The Possessor of Land Cases
In/On Land Distinction
In 1929, Goodhart published a famous essay discussing Bridges, Elwes and Sharman. The paper was critical, not necessarily of the decisions themselves, but of attempts to explain their ratios by propositions not present in the judgments. Having identified the pertinent criticisms, Goodhart attempted to extract general principles from the three cases, and deduced the following:
1. A man possesses everything which is attached to or under the land which he possesses … 2. A man does not necessarily possess a thing which is lying unattached on the surface of his land, even though the thing is not possessed by some one else.
In Goodhart’s view, Elwes and Sharman were authorities for the first of these propositions, and Bridges was a precedent for the second ‘even though the ratio decidendi of that case is uncertain’. Of course, if the propositions were right, they necessitated a third rule to explain which unattached things the occupier of land possessed and which he did not, but that was an open question as far as Goodhart was concerned. We will return to this below, but for now we must note that the above passage is significant because it is the first occasion in the literature where things ‘attached to or under’ land are juxtaposed in this way to things ‘lying unattached on the surface’. It is absolutely clear that Goodhart himself would have rejected the use of this distinction as a basis for law. In the essay he acknowledged an obvious distinction in fact between the two situations: where goods were lying on the surface of land they could be picked up by a passer-by, but where they were buried in or attached to land, they could not be taken without some ‘interference with the land itself’. But Goodhart did not think that this distinction was ‘of sufficient importance in principle to warrant separate rules as to possession’. Indeed, the proposition about things lying unattached on land was only necessary if Bridges v Hawkesworth was correctly decided, which Goodhart himself doubted. We can be absolutely clear, then, that Goodhart distinguished attached and unattached things only as a method of summarising the outcomes of the existing decisions. He must have supposed the existence of a more general theory of possession that could explain them consistently. Unfortunately, on the next occasion when a similar dispute came before a court, the emphasis would be laid on the attached/unattached distinction, and this rhetoric would greatly influence the development of the law.
Giving judgment in Hannah v Peel, Birkett J thought that the law to be applied was ‘very uncertain’, and characterised the authorities as a set of ‘conflicting propositions’. The defendant was the owner of a house which he had never himself occupied, and which at the material time had been requisitioned for the use of the armed forces. The plaintiff was a lance corporal of the Royal Artillery stationed at the house. He found a brooch in a crevice on the top of a window frame in a bedroom of the house used as a sick bay. Initially, he kept the brooch and said nothing of the find, but a few months later he reported the matter to his commanding officer, and then, at the latter’s request, delivered the brooch to the police. Unfruitful searches for the owner were made, and after two years, despite receiving it from the plaintiff, the police delivered the brooch to the defendant. The defendant sold the brooch for £66. He offered a reward to the plaintiff, but this was declined, the plaintiff maintaining throughout a right to keep the brooch against all but the true owner. At the trial, in proceedings for trover and detinue, Birkett J purported to follow Bridges, and gave judgment for the plaintiff.
The opinion of Birkett J is heavily dependent on Goodhart. Although that essay is formally cited only once (for the proposition, ultimately rejected by Birkett J, that Bridges was wrongly decided), the judgment discusses only Bridges, Elwes and Sharman, rehearsing the relevant theories and criticisms in precisely the language used by Goodhart. In the penultimate paragraph of the judgment, we find Goodhart’s summary of the general principles to be drawn from these three cases, though again no reference is made to his essay. Thus, Birkett J considered it:
fairly clear from the authorities that a man possesses everything which is attached to or under his land. Secondly, it would appear to be the law from the authorities I have cited, and particularly from Bridges v Hawkesworth, that a man does not necessarily possess a thing which is lying unattached on the surface of his land even though the thing is not possessed by someone else. A difficulty however, arises, because the rule which governs things an occupier possesses as against those which he does not, has never been very clearly formulated in our law.
The novelty in Hannah might have been an attempt to formulate this missing dividing line for possessed unattached things. As it was, Birkett J thought it sufficient to remark that the defendant had never been in actual possession of the premises, and for that reason could lay no claim to the brooch. The learned judge thought that he was ‘following’ Bridges in reaching this conclusion, but, as we have seen, absence of control over the premises was not part of the ratio in that case. In effect, what Hannah v Peel decides is that possession of land, as opposed to ownership or occupation, is a necessary prerequisite to any claim against a finder of goods, at least where the claimant has not otherwise established some title to the find, for example, by delivery or assumed duty. In other words, actual possession of land is the only way of proving that ‘general power and intent to exclude unauthorised interference’ given by Pollock as the justification for a claim to unknown goods. To this extent, Birkett J qualifies the dictum of Lord Russell in Sharman, where the presumption was that possession of discovered articles was in the ‘owner of the locus in quo’.
The judgment in Hannah incorporated Goodhart’s statement of the general principles to be drawn from the cases, and kept Bridges alive by claiming to ‘follow’ it, thereby rejecting the view that it had been wrongly decided. This structure of the law received further judicial support shortly afterwards in Hibbert v McKiernan. This case might have been taken as resolving the doubt over the criteria to determine those unattached things possessed by a possessor of land. Certainly there is evidence of the view, first expressed in Sharman and later to be confirmed by the Court of Appeal in Parker v British Airways Board, that in order to acquire possession of goods lying unattached on his land, a possessor of land must manifest an intention to control that land and those things which may be upon it. Hibbert was an appeal against a conviction of larceny. The appellant had taken lost golf balls from a links course in Cheshire. The trial justices referred to Bridges, Elwes, Sharman and Hannah, and concluded that (a) at the time they were taken the golf balls were lying unattached on the golf links; (b) a possessor of land does not necessarily own objects lying unattached on his land; (c) given (b), there must be some circumstances in which a possessor of land does and some circumstances in which he does not own objects lying unattached on his land; and therefore (d) to satisfy a court that a possessor of land does own objects lying unattached on his land requires more evidence than the mere fact that the objects were lying unattached on that land. The only other evidence available to the court in the instant case was that a police officer had been present on the course with the special duty of warding off or apprehending persons taking golf balls from the links, in consequence of which the appellant had been apprehended. The trial justices thought that this was enough to hold that the members of the club were in possession of the golf balls at the time they were taken, because it was ‘evidence of an intention by the club to exercise control over those golf balls’.
The justices stopped short of expressing the basis of their resolution as a general proposition, although in its search for evidence of an intention to control goods on land it echoes the view of Lord Russell CJ in Sharman, and to that extent the possession theories of Holmes and Pollock on which we have said that decision to depend. I have argued fully elsewhere that the judgments of the Divisional Court should be read as endorsing a similar position. Both Humphreys and Pritchard JJ laid emphasis on the club owners’ intention to control lost golf balls lying on their land, as manifested by the police officer on special duty. Lord Goddard CJ made his judgment ostensibly on the authority of Rowe, but also emphasised the dishonest conduct of the appellant, apparently suggesting at one stage that this dishonesty was a source of the club owner’s property in golf balls. Perhaps because of this reliance on wrongful conduct, and the tendency of his Lordship’s judgment to suggest that the case turned on a general proposition of criminal law, Hibbert has never been taken as having any settling influence on the law. Ironically, discounting a recent decision on virtually identical facts, it appears to be the only case in English law where a possessor of land has been held better entitled than a subsequent taker to goods lying unattached on the surface of his land.
The year after Hibbert was reported, the Chief Justice of the Ontario High Court considered the cases and concluded that ‘British law cannot yet be said to be settled’. The conclusion is evidenced by contemporaneous judgments, which contain mixed rationales and struggle to achieve any conceptual clarity. Another Ontario judge dismissed the contention that lost goods always belonged to the owner of private premises by observing a distinction in the cases between ‘articles attached to or under land’ and those ‘on the surface of land or in a building thereon’, but ultimately preferred to distinguish Bridges and Hannah from Elwes and Sharman insofar as in the former cases the possessor of land did not know of the existence of the goods in question. In City of London Corporation v Appleyard, McNair J recognised ‘many fine possible points of distinction’ between goods found ‘upon’, ‘under’ and ‘embedded’ in land, but declined to define precisely any of those points because he felt the case before him was so clearly covered by Sharman that ‘no purpose would be served by any lengthy examination of the finer problems involved’. Thus, the learned judge decided that a safe in a wall formed part of premises, such that the possessor of the premises was also in possession of the safe and its contents (a wooden box containing £5,728 in banknotes) and could resist a claim by a finder though ignorant of the existence of the safe. However, it is by no means clear that possession of a safe (or any receptacle) should also include possession of its contents. McNair J had resisted counsel’s attempt to press such a distinction, but he could have taken the point on the authority of Merry v Green, where Parke B held that to pass title by delivery to the contents of a bureau it was necessary that it should have been expressly sold ‘with contents’. Had this argument not so swiftly been rejected, McNair J could not so easily have considered the box of money to be part of the premises, and might have said more on the finer points of the distinction between goods found in and on land. As it was, nearly a decade later a Law Reform Committee report on conversion repeated the view that the law was in an unsatisfactory state, and it continued to be said that the principal difficulty occurred where goods were found lying unattached on land.
Parker v British Airways Board
In 1982, the Court of Appeal had its first opportunity to consider a dispute between a possessor of land and a finder. In Parker v British Airways Board, the plaintiff found a gold bracelet on the floor of an airport executive lounge operated and occupied by the defendants. Donaldson LJ was conscious that the English rules of precedent meant that technically there was no decision binding on the court, and took the opportunity to offer a restatement of the law well beyond the facts immediately before him. Giving the leading judgment, his Lordship described the dispute as a contest of ‘conflicting rights’. The plaintiff relied on ‘the ancient common law rule that the act of finding a chattel which has been lost and taking control of it gives the finder rights with respect to that chattel’. The defendants claimed on the basis that as occupiers of the lounge they had rights to the bracelet which existed before the plaintiff found it, even though they were not aware of its existence before he had delivered to them. As to the latter, Donaldson LJ’s judgment disclosed the distinction between goods found in or attached to land and those found upon it. He took it to be reasonably well settled that a possessor of land had rights superior than a finder to goods found in or attached to land, giving Elwes and Sharman as authority. As for objects found on land, he accepted Lord Russell’s ‘statement of the general principle’, formulating it as follows:
An occupier of a building has rights superior to those of a finder over chattels upon or in, but not attached to, that building if, but only if, before the chattel is found, he has manifested an intention to exercise control over the building and the things which may be upon it or in it.
Applying this proposition to the facts of the case, Donaldson LJ concluded that the defendants had not sufficiently manifested an intention to control lost objects found in the executive lounge. Whilst he acknowledged the right of the defendants to control entry to the lounge and restrict access to all but certain classes of passenger, and also referenced their undoubted intent to exclude specific items, such as guns and bombs, this kind of control was not relevant to their intention to control lost items. Neither was the provision to staff of instructions for dealing with lost property, at least insofar as these had not been published to users of the lounge. The result was an unhelpfully negative explanation of the manifest intention requirement. We are not told what is necessary to establish it, except that the conduct of the defendants in the instant case did not suffice. Precisely the same misfortune occurred a few years later in the New Zealand case of Tamworth Industries Ltd v Attorney-General. In deciding that the police had a sufficient possessory title to retain monies found and seized on land even after the relevant statutory authority had expired, the High Court was not satisfied that the possessor of land had sufficiently manifested the intention required to prove an earlier possession than the police. It is clear that relevant factors in the decision included the ease of access which members of the public had to the premises, and the general disrepair of the building, but again there is no formulation of any general test for manifest intention. Thus, although Parker might now be taken as the leading case where goods are found on the land of another, little has been done to settle the evidential difficulty first articulated by Goodhart some 80 years ago.
The Mistake: Right Follows Circumstance of Find
Apart from the higher appellate level of the decision, and the largely unnecessary restatement of the rules governing disputes of this kind, we might consider Parker to contain little of novelty. Indeed, the judgment has been criticised for relying too heavily on lengthy citation and containing ‘rather little that could pass for conventional legal analysis’. Insofar as is relevant it repeats in virtually identical terms the dictum of Lord Russell CJ on which it is said to depend, and it offers no conclusive answer to the essential question identified by Goodhart and in the cases, ie to which goods lying unattached on his land does a possessor of land have a claim? However, there is a difference in Parker. When Lord Russell offered his dictum in Sharman, he gave it as a complete solution to disputes between finders and possessors of land: he drew no distinction between things found on land and things found attached to it. That observation was first made by Goodhart, but he was clear that it should not be taken as the basis for different rules on possession. These were to be settled by whatever more general theory of possession was to be found in the common law, a question which Goodhart avowedly made no attempt to answer. In Parker, however, are the first signs of a modern trend to take the distinction itself as the basis of the applicable rules, and so hold that the factual circumstance of the find dictates the allocation of rights between the parties. This trend begins when Donaldson LJ offers two independent policy justifications for the apparent rule that a possessor of land will always have a better right than a finder to goods found attached to his land:
The rationale of this rule is probably either that the chattel is to be treated as an integral part of the realty as against all but the true owner and so incapable of being lost or that the ‘finder’ has to do something to the realty in order to get at or detach the chattel and, if he is not thereby to become a trespasser, will have to justify his actions by reference to some form of licence by the occupier. In all likely circumstances that licence will give the occupier a superior right to that of the finder.
These are new rationales, and there is little hint of either of them in any of the earlier cases. It is tempting to resist them by observing that each is flawed in some measure, but that is not the present point. Whatever the success of the justifications on their own terms, that they are proffered at all serves to suggest that the ‘in land’ proposition is an independent rule of law requiring its own justification. It distances this proposition from the possessory theory of Pollock and Holmes on which it depends, and distinguishes the proposition about goods ‘lying unattached’ on land. Consequently, it reinforces the view that disputes of this kind turn on the application of ‘conflicting’ rules and principles, and perpetuates the unsatisfactory nature of our law.
This new attempt at justification is even more readily apparent in Waverly Borough Council v Fletcher