THE BLOG

Legally Classifying Property as Lost, Mislaid, Abandoned or Treasure Trove

04/22/2015 12:03 pm ET | Updated Jun 22, 2015

The historic English common law, as well as contemporary legislation and judicial opinions, categorize movable items (personal property) that are not in the possession of their owner due to a mistake or accident. If you have left your cellphone on a shop counter, does the old cliché "finders keepers, losers weepers" legally apply? In fact, holding a found cell phone for ransom could result in theft charges. This comment provides a very brief educational overview of a complex topic. Always involve experienced legal counsel in specific personal property cases.

General Questions Driving Judicial Decisions

1. Does legislation or a treaty address this situation?

2. What was the location of the discovered property? Was it embedded in the ground or the walls of a building, on the surface of the ground, in discarded trash, indoors, outdoors, in a secure area, or where it may have been negligently placed?

3. Is the item classified as an antiquity, shipwreck (military or civilian), or buried treasure?

4. Who discovered it? Was it an employee, independent contractor, trespasser, or someone who had a legal right to be at the location?

The Common Law Lost Property Rule

These items (lost property) were apparently involuntarily left in a location (such as on the surface of the ground) under circumstances indicating the owner did intend to place them there. English cases from the 1700s allowed the finder to claim the property against anyone except the true owner.

The Common Law Mislaid Property Rule

These items (misplaced property) were apparently intentionally left in a location (such as a cell phone on a counter). The owner of the premises, not the finder, keeps the item until the true owner appears. The rationale is that the owner will recall the place where the property was left and return for it.

A notable 2012 Arizona court decision determined that Depression- era money hidden in ammunition cans in the walls of a house and discovered by a remodeling contractor was mislaid and not abandoned (Grande v. Jennings). Consequently, it belonged to the deceased owner's heirs. The Court noted that abandonment is not presumed but must be proven. In this situation there was no evidence of abandonment.

The Common Law Abandoned Property Rule

The clearest cases involve items in the trash awaiting garbage pickup. Any finder may claim ownership. The U.S. Supreme Court in 1988 held that the police may search curbside trashcans without a warrant (California v. Greenwood). However, a lienholder noted on a vehicle title may claim possession of an abandoned vehicle.

There are a number of interesting cases involving winning lottery tickets that a non-purchaser retrieved from a trash bin. Trial courts often tend to be sympathetic to the original purchaser, holding that the ticket was mistakenly discarded and thus was not abandoned. Additionally, the finder may have no legal right to access the trash bin due to a scavenger ordinance or a posted sign on the trash bin prohibiting access.

The Common Law Treasure Trove Rule

The English cases frequently involved Roman-era buried items (Roman withdrawal occurring about 400 AD) that were apparently intended to be reclaimed later, in contrast to a burial site. Valuable items buried in the ground (called treasure trove) were owned by the king (Crown) who claimed ownership of all the land. Land occupancy was frequently granted in exchange for services rendered to the Crown. The finder of treasure trove received a reward from the Crown. The modern term for land, "real estate," come from older English terminology meaning royal estate - property owned by the king.

Treasure trove is an exception to the general rule is that the owner of land owns items imbedded in the ground. Early on, finders in the U.S. were awarded ownership in adherence to the older rule. Contemporary U.S. law frequently grants ownership to the landowner to discourage trespassing. Antiquities legislation may apply to cultural artifacts.

A Current Legislative Overview

Proceeds of criminal or unlawful drug enterprises, included items purchased with drug money, such as luxury automobiles and jewelry, is subject to forfeiture to the government. Estray statutes (originally addressing stray livestock) encourage the finder to report discovered property with a reward or possible ownership after a waiting period. Legislation, such as the Uniform Unclaimed Property Act, transfers a variety of unclaimed financial assets to the state government until the original owner asserts a claim.

A variety of treaties and legislation addresses shipwrecks and antiquities. These include the Abandoned Shipwreck Act, the Sunken Military Craft Act, the Foreign Sovereign Immunities Act, the Convention on Salvage, the National American Graves Protection and Repatriation Act, and the Archeological Resources Protection Act.

Results in specific situations are often criticized as unfair to salvage companies who have expended resources to locate an undiscovered shipwreck. Thus, the federal Court of Appeals for the Eleventh Circuit in a 2011 decision required a salvage company to relinquish some $500 million in treasure to the government of Spain that was on the Spanish military frigate Mercedes, sunk by a British warship in 1804 (Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel). It is clear that salvage firms need a contract with the sovereignty in question.

Marine and admiralty law is a complex specialty. An additional complication in all finding cases involves taxation or related levies.

The Native American Graves Protection and Repatriation Act specifically protects burial sites and the artifacts of Native Americans. Treasure hunting on government lands, such as national parks, is likewise restricted.

Conclusion

History, efficiency, and public policy favoring property owners are all at play in missing property cases. Consult experienced legal counsel if you discover a pot of gold at the end of the rainbow.