at the time of finding, it was

nevertheless still private when the brooch was placed there?

– the brooch was in the custody of his “house”– the brooch was intentionally placed?

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Hannah v. Peel (cont’d)

• Why does the court say “a discussion of the merits does not seem to help?”– Do you agree that the brooch “was ‘lost’ in the

ordinary meaning of that word”?• What is the ordinary meaning of the word?

• Thinking back, how was it possible for the finder to lose in Goddard v. Winchell?

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City of London v. Appleyard (1963)

• Note 1. Owner and occupier of a building entered into a contract with a construction firm to destroy the building and erect another in its place. As the building was being razed, an employee of the construction firm discovered a large sum of money in a secret wall safe.

• In view of the earlier English cases, who wins as between Owner of the building and Finder?– Armorie v. Delamirie? (chimneysweep finder won)– Bridges v. Hawkesworth? (travelling salesman finder

won)– South Staffordshire Water Co. v. Sharman? (OLQ won

over pool cleaner finder)– Hannah v. Peel? (lance corporal finder won over OLQ)

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Note 2 at Page 106• Blackacre is owned by O, but has never been

occupied by O or by any other person. T enters Blackacre without O’s consent and removes timber. O brings an action of trespass against T to recover damages for injury to Blackacre. The “black letter” law is that an action for trespass can be maintained only by one in possession of land.

• How can the action be maintained by O?– “Where there is no adverse possession, the title

draws with it constructive possession, so as to sustain the action of trespass.”

• Is this a label we can put on South Staffordshire?

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Finders versus Employers

• Finders versus their Employers (Note 3)– One way to analyze some of these cases is to

explore the employment contract.• Ask what is the proper default rule in the

employment contract– Of course there is often more than one way to

analyze a particular case.

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Finders versus Employers (cont’d)• In South Staffordshire, the finder’s employer

won.• In some other cases, the finder has won over its

employer.• Even within the limited class of cases involving

findings by hotel employees on hotel property, the results are mixed.– Some hotel cases make distinctions based on the

finder-employee’s duties• employee-finder employed to decorate, for example, vs.• employee-finder employed to clean rooms.

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Durfee v. Jones (1877)

• Note 4. Safe Owner who recently purchased an old safe delivered it to Merchant, who agreed to display it for sale. Merchant discovered that, before Owner bought it, money had slipped between linings of the safe’s walls. As between Safe Owner and Merchant-Finder, what result and why?

– “Unwitting possession,” “if possession it can be called, does not of itself confer a right.”

• citing Bridges v. Hawkesworth (travelling salesman-finder won over unwitting shopkeeper)

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More On Unwitting Possession• Did unwitting possession confer a right in cases we

have considered?– Goddard v. Winchell? (yes— unwitting OLQ of

prairie land won)– South Staffordshire? (yes—unwitting OLQ of pool

won)– City of London Corp. v. Appelyard? (yes—unwitting

OLQ of razed building won)– Bridges v. Hawkesworth (no--unwitting OLQ of

shop lost)– Hannah v. Peel (no—unwitting OLQ lost)

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Note 5 at Page 107

• Boy 1 picked up a sock that was knotted at both ends and stuffed with soft material. Boy 1 started passing it around among his four friends and it burst open and currency fell out. Boy 1 was held not to be the first possessor of the currency. Why?– It was not “found” until it broke open and its contents

were revealed– Note the result: the money was divided equally

among all the boys at play• Could we reach a solution like this in Eads v. Brazelton (the

dispute between the two finders of the sunken ship)?

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Note 6 at Page 107• “Little Eugene” and “little Pat” (ages 12 and 9)

discovered in a parking lot a manila envelope with cash in it. They became excited and confused and turned to the “worldly” Antoinette (age 15) for advice. Antoinette picked up the money and took it from the parking lot to her home for parental advice. Who has acquired a property right in the money?– The lost money in the manila envelope was not

“found” in a legal sense until after it was removed from the parking lot.

– Several persons participating in the finding are joint finders with equal rights.

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McAvoy v. Medina (1866)

• Plaintiff was a customer in defendant’s barber shop. Customer picked up a pocket book lying on a table. The pocket book contained money. Customer told OLQ to keep it and advertise for the TO, which OLQ did. Customer-Finder now wants the money.

• How did the court avoid applying what it called the Bridges v. Hawkesworth rule:– The finder of lost property has a valid claim to the

same against all the world except the TO, and generally the place in which it is found creates no exception.

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McAvoy v. Medina (cont’d)• How did this court distinguish Bridges v.

Hawkesworth?– Here, it was “the duty of the [OLQ], when the fact [of

the parcel] became known to him, to use reasonable care for the safekeeping of the same until the owner should call for it.”

• Why was there a duty here but not in Bridges?

– Note the court reveals a new category to make the distinction.

• Bridges applies to “lost” property• This property is not lost; rather, it was “voluntarily placed . . .

and neglected to be removed”– to place an object and forget to take it away “is not to lose it.”

• Subsequent cases give a name to this category

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McAvoy v. Medina (cont’d)• The court may be repudiating Bridges.

– The court says that this is “the better rule” . . . one better adapted to secure the rights of the true owner.”

• Why is this rule better adapted to secure the rights of the TO?

1. It keeps the asset with the OLQ who might be liable for its safekeeping (and therefore providing assets to satisfy a judgment)?

2. Because the TO is more likely to return to the site of an intentional placement than to the site of an inadvertent separation?

3. Because most TOs would prefer the property to be left with the OLQ?

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Schley v. Couch (1955)

• OLQ purchased and moved into a residence with an attached garage that was only 4 years old. There was a concrete floor covering only half of the garage. The remaining half was a dirt floor.

• Three weeks later, OLQ employed Mr. Tomlinson and a group of workers—one of whom was the Finder--to put a concrete floor on the rear half of the garage. OLQ’s son was working with Tomlinson’s workers and was removing soil from the portion of the floor that was to be covered with concrete.

• Finder, pursuant to Tomlinson’s instructions, took a pick to the soil and in the process struck a glass jar that had been buried with money in it.

• No prior owner of the residence during the period in question is a claimant.

• Although the money was at least ten years old, it “must have been” buried after the garage was built (that is, within the last 4 years). The TO is unknown.

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Schley v. Couch (cont’d)• Jury said: Mislaid, not lost (asset to OLQ “as bailee”).• Texas Court of Civil Appeals: Neither mislaid nor lost.

Treasure trove.• Texas Supreme Court: We don’t recognize treasure

trove in Texas (why not?).– “this case should be governed by the rules of law applicable to

lost or mislaid property”

• As a matter of law, this is not lost (why not?).• Four years is too little time [to consider the property

abandoned]? (why?)• “Property found imbedded in the soil under

circumstances repelling the idea that it had been lost”– Has “the characteristics of mislaid property”

• Or (per concurring), just “embedded in the soil.”

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Schley v. Couch (cont’d)• The Battle of the Categories• Consider the application and significance of each category

– Lost? (“involuntarily parted with”)• finder wins “as against the owner or possessor of the premises where it

is found.”

– Mislaid (“intentionally placed”)• OLQ (presumptively) wins (wins what?)

– It is “presumed to be left in the custody of the owner or occupier of the premises”

» And not just intentionally placed? » How do you rebut the presumption?

• Is this a label we can now put on McAvoy v. Medina?

– Treasure Trove? (a subset of intentionally placed)• Finder wins (although that varied in England over time)• What is the theory behind this new category?

– Roman conquerors secreted money or coin, gold, silver, plate or bullion, in the earth. The law of England came to give ownership to the finder, “regardless of whether he was in ownership or possession of the land where the treasure was found.”

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Schley v. Couch (cont’d)• Yet More Categories

– Imbedded in The Soil under Circumstances Repelling the Idea that It Had Been Lost

• OLQ (presumptively) wins.• Has “the characteristics of mislaid property”

– However, even though this was intentionally placed, it does not appear to have been placed in the custody of the OLQ. To the contrary, it appears to have been secreted from the OLQ (a prior OLQ unsuccessfully argued that it was his).

• “The finder acquires no rights thereto, for the presumption is that possession of the article found is in the owner of the locus in quo, and, accordingly it is held that the right to possession of such property is in the landowner.”

– Note this states a presumption of possession in the OLQ rather than a presumption that the item was placed in the custody of the OLQ.

• The concurring opinion thinks the majority is re-writing and confusing the law– Concurring opinion finds support (and legislative

mandate in its “reception statute”) for “treasure trove” and no support for “mislaid”

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Notes 1 and 2 at Page 113• Should the money in the jar in Schley v. Couch

have been considered abandoned?– Is mere passage of time sufficient?

• Courts are split on this issue– Eads v. Brazelton (27 years plus other factors)

– Money under hotel room carpet case (15 years alone sufficient)

» Note: cash is being considered abandoned

• How do you distinguish Schley v. Couch from the chicken coop case in Note 2?– Two boys, employed by OLQ to clean a “chicken

house,” discovered in the rubble on the floor a rusted tin can containing gold coins.

• Court: It either is lost or it is treasure trove– The finder prevails in either case

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Note 2 (cont’d) at Page 114• Consider the case of a LL who sues tenant T

who found the remains of a buried sack of gold quartz. Who wins, LL or T, and why?1. If the case is resolved in terms of finder versus OLQ,

what are the categories? • Not treasure trove—wrong type of substance• Not lost (or abandoned?)—intentionally secreted• Mislaid—but not placed in custody• Personal property imbedded in the soil• Affixation theory• General possession theory—LL wins even though T has

the present possessory interest

2. If the case is resolved in terms of the relationship between a landlord and a tenant?• The question would be the appropriate default rule under

the lease

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Note 4 at Page 115• Finder discovered an ancient Indian canoe embedded

in a parcel of land that was physically occupied by a person who had a life estate in the property. The life tenant in possession sold his interest in the canoe to the Finder. Absentee fee owner sues Finder.

1. Finder asserts rights as finder2. Finder also asserts rights of the life tenant in possession

• Should the Finder/Life Tenant win over the OLQ (the fee owner).

– What does Goddard v. Winchell say?• Text refers to its “fixture concept.”

– What does South Staffordshire say?• Text refers to its “general possession theory.”

• Case is support for preferring an absentee fee owner over a tenant with a long-term possessory interest.