Finders - Summary Introduction to Law PDF

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Break down of all finders cases ...

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Finders Right of a finder against a true owner Moffat v Kazana 1950 – Mr and Mrs Russel purchased a house. 1961 - Sold house to Mr Kazana. 1964 – Mr Stokes finds tin – takes to police. Police open it up – lots of money. Police give money back to Mr Kazana. By this stage Mr. R had passed away – his estate claimed the money from Kazana. Who was the true owner? The court felt that Mr. Russell was the true owner based on evidence: he took the money with him to the house in his car, furthermore, he showed control over it by accessing it when his son needed money to buy a new car. Mr R Manifested intent to control tin box in roof. The true owner of a chattel found on land has a title superior to anyone else By leaving the tin behind did Mr R divest himself of the title? Abandon? Once things are abandoned, anyone who comes along and picks it up becomes the owner. Must be evidence of mental intent ie. Consciously abandon. Therefore forgetting does not equal abandonment – not sufficient on the facts. Gift? Again you need intent – handing over and knowledge. So, no. Sell? Argument – when he sold the house he sold Mr K everything. Intent to sell is clear but when you sell a house you sell the house not the contents – s 2 Law of Property Act 1925. Law requires that chattels are NOT automatically part of the sale unless you specify them in the sale, so he didn’t sell the tin of money. Thus, the court found Russel the true owner - didn’t divest himself of the title. True owner has stronger title An impasse argument was raised by the defence. It illustrated an example where the money may still be on the land but the true owner can’t come and get it because it would be trespassing. Deadlock: Right to enjoy house without being disturbed v. Right to get possession back. What if Mr K argued that he wasn’t going to touch tin but still didn’t want to receive it. Which right should prevail? Wrangham J’s response was that he doesn’t have to deal with hypothetical situation because current case is different. ANZ Bank case - The bank had an old desk that they no longer wanted. They gave it to a courier - he sold it to a company. The company then sold it to auctioneers who sold it on to the plaintiff. Plaintiff found $11 000 dollars in one of the draws – took the money to the police. Police acted under section 58 of the Police Act where the judge has the jurisdiction to decide who should get the money. Bank had to show that they were the true owner and that they gifted the desk not the money. Did ANZ divest themselves of the title? Clearly an intent to give away the desk but no intent to give away the money. ANZ wins. As soon as you can establish true owner, and there is no evidence of intent to divest ownership, court will most likely support true owner. Gilchrest Watt and Sanderson v York Products – Obiter: if you take “possession” of a good, you must keep it safely and return it. (you are a bailee for the true owner). If something happens like item breaks, TO cannot claim full damages because they were also careless.

Newman v Bourke and Hollingsworth – Possession was defined in this case as voluntarily taking into care. Thus, possession requires act and intent. Warner v Elizabeth Arden - A woman took off necklace in changing room – left it behind. Returned but it had gone – sued shop for not sufficiently looking after it. But court ruled no possession –Court found the store never intended to take care of the necklace so in effect they never took possession of it. Warner unsuccessful.

Rights of a Finder against a complete stranger Amory v Delamirie - Chimney sweeper finds a jewel. True owner never claims it. Took to shop to be valued. Jeweller took stone. Chimney sweep asked for it back – jeweller gave him empty socket. Chimney sweeper took case to court. Case established that finder has a property right against all but the true owner. Ie. property right of a finder is stronger than the property right of a complete stranger.

Rights of a Finder against occupier of land on which goods found Bridges v Hawkesworth - Banknotes are found on the floor of a shop. Handed into shopkeeper in case true owner comes along. Shopkeeper puts ad in paper - no one claims them. Who should they go to? Judge ruled finder has a better right (except for true owner) at moment notes were picked up => doesn’t matter if they weren’t on his property. Occupier can only have a better right if it arose before the finding – prior right eg. if the notes were intentionally deposited with him before the moment of finding. Handing over to occupier and advert does not limit finder’s rights. Occupier can win in some cases. South Staffordshire Water Co v Sharman - Employees cleaning pool found two valuable rings under mud. Possession of land includes possession of things attached to or under the land in the absence of a better title. And it makes no difference that the possessor is not aware of the thing’s existence Therefore once you have to actually interfere with the land/building owner’s property => found item belongs to the occupier. Bridges v Hawkesworth distinguished –claimed notes were found in public part of shop (actually not proven) – could have said simply that in B v H notes were not attached/buried. Judge further widens rule => where manifest (make clear) intent to control land and things on it then also possess things on the land – obiter. The rationale behind this common law is that you don’t want people interfering with your land. City of London Corporation and Another v Appleyard and Another - City of London Corp owned premises - leased out the building to a company who were the occupiers. The occupiers then hired building contractors who employed Appleyard and Another. The building had a basement underground where a safe was found attached to the wall. Inside the safe was 5000 pounds. Inquiries were made and it was established that a previous owner must have just left it there. Held the safe wasn’t attached to the land – it was attached to the building instead. Sharman principle extended- attached to land principle also applied to attached to or under building. The finders tried to argue that sure, you have the safe, but we’ll keep the money – unsuccessful. Court ruled if you possess the safe you should also possess the content - further extension of Sharman.

Hannah v Peel - A house was requisitioned by the Army during WWII. Soldier billeted in house, found a broach in the crevice of a window sill. It was handed to the police but the TO never made a claim. The owner of the house claimed it from the police. The soldier sued saying he had the better right.

Owner argued that if he could have lived in the house he could have shown intent to control. However, the court ruled against him. They distinguished the case from Sharman on the incorrect basis that the finders were employees in Sharman – in fact proven in another case to be irrelevant. Their other basis for favouring the soldier was that the owner was not a true occupier so could not exercise control. Birkett felt that the rule from Bridges v Hawkesworth had been set out as the occupier possesses anything on land from which he intends to exclude others or anything that he has de facto control over. Since the defendant had not been in physical possession of the house – not a true occupier, could not exercise control. -Finder won The person that has physical control of the house has better right over owner of the building Helson v Mackenzies - Mrs Helson leaves a bag containing 422 pounds, in Mackenzie’s shop. Mrs Maclean finds it and hands it in to the shop. Sneaky third person observes this - approaches Mackenzies posing as the TO and claims bag as his own. The shop assistant keeps the bag hidden and asks for a description of it and where it was hidden. The lie is accurate enough and the bag is handed over without a contact address or name being given. Helson returns - sues Mackenzie on two counts - negligence as a bailee and conversion. If the TO had not come back Mrs Maclean would have been able to claim it. B v H negates the possibility that the handbag immediately became the possession of Mackenzie. Furthermore, she acted as a responsible finder and can’t be sued by Helson. Unfortunately for Mackenzies, good intent is no defence for conversion. Court ruled Mackenzies had converted the bag by giving it to a stranger, should have been a more careful bailee. However court felt Mrs Helson contributed to the negligence therefore she only got 105 pounds in damages Grafstein v Holme and Freeman - Grafstein was the employer and owner of the premises. Two employees, Holme and Freeman find old metal box. Holme asks, “What shall I do with this?” Grafstein replies, “Put it on the shelf. It could contain tools.” About a year and a half later, the employees open the box and find $38, 000. H & F argued that as the finders they had a better right to the money. Wasn’t attached in any way/under the ground. Grafstein's arguments: Because it was found in the basement of premises it wasn’t truly lost. Also: as the owner and the occupier of the premises he ought to be entitled prior possession. => exercised control over his premises. Also servants deemed to find for him/find on behalf of him. Fundamental underlying principle: finder must come into possession when no one else has possession. Grafstein came into possession of the box when Holme brought it to him. Possession = physical control + animus possidendi (intent) to control. Ie. Grafstein was the first person to have both physical and mental control over the box. – thus won case Holmes first to physically possess the box but didn’t have the mental control – as evidenced by the words “what should I do with it?” When Grafstein says “Put it on the self”, arguably he clearly exercised mental control but not physical control. Court must have assumed that employer carried out physical task on his behalf. A possession of box – presumption of possession of contents. “It could contain tools” “Put it on the shelf” – showed manifest intent to possess contents and to take custody of them. Hilbert v McKiernan - Occupiers = private golf course. Police officer on duty to warn off trespassers. Finders trespassed onto golf course and found ‘abandoned’ golf balls. Defence: Golf balls have been abandoned, don’t belong to anyone.

However the court held that since there was intent to exclude trespassers this gave the occupiers a prior right to the ‘abandoned’ golf balls. Trespass: Implied license – you can go up to people’s houses and knock on door, however if there is a sign up there you can’t. If it is clear that a place is exclusive, then the occupiers have prior right. Parker v British Airways - A gold bracelet worth 850 pounds is found by Parker in the executive lounge of BA. The lounge has limited access to those holding first class boarding passes and members of the Executive Club. Plaintiff’s claim is based on ancient common law rule that finding something that has been lost or abandoned gives you rights over it as shown by Armory v Delamirie. However, BA argued that they had rights in relation to the bracelet before it was found based on the proposition that you own all lost chattels on your land regardless of whether or not you are aware of them. The court held that the executive lounge, although it did exert control over people, it did not sufficiently manifest intent to exercise control over lost articles. Rationale for rules about rights involving finding: -Prevents free for all -We need to have rules that facilitate reuniting the true owner with goods. If no reward for finder, what incentive do they have to hand it in? Obiter: examples that would manifest sufficent intent to control lost articles include: a bank vault, a private house, and a fenced one quarter section given in Tamworth). In these cases – No sign needed, the aminus possidendi is assumed. On the other hand, obiter examples were also given of situations where you need to make it more clear that intent to control lost articles ie.sign. They include: unfenced front gardens, public parts of shops, petrol forecourt, a derelict building where others have access. Tammworth Industries v Attorney General - The land is leased to Tamworth Industries, owned by Mr Dod. The landholders are Gisbourne Refrigerating Company. Whilst searching for drugs the police found $52,442 in paper bags in an old derelict building. The building was on adjacent land to Mr Dod’s house with no fences or physical separation between Dod’s property and GRC’s land. Tamworth Industries = occupiers of the building. The money was found under the floorboards so it wasn’t attached, nor was it under the land. Supicious notes accompanying the money such as “money for 30 pounds” implied the money was from drug dealing. Did Dods manifest intent to control the building and the things on it? Firstly, although it was obvious the goods hadn’t been abandoned, Eichelbaum J decides that this shouldn’t affect the outcome. In such an instance the TO ain’t gonna come and claim them so they should be considered abandoned. The court didn’t think Dod was necessarily the occupier. The area was enclosed by a wire fence. Furthermore, the court respectfully ignored the fact that the lease had run out – there were big issues over whether he was the occupier or not but Eichelbaum decided to favour Dod. However, the problem for Dod was that the building was derelict and maize pickers had access to it. The problem with derelict buildings is that they are considered long past the stage when one might expect some articles of significance or value to be left in the premises. In terms of the maize visitors, in the space of about a month, more than 500 people had come to pick maize and paid in the form of an honesty box. What’s more, people could enter from the back of the section, over a river, without having to go past Dod’s house. “He did not manage the site on any footing which restricted access to it.” Thus, he failed to manifest intent. Although Eichelbaum’s reasoning is based on control of persons rather than any question of lost articles – Donaldson J says the distinction is important in Parker – there is no evidence at all that relates to the occupier’s intentions towards lost articles. Eichelbaum gives us a picture of a nice spectrum that determines how much intent to control you have to manifest. At the one end is a bank vault (obiter in Parker) or a private house whilst at the other end is a public park. Waverly Borough Council v Fletcher - Public park was being cleaned up by the council. A sign was put up saying it was for specified ball games and recreational use. Another sign had been torn down that said no metal detectors. A guy comes along with a metal detector - finds a medieval gold broach

nine inches under the ground. Lower Court Held that because the council wasn’t literally occupying it they had no occupier rights. Furthermore, the guy was using it for a recreational purpose so he should win. English Court of Appeal Used Hannah v Peel ‘not actually occupying it’ argument. Sharman ‘under the ground’ therefore belongs to possessor of land. The lawful possessor of land possess things attached or under the land. Furthermore, the digging up of the soil was no a permitted use but an act of trespass. Reinforces the fact that if something is attached/under, then owner of land has right.

Rights of a finder employee against employer Parker v British airways - Unless otherwise agreed (contract), finding in the course of employment or agency, and taken into care and control, is done on behalf of employer who acquires finders’ rights. -The exception is a finding that is wholly incidental or collateral to your employment. In this case, he wasn’t in the course of employment because it wasn’t his job to piss around in executive lounges; it was simply incidental. However, if it had been picked up by a BA employee that would have found it in the course of their employment e.g. cleaner finds money in sofa, then employer has right. Grafstein v Holme and Freeman – Obiter: not sure Grafstein could win on a master and servant argument. City of London v Appleyard and Another – City of London could not argue that they were employer. Appleyard and another was by building contractor, therefore, on that argument, the contractor would have the ownership. McDowell v Ulster Bank - Employee was cleaning up bank after hours, found money. Parker – if employed to clean up, course of employment argument applies. Used a different test from Parker. They said the possession of an employee equals the possession of the employer because of the duty imposed by the judge on employees to pick up lost property and hand it on. This is wider than Parker is because it doesn’t matter if it is incidental. White v Alton Lewis - Employee found a jewel on business premises. Used another test. They held that there were three bases of reasoning to support the employer: 1. There is a duty of employee to hand in lost articles; this deems the employer to be the finder. 2. When the jewel was found the employer already had legal custody and possession. 3. When it was handed to the manageress the employer had possession. Contradictory – bad judgment – refer to rationale of Parker. Bryce v Hoare - PO was on duty - Sent to a drive in movie theatre. He did his job - whilst leaving he found a gold ignot at the exit. He brought it back to the station, handed it in and no one claimed it. Under White v Alton, handing in means you lose possession or ownership. Has to prove it was incidental ie. Contrary to employment to be successful under Parker. No hope he would be successful under McDowell. The minority judge said: ‘duty’ to give to employer – gave employer the right. Police argument: Part of his job is to look out for things; it might not be a huge part but is nevertheless part of his job. However the majority of the court felt that his job was not the real cause, it just provided him with the opportunity to be there – didn’t give him any extra chance to find it that the average Joe. Obiter: court said it would have been different if he had a search warrant in a private place – that would have been more ‘cause of employment’ than in a general, public place (which was where he was), therefore considered incidental....