Qualifications on the Acquisition of Right
of Right
Occasionally it has been suggested that in certain circumstances a finder’s acquisition of right should be qualified, denied or necessarily defeated, notwithstanding the ability of the finder to establish her possession of the chattel. Specifically, it has been thought relevant to the question of acquisitionthat the finder was (a) dishonest; (b) a trespasser to land; (c) an employee; or (d) on private premises at the time of the find. This chapter considers the extent to which the cases provide support for the view that a finder’s acquisition of right should be qualified in these circumstances. It argues that in no circumstance are there grounds for holding that a finder acquires anything less than those rights ordinarily consequent on possession, though sometimes she incurs additional liabilities or will necessarily be vulnerable to a better right. This establishes a very wide proposition as the basic doctrine of our property law relating to finders: in every case where a finder takes possession of goods, she acquires in respect of them an ownership interest.
Dishonesty
The majority of our decided finding cases involve finders who were considered by the courts to have behaved commendably or honestly, usually because the finder reported the loss and/or made some effort to trace the loser.[1] What difference does it make where the contrary is true, and a finder forms the intention of concealing her find and keeping it for herself? A necessary first observation is that such a finder risks criminal liability for theft. Indeed, the belief that it was right to punish those who fraudulently converted their finds was a significant factor in the development of larceny at common law. In Chapter 1, we saw how cases like Thurborn incrementally stretched the fundamental concept of ‘taking’, and in the end produced a specific offence of larceny by finding. The Theft Act 1968 has preserved the substance of these rules,[2] and a prosecution lies against the finder who appropriates goods with the relevant dishonest intentions.[3] In the next chapter we argue that the existence of this offence provides an incentive for finders to behave responsibly, and in particular, when combined with other rules of property and tort, encourages the reporting of found goods to the police. Here the concern is with the proprietary effect of dishonesty. Two contentions are evident from our books: first, that the finder’s right is somehow qualified when she takes with dishonest intentions; secondly, that a better proprietary right necessarily exists in the possessor of the locus of the theft when goods are taken feloniously from that place. On the authorities it is doubtful that either of these propositions can be supported. Whilst they are understandable reactions to the moral culpability of dishonest takers, they cannot be established on the doctrines of the common law, and in fact there are good reasons of public policy for not altering those principles to achieve more palatable results.
Qualifying the Dishonest Finder’s Rights
As the common law developed its theory of possession in the twentieth century, it was easy to find suggestions that the theory should not be applied for the benefit of dishonest possessors. Harris thought that if a finder could be punished criminally when she took with dishonest intentions, ‘[s]he surely ought not to acquire in civil law any possessory remedies’.[4] The difficulty was that there were not any cases to suggest this. Harris gave his opinion in reference to Hibbert v McKiernan,[5] but that was a case where the court decided that a possessor of land had a better right than a subsequent taker, not that the taker had no rights.[6] Nonetheless, the opinion persisted, and in Parker Donaldson LJ suggested that the rights of a finder should be qualified where she takes with dishonest intentions. Specifically, his lordship proposed that, in contrast to an honest finder, a dishonest finder has only a ‘frail title’, enough to restrain immediate physical interference, but something qualitatively less than the ordinary rights of a finder, and probably unavailable against a subsequent honest taker.[7]
Authoritatively, these contentions rest on dubious ground. Donaldson LJ conceded that there was no clear decision on the point,[8] and made the suggestion in reliance on Buckley v Gross [9] and Bird v Fort Frances.[10] On the basis of the former, his lordship opined that dishonest possessors ‘are unlikely to risk invoking the law, particularly against another subsequent dishonest taker, and a subsequent honest taker is likely to have a superior title’.[11] We saw in the last chapter that,correctly understood, Buckley holds that it is not possible to assert a right created by possession once that right has been lawfully divested. Without more, it has nothing to say about the rights of a wrongful possessor where no divesting authority has been exercised. Indeed, in Buckley itself, Cockburn CJ treated that question as open, and considered its decision unnecessary to any ruling in the instant case.[12] Consistently, in Bird, McRuer CJHC treated the judgments in Buckley as casting ‘no light … on what would have been the result if it had not been for the provisions of the statute, and the plaintiff had been in the position of asserting his felonious possession against a wrongdoer’.[13] Therefore it is entirely wrong to use Buckley to suggest anything about the creation or general exigibility of a dishonest finder’s rights. As for the contention that dishonest possessors are unlikely to have resort to the law, later cases have shown this to be false,[14] and in any event it rather begs the question. Dishonest finders ought to be able to have recourse to law if they have rights in the things they find. That in general they do not litigate claims affords a painfully trite explanation of why there was no decided case on the point at the time of Parker, but it offers no comment on the question whether the law does or should recognise their rights in the first place.
In Bird v Fort Frances, McRuer CJHC had no doubt that the plaintiff had taken the monies wrongfully, and distinguished the facts from Bridges and Hannah.[15] It was accepted on the usual authorities that a wrongful possessor could maintain conversion for goods wrongfully taken from her possession,[16] and so the question was whether the possibility that the taking was felonious made any difference. This was answered in the negative, and for this reason McRuer CJHC declined to rule whether the plaintiff was a thief on the facts:
‘The conclusion I have come to is that it is not necessary for me to decide whether the taking was with felonious intent or not, as I think in this case the same result flows. In my view the authorities with which I have dealt justify the conclusion that where A enters upon the land of B and takes possession of and removes chattels to which B asserts no legal rights, and A is wrongfully dispossessed of those chattels, he may bring an action to recover the same’.[17]
On the facts of Bird, the possibly felonious plaintiff was allowed to recover the full value of the banknotes, plus the interest which had accrued on defendant’s bank account. McRuer CJHC made an order directing that this sum be paid into court, where it would be held to the credit of the plaintiff until his twenty-first birthday. There was absolutely nothing to suggest that this plaintiff was being treated any differently from any other dispossessed possessor, in fact it was quite the contrary. Accordingly, it is impossible to use Bird as authority for the proposition that a dishonest finder has something other than those rights normally consequent on possession, and quite remarkable that Donaldson LJ supposed that the case could be deployed in this way.
If Bird supposes that a dishonest possessor acquires an ordinary possessory title, Costello v Chief Constable of Derbyshire [18] puts it beyond doubt that this is the position at common law. The Court of Appeal was unequivocally clear that:
as a matter of principle and authority possession means the same thing and is entitled to the same legal protection, whether or not it has been obtained lawfully or by theft or by other unlawful means. It vests in the possessor a possessory title which is good against the world save as against anyone setting up or claiming under a better title.[19]
On the facts of Costello, this proposition was applied to allow the claimant to recover a car which it was believed he had stolen,[20] and also damages for its wrongful detention. The car had been taken from him and retained by the police pursuant to certain powers of seizure contained in sections 19 and 22 of the Police and Criminal Evidence Act 1984. But these provisions gave the police only a temporary right to detain the car for the limited purposes of the statute.[21] Such a right would not avail against the claimant after the expiry of the statutory purposes, because the claimant had acquired rights in the car as a consequence of his possession. That this possession had been acquired dishonestly made no difference. The claimant still acquired a right in respect of the car, and was entitled to rely on this right without reference to the circumstances in which it was obtained.[22] His dishonesty triggered no special rule to take the case outside of the normal rules.[23] Accordingly, on the authorities, the better view is that a dishonest finder, like any dishonest possessor, will in the ordinary way acquire a relatively good right in the object of her find. Donaldson LJ’s suggestion that a dishonest finder acquires ‘very limited rights’ is without foundation. If Mr Parker had taken the bracelet with dishonest intentions he would still have had a better right than the British Airways Board.[24]
Probably this proposition seems counter-intuitive from a public policy perspective. At the least, it is difficult to sympathise with a rule which prima facie results in the reward of wrongdoers. Giving judgment in Costello, Lightman J was mindful of this ‘natural moral disinclination’ towards the recognition of possessory title in thieves,[25] but thought it did not offer sufficient ground to deprive the possessor of protection. On the contrary, there were public policy reasons for not denying protection to the thief. Lightman J relied on Webb v Chief Constable of Merseyside.[26] There the police had seized money from the claimants on the suspicion that it represented the proceeds of drug trafficking. Had the claimants beenconvicted of such an offence, the conviction would have triggered statutory powers for the confiscation of the money. In the absence of a conviction, the Court of Appeal thought it improper to manipulate the common law position of the parties in order to achieve a result more attractive from the perspective of public policy.[27] Essentially it was articulating a constitutional principle about the proper functioning of civil courts. Once possession has been recognised as the source of a proprietary entitlement, for a court to deny that right (even to one accepted on the balance of probabilities as a criminal)[28] amounts to ‘expropriation by a public authority’.[29] Such expropriation can only ever be justified on the basis of unambiguous statutory authority.[30] Where there is none, it is constitutionally correct to uphold the possessor’s right, and consistent with public policy to deny the incremental extension of the confiscation powers of the police.[31]
None of this is intended to cast any doubt on the situation where expropriation powers are clearly defined by legislation. Governments can and do create confiscatory procedures which bite on criminal assets.[32] In the context of theft, courts today have powers to compel the restoration of stolen property,[33] or to make orders depriving a thief or suspected thief of property in her possession.[34] The existence of such powers serves to answer the paradox of a common law rule recognising the existence of property rights in thieves. The property rule must not be read in isolation, but understood in the light of countervailing rules of criminal law and tort. If a thief is a possessor she acquires those rights ordinarily consequent on possession, but those rights might be taken away from her by statutory authority, and even if she retains her right, she will still hold it subject to the general law of obligations. So, whilst on the authorities we are bound to acknowledge that the felonious possessor is the holder of a property right, this does not necessarily mean that she will make a windfall gain from her activities. On the criminal side, we have expropriation authorities, and if these do not meet the policy aim of preventing thieves from profiting from their wrongdoing we might extend them by further legislation. On the civil side, a dishonest possessor (as any possessor) is bound to answer for the value of the goods to any person better entitled. All in all, it seems most consistent with the authorities, and nowhere near the affront to moral judgement which it appears at first blush, to suggest that a dishonest possessor, and therefore a dishonest finder, acquires in the usual way those rights consequent on possession. Dishonesty is no qualification on the generation of finder’s rights.
Recognising a Better Right in a Third Party
Even if a dishonest finder has a property right in the thing she finds, some cases appear to suggest that a possessor of land will always have a better right to goods found on and stolen from his land. In this way, dishonesty might serve to qualify the finder’s rights, not by preventing their creation, but by providing for the existence of a better right in a third party. This was the view recently in R v Rostron,[35] where the Court of Appeal upheld convictions for theft on facts superficially similar to Hibbert v McKiernan.[36] The defendants had recovered ‘lost’ golf balls from the water hazards of a golf course in Leicestershire, intending to offer them for resale.[37] The court accepted that the golf balls had been abandoned by their owners, but thought it authoritatively clear that the owners of the golf course had a proprietary interest in the balls:
[A]s every law student learns when studying criminal law, on the authority of a well-known case called Hibbert and McKiernan, for the purposes of theft the owners of golf courses are regarded as having the property and control of lost golf balls for their own purposes.[38]
In Chapter 2 we argued that the better view of Hibbert is that the successive courts applied orthodox principles of possession and found the club members better entitled to the golf balls insofar as they were able to prove a prior right on the facts of control and intention.[39] We could dispose of its relevance quickly were it not for the opinion of Lord Goddard CJ, which appears to suggest that the circumstances of theft are relevant to the generation of title in the possessor of land:
Every householder or occupier of land means or intends to exclude thieves and wrongdoers from the property occupied by him, and this confers on him a special property in goods found on his land sufficient to support an indictment if the goods are taken therefrom, not under a claim of right, but with a felonious intent.[40]
Elsewhere, it has been argued that, despite some terminological differences, Lord Goddard’s judgment should be read as endorsing a similar position to the other members of the court.[41] Clearly, in large measure the passage above rests the right of the club on their intention to exclude interference with things found on the land, and this is entirely consistent with the theory of possession discussed in Chapter 2. At most, we might take the reference to intention to exclude thieves and wrongdoers as establishing a general evidentiary presumption in favour of the possessor of land (discharging him from the burden of proving his manifest intention to possess goods), and so deal with stolen goods in the way we deal with buried or attached goods. The difficulty is that, in Hibbert, the intention to exclude the recovery of lost golf balls was actually proven as a matter of fact, and only Lord Goddard suggested the manifestation of this fact could be generally presumed. Accordingly, it seems preferable to regard Hibbert as a case where the club’s right was established in the usual way, ie by proof of the twin elements of control and intention. As for the suggestion that the generation of the club’s right is conditional (the intention to exclude is sufficient if the golf balls are taken with felonious intent, and not under a claim of right), this should not be followed. It is difficult to see why the criminal intentions of a taker should make any difference to a possessor of land’s acquisition of goods lost on his land. The better view is that the civil law of property determines title issues in theft proceedings, and there the orthodoxy is that dishonesty makes no difference to the allocation of rights in goods.[42]
Accordingly the better view of Rostron is that the club members only have a better right to the golf balls than the felonious finders if they have succeeded in making out their right on the ordinary rules of possession. This might have produced some difficulties on the facts of Rostron which were not wholly considered,[43]
but in any case the general point is clear: dishonesty does not operate to qualify the rights of a finder. It does not affect the generation of those rights, nor does it contribute to the generation of better rights in a possessor of land.
Trespass to Land
It has often been suggested that the rights of a finder should be qualified when her find is made on the land of another and she is committing a trespass to that land at the time of the find.[44] Despite the fact that trespass has been a live issue in virtually none of the decided cases,[45] the opinion has persisted, and in Parker Donaldson LJ formulated a specific doctrinal qualification. Where a finder was a trespasser to land, a special rule of the common law gave a better title to the person vis-à-vis whom he was a trespasser:
The fundamental basis of this is clearly public policy. Wrongdoers should not benefit from their wrongdoing. This requirement would be met if the trespassing finder acquired no rights. That would, however, produce [a] free-for-all situation … in that anyone could take the article from the trespassing finder. Accordingly, the common law has been obliged to give rights to someone else, the owner ex hypothesi being unknown. The obvious candidate is the occupier of the property upon which the finder was trespassing.[46]
Immediately it is tempting to resist this argument by pointing out that it was obiter. The Court of Appeal was considering the claim of a finder lawfully present in the airport lounge, and no discussion of the position of trespassers was necessary to the resolution of the case. A more telling argument against Donaldson LJ’s proposition is that in many cases involving a trespasser it would add nothing. Consider first the situation where a buried object is removed from the land of another. There is no prospect of a right superior to that of the possessor of land arising in any person who comes later in time to the object than its burial. That is the effect of the evidentiary concession to proof of possessory intention in cases where objects are found buried in land.[47] Irrespective of whether or not the taker has permission to be on the land, the possessor of land will have a better right.[48] Any talk of trespass here is a red herring.
The same reasoning will apply to objects taken from the surface of land, where the possessor of land successfully manifests an intention to control objects found on that land. Certainly this is true of the decision in Hibbert v McKiernan, where the defendant was a trespasser. Early in his judgment, Donaldson LJ records of that case:
The indictment named the members of the club … as having property in the balls, and it is clear that at the time when the balls were taken the members were very clearly asserting such a right, even to the extent of mounting a police patrol to warn off trespassers seeking to harvest lost balls.[49]
The presence in the club members of a property interest in the golf balls subsisting at the time they were taken would make it impossible for Donaldson LJ to rely on the defendant’s act of trespass as a cause of the club’s rights. Quite clearly, the acquisition of the right is temporally prior to the trespass. The events causing the right here are the club’s factual control of the land coupled with an intention to control golf balls found on that land, this latter manifested by the presence of the police constable with the special duty. The defendant’s act of trespass is not a material fact. It is again a red herring.
It is not so easy to dismiss the relevance of trespass where a possessor of land fails to manifest an intention to control lost objects lying unattached on his land. Suppose in Parker the claimant had been present in the executive lounge without the permission of the British Airways Board. Applying unqualified rules of possession would entail holding that the trespasser could recover the value of the bracelet from the Board, and thus could profit from his wrong. It was the desire to discourage this kind of wrongful profit that prompted Donaldson LJ to propose that the rights of the trespassing finder should be given to the possessor of land, and certainly it is not difficult to sympathise with his view. The problem is that, inasmuch as the common law knows of a principle which denies the ability of wrongdoers to make profit from their wrongs,[50] this principle has never seemed particularly prominent when it comes to the proprietary consequences of trespass to land. The cardinal example is provided by the law of adverse possession of unregistered land, where, as we have seen, the possessor takes a fee simple estate in the disputed land.[51] Not only is the commission of a trespass instrumental in the generation of this property right, it also triggers the start of the limitation period, which on its expiry might see the right confirmed as the best available in the land at issue.[52] Far from being a hindrance to the squatter, his trespass has the potential to cause and confirm property rights.[53]
Even if we get past these concerns, there are further difficulties with Donaldson LJ’s formulation. In the main, it is not clear what would cause the generation of the right in the possessor of the trespassed land. It could be the act of trespass itself, but necessarily this would involve some adherence to a general proposition that property rights can arise in a third person on the commission of a wrong, which proposition seems at least doubtful.[54] Alternatively (and this seems Donaldson LJ’s contention) full rights could arise initially in the trespassing finder and then immediately be transferred to the occupier. But even if we tolerate a fictitious transfer, insofar as the right of the occupier is derived from the finder it would seem difficult for the finder also to retain the ‘frail title’ proposed by Donaldson LJ. To this extent, the comments in Parker on the relevance of trespass to the acquisition of rights by a finder seem unpersuasive. The better view is that in our law of property, trespass to land makes no difference to the nature or substance of a finder’s rights. It is only possible to defeat the claims of trespassing finders in the usual way, ie by proof of a better possessory title. And here, of course, is the answer for the possessor of land worried about trespassing finders wrongfully profiting from articles found on his land. The possessor of land will necessarily defeat the claim of any finder if he manifests an intention to control objects found on the land.[55] He is free to take steps to do so. If he does not, his claim to found goods has no proprietary base, and effectively he forfeits his right to assert an interest against a finder, even where the finder is a trespasser.