Simran_Property Law_Synthesized Notes_Fall 2021

Lecture 6: October 14, 2021 (p. 104-132) Topic: Possession and the Finders of “Lost” Objects CHAPTER 2: The Concept of “Possession” 2. Possession and the Finders of “Lost” Objects Chapter 2, Section 2 | pages 104-104  In 1988, a lawyer owned a house and was doing renovations in it  Contractors started ripping out plaster  Paper money started raining down on renovation workers, eventually totalling $46,000-$50,000  Claims by owner of house, contractors, and daughter of former owners of the house saying it belongs to them  Settled and nature of settlement was never disclosed  But how do you determine the “true owner” (a) Finders and First Possession Chapter 3, Section 2.a. | pages 104-117 A. FINDERS AND FIRST POSSESSION Armory v Delamirie  Plaintiff is chimney-sweeper’s boy & found a jewel  Defendant owned a goldsmith’s shop  Plaintiff brought jewel into shop to know what it was  Apprentice pretended to weigh it & and took out the stones  Master offered the plaintiff three halfpence for the stones, but plaintiff refused and requested the stones back  Apprentice returned the bag without the stones in it 1. Finder of jewel has such a property as will enable him to keep it against all but the rightful owner and may maintain trover 2. Master is answerable for the apprentice’s neglect 3. Value of jewel should presumed to be value of the best jewels to measure damages Discussion Notes:  i) The Principle of First Possession in Context o First possession principle: a finder does not acquire absolute ownership, but he has a “property right” that is better than all but the rightful owners  ii) The Remedy of Trover  Plaintiff sued in trover o Trover: traditional common law action available as a remedy for an interference with chattels  Chattels : regular possessions that are not attached (or affixed) to real property in any way (ie. A desk, a coffee maker, a book, etc  There are many different procedural actions under common law to (re)possess chattels that have been wrongfully taken o Trover : used in cases which there was an interference with the plaintiff’s chattels in circumstances that permitted the law to adopted a fiction that the wrongdoer “found” the chattels  Remains a cause of action in Ontario, although there has been many cause for reform o Detinue o Conversion o Trespass to chattels  Employers’ Liability for Actions of Employees

o This case also confirmed an employer’s liability for actions of an employee or apprentice  Now extends to other situations as well, in 1989 Jansen v Platy Enterprises, the SCC held an employer liable for sexual harassment when one employee harassed another Parker v British Airways Board (1982) (1982) 2 WLR 503 (CA) FACTS Procedural History: Plaintiff sued based on common law rule that act of finding a chattel which has been lost and taking control of it gives the finder rights with respect to that chattel. Trial court found in favour of the plaintiff and the defendant appealed. Parties : Plaintiff: Alan George Parker: Defendant: British Airways Board Facts: Mr. Parker was in an international executive lounge in Heathrow Airport, where he found a gold bracelet lying on the floor. Parker was lawfully in the lounge. He immediately gave the bracelet to an anonymous official of the defendants (not the police), along with a note of his name and address, asking the bracelet be returned to him if it was not claimed by the owner. The official gave the bracelet to the lost property department of the defendants. The owner never claimed the bracelet and the defendant then sold it (instead of returning it to the plaintiff) for £850. ISSUE When a lost item is found, who maintains property rights to the lost item, the finder or the occupier of the property? RULE The finder retains property rights and entitlements. The occupier only retains rights to a chattel not attached to the property if before the chattel is found he has manifested an intention to exercise control over the building and the things which may be upon it. ANALYSIS Parties’ Arguments : Plaintiff: argument relies heavily on the decision in Bridges v. Hawkesworth , which held that finder’s rights should be above the rights of the property occupier in a public place, such as a shop. The shop owner cannot be given property rights just because he is the property owner. Defendant: Bridges v. Hawkesworth can be distinguished. Relies heavily on South Staffordshire Water Co. v. Sharman , which claims that “where a person has possession of house or land, with a manifest intention to exercise control over it and the things which may be upon or in it, then, if something is found on that land, whether by an employee of the owner of by a stranger, the presumption is that the possession of that thing is in the owner of the locus in quo .” p 110 Reasoning : Donaldson LJ laid out the rights and obligations of both the finder and the occupier (which I’ve included below), and then applied these to this case. He found that because the plaintiff was not a trespasser, and was acting in honesty, he had full finder’s rights and obligations. He discharged the obligations by handing the bracelet to the officials, but his entitlement was not displaced by this action. The defendants did not assert the requisite control over the lounge and all things in it (it was a public place) in order to be given property rights as occupiers of the premises. The defendants did not make any attempt to show their intention to exercise control over lost property before the bracelet was found. CONCLUSIO N Decision : Appeal is dismissed. Plaintiff retains property rights over the bracelet; “finders keepers” Dissent/Concurrences : There were two concurring opinions. Eveleigh CJ reiterated that possession in law requires the two elements of control and animus possidendi (intention to possess). He argued an occupier must “manifest” an intention to control. Sir David Cairns also noted that “although the airport allowed only a fraction of the

public to enter the executive lounge, this limited access did not reach the level of exclusivity that is found within a bank vault or private residence.” (114) Notes Rights and Obligations of the Finder: 1. The finder has rights as long it has been abandoned or lost and he takes it into his care and control 2. Very limited rights if he takes it into his care or control with dishonest intent or in the course of trespassing 3. Finder does not have absolute ownership in the chattel, he simply has a right over anyone but the true owner 4. Any employee who finds a chattel while working, takes it into their care and control on behalf of their employer 5. Finder has an obligation to try everything they can to find the true owner of the object Rights and Liabilities of an Occupier 1. Occupier has rights over the finder over chattels attached to the land or building , regardless of whether the occupier is aware of the presence of the object 2. Occupier has rights superior to a finder over chattels upon or in , but not attached to the land/building, IF before the object was found, he has manifested an intention to exercise control over the building and the things inside it (ie. a bank vault or someone’s home) 3. An occupier who exercises control under (2) has an obligation to ensure that lost chattels are found and returned (or attempted to return) to their true owner, and to take care of it in the meantime. 4. “Occupier” also applies to those occupying a chattel, like a ship, motor car, etc.

Discussion Notes:  i) Courts and the Evolution of Legal Principles o Parker an example of a common law court consciously contributing to evolution of legal principles about the concept of possession  ii) Rights of Finders and Occupiers o Obviously, difficult to reconciles principle of “finders keepers” with the rights of the occupier of the land o Some have argued against the way Donaldson reconciled them o Seems arbitrary to argue that as soon as something has been embedded into the property (like stepped on and pushed under the ground), the occupier has more of a right to it than the finder  iii) Possession, Policy Issues, and the Duties of Finders o Parker: first time duties of occupiers who may discover lost objects on their property were defined o Millas v. BC: someone found $937,000 in cash in the garbage  He immediately called the police, who concluded there was no evidence that the money represented the proceeds of a crime and they were unable to identify the true owner  Because of finder’s honesty, the court allowed the finder’s application for return of the money  Stated “it was important to encourage finders to fulfill their obligation to notify the police in such cases.” (116) o Thomas v. Canada : Mr. Thomas received an envelope in the mail by accident that contained $18,000 in cash  Handed the money over to the RCMP  Intended recipient did not claim money  Thomas tried to regain control over money  Federal gov argued that “as a matter of policy, Thomas should not profit from his wrongdoing (that is, even though it was accidentally placed in his mailbox, he should not have opened the envelope).” (116)  Court rejected this claim, because of the level of criminal activity  Found for Thomas, since it was not a big crime and he had subsequently attempted to find the true owners of the money  iv) Interpreting Judicial Decisions in the Scope of Legal Advice o How would you advise a shop owner about lost items, given holding in Parker?  v) Litigation and Negotiation as Processes for Problem Solving o Interesting that British Airlines sought an appeal, given the costs of such an appeal and the minimal sum that was on the line o Other reasons for the appeal? Not financial? o Did Parker and the airline attempt to negotiate a settlement? (b) Joint Finding: A Critical Perspective? Chapter 2, Section 2.b. | pages 117-124 B. JOINT FINDING: A CRITICAL PERSPECTIVE?  Entitlement to an object when more than one person is involved in the discovery  Sometimes: permit all members of the group to share bounty Keron v Cashman 33 A 1055 (NJ Ct Ch 1896) FACTS Five young boys found an old stocking and were playing with it when it broke open to reveal $775 in bills. Crawford stated that he had found the stocking and then Cashman snatched it from him. The other boys declared Crawford had thrown it down and then they had started playing with it. ISSUE Did the boys find the cash jointly or did Cashman have a possessory interest in the cash before they began playing with the stocking? Who is entitled to the cash? RULE When it is unclear who, specifically, was the person to find and assert possession over a

chattel, the finders must be given joint rights to the chattel. ANALYSIS Because Cashman and Crawford had never intended to examine the stocking for its contents, it is irrelevant who was the first to find the stocking and possess it. The money within the stocking was not found until the stocking was broken open during play, and therefore was in the possession of all, and therefore they are all equally entitled to the money and it must be equally divided between them. CONCLUSIO N Notes Edmonds v Ronella 342 NY Supp 2D 408 (SC 1973) FACTS Two boys found an envelope containing $12,300 cash. An older girl came to their assistance. The boys accompanied her to her house, where her parents called the police. Police gave her a receipt, which described her as the sole finder. ISSUE RULE “A finder has been defined as the person who first takes possession of lost property but to be a legal finder, an essential element is an intention or state of mind with reference to the lost property.” (119) ANALYSIS Basically, the lost property was not found until the plaintiffs and the defendant had removed it from the parking lot. CONCLUSIO N Joint finders entitled to equal share of the money, so each ⅓ Notes Popov v. Hayashi 2002 WL 31833731 (Cal Sup Ct) FACTS Parties: Plaintiff: Alex Popov; Defendant: Mr. Hayashi Facts: while at a baseball game, a baseball was hit in a home run into the area of the stands occupied by both Mr. Popov and Mr. Hayashi. This ball was understood by all who attended the game as likely to be worth a lot of money. The ball landed in the mitt of Mr. Popov. A mob then descended on Popov, and in the violence the ball fell out of his mitt and rolled away. Hayashi was also pushed to the ground by the mob and he did not participate in the violent actions of the mob. He was able to escape the mob and picked up the ball and put it in his pocket. ISSUE Did Mr. Popov have possession of the baseball? If he did not, does this mean Hayashi did have possession of the ball? RULE “ Where an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned personal property and the effort is interrupted by the unlawful acts of others, the actor has a legally cognizable pre-possessory interest in the property. That pre-possessory interest constitutes a qualified right to possession which can support a cause of action for conversion.” (122)