Aquisition by Find

Acquisition by Find:

The Scottish proverb “finder’s keepers, loser’s weepers,” is not entirely accurate. Under common law, the finder of property holds that property in trust for the benefit of the true owner.  What is true, however, is that the finder of property has rights to that property that is superior to the rights of everyone else. Ironically, these rights are considered good against the “whole world.” “The title of the finder is good against the whole world but the true owner.” Ray A. Brown, The Law of Personal Property 26 (Walter B Raushenbush 3d ed. 1975). 

One of the most famous cases involving this principle is the case of Armory v. Delamirie, 1 Strange 505 (K.B. 1722): Where a chimney sweep found a jewel, and carried it to the shop of the Defendant, a goldsmith. He asks the goldsmith’s apprentice to examine it. The apprentice took out the stones, and refused to return them. The court held for the chimney sweeper, the finder of the object, although chimney sweeper did not by finding acquire absolute ownership, he is entitled to possess it against anyone but the true owner. (For a more sophisticated application of some of these principles from Armory, See Long v. State, 2009 Ark. App. 97 (Ark. App. 2009), where a challenge of a good-faith valuation of missing items by a gemologist was made.)

What Constitutes Possession

In determining whether or not “possession” existed by the finder, there is a two part test. First, the finder must have physical control over the goods; and second, the finder must have the intent to assume dominion over the goods.

Lost vs. Mislaid property and Conflicts with Owners of Real Estate

The distinction between finding “lost” or “mislaid” property can be important in determining the rights of the finder. Mislaid property is when the property was intentionally put in a certain place. These objects are treated as if placed in the custody of the landowner. Lost property, on the other hand, has not clearly been intentionally placed. Lost property is likely to be awarded to the finder.

However there is a conflict between finders, and the owners of the property on which the property is found. English courts tend to award possession to the property owner. American Courts tend to award possession to the finder.

In McAvoy v. Medina, 11 Allen 548 (Mass. 1866) this distinction between mislaid property and lost property was important.  The finder, a customer in ∆’s barber shop, found a pocketbook that was left there by another customer. The barber and the finder disputed to whom the pocketbook should belong to. The court held that possession goes to the barber because the true owner intentionally placed the pocketbook on the barber’s table, and thus entrusted the pocketbook to barber’s care.

Estray Statutes

Most states have statutes (sometimes called estray statutes) that govern the character of lost and mislaid property. They often require that the finder of the property to report the find to a designated government official who enters the find into a public registry.

Chapter 169 of the Ohio Revised Code has the requirements for reporting and claiming unclaimed property in Ohio. Generally, Ohio has a statute of limitations of two years on claiming lost property.

Quotes:

“Possession is eleven points the law.” Colley Cribber, Woman’s wit, Act I (1697)

“Possession is very strong; rather more than nine points of the law. “ Lord Mansfield, Corporations of Kingston-upon-Hull v. Horner, 98 Eng. Rep. 807, 815 (1774).