The Law of Finding Flashcards
Finding: Determining Ownership
In general, there are four potential claimants:
1. True Owner
2. Occupier
3. Finder
4. The State (see Webb and the National Monuments (Amendment) Act 1994)
In any question on finding, it is necessary to consider all of the potential claims to the found object, even if you think one party is likely to be successful)
Objects found below the surface of land
- Pollack and Wright (1988) in an essay on Possession in the Common law (Oxford: Clarendon, 1888) expressed the view that if an item was found in/below the surface of the land, it was attached to the land and therefore the landowner had the best claim to it:
- “The possession of land carries with it in general, by our law, possession of everything which is attached to or under that land, and, in the absence of a better title elsewhere, the right to possess it also. And it makes no difference that the possessor is not aware of the thing’s existence.”
What happened in Elwes v. Brigg (1886)?
Facts:
- A gas company held a 99-year lease over the land (granted in 1885) and found a prehistoric boat when digging on the site.
- The boat was six feet below the surface.
Held:
- The freeholder of the property had ownership over the boat because it was found in the land. Note the year in this case.
What happened in City of London Corporation v. Appleyard [1963] ?
Facts:
- Banknotes were found in a safe concealed in the building. A dispute arose over who owned the banknotes.
- It was found that the party who were leasing the building since 1889 (80-year lease) had a claim due to the fact that they were in possession of the property.
- However, there was a clause in the contract between City of London Corporation and the possessors.
- “Every relic or article of-antiquity rarity or value which may be found in or under any part of the site or in or upon any remains-of former buildings standing thereon, shall belong to the corporation and immediately, upon the finding of any, such relic or article of antiquity rarity or value the same shall be carefully and without avoidable damage removed by and at the expense of the contractors”
- Due to this clause the notes/their value belonged to the Corporation.
What happened in Waverly BC v Fletcher 1996?
Facts:
- A brooch was found in a public park owned by Waverly Council. Fletcher found the item using a metal detector. It was some 9 inches below the ground. There were signs warning park users not to use metal detectors, but these had been torn down at the time.
Held:
- The Council had the better claim over the brooch because it was found in the land and therefore was part of the land.
- “that, having regard to the distinction between the principles applicable to objects found in and on land, where an object was found in or attached to land, the owner or lawful possessor of the land had a better title to the object than the finder, and where the object was unattached on land the owner or lawful possessor only had a better title than the finder where he had exercised such manifest control over the land as to indicate an intention to control it and anything found on it…”
What happened in Armory v. Delamirie (1722) ?
Facts:
- A chimney sweep found an item of jewellery in a chimney.
- The chimney sweep brought it to a jeweller to be valued but the jeweller kept it for himself.
- The boy sued to get the item back.
Held:
- The boy, as finder, had a better claim to the item then the jeweller
What happened in Hannah v Peel 1945?
Facts:
- A soldier (Hannah) found a brooch in a room in the sick bay of a house which had been requisitioned by the army.
- The brooch was found “loose in a crevice on the top of a window frame”.
- The soldier the owner of the house (Peel) had never occupied the house himself.
Held:
As the landowner had never been in possession of the house, the soldier had the better claim to the object as finder.
- “There is no doubt that in this case the brooch was lost in the ordinary meaning of that term, and I should imagine it had been lost for a very considerable time…But the moment the plaintiff discovered that the brooch might be of some value, he took the advice of his commanding officer and handed it to the police. His conduct was commendable and meritorious. The defendant was never physically in possession of these premises at any time. It is clear that the brooch was never his, in the ordinary acceptation of the term, in that he had the prior possession. He had no knowledge of it, until it was brought to his notice by the finder.”
What happened in Parker v British Airways Board [1982] ?
Facts:
- A passenger found a bracelet in the lounge of British Airways at Heathrow.
- They handed it in to the staff stipulating that if no one claimed it, they would like to keep it themselves.
- British Airways never found the original owner but sold it for £850.
- When Parker discovered this, he tried to claim the bracelet for himself.
Held:
- That as the bracelet was found in a public area that British Airways did not exert sufficient control over, in the absence of finding the original owner, Parker had the better claim to the bracelet.
What was set out by Donaldson MR?
- The occupier will however have a “superior right to those of the finder…if he has manifested an intention to exercise control over the building and the things which may be upon it or in it.”
- Donaldson MR set out that if:
1. Finder lawfully on land/building; and
2. Article not attached or buried in land; and
3. Takes article into his control and care; And
4. Makes effort to give item back to true owner… - Then, other than the true owner, the finder has good title in the article unless the occupier of the property has exerted sufficient control over the area. (But the State has a claim if it is of historical significance)
Principles of Finding 2: The State
What were the facts of Webb v Ireland 1988?
- Webb and his son found the Derrynaflan Hoard which included a chalice.
- The Hoard was worth a large sum of money (valued at the time as worth ￡5,536,000 (punts)).
- They did not own the land they found the chalice on.
- They had permission to be on the land but not permission to dig on it.
- As at the time the ruined church was subject to a preservation order, the Webb’s would not have been able to obtain permission to dig on it from the landowners.
- They handed the find into the National Museum with a note from their solicitors stating that they were placing the find in the care of the National Museum until the ownership of the find had been determined.
- The National Museum promised to treat the duo honourably.
- The State offered the Webb’s £10,000 which was refused.
- The State then paid the two landowners £25,000 each for any interest they might have in the find.
What did the State argue in Webb v Ireland?
- The landowners had the better claim and the State had acquired the claim by paying the money.
- The State had a better claim due to the British doctrine of treasure trove which vested all interest in gold and silver found without a known true owner in the State.
What happened in the High court in Webb v Ireland?
At High Court the State lost.
1. The Court deemed that the State only held the treasure for safekeeping under the law of bailment and therefore could not claim ownership for themselves.
2. The prerogative of treasure trove had not survived the creation of the Irish State. The Supreme Court had previously decided this in Byrne v. Ireland [1972] IR 241.
- The High Court ordered the treasure to be returned to the Webb’s subject to payment for the work the National Museum had done to the objects.
What happened in the SC in Webb v Ireland?
- It was possible under the law of bailment for the bailee to establish superior title to the goods. Therefore, the interpretation of the law of bailment by the HC was incorrect.
- However, Treasure Trove had not survived the enactment of the Constitution.
- Despite this, based on Article 5 of the Constitution which describes the Irish State as “a sovereign, independent, democratic state” and Article 10 which allows the State to claim ownership of natural resources, the State had a right to claim ownership over treasure found in the State.
- There was some uncertainty regarding whether the landowners had the superior claim to the treasure or not.
What was the judgement of Finlay CJ Webb v Ireland?
Landowners had the superior right to the finders and the State had acquired this right by purchase.
What was Walsh J’s Judgement in Webb v Ireland?
- The Landowner’s title was not as strong as the true owner and the State had not acquired the treasure by paying out the reward to them.
- “Necessary ingredient of sovereignty of a modern State is that the State should be the owner of objects which constitute antiquities of importance which are discovered and have no known owner and therefore the much more limited right of the prerogative of treasure trove known to the common law should be upheld not as a right derived from the crown but rather as an inherent attribute of a sovereign State”
- Howlin & McGrath, Lyall on Land Law (Dublin: Round hall, 2018) criticise the judgment in its interpretation of the Constitution to provide a right to the State in found gold and silver treasure.
o “It suffices to note that the prerogative power identified in Webb itself seems to have initially mirrored the traditional prerogative power. This might strike a cynical mind as a remarkable coincidence, especially in the context of the constitutional revolution brought about by the enactment of the rest of the 1937 Constitution.” [31]
