Finders
Obligations of the finder? to find the true owner
What does the law call the finder? A person holding, who must keep and safeguard the thing.
When does the finder become the true owner?
Note how are rights held relationally
How does the requirement for intention to develop
How does the requirement for control develop?
How is the strength of the various claims assessed?
How strong is a true owner’s claim? [Moffat – true owner trumps all]
What administrative structures have grown to regulate findings?
Common law does like true owners as a concept
-How does one possess different types of things (wild animal to a ship to a cell line)?
-What are legally salient characteristics of a thing?
-What are legally salient characteristics of the claimants?
-What actions or behaviours demonstrate possession?
-In what circumstances does possession become ownership?
-What does ‘possession 9/10 of the law mean?
-Who is a true owner? (often a fantasy) - What do they do?
-When is a true owner dispossessed?
-What happens when there is no true owner?
-Who does a possessor have better rights against?
-How does the common law rationalize multiple claims in a thing?
-How to these actions relate to justifications, the absolute nature of property rights, and the right to exclude?
Rights are held relationally – rights are always held in relation to someone else.
Possession is 9/10’s of the law, common law is happy taking the current state of affairs. It is a description of a state of events, or facts, you just don’t ask to become a possessor.
Armory v. Delmiri, 1722, UK; 162– Right of Finder superior to everyone except True Owner.
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Facts: Plaintiff, a chimney sweeper’s boy found a jewel and carried it to jeweler’s shop. Had it appraised, the jeweler offered the boy the money and the boy refused, asking for the jewel back. The jeweler only returned the socket without the jewels.
Issue: Can the finder of the jewel claim a property right over the jeweler in the jewel? (YES)
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Maj (Judge Name): The finder has good title against everyone in the world including the possessor though not an absolute property with the exception of the original owner who has a continuing claim.
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Between finder and wrongful taker (i.e the jewler), finder has the better right here)
Finder + No Original Owner + Wrongful Taker =Finder has better right.
The finder has a right in what is found against everyone except the true owner (had a better right against the wrongful taker).
The court’s decision here ensures that people that find an object have some rights in relation to third parties: Someone needs to have rights in this situation and it seems better to give it to the finder than to someone who wrongfully took it
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Keron v. Cashman, 1896, US; 163– Simultaneous Finders all retain an equally divisible property right; Possession requires physical control & intent.
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Facts: Five boys were on a railroad track on their way home. Crawford picked up an old stocking, began swinging it, then another boy snatched it from him, then all the boys began playing with the stocking. At one point the stocking burst open and the contents, 775 $ were discovered by all the boys. Division partially carried out, they then brought the money to one of their parents who brought it to the police in an attempt to find the owner, but the owner was not found.
Issue: Does Crawford have a right to the whole sum of money because he was the first person to discover the sock? Was he the finder? (NO)
Maj (Emery V.C): Question of intent.
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Crawford demonstrated no intent to possess the money. Until the money was found, the sock was treated as a plaything by the boys and no one knew there was money in the sock – boys did not treat stocking as an article over which any ownership or possession was intended to be asserted for the purpose of examining its contents. However, if Crawford retained or desired to retain the stocking for the purpose of examining, or that it was taken from him for that purpose by the older boy, the outcome may have been different.
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Since the money itself was found by all the boys in common it had to be divided equally – money was found in common possession of all the defendants.
Ratio: Possession requires 2 elements: 1) physical control and 2) intent (‘state of mind’) to possess.
Intent to possess must be specific to what was found. Here, you have to intend to possess money and not a sock to play with. By the time the money was found, the sock was a common plaything and therefore the money should be divided amongst the boys. Moment of finding rests on the discovery of finding the object’s true value!! There must be a specific intent to posses a thing and know that it has vavlue.
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Bird v. Fort Frances, 1949, 165; ON H.C.; Rules for Possession in Wrongful Taker Situation (Trespasser is finder)
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Facts: Plaintiff was playing in rear of pool room built on private property in Fort Frances. Discovered can containing 1400 dollars hidden on the property. Brought money home gave it to his mother. The constable then came and took the money. The rightful owner was not found so the money was put into a fund for the town. Now Plaintiff wants money back because he claims he is the finder.
Issue: Does a wrongful taker/trespasser have a right of recovery against a subsequent wrongful taker? Is possession interrupted by putting money in a bank account or handing it over to his mother? (YES, NO)
Maj (Mcruer)):
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The court concluded that the plaintiff was not a true finder and was in fact a wrongful taker because 1) the item was carefully hidden on private property as opposed to being lost and 2) he trespassed to get it (e.g. not found on public land). Judge avoided answering the question of felonious intent on behalf of the wrongful taker.
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The fact that possession has been interrupted, even if wrongfully obtained, does not eliminate any proprietary rights that have been acquired – basically, a wrongful taker has the right to exclude everyone except the true owner
Wrongful finder will be protected, b/c there is no true owner, so they find the trespasser who is as good as a true owner.
Ratio: where A enters upon the land of B and takes possession of and removes chattels to which B asserts no legal rights, and A is wrongfully disposed of those chattels, he may bring an action to recover the same. Indeed, a wrongful taker (here: trespass) has better rights in possession than someone who takes it from him – a trespassing finder will be protected under the law against other takers (although not against the person he originally took it from)
Rule – Once possession is obtained it is not lost so long as the power to resume effective control remains so there is no need for that effective control to be actively exercised – you can have possession even though the money is in a bank account and not physically in your possession
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Hanna v. Piel; 166 & 169
Facts: Soldier occupying a house, finds ring in the house.
Issue: Who has better claim to ring: Finder vs. property owner? [Finder]
Holding: Finder’s claim is better than the landowner where the object is unattached and unknown about (same as Bridges).
Moffatt v. Kazana., 1969, 171; UK; The duration of an Owner’s Title; forgotten property is not abandoned
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Facts: Russell hid money in a biscuit tin in the false roof of his bungalow. Sold the house to defendant and forgot the money in the in tin in the roof. Defendant hired a worker who found the money and who brought it to the police. The police eventually gave the money to defendant. Plaintiff now claims that the money remains his property.
Issue: Is Russell still the owner of the money? Does the true owner have a better title than the owner of the property where the chattel is found? (YES; YES)
Maj (Wrangham): Places importance on true owner of chattel over the owner of property in which the chattel is found.
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There was no conveyance of the tin and its contents to the buyers of the house – Without an intention to convey, there cannot be conveyance.
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Furthermore, there was no intention to accept the money by the defendants – therefore, the Russell’s remain the rightful owners of what always belonged to them.
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Since Russell never divested himself of ownership (e.g. through abandonment, gift, sale) then he is still the owner and therefore has superior title to the defendant.
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Law of Property Act (relied on a statute. provides that a conveyance of real property shall not include a conveyance of chattels. Sale of property might include lost/forgotten contents if true owner has to trespass to get the property (but not here – obiter).
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Employee (worker), assumption is based upon the notion that all property found goes to the employer. The employee does not retain interest. Piper does not like that the employee’s interests are taken into account.
Forgotten property is NOT abandoned property
Ratio: The true owner of property has superior title to everyone else even if he is no longer the owner of the land where the property is located.
Comments: One thing to note in this case is the fact that the tin was discovered by a third party. The judge raises this point on 174 but he does not give answers for the other possible situations that could have occurred: It’s important to think about what the judgment would have been if the money had never left the property. Like what if Russell had realized he had forgotten the tin, would he have been able to bring the same claim? The concept of trespass wasn’t in the forefront in this situation, but it could make this rule more complicated.
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Parker v. British Airways Board, 1982, UK CoA 175 Rights and Obligations of Finders and Rights & Obligations of Occupiers
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Facts: Plaintiff was lawfully in the lounge of British Airways. He discovered a gold bracelet lying on the floor. He went up to an employee and asked that they try to find the rightful owner and if not to get in touch with him. British Airways never found the owner, and they sold the bracelet. Plaintiff believe that his act of finding a lost piece of “chattel” and his taking control of it gives him rights to the chattel. British Airways claims that they had rights in relation to the bracelet immediately before the plaintiff found it and those rights are superior to the plaintiff’s rights.
Issue: Can a finder have better title than the owner of the property where the chattel is found? [YES] Is this always the case? [NO]
Maj (Donaldson): Lost property does not necessarily belong to the owner of the property on which it is found.
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Plaintiff can claim on basis of status as finder (first occupier, intention to possess)– BA claiming a superior right (possessory claim) based on control over the land where the object was found.
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BA’s intent based on the fact that they only allow certain types of people into the lounge and they try and control the floor
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Default rule is finders keepers but in some situations the law gives a superior right to the owner of the property where the chattel is found:
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when the finder is trespassing;
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if the chattel is underground;
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if the chattel is attached to the realty (b/c chattel will be treated as an integral part of realty and thus prevent digging or breaking); (Hanna v. Peil)
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if he has manifested an intention to appropriate/control objects on his property and therefore exclude unauthorized interference – the manifestation required may vary, depending on the situation (public v. private location) but a mere possibility of exercising such control is insufficient (periodic sweeps and checks); and
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the occupier knows about the chattel.
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BA undertook insufficient measures to claim/control proprietary rights over the objects found in the lounge which, although private property, was of a public nature. The requirement was to sweep through periodically.
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Right to decide who should or shouldn’t enter the lounge not enough to show intention to assert control over lost articles on premises.
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The intention of the occupier to assert control over articles lost on his premises speaks for itself: In a safety deposit box vault of a bank, the bank owner would have more title over a precious object found on the floor.
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The lounge in this case is the middle ground: There was no sufficient manifestation of any intention to exercise control over lost property before it was found that would give defendants superior rights.
See below for right of finders & occupiers
Ratio: A finder has a better title than the owner of the property where a previously unknown chattel is found if:
1) he was legitimately on the property (e.g. not trespassing); AND
2) the chattel is NOT attached to the property owned by the occupier; AND
3) there was no sufficient manifestation of an intention by the occupier to exercise control over lost chattels found on the property.
Comments: There was no intent to posses, and they do not exercise effective control (according to Piper).
Could be conversion here, or the rights of an occupier.
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Bridges v. Hawksworth (From within Parker Case) – finder inside an owned location, finders rule still holds
Facts: Guy finds container of money on a shop floor, gives it to the store owner so that the true owner could recover it never does, guy now wants it back after 3 years.
Issue: Finder vs. property owner in which item was found. Who has the better claim?
Holding: Store owner lacked the necessary control (physical and mental) over the object.
Rule – Finder has better claim than the landowner over things that are not physically attached to their land (physical element) that they don’t know about (mental element). Fact that it was found in the store is irrelevant (storeowner has little control over what is found on the shop floor). True owner does not exist in this case.
Why? We don’t want to encourage digging/destructive searching.
Rights and Obligations of the FINDER (Drawn from Parker)
1. The finder of a chattel acquires no rights over it unless (a) it has been abandoned or lost and (b) he takes it into his care and control.
2. The finder of a chattel acquires very limited rights over it if he takes it into his care and control with dishonest intent or in the course of trespassing.
3. Subject to the foregoing and to point 4 below, a finder of a chattel, whilst not acquiring any absolute property or ownership in the chattel, acquires a right to keep it against all but the true owner or those in a position to claim through the true owner or one who can assert a prior right to keep the chattel which was subsisting at the time when the finder took the chattel into his care and control.
4. Unless otherwise agreed, any servant or agent who finds a chattel in the course of his employment or agency and not wholly incidentally or collaterally thereto and who takes it into his care and control does so on behalf of his employer or principal who acquires a finder's rights to the exclusion of those of the actual finder.
5. A person having a finder's rights has an obligation to take such measures as in all the circumstances are reasonable to acquaint the true owner of the finding and present whereabouts of the chattel and to care for it meanwhile.
Rights and liabilities of an occupier
1. An occupier of land has rights superior to those of a finder over chattels in or attached to that land and an occupier of a building has similar rights in respect of chattels attached to that building, whether in either case the occupier is aware of the presence of the chattel.
2. An occupier of a building has rights superior to those of a finder over chattels upon or in, but not attached to, that building if, but only if, before the chattel is found, he has manifested an intention to exercise control over the building and the things which may be upon it or in it.
3. An occupier who manifests an intention to exercise control over a building and the things which may be upon or in it so as to acquire rights superior to those of a finder is under an obligation to take such measures as in all the circumstances are reasonable to ensure that lost chattels are found and, upon their being found, whether by him or by a third party, to acquaint the true owner of the finding and to care for the chattels meanwhile. The manifestation of intention may be express or implied from the circumstances including, in particular, the circumstance that the occupier manifestly accepts or is obliged by law to accept liability for chattels lost upon his "premises," e.g. an innkeeper or carrier's liability.
4. An "occupier" of a chattel, e.g. a ship, motor car, caravan or aircraft, is to be treated as if he were the occupier of a building for the purposes of the foregoing rules.
Senecal v. The Queen, QC, 1984, Fed Crt; p184; Legislation modifies common law rules on Finders
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Facts: Senecal was an employee at Dorval International Airport. He was leaving the cafeteria when he discovered a package containing money. He bought the package to the RCMP, who discovered it contained 10000$. They told him if no one claimed it in three months he would receive the money. However, Section of the Department of Transport Act does not allow employees to receive abandoned property that they find at the airport.
Issue: Does plaintiff have any possessory right to the money? (No)
Maj (Walsh): According to s. 3 of the Regulations Respecting the Disposal of Personal Property Left at Airports, personal property that has been lost or abandoned at an airport shall be retained in the airport for 30 days, then a) returned to the finder, if the finder is not an employee of the department; b) by private sale or by sale at a public auction; c) by disposition, by gift, to a charitable institution in Canada; d) by destruction where no other method is deemed appropriate.
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According to CCQ: “the ownership remains with the owner of the property who can claim it at any time provided his right to do so has not been prescribed. The finder merely has a right of occupancy of property but not of ownership.
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Walsh determines S.3 of the Regulations is valid.
Ratio: Statutory provisions may be different from the common law position on finders.
If this was common law – close to bridges or Parker.
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Summary:
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Obligation on the finder to find the true owner
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Finder has better title against anyone else except the true owner (Armoury, Moffat) or perhaps an earlier finder
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True owners tend to prevail (Moffat)
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Law protects even a trespassing finder (Bird), but what about employees (Moffat)
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Intention only crystallizes when nature of thing is apparent (Keron)
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We like supporting finders b/c they are best situated to find true owners, enhances productivity otherwise creates a gap in the law or chain of title.
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Whether the object is on or in or attached to the land complicates things:
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If no intent, and no control then object finder prevails (Parker, Bridge)
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English law privileges landowner if objects buried in land, but not rational
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Troubled nature of attachment to land: consider nature of attachment to land (embedded, trapped, in a hole, hidden); analogies to cases we’ve seen (Moffat – wall, Bird-undersill) and justification (would you want to protect a landowner from a trespasser? What about the labour of the finder? What about incentives to bring things into circulation.
Case
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Finder
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True Owner
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Land owner
or occupier
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Wrongful taker/trespasser
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Object
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Intent
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Control (by whom)
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Armory
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Yes
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No
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No
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Yes
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Ring
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Yes
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Yes
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Keron
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Yes
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No
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No
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Perhaps
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Sock of money
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Yes – specific
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Yes, shared
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Bird
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Yes
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No?
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No?
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Yes – police officer
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Money in a tin
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Yes
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Yes
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Bridges
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Yes
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No
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Yes
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No
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Money
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Yes
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Yes, No (LO)
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Moffat
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Yes
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Yes
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Yes
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Employee
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Money in a tin
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Yes
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No (TO), Yes (LO)
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Parker
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Yes
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No
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Yes
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Yes – BA
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Gold bracelet
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Yes (Finder),
No (LO)
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Yes (finder), No (LO)
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Case
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Story
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Issue.
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Why?
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Armory v Delamirie
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Boy finds ring. Gets it appraised. Jeweller keeps stone. Boy wants it back.
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Can boy keep the ring and get the stone back too? Yes.
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Because a finder has better title than everyone except the true owner.
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Keron v Cashman
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1st boy finds sock next to RR. Boys play with it. Sock rips. In it is $775.
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Can 1st boy get all the money? No.
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The 1st finder lacked intent to control the object. Possession = physical control + intent.
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Bird v Fort Frances.
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A wrongful taker finds $1400 stashed away in a private pool room. City appropriates the money in its slush fund.
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Can City keep the money? No.
Finders Keepers upheld
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Because even though the 1st taker was wrongful, the City has lesser rights than he does. Had the owner of the pool room asserted its rights, then they would have kept the money. But that owner did not know the money was on his property. Owner of premises did not show intent to keep $.
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Moffatt v Kazana
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X stashed money in house. Sells house to Y. Forgets the $. Y hires worker who finds the money. Brings it to police. Police give it to Y. X wants the money.
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Can X get the money? YES
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Regardless of the time that has passed, the true owner has better title than anyone else, even if he does not own the land on which his property is located. X never stopped intending to hold money
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Parker v BA.
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BA lounge. Gold bracelet found on floor by a passenger. Gives it to desk. Owner never claims it. BA sells it. Parker wants that money.
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Can Parker get that money? YES
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Yes, because here BA had not asserted its right to any lost objects (NO INTENT). It did not know that this object was on its premises. Had it made a general statement saying that lost property is theirs or had proven that they routinely search the lounge for lost objects, then BA would have had better title than Parker.
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Senecal v Queen.
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Dorval. Employee finds $10k. Gives it to RCMP expecting they will return it if unable to find true owner.
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Does Employee get the $$ back?
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Nope. STATUTE
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Bridges
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Customer finds money in store, gives to store owner, owner of $ never comes, finder wants $ back
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Can finder claim money? YES
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Store owner lacked necessary control over his premises.
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Finder has rights over lost articles, 2nd only to the owner.
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He must take care and control it.
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If he has bad faith, then his rights are very limited. (Bird?)
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An employee that finds an object is really finding it on behalf of his employer (agent / principal).
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An occupier has rights to things attached to his land.
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An occupier that shows an intention to keep things lost on his property becomes the finder (see BA).
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Finders keepers, unless statute, owner comes, or intent of property owner has intent to sweep (BA).
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