Finders Keepers, Losers Weepers!

We have all heard the common phrase 'finders keepers, losers weepers,' and have no doubt used this as a defence ourselves at a young age. Did you ever wonder if this pretty conclusive statements actually reflects the Irish law? Does the age-old adage steer people astray as claimed by Walsh (2018)?

Of course, it's not as straightforward as we might of hoped, however there is much to be said for the statement. The law is expressed under Property Law and is requires us to look at several factors and leading case law in this field. There are three separate factors which I will explore in this post, 1) items found 'above the surface', 2) items found 'below the surface' and finally 3) the law surrounding Treasure Trove in Ireland.

Above the surface

In a finding dispute, it would appear that "finders keepers" generally reflects the common law stance which is that, broadly speaking, the person who finds an item acquires 'good title' against everyone except the true owner of the item. The case of Moffatt v Kazana established this. A famous case in findings found above the surface is the case of Armory v Delamirie [1722]. In this case, a boy who was employed as a chimney sweep, found a jewel while working. The boy took the jewel to a local jeweller for sale. Upon discovering the value of the jewel however and the story behind how the boy came to have it, the jeweller decided to take the jewel and refused to pay for it. The boy initiated proceedings against the jeweller, expressing in argument that he had 'better title' of the jewel than the jeweller. The Court ruled in the boy's favour and confirmed the position that while the finder does not obtain absolute title over the item, he has a right which would allow him to keep the item against everyone except the true rightful owner.

There are of course exceptions to this quite broad position. The first is that if the finder has dishonest intentions as to a) how they sought to obtain the property and b) what they sought to do with the property, then this will weaken their position in action. For example, if the finder is a trespasser on the land in which they found the item, this would weaken their case and the person who owns the land in which the trespasser is trespassing on will have better title over the item found. The case of Parker v British Airways Board [1982] reflects this exception, whereby the Court declared that wrongdoers (i.e trespassers) should not benefit or be awarded for their wrongdoing. Of course, taken this statement and aligning it with the law on adverse possession, it would seem that the Courts tend to take different positions on trespassers in light of the legal action pursued. However, that's a matter for another blog post!

A further exception to this rule is the question of whether the occupier of the land in which the item was found has a better standing and title over the item found. Does the owner of the land, or the occupier of the property and land have better title in such circumstances? In order for either landlord or tenant of land where an object was found to have a superior title over the finder (in the case where the finder is not a trespasser), the person must exhibit an intention to exercise control over the building and any articles found on it. If we go back to the above case of Parker [1982] and apply this exception framework, it is apparent that the finder succeeded in the absence of British Airways failing to adequately manifest an intention to exercise control over anything found on their land and property. It should also be noted that the finder in this case (who found a bracelet) made significant and material attempts to find the true owner of the bracelet and it would appear that the Court look upon such actions favourably.

This is the position in Ireland. If we look internationally, other jurisdictions, such as Australia, have been less likely to hold in favour of the finder. In one leading case in Australia, NCA v Flack, the police, who were at Mrs Flack's house investigating her son, found a substantive sum of money on Mrs Flack's land. Mrs Flack expressed that she had no knowledge of the money being present on her premises. Her son was not charged with any offence. Mrs Flack subsequently sued for money from the NCA. The Court highlighted that a person with exclusive possession over a private property should exercise control over every element of that home. Contrastingly however in the case of Tamworth Industries in New Zealand, the Court held (in a similar manner to Parker) that Tamworth Industries failed to discharge the burden of proving that they manifested intention to exercise control over property lost and found on their land by a separate party.

Therefore, though varying across jurisdictions, the case in Ireland is in favour of the 'finders keepers' mantra, for property found above the surface of the land. As discussed, several other factors are important when bringing proceedings, such as the honest intention of the finder and the right of the property owner to exhibit an intention to all findings found on their property.

Below the surface

If the item is unearthed as part of the integral framework of the land, then the Irish Courts have historically held in favour of the freeholder/leasehold as having superior entitlement to the possession over the original finder. A general principle exists in Irish case law which states that any items affixed to the land of the owner is generally entitled to the owner, and as such they will have legal ownership of the item. If the item in question is easily removable from the land, or it appears to be half-in-half-out, then this would usually be considered as being above the surface. This issue is demonstrated in the case of Elwes v Brigg [1886], Elwes was the freehold owner and leased his land to Briggs. Briggs subsequently excavated the land and found a prehistoric boat below the surface. The Court held in favour of Elwes as the freehold owner of the land, stating that Elwes's claim to the boat was superior to Brigg's, who was the finder of the boat. Chitty J in the case summarised that:

"[Elwes] was in possession of the ground, not merely of the surface, but of everything that lay beneath the surface down to the centre of the earth, and consequently in possession of the boat. . . Obviously the right of the original owner could not be established; it had for centuries been lost or barred . . . [Elwes] then, had a lawful possession, good against all the world, and therefore the property in the boat."

Further, if we look at the circumstances of the case of South Staffordshire Water Company v Sharman [1896], the freehold owner had employed Sharmon to engage in a job to remove mud from the bottom of a pond. While carrying out this work, Sharman found two gold rings. The Court held in favour of the freehold owner, emphasising the case of Elwes that as the items were found below the surface of the property, this gave superior title to the Plaintiffs. In the more recent case of Waveny BC v Fletcher [1996], while Mr Fletcher was detecting metal in a park, he found a broach. The Court ruled in favour of the freehold owner of the park, declaraing that they had better title to the broach as it was found' in the land' (below the surface). Another factor which was considered in this case was that Mr Fletcher was trespassing on the land, as the park was intended for recreational use and not for metal detecting. As such, Mr Fletcher was held as a trespasser in these circumstances and the freehold owner of the park was given title over the broach.

Determining if the item was found above or beneath the land can prove difficult in indefinite cases. This is for the Court to decide in borderline cases. In his article on finding disputes, David Hoath notes how a conveyancer should always be cautious to assume rightful title and express intention over items found on her land. Hoath also raises an interesting distinction between items found on the land of a landowner whose tenant has occupied the land for a substantial period of time ('leaseholder'). Such finding dispute was expressed in the case of Hannah v Peel. The facts of this case were that a soldier who was renting a property from the freeholder found a broach in the premises and brought proceedings to state that he had better title over the freeholder. The Court herd that the freeholder had never physically occupied the house. As such, the Court was influenced by this fact and the Court favoured the leaseholder as having superior title over the finding.

The Law on Treasure Trove

It is of interest here to also layout the law on treasure trove as it appears in Irish law. This is because the historical nature of the item found may prevent either the finder, the leaseholder, the freeholder and even the true owner from having title to the item. The old common law doctrine of treasure trove states that if an item was made of gold or silver and was buried with the intention of it not to be recovered, then it was the property of the Crown by virtue of the royal prerogative of treasure trove. The original principal behind this was economic, in order to raise the revenue of the Crown.

Though archaic in this blatant economic sense, the law of treasure trove prevails today, albeit with a better justification. Today, treasure trove can be used for preserving artefacts of archaeological and historical significant, usually for their display in National Museums or Galleries.

The case law in this area is few and fare between, however two prominent cases have emerged. In the case of the Attorney General v Trustees of the British Museum, the Royal Irish Academy claimed, under treasure trove, the finding of Celtic items that were encrusted in gold. On the other hand, the British Museum argued that, because the items were given to the God of the Sea as an 'offering', the grounds of treasure trove were insufficiently argued. However, the Court were not persuaded by such argument as subsequently held in favour of the Royal Irish Academy. The case is important as it clarifies that it is up to the party claiming that treasure trove doesn't exist to rebut that presumption. The introduction of the National Monuments (Amendment) Act [1987] was established to rectify the issues presented in the case of Webb v Ireland [1988]. Section 2(1) of the Act defines a treasure trove as:

“without prejudice to any other rights arising in relation to archaeological objects found before this section there shall stand vested in the State the ownership of any archaeological object found in the State after the operation of this section where such object has no known owner at the time of finding.”

The case of Webb v Ireland [1988] involved a father and son without permission unearthed the Derrynaflan Hoard by using metal detectors. They subsequently brought the items to the National Museums on the pretence that they would be "honourably treated". The Court ruled that the items were treasure trove however offered each of the Webbs' £25,000 as award for finding the archaeological artefact. The Webb's subsequently sued for return of the artefact to which they were unsuccessful, and the Court of Appeal were clear on their position of the Webb's as trespassers and as such, owed no claim of title to the possession. However, as they were informed of that they would be "honourably treated" this did establish a legitimate expectation for compensation which made the statement a legally bound one.

In conclusion, the law on findings is more complex than we led ourselves to believe when we were children. However, there is substantial grounds to the claim, should the item be found on the surface of the land. As eloquently expressed by Harris (1961), "the topic of loss and finding... has provided some of the most difficult problems on possession in English law". Though not to the same extent, it is apparent the difficulties one encounters in this area of land law.

- Me trying desperately to learn the FE1 courses without any mark-scheme.