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Law of Finders and Prior Possessors


The law of finders discussed to this point has a semblance of rationality. Unfortunately, judges over the centuries have complicated the analysis so that someone other than the finder may get the found property. Often the courts look at various factors to determine who keeps found property.

  The most typical disputes occur between the finder of the property and the owner of the land or building where the property was found. Courts have categorized ways the true owner was separated from his property. Without overruling Armory, over time judges began to characterize found property as lost property, mislaid property, abandoned property, or treasure trove.

  Lost property is property the true owner unintentionally and unknowingly dropped or lost. Property concluded to be lost property belongs to the finder (unless and until the true owner is located). To be contrasted with lost property, mislaid property is property the true owner intentionally placed in a given location and then left, or intentionally left intending to return for it later. Mislaid property belongs to the owner of the locus in quo (the premises owner or lessee) (unless and until the true owner is located). The idea is that the possessor of the real estate on which the property is found is in a better position to give the found property back to the true owner if the true owner comes back looking for it. Judges created this second category—mislaid property—to justify giving the found property to the possessor of the locus in quo in an attempt to preserve the true owner’s rights.

  To illustrate, a finder finds a watch with a broken watchband in a shop. If the true owner’s watchband broke and the watch fell to the ground, the watch is lost property; and the finder keeps the watch. On the other hand, if the true owner put the watch on a table after discovering the watchband was broken and left without picking up the watch, the property is characterized as mislaid property and the owner of the shop keeps the watch.

  The difficulty with this approach is that the only person who truly knows whether the object was lost or mislaid is the true owner, who never appears. If the true owner appears and claims the watch, the ownership issue as between the finder and the shop owner is moot.

  The judicial inquiry becomes only slightly more complex when two more categories are introduced. Abandoned property is property the true owner intentionally and voluntarily relinquished, with the intent no longer to own the object, and without transferring his rights to another person. Like possession, abandonment has two elements: an act of abandonment, and the intent to abandon. Intent is not presumed: It must be proved. The mere passage of time gives rise to no presumption of abandonment. Abandoned property belongs to the finder.

  The finder also keeps treasure trove, which is gold, silver, and, in some jurisdictions, currency, intentionally concealed or placed underground, with indications it has been so long concealed that the true owner has long since died. Treasure trove carries a sense of antiquity. In England, treasure trove belongs to the crown; in the United States, treasure trove goes to the finder.

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