Finding Flashcards
How much do you own?
Cius est solum eius est usque ad coelom et usque ad infernos (up to the heavens and down to hell): a person has rights to the land below the surface and to the airspace over their land, but this is not absolute.
Article 43 1937 Constitution (Bunreacht na hEireann (BnaH) recognises the private right to ownership of goods.
Article 40.3 BnaH places a positive obligation on the State to protect from unjust attack the property rights of every citizen.
Further, from a human rights perspective, Article 1 Protocol 1 European Convention on Human Rights as enacted in Ireland in the 2003 act protects the right to possession, allowing the State to interfere only when legitimate and proportionate to do so.
Exception to the rule is ‘treasure trove’:
a landowner is entitled to what is below the surface with certain restrictions placed on minerals/oil resources or treasure trove (gold, silver, ancient artefacts of value concealed in soil and where owner is unknown) as these belong to the State. Finders of these items may be compensated e.g. Webb v Ireland which concerned the Derrynaflan hoard.
Webb v Ireland
p’s argued that the State did not have any ownership rights over the gold chalice etc. as the doctrine of treasure trove did not apply to the state of Ireland, being a royal prerogative. The State argued that by virtue of Article 2 Free State Constitution and the subsequent Article 49.1 BnH, the hoard vested in the State. This derived from the assertion that Ireland was a sovereign state and was therefore entitled to benefit from the doctrine of treasure trove. SC rejected this assertion holding that no royal prerogative passed to Ireland. However, it did agree that because Ireland is a sovereign state (Article 5 BnaH), the doctrine of treasure trove applies to any finding made on her soil. This was because of the wording of Article 10.2 BnaH “all royalties and franchises”. Subsequently, to clarify this area of Irish law, the National Monuments (Amendment) Act 1994 was enacted and extended the definition of treasure trove to archaeological objects found in the State.
Finder versus owner of property:
If the item found is not considered to be a treasure trove, the finder has the second best title to the item, the true and actual owner having the best title. Importantly it is not the person on whose land it is found that has best or second best title.
Webb v Ireland approved British Airways v Parker
Armory v Delamirie
Elwes v Briggs.
British Airways v Parker
p found a bracelet in a BA lounge, handed it in and asked officials to return it to him were it not claimed the bracelet was not claimed and BA subsequently sold it, making a profit, for which p sued for. Held: a finder has better control of the object than others with the exception of the true owner.
Armory v Delamirie
this is one of the first cases to establish possession as a valuable property right to evidence ownership. P was a chimney sweep who found the jewel. He took it to the jewellers to obtain a valuation. When he asked the jeweller to return the gems, he refused. Ct held that both had rights to the jewel even though neither was the true owner. The only person who had better title was the true owner, who was not known. The priority of rights in possession says that a funder has better title to the property that he finds over everyone else except the true owner. Ct found in favour of p.
The landlord must be exercising control over the premises. If there was a licence and the licensee found something, this would depend on the terms of the licence.
A good example of a lease arrangement is: Elwes v Briggs.
a prehistoric boat was found 6 feet beneath the surface of land which was leased to a gas company and it was found to be the property of the lessor. Ct held: lessor was in possession of the ground, not merely the surface but of everything that lay beneath down to the centre of the earth and thus the p was in possession of the chattel (thing). It makes no difference that the p was not aware of the existence of the boat.
