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Schley v. Couch

Citation. 22 Ill.155 Tex. 195, 284 S.W.2d 333 (1955)
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Brief Fact Summary.

The Petitioner (Defendant at trial) owned a house with a garage which needed to have concrete added on the floor over dirt and Petitioner hired Respondent’s employer to perform the concrete laying, during the course of which Respondent found $1000 which had been buried.

Synopsis of Rule of Law.

The buried money falls into the category of “mislaid property” rather than “lost property” and creates a bailment in favor of the owner of the real estate upon which the money was found.


On July 2, 1952, Petitioner (Defendant at trial) owned a tract of land which had a house and a garage upon it. The Petitioner had just bought the house and land on June 15, 1952. The garage floor was half concrete and half dirt. Petitioner hired Respondent’s employer to put a concrete floor down in the rear half of the garage. Petitioner’s son assisted the construction by driving a tractor with a blade to remove the soil in the garage. However, the tractor could not reach the far end of the garage, so the Respondent was ordered by his employer to take a pick and manually loosen the soil. During the loosening the Respondent found $1000 in currency which was apparently buried in a glass jar, the remains of which were found in the immediate vicinity. The money was apparently (the opinion does not explicitly state) left in the custody of the Petitioner, who was the owner of the house and land. Thereafter, a prior owner of the house and land attempted to establish a claim, which fa
iled. Thus, the issue of rightful ownership of the money is not presented. Respondent then sued Petitioner for the money and for certain damages. The trial court submitted the issue to the jury to determine whether the money was “lost” or “mislaid.” The jury found the money to have been “mislaid,” and based on that verdict the trial court awarded the money to the Petitioner (Defendant at trial) as bailee of the rightful owner. The Court of Civil Appeals found that the money was neither “lost” nor “mislaid” property, but was, in fact in a third category, a “treasure trove,” and that as a “treasure trove” the right of possession was in the finder (Respondent). The Petitioner appealed.


Does the Petitioner have the right to possess, as a bailee of the rightful owner, the money found on his land?


Yes. The judgment of the Court of Civil Appeals is reversed and the judgment of the trial court is affirmed.
The Court declined to apply the doctrine of “treasure trove,” which, according to the Court had not been adopted by the State of Texas and was merged into the category of “lost” items generally.
The Court defined “lost property” as “that which the owner has involuntarily parted with through neglect, carelessness or inadvertence.” Citing the Note 170 A.L.R. 706. The money here was not “lost property,” as the term is commonly understood, because the rightful owner intentionally buried the money.
The Court defined “mislaid property” as that “which the owner intentionally places where he can again resort to it, and then forgets.” In this case, the money’s burial provides evidence that the rightful owner intended to hide the money away in a state of preservation, and then forgot or was unable to retrieve the money. The Court found that when an object is mislaid, possession of the mislaid object is rightfully had by the owner of the land upon which the object has been found, and that right of possession shall be enforceable against all except for the rightful owner of the object so mislaid.
Thus, the trial court was right to find that the money was “mislaid” and that Petitioner had the right of possession subject to a bailment in favor of the rightful owner. The Court held that when an object is “mislaid,” there is a presumption that the right of possession shall lie with the owner of the land upon which the discovery was made.
Concurrence. One of the concurring opinions would place this money in the category of “personal property found imbedded in the soil.” The other concurrence would abolish the categories altogether and instead hold that the right of possession shall attach to the owner of the land upon which the discovery is made.


Compare this case to that of South Staffordshire Water Co. v. Sharman, infra, where similar facts were present. This Court reaches a different conclusion, perhaps because here the money was intentionally buried, as opposed to being “lost” through carelessne

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