B. First Possession: Acquisition of Property by Discovery, Capture

3. Acquisition by Finding:

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  Finder of property has rights superior to everyone but the true owner. (Ex: Armory)
  

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  Prior possessors prevail over subsequent possessors, EVEN if the prior possessor is a thief (Anderson v Gouldberg, p. 99: trespassers on third-party land steal lumber, prevail over defendant who later took the lumber from them)
  
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    However, Richard Helmholz’s studies have indicated that judges don’t follow this rule, and will invoke the rule of prior possession only in support of honest claimants (p. 100)
    
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      But not always: see Payne (p. 100)
      

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  General U.S. rule: Finder prevails over owner of premises where something is found (assuming the owner does not also own the item)
  
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    This is the outcome in Hannah (although that’s a UK case)
    
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    EXCEPTIONS:
    
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      If the finder is a trespasser then the owner of premises prevails (p. 107), although not always
      
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      If the finder is an employee, then the law is totally unclear (pp. 109-10)
      
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  Object found in a public place (heavily trafficked place)
  
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    Lost Property = accidentally and casually lost (e.g., ring slips off of finger).
    
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      Goes to the finder.
      
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    Mislaid Property = intentionally placed somewhere and then forgotten (e.g., purse set down on a table and forgotten).
    
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      Goes to the owner of the premises (who can better return it to the true owner).
      
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        Ex: McAvoy
        

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  Objects found embedded in the soil generally go to the owner of the land
  
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    EXCEPTION:
    
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      Treasure Trove: Traditionally this was money, gold, or silver intentionally buried in the ground with the intent to reclaim (like buried treasure), and it traditionally went to the state. More recently, American law has taken to include any hidden money (whether underground or not), and treats it like other found property (categorizing it as lost, mislaid, or abandoned). (See examples on p. 111)
      
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  Abandoned Property: property intentionally abandoned by the true owner, who has voluntarily given up any claim of ownership. Finder of abandoned property acquires title.
  
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  Equitable division: When there are multiple finders with equal claims, judge can order the property sold and the proceeds divided between the competing finders. Ex: Popov
  

Armory v. Delmirie

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  Facts: A chimney sweep found a gem in a setting and took it to a jeweler for appraisal. The jeweler’s apprentice removed the gem and refused to return it.
  
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  Holding: Finder of the jewel (chimney sweep) has property right against all but the true owner.
  

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  Note: Trover is a common law action for money damages resulting from the D’s conversion to his own use of a chattel owned or possessed by the P.
  

Hannah v. Peel

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  Facts: D (Peel) owned a house but never lived in it. P (Hannah), a soldier quartered in the house, found a brooch (which D did not know about) in the house. P took the brooch to the police, no one claimed it, so the police gave it to D. P now suing for brooch.
  
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  Holding: P gets the brooch. Neither D nor P is the true owner, but P found it.
  
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  Analysis: D was never physically in possession of the premises, and never had prior possession of the brooch. Therefore, court treats brooch as “found” by P and “lost” before.
  
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    Legal realism: The court may have just been rewarding the soldier’s good behavior (they mention that he turned it over to the police, even though that is legally irrelevant.)
    

McAvoy v. Medina

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  Facts: P found a pocketbook in the barbershop owned by D. Gave it to D, then later demanded it.
  
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  Holding: P has no claim to the pocketbook, which goes to D until true owner returns.
  
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  Analysis: The pocket was never lost, because it was voluntarily placed on table (mislaid). This rule increases the likelihood that the true owner will get it back.
  

Popov v. Hayashi

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  P (Popov) caught Barry Bonds’ record-setting HR ball, but not securely; he was mobbed, the ball rolled loose and was picked up by D (Hayashi). Judge held that P had a pre-possessory interest, a “qualified right of possession,” because it was unclear whether he would have had full possession of the ball if not for the wrongful acts of the crowd, and D also had a right as finder of property intentionally abandoned by Major League Baseball. Judge ruled for equitable division.