Published on January 28, 2008
Summer Orientation Program: Substantive Class Component: Summer Orientation Program: Substantive Class Component Five Substantive 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 this yourself Goddard v. Winchell (1892): Goddard v. Winchell (1892) The aerolite case. What is “an action in replevin?” What is the state’s “Supreme Court?” What were the findings of fact by the lower court? Is the defendant asserting his rights: Because he purchased the meteor in good faith and hence it is his, or Because he purchased and received a transfer of all of the rights the finder had? Goddard v. Winchell (cont’d): 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 go to the purchaser’s good faith? A purchaser, even a good faith purchaser (BFP), can only assert such rights as the seller had. Goddard v. Winchell (cont’d): 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 the inappropriate rule of law. What are the rules of law in this case? Goddard v. Winchell (cont’d): Goddard v. Winchell (cont’d) There are two statements of the rule being asserted by the owner of the locus in quo: Whatever is affixed to the soil belongs to the soil. A permanent annexation to the soil, of a thing in itself personal, makes it a part of the realty. Goddard v. Winchell (cont’d): Goddard v. Winchell (cont’d) There are three statements of the rule for the finder: Occupancy is the taking possession of those things which before belonged to nobody. 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. 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. Goddard v. Winchell (cont’d): 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. 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” “is a part of the earth” and not a movable. Goddard v. Winchell (cont’d): Goddard v. Winchell (cont’d) The court is setting aside the “movables” rule by focusing on the words of the rule and by distinguishing the facts of this case from the facts of the cases that applied the rule to hold for the 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 they don’t tell us about the facts of those cases. Based on the words of the “movables” rule, what else might the court have said to avoid applying it? Building on “upon?” Building on “supposed to be abandoned by the last proprietor?” Consider a similar approach to other statements of the rule that says the finder wins. The court suggests: the “affixed to the soil” rule does not apply “to an independent acquisition title; that is, to an acquisition of property existing independent of other property.” Goddard v. Winchell (cont’d): Goddard v. Winchell (cont’d) What was the reason the Iowa Supreme Court gave 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, as belonging to the OLQ. The Notes ask: “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.” Goddard v. Winchell (cont’d): Goddard v. Winchell (cont’d) The language of accretion is drawn from riparian rights doctrine concerning situations in which title to a person’s land is described as bounded by a stream or a body of water. For example, what happens to land ownership when the stream 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 accretion controversies distinguishable from the principal case? Do the riparian rights cases involve finders? Do the finders cases involve title disputes between competing fee owners? How do you decide which rule of law to apply? Goddard v. Winchell (cont’d): Goddard v. Winchell (cont’d) OLQ’s basic arguments: I acquired property rights in the meteor in a traditional manner. Analogy to accretion Consider the additional analogy of a stone transported by a glacier. The finder did not acquire property rights in a traditional manner Finder’s basic arguments I acquired property rights in the meteor in a traditional manner. What analogy can the finder make? Wild animal cases? Other finder cases? Note: here, there is no TO to protect. Or is there? What were the “enlightened demands” of 1892 asserted by, in effect, the finder? The OLQ did not acquire property rights in a meteor in a traditional manner. Goddard v. Winchell (cont’d): Goddard v. Winchell (cont’d) What are the arguments based upon policy? Stated differently, what are the reasons for the rules. Or, stated differently again, who should win and why? What are the conflicting considerations? Recall the court’s language: “who shall attempt to determine what part of the rocks . . . are of meteoric acquisition?” Who do you think 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? What if, on its way into the ground, the meteorite had damaged a building owned by the OLQ? What are the incentives for the finder? Is the tenant’s interest important? Goddard v. Winchell (cont’d): Goddard v. Winchell (cont’d) Note the distinction between holding and dictum. Although the court did not cite any case authority, it clearly had case authority in mind: “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 . . . .” Also: “we have in mind the facts giving rise to the rules cited . . . .” 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? Note 6 on Page 96: Note 6 on Page 96 Suppose that a valuable pool of oil lies under land owned by N and also under land owned by D, who drills a well 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? 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 Must oil be reduced to possession by extraction? 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” to D’s own land. Why are courts reluctant to impose liability upon the driller who causes drainage of oil or gas from beneath another’s land? Could you say yes, D has taken N’s oil, relying on Goddard v. Winchell? The oil is buried more deeply and thoroughly than the meteorite Note 7 on Page 96: Note 7 on Page 96 S pumps “extraneous gas” into S’s own land and that causes some of the extraneous gas to be 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.” Does S’s ownership terminate when the gas escapes because N pumps it out? 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 for the use of his land as a storage place? If you don’t own the oil under your land until you possess it, why do you own the meteor on or under your land before you possess it? Could the analogy to oil extraction have been made in the aerolite case? The Bramble Bush: 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. Eads v. Brazelton (1861): Eads v. Brazelton (1861) What were the facts of the case? Ship sank. Plaintiff located it 27 years later, in December, 1854 Placed range markers on trees. Intending to raise the cargo. Arrived with his diving boat in January, 1855 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 cargo lifting apparatus). Defendants, nine months later, stopped a boat near the shore, searched for and found the wreck, placed their boat over it, 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. Eads v. Brazelton (cont’d): Eads v. Brazelton (cont’d) What does it mean that the plaintiff “filed his bill on the chancery side of the” court? Law versus equity What is the relief requested? To enjoin the defendant, the “second finder,” from interfering with the plaintiff, the “first finder” To declare the plaintiff the owner of the wreck. To obtain compensation for what defendants took from the wreck. . What result in the court below? Eads v. Brazelton (cont’d): Eads v. Brazelton (cont’d) The Supreme Court says the lead was “wholly abandoned by the owners.” Is abandonment a finding of fact or 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? 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? Consider the term “qualified ownership” mentioned in the notes. Eads v. Brazelton (cont’d): Eads v. Brazelton (cont’d) What is the Supreme Court’s controlling rule of law? “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.” 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. That suggests the following Hypo based on a true incident. Hypo: I sit on my boat in its slip in Carrabelle. Mel Fisher’s fleet is driven into port by a storm. My next-slip neighbor found out where Mel was anchored offshore, presumably over the wreck of a ship that sunk laden with treasure. Under Eads, 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? Eads v. Brazelton (cont’d): Eads v. Brazelton (cont’d) What further does Eads say that might be relevant to my Carrabelle hypothetical? 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? There must be an actual taking but you don’t need an actual taking? Eads v. Brazelton (cont’d): Eads v. Brazelton (cont’d) Is the context of my Carrabelle hypothetical, is it appropriate to analogize to the wild animal cases? Note 5, page 100. A hunter and his hounds are pursuing a fox closely on public land when the fox happens to run near a person who shoots and kills the fox and carries it away. If the hunter sues that person 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) Eads v. Brazelton (cont’d): Eads v. Brazelton (cont’d) What Brazelton needed to do (and, hence, what Mel needed to do?): “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? Apparently open to definition. Recall the court below found for the plaintiff (first finder) Why was mere discovery not enough to give the first finder ownership rights? Eads v. Brazelton (cont’d): Eads v. Brazelton (cont’d) Eads was cited as authority by the Plaintiff (finder) in Goddard v. Winchell. Assume you are the Judge in Goddard and that you feel bound by precedent. Is it not clear that Eads says that the finder of the aerolite should win? Note 2, p. 99: Do the varying fact situations in which prior possession has conferred ownership raise varying policy issues? Armory v. Delamirie : Armory v. Delamirie What is a “King’s Bench?” What is a “Strange?” What are the facts of the case? 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 the master and the boy that the empty socket was worth three halfpence. The boy refused to accept this amount but the apprentice only delivered the socket without the stones. Armory v. Delamire (cont’d): Armory v. Delamire (cont’d) What does it mean that this 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.” Plaintiff says: you wrongfully interfered with my property Based on this, what difficulty will the boy face bringing an action in trover? Armory v. Delamire (cont’d): Armory v. Delamire (cont’d) What is the “rule” of the case? 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. “Qualified,” not absolute, property or ownership A master is answerable for a servant’s behavior. Measure of damages: value of the “jewel of the finest water” that would fit. Armorie v. Delamirie (cont’d): Armorie 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. If you are the judge in Goddard, and feel bound by precedent, is it not clear that Armorie v. Delamarie requires you to hold for the finder? Armorie was also cited as authority by the finder in Goddard v. Winchell. Reconsider the “rule” of the case What about Eads and Armorie together? Bridges v. Hawkesworth (1851): Bridges v. Hawkesworth (1851) What were the facts? T was a traveler for a large firm with which the 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 to the TO. Three years passed, no TO appeared, and T wants the notes back. Bridges v. Hawkesworth (cont’d): Bridges v. Hawkesworth (cont’d) T sued to get the notes back. The lower court said shopkeeper S was entitled to keep them as against traveler T. The appellate court said: “There is no authority . . . in our law directly in point” What was the Court’s starting point? An analogy to the situation if T had found the parcel outside the shop. T would have the right as against all the world except the TO Why should the result differ simply because the parcel was found inside the shop? Bridges v. Hawkesworth (cont’d): Bridges v. Hawkesworth (cont’d) Who should win and why? Notice the finder’s argument (that the OLQ did not acquire a property right): “It was well asked on the argument, if the defendant has the right, when did it accrue to him? If at all, it must have been antecedent to the finding by the plaintiff, for that finding could not give the defendant any right.” Does that sound like Goddard v. Winchell? Bridges v. Hawkesworth (cont’d): Bridges v. Hawkesworth (cont’d) Notice the continuing “what if”s, 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. Are you persuaded? For reasons beyond the fact that they were found in the shop owner's “house?” Bridges v. Hawkesworth (cont’d): 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 would 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? Bridges v. Hawkesworth (cont’d): Bridges v. Hawkesworth (cont’d) The court said it found no way to take the case out of the general rule of Armory v. Delamarie, 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. Delamarie, which has never been disputed.” Did Bridges read Armory too broadly? If you are the OLQ in Bridges, how do you distinguish Armory? Bridges v. Hawkesworth (cont’d): Bridges v. Hawkesworth (cont’d) 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. South Staffordshire Water Co. v. Sharman (1896): South Staffordshire Water Co. v. Sharman (1896) 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 but could not locate the TO. The police then returned the rings to finder. South Staffordshire (cont’d): 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 gets the chattels or their value, at the option of the defendant. South Staffordshire (cont’d): South Staffordshire (cont’d) The Appellate Court states: “there was no special contract.” Is this a matter that could have been handled by contract? Are we looking for a contractual provision to be applied by default, like a default setting on a computer? A default rule versus a mandatory rule What was the Appellate Court’s starting point in reasoning 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? South Staffordshire (cont’d): South Staffordshire (cont’d) Court below says finder wins, based on Armorie v. Delamarie (chimneysweep) and Bridges v. Hawkesworth (traveling salesman) Are these cases distinguishable? Appellate Court reverses. Even though the Appellate Court accepted the rule of law urged by the finder: “the plaintiffs [OLQ] must show that they had actual control over the locus in quo and the things in it.” Like Eads v. Brazelton? Which said there must be an “actual” taking of possession South Staffordshire (cont’d): South Staffordshire (cont’d) Given the court accepted the finder’s rule, how could an unwitting OLQ possibly win? How can you have “actual control” of something if you do not know exists? 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.” Is this statement cautious to the point of lacking content? That is, possession of land carries with it the possession of everything attached to or under the land unless it does not? Were the rings “attached to or under” the land? South Staffordshire (cont’d): South Staffordshire (cont’d) The Essay continues: “And it makes no difference that the possessor is not aware of the thing’s existence . . . . It is free to any one who requires a specific intention as a part of a de facto possession to treat this as a positive rule of law. But it seems preferable to say that the legal possession rests on a real de facto possession constituted by the occupier’s general power and intent to exclude unauthorized interference.” Why is the second saying “preferable?” South Staffordshire (cont’d): South Staffordshire (cont’d) How did the Appellate Court 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.’” Note: Bridges never used the terms “public” or “private” Are you persuaded? Note 1 at Page 104 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?” South Staffordshire (cont’d): South Staffordshire (cont’d) How would Goddard v. Winchell be decided under South Staffordshire (which was four years later)? “[T]he general principle seems to . . . be that where a person has possession of house or land, with a manifest intention to exercise control over it and the things which may be upon or in it, then, if something is found on that land, whether by an employee of the owner or by a stranger, the presumption is that the possession of that thing is in the owner of the locus in quo.” When is there a manifest intention to exercise control over “the things which may be upon or in it?” 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? Pyle v. Springfield Marine Bank (1946): Pyle v. Springfield Marine Bank (1946) What if something is found on the floor of a room in a bank to which only renters of safe deposit boxes are given access? Who should win, and why, as between the bank and a finder? Finder because the place is public? OLQ bank because the place is private (held the court)? 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 The interests of the TO are probably better protected by leaving it with the bank? What if the finder is a bank employee? Parker v. British Airways Board (1982): Parker v. British Airways Board (1982) Gold bracelet is found on the floor of a British Airways executive lounge, available only to holders of first-class tickets or those who are 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.” Anything else? Does it matter that the airline is a tenant rather than the OLQ? Hannah v. Peel (1945): Hannah v. Peel (1945) What are the operative facts? Fee owner of seven years has never been in physical possession. House was requisitioned and the OLQ was compensated @ 250 pounds a year. Lance-Corporal touches 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. Hannah v. Peel (cont’d): Hannah v. Peel (cont’d) If you represent the finder, how do you distinguish South Staffordshire (OLQ won over pool cleaner who found the gold rings)? OLQ here was never in physical possession? Why should that matter? 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)? Hannah v. Peel (cont’d): Hannah v. Peel (cont’d) If you represent the OLQ, how do you distinguish Bridges v. Hawkesworth (finder of bank notes on shop floor beat owner of shop)? By arguing that this was a private place—a bedroom? Recall: Bridges came to be described as a “public place” case By arguing that the house was made public by involuntary means? By arguing that the brooch was in the custody of his “house?” By arguing that the brooch was intentionally placed? Hannah v. Peel (cont’d): 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 does the word mean? Thinking back, how was it possible for the finder to lose in Goddard v. Winchell? City of London v. Appleyard (1963): City of London v. Appleyard (1963) Owner and occupier of a building entered into a contract with a construction firm for the destruction of the building and the erection of 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) Hannah v. Peel? (finder won over OLQ) Note 2 at Page 106: 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 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? Note 3 at Page 106: Note 3 at Page 106 Finders versus Their Employers One way to analyze some of these cases is to explore the employment contract. Ask what is the proper default rule? And note that there might be additional ways to analyze the same case. Like South Staffordshire Some of the cases involving findings by hotel employees on hotel property make distinctions based on the employee’s duties employee-finder employed to decorate, for example, vs. employee-finder employed to clean rooms. Durfee v. Jones (1877) : Durfee v. Jones (1877) Safe Owner who recently purchased a safe delivered it to Finder, who agreed to display it for sale. Finder discovers that, prior to Safe Owner’s purchase of the safe, money had slipped between linings of the safe’s walls. As between Safe Owner and Finder, what result and why? “Unwitting possession” was said not to confer a right, citing Bridges v. Hawkesworth (finder won over unwitting shopkeeper) Did it in South Staffordshire? (yes—unwitting OLQ of pool won) Did it in Goddard v. Winchell? (yes— unwitting OLQ of prairie land won) Did it in City of London Corp. v. Appelyard? (yes—unwitting OLQ of razed building won) Note 5 at Page 107: Note 5 at Page 107 Boy 1 picked up a sock, knotted at both ends and stuffed with soft material, and started passing it around among his four friends. Boy 1 was held not to be the first possessor. 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)? Note 6 at Page 107: Note 6 at Page 107 “Little Eugene” and “little Pat” (ages 12 and 9) discovered a manila envelope with cash in it in a parking lot. 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. Could we reach a solution like this in Eads v. Brazelton (the dispute between the two finders of the sunken ship)? McAvoy v. Medina (1866): 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 does the court avoid applying what it calls 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. McAvoy v. Medina (cont’d): 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 McAvoy v. Medina (cont’d): McAvoy v. Medina (cont’d) The court may be repudiating Bridges. The court says that this is “the better rule” “Especially as one better adapted to secure the rights of the true owner.” Three possible reasons this might be better adapted to secure the rights of the TO: To keep the asset with the OLQ or in a very general way to enhance her wealth? Because we are making an empirical judgment that the TO is more likely to return than in a case of an inadvertent parting with the asset? Because we are making an empirical judgment that most TOs would prefer the property to be left with the OLQ? Schley v. Couch (1955): 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. Schley v. Couch (cont’d): Schley v. Couch (cont’d) Jury said: Mislaid, not lost. Texas Court of Civil Appeals: Neither mislaid nor lost. Treasure trove. Texas Supreme Court: We don’t recognize treasure trove in Texas. “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. Four years is too little time [to consider the property abandoned]? “Property found imbedded in the soil under circumstances repelling the idea that it had been lost” Or (per concurring), just “embedded in the soil.” Schley v. Couch (cont’d): 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 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. 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.” Schley v. Couch (cont’d): 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 place, 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 rather than a presumption that the item was placed in custody. The concurring opinion thinks the majority is re-writing and confusing the law Concurring opinion finds support (and legislative mandate) for “treasure trove” and no support for “mislaid” Notes 1 and 2 at Page 113: 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 Recall Eads v. Brazelton How do you distinguish Schley v. Couch from the chicken coop case? 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 Note 2 (cont’d) at Page 114: Note 2 (cont’d) at Page 114 Consider the case of tenant T who found the remains of a buried sack of gold quartz. Who wins, T or LL? 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 General possession theory—LL wins even though T has the present possessory interest If the case is resolved in terms of the relationship between a landlord and a tenant? What is the default rule under the lease? Note 4 at Page 115: Note 4 at Page 115 Finder discovered an ancient Indian canoe embedded in the soil. The parcel of land 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. Finder asserts rights as finder Finder also asserts the rights in the canoe as transferee of the life tenant in possession: the holder and user of the present possessory interest in the land Should the Finder 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.