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unwittingly, by having possession of the safe which contained it. Such possession, if possession it can be called, does not of itself confer a right." The decision is a very close one, and its correctness may well be questioned. It would seem that it depends upon whether it is right to say that the plaintiff exercised control and dominion over the money, when the safe was in his possession, in the absence of any knowledge of the money.
In Bridges v. Hawkesworth (11) the plaintiff, being lawfully in defendant's shop, found on the floor a package of Bank of England notes. He gave them to the defendant to keep until the owner claimed them. They were not claimed and three years later the plaintiff demanded them of the defendant, who refused to deliver them. The court held that the plaintiff was entitled to the money, and said that the notes never were in the custody of the defendant nor within the protection of his house before they were found. It was similar in kind but different in degree from finding on the road. Here was a public shop into which all were invited to enter. It seems right to hold that the keeper of the shop had never had possession of the notes, since he had not, while the shop was open, exercised his right to exclude others therefrom; in other words, had not been in exclusive possession thereof. If the notes had remained on the floor while the shop was closed over night, the case, it seems, would have been like the previous one, and the question would be whether being in exclusive possession of the shop would give the
(11) 15 Jur. 1079.
shopkeeper possession of the notes in the absence of knowledge of them.
In Hamaker v. Blanchard (12) the plaintiff, a domestic servant in a hotel, found money in the hotel parlor. She gave it to the defendant, the proprietor, to return to the owner. The owner was not found and the defendant refused to give up the money. It was held that the plaintiff was entitled to the money. This case was like finding on the floor of a shop. The hotel was a public place and the hotelkeeper was not in exclusive possession of the parlor.
§ 87. Same (continued). In South Staffordshire Water Company v. Sharman (13) the defendant was employed with other workmen to clean out a pool on plaintiff's land. While so employed defendant found in the mud at the bottom of the pool two gold rings. He refused to give them to the plaintiff and the latter brought detinue. It was held that the plaintiff was entitled to recover possession of the rings. The court said: “The principle on which this case must be decided, and the distinction which must be drawn between this case and Bridges v. Hawkesworth [note (11) above] is to be found in a passage in Pollock and Wright's Essay on Possession in the Common Law, p. 41: "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
(12) 90 Pa. 377.
the thing's existence. . . . It is free to anyone who requires a specific intention as part of a de facto possession to treat this as a positive rule of law. But it seems preferable to say that the legal possession rests on a real de facto possession constituted by the occupier's general power and intent to exclude unauthorized interference.' That is the ground on which I prefer to base my judgment.” And the court distinguished the case from those in which the thing was cast into a public place, into a place, in fact, of which it could not be said anyone had a real de facto possession, or a general power and intent to exclude unauthorized interference. The case of Bridges v. Hawkesworth was said to stand by itself and on special grounds and on those grounds the case was approved of.
It is submitted that South Staffordshire Water Company v. Sharman is right, and, on the principle upon which it rests, that the case of Durfee v. Jones is wrong. In the latter case the owner of the safe had had exclusive possession and control of it with the intent to exclude unauthorized interference and, therefore, possession of the money in the safe, notwithstanding his lack of knowledge that the money was there.
However, the doctrine of South Staffordshire Water Company v. Sharman has not passed unchallenged. In Danielson v. Roberts (14) the plaintiffs while working for defendants on the latter's premises, found an old tin vessel containing seven thousand dollars in gold coin. It was held that the money had been lost and that the plaintiffs were entitled to it, the court saying: “The fact
(14) 44 Ore. 108,
that the money was found on the premises of the defendants, or that the plaintiffs were in their service at the time, can in no way affect the plaintiffs' right to possession.” No more was said on that point and it does not seem to have received the attention due to it.
The conclusion to be derived from the foregoing cases is that by the English law the owner of the place where the thing is found has possession of the thing, if the place is not a public one and if he has exercised dominion and control over it with the intent to exclude unauthorized interference, and that this is so although he does not know the thing is there; but that the American cases, so far as dealing with the point, treat such lack of knowledge as preventing the owner from getting possession of the lost property.
§ 88. Distinction between property lost and deposited. In all the foregoing cases the property had been lost in the true sense of the word. A distinction is made between such cases and those of finding property deposited intentionally in the place where found.
In McAvoy v. Medina (15) the plaintiff, being in the shop of the defendant, a barber, as a customer, found a pocket book on the table. It was agreed that it had been placed on the table by a transient customer of the defendant and accidently left there. It was held that the defendant was entitled to the possession of it. The property had not been lost at all, but intentionally left there. It was regarded as having been put in the custody and possession of the defendant.
(15) 11 Allen (Mass.) 548.
So, in Ferguson v. Ray (16) where a lessee of land in possession found gold bearing quartz, buried in the land, under conditions indicating it had been purposely placed there, it was held to belong to the owner of the land and not to the lessee who found it. The decision was put upon the ground that the property was not really lost.
$ 89. Rights of trespasser. A trespasser is not entitled to articles found by him on premises where he is a trespasser. Where a stick of timber was thrown by the sea on plaintiff's land, and the defendant entered and carried it away, it was held that, as the defendant was a trespasser, the plaintiff had the better right to the possession of the timber (17).
$ 90. Statutory regulation. The rights and duties of finders are often regulated by statute, which sometimes requires certain advertising of the property as a condition of the finder's title being valid.
44 Ore. 557.