This question requires detailed analysis on laws relating to ownership of the land and title to items found in or on the surface of the land. As the principle of law states ‘whoever owns the soil owns everything up to the heavens and down to the depth of the earth’. A person having proprietary rights in the land also has the control of it above and below the surface of the ground, anything that is part of the land, and anything that is sufficiently attached to the land.
However this does not mean that a person having control of the land has the right to anything that may be in or on his land. A clear distinction has been drawn between situations where objects are found in the land or on the surface of the land. If an object is found in or attached to the land, the owner of the land has the best claim to it providing that the true owner was not found. Where the object is resting on the ground the position will be different, because the finder of the object then has a better claim to the object. This issue has troubled lawyers long as to who is the lawful owner of items found in or on the land; I shall be discussing the principles of law in question with reference to case law and relevant Statutory Acts Possible claimants who may be entitled to claim the pottery vase found are the Crown, under the Treasure Act 1996; Bryn, as the finder of the object; Carrie as his employer or as a person in occupation of the land; and Zac as the owner of the land.
The pottery vase discovered by Bryn may belong to the Crown as treasure under the Treasure Act 1996. An item that falls within the statutory definition of ‘treasure’ is the property of the Crown.
According to s.1 of the Treasure Act 1996 ‘treasure’ is defined as an object which is not a coin and is at least 300 years old either gold or silver with 10% of precious metallic content. Under para (a) of s.1 (1) coins can also qualify as a treasure where two or more coins from the same find are found and they are at least 300 years old containing at least 10% of precious metal. We do not have sufficient information to suggest whether the coins found would be ranked as a treasure or not, however if it was a treasure the pottery vase would also be likely to be ranked as a treasure. Assuming that the object found is not a treasure.
The next issue is to identify who has the best title to it. The claim to ownership depends on where the object was found. Due to insufficient information it may be assumed that the object was found on the surface of the ground. Bryn as the finder of the object may have a good claim for it. The case of Armory v Delamirie suggests that the finder does not obtain an absolute right to the finding but he can keep it providing that the true owner is not found.
In English law the person who can establish a prior possession to an object has a better claim than the person who acquires the possession later] Costello v Derbyshire Chief Constable. In this situation the issue is whether Carrie, the owner of the land on which the object was found can be considered to have possession of it before it was found. It is possible for Carrie to have possession of the object which is lying around her land even though she doesn’t know about it, but only if she has manifested an intention to exercise control over the land and things upon it i.e animus possidendi. This depends on whether the land where the object is found was open to public or not, thus in the case of Brides v Hawkesworth the courts held that a traveller who found a bag of money in a shop has a better title to it than the owner of the shop because the shop was open to public at the time he found the object.
In parker v British Airways Board, British airways exercised partial control of airport lounge by checking tickets and allowing specific passengers to enter the lounge was held to be insufficient to allow it that it had superior rights to any objects found in the lounge. The item was found in Carrie’s garden which is a private property and Bryn was there only for gardening purposes, the requisite intention to manifest control will be inferred readily (). Carrie may have a better claim than Bryn on the grounds that Bryn was employed by Carrie and as an employer she had a clear right to direct how anything in the garden should be dealt with. Where in the course of employment an item is found by an employee, his employer has a better right to it than the employee; this was the decision in South Staffordshire Water Co v Sharman. This principle also includes independent Contractors City of London Corporation v Appleyard.
As Bryn was employed by Carrie and anything that he finds on the land during the course of his employment, he finds on Carrie’s behalf. Bryn would therefore have mere custody of the item and Carrie would have the legal possession of the item, Carrie is likely to have a better claim than Bryn.
Against this there is a strong counter-argument that the pottery vase was found buried in the ground by Bryn whilst gardening. In English law where an item is found in the ground the landowner (Zac) is entitled to it, providing that the true owner cannot be found. Animus possidendi of the free hold owner of the land is presumed where chattels are attached or buried in the land, so he will have superior rights than the finder of the object parker v British Airways Board. In the case of Elwes v Brigg Gas Company the lease holder could not claim a better title to a pre-historic boat found buried in the soil.
It was held to belong to the freehold owner of the land. In the given scenario if the pottery vase was found buried in the ground then Zac being the freehold owner of the land would have a better title. Alternatively if Carrie could prove that the item had come on to the land during her tenancy, she may claim a better title than Zac. The next issue is to identify who has a better title to the diamond brooch, which Carrie found whilst walking on the land which was owned by Mr Cartwright. Again due to insufficient information it cannot be suggested whether the item found falls under the definition of ‘treasure’ or not so ownership would not vest in the Crown.
Possible claimants who may be entitle to claim the brooch might therefore include Mr Cartwright, as the true owner of the land; and Carrie by virtue of ‘finders keepers’ principle. Assuming that the object found does not qualify as a treasure, we then have to find out who could claim a better title to the brooch. In the given situation the brooch was found sticking out from grass, which might have come up to the surface due to the rain. Where a chattel is attached to the land or buried under the land the freehold owner of the land can generally establish a possession to it prior to that of the finder.
The freehold owner of the land in this situation is Mr Cartwright. To acquire property rights in the item Mr Cartwright has to show that he had manifested intention to exercise control over the land. Where the chattel is affixed to or buried in the land, the freehold owner’s intention is presumed, so Mr Cartwright will have right to the item superior to those of the finder parker v British airways, if the was found in the ground. The next issue is to identify who has a better title if the item was found on the ground and it was never buried under the ground. The party who lost the brooch originally has an earlier property right in the brooch, and if the party came forward it would be able to claim the title to the brooch.
We do not have sufficient information available to conclude whether the true owner of the brooch will be able to claim it or not. The next party which may have a superior claim to assert the title is Carrie.
This scenario can be related to the case of Hannah v peel, where the claimant found a brooch in defendant’s house which was not attached to the ground nor buried under. She gave it to the police who then gave it back to the defendant who sold it. The claimant sought to claim back the possession of the brooch. It was held that the landowner was not aware of the existence of the brooch until it was brought to his attention by the police; therefore he cannot claim any title over the item found.
On the one hand, the result in parker v British Airways Board is consistent with the position in Hannad v peel. British airways did not acquire a property right in the bracelet simply because it was lost and found on its land The court considered the decision in Bridges v Hawkesworth and decided that The point to discuss here is the important general principle that if a party takes physical control of an object, that party acquires a property right in that. This is a fundamental principle of law, so even a thief can rely on it even though he has dishonestly taken control of an object he still acquires a property right in it Costello v Chief Constable of Derbyshire. So in the given situation Carrie clearly has a property right in the brooch, she acquired the right simply by taking control of the item. Just as the chimney sweep’s boy in Armory v Delamrie acquired a property right by taking physical control of the jewel Carrie has acquired the right to the brooch.
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