CHAPTER 3

Law of Finders and Prior Possessors

As noted in the first two chapters, possession is important in determining persons’ relative rights to things. Although familiar sayings such as “possession is nine-tenths of the law” and “finders keepers, losers weepers” are inaccurate as statements of the law, they do echo the law’s recognition that a person in possession of a thing has greater rights to that thing than do most other persons.

  The study of finders of personal property (property other than real property) serves many purposes. For one, the concept is easy: Someone lost something; someone else found it; now who owns it? More importantly, some rules have evolved when the original or true owner cannot be found, and the finder and the owner of the place of the find (the locus in quo) each claim possession.

  The study of finders law gives you the opportunity to apply the rules and rethink the law. How should a court resolve issues pertaining to finders? Should it try to fit the facts into a box of the existing rules to determine who has the superior right to the thing? Or should the court determine who prevails based on instrumental goals—i.e., considerations other than black-letter rules? Or should the court simply say, “Finders win”?

  The common law holds that a finder of lost property has greater rights to the found property than the entire world except the true owner. The rule is often stated, “The title of the finder is good as against the whole world but the true owner.” See Raymond A. Brown, The Law of Personal Property 25 (3d ed. 1975). If the true owner is located, the true owner can recover the lost property. The goal of the common law here is to facilitate the return of lost property to its true owner. Many times, however, the issue is who gets the property if the true owner never surfaces.

  A finder of lost property is a person who (1) takes control of the lost property and (2) has the intent to maintain possession of the property. To illustrate, three children, Andy, Brad, and Charlie, are playing. Andy finds a bag weighty enough to be tossed. Andy tosses the bag to Brad. As Brad catches the bag, the bag breaks open and money spills on the ground. Charlie snatches up the money. To which child would you give the money, assuming the true owner cannot be located?

  One answer, of course, is to say the boys are acting in unison and thus should split the money equally. Another is to say Andy took control of the bag with the intent to possess it, and thus he should get the money since the money was in the bag. A third option gives the money to Charlie since it was Charlie who took control over the money with the intent to possess it. Brad, it seems, never had the requisite control or intent to possess. The issue may turn on whether you feel Andy ever had actual control or, more likely, any intent to possess the bag or the money. See Keron v. Cashman, 33 A.1055 (N.J. 1896).