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
1
Donald J. Weidner
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?
2
Donald J. Weidner
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?
3
Donald J. Weidner
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”
4
Donald J. Weidner
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.
5
Donald J. Weidner
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.
6
Donald J. Weidner
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
7
Donald J. Weidner
Goddard v. Winchell (cont’d)
• No, it is not clear. Said the court:
– “The term ‘movables’ must not be construed to 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.”
• It has “an independent character”—it exists “independent of
other property”
– “what nature has placed” there [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.
8
Donald J. Weidner
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.
9
Donald J. Weidner
Goddard v. Winchell (cont’d)
• Based on the words of the “movables” rule,
what else might the OLQ have argued to
avoid its application? What is the
relevance of
– “upon?”
– “unclaimed by any owner?”
– “supposed to be abandoned by the last
proprietor?”
– “returned to the common stock?”
– “occupant?”
– “finder?”
10
Donald J. Weidner
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.
11
Donald J. Weidner
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.”
12
Donald J. Weidner
Goddard v. Winchell (cont’d)
• Accretion in riparian (related to the bank of a natural
watercourse) rights law generally concerns 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?
– Does this case involve uncertaintly about where the res came from?
13
Donald J. Weidner
Goddard v. Winchell (cont’d)
• Who should win and why?
– Or, which rule should apply?
• What are the reasons for the rules?
• What are the conflicting considerations in this case?
– 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.
– What were the “enlightened demands of the time” [1892]
asserted by finder?
14
Donald J. Weidner
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.”
15
Donald J. Weidner
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
. . . .”
16
Donald J. Weidner
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 he was first to physically control it
– Does Goddard tell 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
17
Donald J. Weidner
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?
18
Donald J. Weidner
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?
19
• S has released a wild animal?
Cases split.
Donald J. Weidner
The Bramble Bush
There was a man in our town
and he was wondrous wise
he jumped into a BRAMBLE BUSH
and scratched out both his eyes—
and when he saw that he was blind
with all his might and main
he jumped into another one
and scratched them in again.
20
Donald J. Weidner
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 allege they, 9 months later, stopped a boat
near the shore, 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.
21
Donald J. Weidner
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
–
At one point, Chancellor was the “keeper of the King’s
conscience”
First finder claims right of occupancy vested in him by
discovery.
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?
22
Donald J. Weidner
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?
• Did this case hold that it was?
23
Donald J. Weidner
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, p.99)
• 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.”
24
Donald J. Weidner
Eads v. Brazelton (cont’d)
• Note 6, p. 100, 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 one Saturday morning 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 a boat,
zip out to the site before Mel gets back to it, and start
raising treasure?
25
Donald J. Weidner
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?
26
Donald J. Weidner
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?
27
Donald J. Weidner
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)
28
Donald J. Weidner
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?
29
Donald J. Weidner
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.
30
Donald J. Weidner
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?
31
Donald J. Weidner
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.
32
Donald J. Weidner
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 highest possible
value from someone who did not take it.
33
Donald J. Weidner
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?
• Armory states that finder keeps against all the world but the rightful
owner.
• The finder in Goddard cited Eads to the court.
– Recall, Eads said there must be an actual taking to
acquire possession.
– If you represent the OLQ in Goddard, how would
you distinguish Eads?
34
Donald J. Weidner
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.
35
Donald J. Weidner
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.”
36
Donald J. Weidner
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?
37
Donald J. Weidner
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?
38
Donald J. Weidner
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.
39
Donald J. Weidner
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?
40
Donald J. Weidner
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 does the combination of Armorie and
Bridges and Eads 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.
41
Donald J. Weidner
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.
42
Donald J. Weidner
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.
43
Donald J. Weidner
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
44
Donald J. Weidner
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 and held for OLQ, 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.”
45
Donald J. Weidner
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?
– Were the rings “attached to or under” the land?
46
Donald J. Weidner
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 a particular
item, even if the existence of the particular item is
unknown?
47
Donald J. Weidner
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 else might you distinguish Bridges?
48
Donald J. Weidner
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.
49
Donald J. Weidner
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?
– By showing inattentiveness?
50
Donald J. Weidner
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)?
51
Donald J. Weidner
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?
52
Donald J. Weidner
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.”
• The presumption of specific control never arose or was effectively
rebutted?
– Or, because the airline is 53a tenant rather than a
FO?
Donald
J. Weidner
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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Donald J. Weidner
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)?
55
Donald J. Weidner
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?
56
Donald J. Weidner
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?
57
Donald J. Weidner
City of London v. Appleyard (1963)
• Note 1 at p. 106. 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)
58
Donald J. Weidner
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?
59
Donald J. Weidner
Finders versus Employers
• Finders versus their Employers (Note 3 at p.
106)
– As we are seeing, there is often more than
one way to analyze a particular case.
– 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
60
Donald J. Weidner
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.
61
Donald J. Weidner
Durfee v. Jones (1877)
• Note 4 p. 107. 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 salesmanfinder won over unwitting shopkeeper)
62
Donald J. Weidner
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)
63
Donald J. Weidner
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)?
64
Donald J. Weidner
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.
65
Donald J. Weidner
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.
66
Donald J. Weidner
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
67
Donald J. Weidner
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 an asset for the OLQ
to return or liquidate to satisfy a judgment declared for the
TO)?
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?
68
Donald J. Weidner
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.
69
Donald J. Weidner
Schley v. Couch (cont’d)
• Jury said: Mislaid, not lost (therefore, 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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Donald J. Weidner
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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Donald J. Weidner
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 rewriting and confusing the law
– Concurring opinion finds support (and legislative
mandate in its “reception statute”) for “treasure trove”
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Donald J. Weidner
and no support for “mislaid”
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 73
either case
Donald J. Weidner
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
74
Donald J. Weidner
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.
2.
•
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?
•
•
Finder asserts rights as finder
Finder also asserts rights of the life tenant in possession
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.
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Donald J. Weidner