Lost and Found - A Common Law Perspective

The law has long accepted that a finder of a lost object could acquire title against the world
except the true owner, as shown in the case of Armory v. Delamirie1 where a chimney sweep
boy found a ring lying in the street. He took the ring to be valued at a goldsmiths shop, but
while being valued the jewels were fraudulently taken out of the ring. The court held that the
goldsmith must return the jewels or their equivalent value to the boy. It was most remarkably
stated by Chief Justice Pratt that "The finder of a jewel, though he does not by such finding
acquire an absolute property or ownership, yet he has such property as will enable him to keep it
against all but the rightful owner ".2
This principle was later asserted in the case of Bridges v. Hawkesworth3 where money found on
the floor of a shop was successfully claimed by the finder.
The logic of allowing the finder to lay claim to the lost object is based on the idea of priority of
entitlement if an object has been abandoned.4 If the true owner cannot be found then a substitute
owner must be found. Thus, "the common law treats ownership as a relative concept, where
objects are lost or abandoned the law allows the finder to assert a full-blooded ownership right
against everyone except the original true owner.5
Lost objects, irrespective of whether they are treasure, have always interested land lawyers
because in some circumstances they can be regarded as part of the land itself and therefore the
property of the landowner where they were found. The development of the common law right of
the landowner to claim objects found in land began with the case of Ewess v. Brigg Gas Co.6
This concerned a prehistoric boat found buried in land, by a tenant claiming the boat not as
finder but as a landowner holding a long lease. The freeholders claim prevailed, because he
could prove that it was already part of the land when the lease was granted. The value to the state
as an object of archaeological or cultural importance was not considered.
The landowner can claim any object buried in the ground based on possession of the land
irrespective of whether or not he or she is aware that the object is there.7 This is based on the

Armorie v. Dalimirie, (1722) 1 Str. 505; 93 E.R. 664 Ct of KB. [hereinafter Armorie]
Armorie, (1722) 1 Str. 505.
3
Bridges v. Hawkesworth (1851) 21 L.J.Q.B. 75 Ct of QB.
4
A.. Hudgson, Abandonment, INTEREST IN GOODS (N. Palmer et al ed, 2nd edn 1998).
5
S. Panesar, THEORIES OF PRIVATE PROPERTY IN MODERN PROPERTY LAW (2000).
6
Elwess v. Brigg Gas Co. (1866) 33 Ch. D. 562 Ch D.
7
Parker v. British Airways Board [1982] Q.B. 1004 CA (Civ Div).
2

assumption that a landowner owns the land beneath the property and anything buried there,
including lost objects and even minerals, unless expressly excluded, such as gold.8
Where objects found by a stranger are resting on the surface of land, the issue is less clear. A
landowner may have a superior claim to the finder, but only where the landowner has
demonstrated an intention to "control" the land.9 The test of control depends on the nature of the
land. The owner of private land will find it easier to demonstrate such an intention than the
owner of public land, and Parker v. British Airways Board10 highlights the difficulties that such
a duty places on a landowner. Mr Parker, a member of the public, found a gold bracelet in an
executive lounge at Heathrow Airport. He handed it in and on a return visit he claimed the
bracelet for himself. Donaldson L.J. held that the landowners claim depended on showing an
intention to control the land. This meant more than controlling access but included having a lost
property policy that was clear to both its employees and members of the public. British Airways
Board had such a policy, but it was not made available to members of the public. So although
there was "control" over the premises, demonstrated by the restrictions on access to the lounge
for without tickets and checks for items such as guns and bombs,11 this fell short of an intention
to "control" lost objects. This seems unduly harsh, and leaves the law in some doubt as to what
the landowner must do in order to manifest an intention to control property.12

The law of Treasure Trove in England

Where an object is defined as treasure then the rights of finder and landowner are held to be
secondary to that of the Crown. The justification for the Crown taking precedence over the rights
of others can be traced to the statement giving the king a right to precious objects during the
reign of Henry I.13 The basis of this right appear to lie in the ancient doctrine of bona
vacantia,14 which allowed the Crown to claim goods without a traceable owner.20 The reasons
are uncertain, but the provision of revenue is one theory.21 This accords with the English
approach to the application of bona vacantia to objects of treasure trove that incorporates an
element of selection, excluding objects without a precious metal content. By contrast, the

R. v. The Earl of Northumberland (1567) 1 Plow. 310; 75 E.R. 472 Ct of KB.

Parker v. British Airways Board [1982] Q.B. 1004. [hereinafter Parker]
10
Parker [1982] Q.B. 1004.
11
Parker, [1982] Q.B. 1004 at 1019.
12
Hickey, PROPERTY AND THE LAW OF FINDERS (2010).
13
G. Hill, TREASURE TROVE IN LAW AND PRACTICE.
14
A.P Bell, Bona Vacantia, INTERESTS IN GOODS (N. Palmer et al, 1993).
9

Scottish approach to bona vacantia treats ownerless objects of moveable property as property of
the Crown irrespective of value, applying the principle quod nullius est fit domini regis.15 In
Scotland the claim of the Crown rests on a default position that property "cannot cease to be
owned and if no one else owns it then the Crown does".16
Until 1997 the common law rules of treasure trove governed the right of the Crown to certain
lost objects.
The extent to which the Crown could seize the treasure discovered by its subject sis defined as
follows "Gold and silver artefacts, coin and bullion if hidden, by a person unknown, but not
abandoned, belonged to the Crown unless and until the true owner made good his claim; the law
held that such objects may be seized into the Queens hands by a coroner."17
This definition was refined by others, notably Coke and later Chitty18 and depended on three
matters. First, that the object had a sufficiently high percentage of precious metal; secondly, that
the object had been deliberately hidden by the owner with intention of recovery but not
recovered at a later date; and finally that the owner or his or her heirs were unknown. The law
was complex and difficult to apply, and any rules that did exist had evolved in a haphazard and
unstructured way. In Emdens words:
"The practical difficulties in its administration which may arise are due not so much to the
complexity attaching to particular cases as to the haze in which the origin of the law rests, and to
the casual manner in which the rules have taken shape."19
The most problematic of the issues was the proof of deliberate concealment by the owner, who
had lived many centuries before the object was discovered. At best, such evidence would be
circumstantial. Even assuming that the objects had not been disturbed over centuries, evidence of
deliberate concealment would often be equivocal, and enquiry into whether the objects had been
deliberately concealed or lost was often futile. Where there was doubt as to whether the object
had been hidden an inquest was held by the coroner. If it was held that the object had not been
deliberately concealed the finder could keep the object, because treasure trove did not extend to

15

D.C. Miller, Positive Prescription of Corporeal Movables, (2011) 15 Edin. L.R. 452.
Ibid.
17
Bracton, DE LEGIBUS ET CONSUETUDINUS ANGLIAE (1922) as cited in G. Hill, TREASURE TROVE IN LAW AND
PRACTICE.
18
J. Chitty, PREROGATIVES OF THE CROWN as cited in G. Hill, TREASURE TROVE IN LAW AND PRACTICE.
19
C. Emden, The Law of Treasure Trove Past and Present (1926) 42 L.Q.R. 368.
16

lost or abandoned objects.20 In such cases the ordinary rules of "lost and found" objects would
apply. Addressing the difficulties presented by proof of concealment, Farwell J. held that:
"Courts must presume the intention to hide or to abandon from the relevant surrounding
circumstances, and the motives that usually influence persons acting under such circumstances,
according to the ordinary dictates of human nature.21
The law therefore presumed that the objects had been hidden with an intention of recovery and it
was for the finder to disprove it by whatever evidence could be produced.
The finder had an obligation to inform the coroner of the district where it was found if there was
any possibility that an object was treasure trove, and objects falling within the definition passed
to the Crown.22 For centuries the Crown was much more interested in the monetary value of
treasure trove than its historical or archaeological value. Any objects found, particularly coinage,
were melted down to provide revenue for the Crown. It was not until the eighteenth century, with
the growth of academic research, that it was accepted that objects of treasure trove were valuable
in their own right. As Hill observed:
"It dawned upon the mind of the government that treasures had some other use than to be melted
down and turned into coin. They ought to be studied for their own sake."23
The case of Attorney General of the Duchy of Lancaster v. GE Overton (Farms)
Ltd24 highlighted the uncertainty of what constituted sufficient precious metal content. A number
of coins had been found by a metal detecting enthusiast in a field that were found to be treasure
trove by the coroner. The landowner challenged the finding, claiming that the silver content of
the coins was too low, as treasure trove required the precious metal content to be high. Dillon J.
had to fall back on the definition in Elwess v. Brigg Gas Co25 in order to ascertain what the law
considered to be appropriate. He dismissed the view of Blackstone, which was that the Crown
had a prerogative over any money or coin26 and held that the Crown could only claim objects
made of gold and silver and not those made of baser metals. This view demonstrates that there
was no consistent view of what constituted a sufficiently high precious metal content.
20

R v. Hancock, [1990] 2 Q.B. 242 CA.

Attorney General v. British Museums Trustees [1903] 2 Ch. 598 Ch D at 609.
22
G. Hill, supra note 13.
23
G. Hill, supra note 13.
24
Attorney General of the Duchy of Lancaster v GE Overton (Farms) Ltd [1981] Ch. 333; [1980] 3 All E.R. 503 Ch
D.
25
Elwess v. Brigg Gas Co, (1886) 33 Ch. D. 562.
26
Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND 1765-1769, (1979).
21

Much of his criticism lay with the fact that the law on treasure trove showed a pitiable
inadequacy as an instrument of archaeological preservation.27 .

27

Palmer, Treasure trove and the protection of antiquities (1981) 44 M.L.R. 178, 183.