The Law Reports (Queen’s Bench Division)
[1982] QB 1004
[COURT OF APPEAL]
PARKER v. BRITISH AIRWAYS BOARD
[Plaint No. 80/02197]
1981 Nov. 16, 17;
Dec. 21
Eveleigh and Donaldson L.JJ. and Sir David Cairns
Chattel — Chattel found on land — Ownership — Passenger finding gold bracelet on floor of airways’ passenger lounge — Passenger handing bracelet to airways’ employee — Whether passenger or airways having right of possession
The defendant airways occupied, as lessees, the international executive lounge at an airways terminal and permitted passengers of specific classes to use it. The defendants’ employees had instructions governing the action to be taken when they found lost articles or lost articles were handed to them. But those instructions were not published to users of the lounge. The defendants did not carry out searches for lost articles. The plaintiff was in the lounge as a passenger waiting for his flight when he found a gold bracelet lying on the floor. He handed it to an employee of the defendants and gave the employee his name and address and requested that if the owner did not claim the bracelet it should be returned to him. No one claimed it. The defendants sold it for £850 and retained the proceeds. The plaintiff brought an action in the county court. He was awarded £850 as damages and £50 as interest.
On appeal by the defendants:—
Held, dismissing the appeal, that the plaintiff in taking the bracelet into his care and control acquired rights of possession except against the true owner and in handing it to an official of the defendants he acted honestly and in discharge of his obligations as a finder; that his rights could only be displaced by the defendants if they could show as occupiers an obvious intention to exercise such control over the lounge and things in it that the bracelet was in their possession before the plaintiff found it; that, on the evidence there was no manifestation of such an intention as would give the defendants a right superior to that of the plaintiff and, accordingly, the judge came to the right conclusion (post, pp. 1018D–G, 1019A–D, E–1020B, G–1021A, C–F).
Bridges v. Hawkesworth (1851) 21 L.J.Q.B. 75 and South Staffordshire Water Co. v. Sharman [1896] 2 Q.B. 44, D.C. applied.
The following cases are referred to in the judgments:
Armory v. Delamirie (1722) 1 Stra. 505.
Bird v. Fort Frances [1949] 2 D.L.R. 791.
Bridges v. Hawkesworth (1851) 21 L.J.Q.B. 75; 15 Jur. 1079 .
Buckley v. Gross (1863) 3 B. & S. 566.
City of London Corporation v. Appleyard [1963] 1 W.L.R. 982; [1963] 2 All E.R. 834.
Cohen, decd., In re [1953] Ch. 88; [1953] 1 W.L.R. 303; [1953] 1 All E.R. 378.
Elwes v. Brigg Gas Co. (1886) 33 Ch.D. 562.
Glenwood Lumber Co. Ltd. v. Phillips [1904] A.C. 405, P.C.
Grafstein v. Holme and Freeman (1958) 12 D.L.R. (2d) 727.
Hannah v. Peel [1945] K.B. 509; [1945] 2 All E.R. 288.
Hibbert v. McKiernan [1948] 2 K.B. 142; [1948] 1 All E.R. 860, D.C.
Johnson v. Pickering [1907] 2 K.B. 437.
Kowal v. Ellis (1977) 76 D.L.R. (3d) 546.
Moffatt v. Kazana [1969] 2 Q.B. 152; [1969] 2 W.L.R. 71; [1968] 3 All E.R. 271.
South Staffordshire Water Co. v. Sharman [1896] 2 Q.B. 44, D.C.
The following additional cases were cited in argument:
Mitchell v. Ealing London Borough Council [1979] Q.B. 1; [1978] 2 W.L.R. 999; [1978] 2 All E.R. 779.
APPEAL from the Brentford County Court.
On November 15, 1978, while the plaintiff, Alan George Parker, was waiting as a passenger in the executive lounge at terminal one of London Heathrow Airport he found a gentleman’s gold bracelet lying on the floor. The bracelet had been lost by its rightful owner. The plaintiff delivered the bracelet to an employee of the defendants, British Airways Board, together with particulars of the plaintiff’s name and address and orally requested that in the event of the bracelet not being claimed by the rightful owner it should be returned to the plaintiff. The bracelet was never claimed. But despite the plaintiff’s requests for its return to him, the defendants sold it on June 17, 1979.
The plaintiff issued proceedings in the county court alleging that he suffered loss and damage, namely, £850, being the value of the bracelet and sought the return of the bracelet or its value and damages for the defendants’ wrongful interference therewith; and alternatively, damages for conversion and interest.
The defendants alleged in their defence that the executive lounge could be entered by visitors only at the express invitation of the defendants and then only provided that they were in possession of the appropriate documentation. It was not a part of the terminal to which the public nor even the passengers had access as of right. At all material times the defendants owned and occupied and controlled the executive lounge where the bracelet was found and therefore, they acquired a better title to it than did the plaintiff. They counterclaimed for a declaration that they acquired a better title to the bracelet than the plaintiff.
Mr. Derek Holden, sitting as a deputy circuit judge, decided on November 5, 1980, that the defendants had wrongfully interfered with the gold bracelet and were liable to the plaintiff for its value together with interest.
By a notice of appeal dated November 20, 1980, the defendants appealed on the grounds, inter alia, that the judge erred in law in holding 1006that the plaintiff had a better title than did the defendants to the bracelet, and in rejecting the submissions put forward by the defendants, namely, (1) where an occupier of premises had de facto control and he intended to actively possess or prevent others (other than the true owner) from possessing chattels, which might be lost on premises, then he acquired a better title to those chattels than the finder; (2) the plaintiff was not a true finder because at the time of the loss the occupier possessed the chattels as against the then unascertained owner.
Stephen Desch Q.C. and Robert Webb for the defendants. An occupier of premises has a superior title over chattels found on them by a finder where the occupier controls those premises and intends that any chattels lost there would be actively possessed by him or that he would prevent others, other than the true owner, from possessing such chattels: Elwes v. Brigg Gas Co. (1886) 33 Ch.D. 562. See also Hibbert v. McKiernan [1948] 2 K.B. 142 and Glenwood Lumber Co. Ltd. v. Phillips [1904] A.C. 405. At first sight Armory v. Delamirie (1722) 1 Stra. 505 suggests that the general rule is that the finder of a chattel can maintain title against anyone except its true owner. But there the present problem did not arise because the occupier of the premises was not party to the proceedings. In Hannah v. Peel [1945] K.B. 509 the occupier was not in physical possession of the premises. In In re Cohen, decd. [1953] Ch. 88, the chattels in question were not attached to the land and the occupiers were held to have superior title because of their occupation. See also Bridges v. Hawkesworth (1851) 21 L.J.Q.B. 75, 15 Jur. 1079 , but it was not easy to determine its ratio decidendi. That case is irrelevant to a situation where the occupier restricts access of members of the public to the premises as in the instant case. If all that was wrong then that case was wrongly decided. The correct general rule is that stated in South Staffordshire Water Co. v. Sharman [1896] 2 Q.B. 44 and see also City of London Corporation v. Appleyard [1963] 1 W.L.R. 982. In the present case the plaintiff could not be a true finder because when the bracelet was lost and before it was found the defendants had title as against an unascertained finder. [Reference was made to Johnson v. Pickering [1907] 2 K.B. 437; Moffatt v. Kazana [1969] 2 Q.B. 152 and Pollock and Wright, Possession in the Common Law (1888), p. 41.]
On the facts of the instant case the defendants are in a similar position as an innkeeper being the lessees of the lounge permitting selected members of the public to use the lounge. Thus they acquired a superior title than a finder of goods which are inadvertently left behind by passengers: Grafstein v. Holme and Freeman (1958) 12 D.L.R. (2d) 727 and Kowal v. Ellis (1977) 76 D.L.R. (3d) 546. Those rights do exist at common law and if the law was found wanting it should confer rights on the occupier because it is the occupier of the premises to whom the loser would refer to on discovering his loss. [Reference was made to Gilchrist Watt and Sanderson Pty. Ltd. v. York Products Pty. Ltd. [1970] 1 W.L.R. 1262 and Mitchell v. Ealing London Borough Council [1979] Q.B. 1.]
Geoffrey Brown for the plaintiff. It is the ancient common law rule, which has been accepted for centuries, that finding a lost chattel and 1007taking control of it gives the finder rights to it subject only to the rights of the true owner: Armory v. Delamirie, 1 Stra. 505, and Bridges v. Hawkesworth, 21 L.J.Q.B. 75 . The finder, unless he takes the chattels into his care and control with dishonest intentions, acquires a right to keep the chattel against all except the true owner or except one who can claim a superior title to him. The finder has no obligation to take reasonable steps to let the true owner know of the finding and to take care of it. [Reference was made to South Staffordshire Water Co. v. Sharman [1896] 2 Q.B. 44 and Hannah v. Peel [1945] K.B. 509.]
Where the finder has a dishonest intent he would be a trespasser and would not risk invoking the law but a subsequent honest finder would have a superior title: Buckley v. Gross (1863) 3 B. & S. 566 and Bird v. Fort Frances [1949] 2 D.L.R. 791.
In the instant case, the plaintiff was a passenger with a ticket and, thus, was not a trespasser. He took the bracelet which he found in the lounge into his care and control. He, obviously, acted honestly and discharged his obligations of trying to find and to notify the true owner. The defendants had no superior title to the bracelet than the plaintiff.
Desch Q.C. replied.
Cur. adv. vult.
December 21. The following judgments were read.
DONALDSON L.J. delivered the first judgment.
On November 15, 1978, the plaintiff, Alan George Parker, had a date with fate — and perhaps with legal immortality. He found himself in the international executive lounge at terminal one, Heathrow Airport. And that was not all that he found. He also found a gold bracelet lying on the floor.
We know very little about the plaintiff, and it would be nice to know more. He was lawfully in the lounge and, as events showed, he was an honest man. Clearly he had not forgotten the schoolboy maxim “Finders keepers.” But, equally clearly, he was well aware of the adult qualification “unless the true owner claims the article.” He had had to clear customs and security to reach the lounge. He was almost certainly an outgoing passenger because the defendants, British Airways Board, as lessees of the lounge from the British Airports Authority and its occupiers, limit its use to passengers who hold first class tickets or boarding passes or who are members of their Executive Club. which is a passengers’ “club.” Perhaps the plaintiff’s flight had just been called and he was pressed for time. Perhaps the only officials in sight were employees of the defendants. Whatever the reason, he gave the bracelet to an anonymous official of the defendants instead of to the police. He also gave the official a note of his name and address and asked for the bracelet to be returned to him if it was not claimed by the owner. The official handed the bracelet to the lost property department of the defendants.
Thus far the story is unremarkable. The plaintiff, the defendants’ official and the defendants themselves had all acted as one would have hoped and expected them to act. Thereafter matters took what, to the plaintiff, was an unexpected turn. Although the owner never claimed the bracelet, the defendants did not return it to the plaintiff. Instead they sold it and kept the proceeds which amounted to £850. The plaintiff discovered what had happened and was more than a little annoyed. I can understand his annoyance. He sued the defendants in the Brentford County Court and was awarded £850 as damages and £50 as interest. The defendants now appeal.
It is astonishing that there should be any doubt as to who is right. But there is. Indeed, it seems that the academics have been debating this problem for years. In 1971 the Law Reform Committee reported that it was by no means clear who had the better claim to lost property when the protagonists were the finder and the occupier of the premises where the property was found. Whatever else may be in doubt, the committee was abundantly right in this conclusion. The committee recommended legislative action but, as is not uncommon, nothing has been done. The rights of the parties thus depend upon the common law.
As a matter of legal theory, the common law has a ready made solution for every problem and it is only for the judges, as legal technicians, to find it. The reality is somewhat different. Take the present case. The conflicting rights of finder and occupier have indeed been considered by various courts in the past. But under the rules of English jurisprudence, none of their decisions binds this court. We therefore have both the right and the duty to extend and adapt the common law in the light of established principles and the current needs of the community. This is not to say that we start with a clean sheet. In doing so, we should draw from the experience of the past as revealed by the previous decisions of the courts. In this connection we have been greatly assisted both by the arguments of counsel, and in particular those of Mr. Desch upon whom the main burden fell, and by the admirable judgment of the deputy judge in the county court.
Neither the plaintiff nor the defendants lay any claim to the bracelet either as owner of it or as one who derives title from that owner. The plaintiff’s claim is founded upon 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’ claim has a different basis. They cannot and do not claim to have found the bracelet when it was handed to them by the plaintiff. At that stage it was no longer lost and they received and accepted the bracelet from the plaintiff on terms that it would be returned to him if the owner could not be found. They must and do claim on the basis that they had rights in relation to the bracelet immediately before the plaintiff found it and that these rights are superior to the plaintiff’s. The defendants’ claim is based upon the proposition that at common law an occupier of land has such rights over all lost chattels which are on that land, whether or not the occupier knows of their existence.
The common law right asserted by the plaintiff has been recognised for centuries. In its simplest form it was asserted by the chimney sweep’s boy who, in 1722, found a jewel and offered it to a jeweller for sale. The jeweller refused either to pay a price acceptable to the boy or to return it and the boy sued the jeweller for its value: Armory v. Delamirie (1722) 1 Stra. 505. Pratt C.J. ruled:
“That the finder of a jewel, though he does not by such finding acquire an absolute property or ownership, yet he has such a property as will enable him to keep it against all but the rightful owner, and consequently may maintain trover.”
In the case the jeweller clearly had no rights in relation to the jewel immediately before the boy found it and any rights which he acquired when he received it from the boy stemmed from the boy himself. The jeweller could only have succeeded if the fact of finding and taking control of the jewel conferred no rights upon the boy. The court would then have been faced with two claimants, neither of which had any legal right, but one had de facto possession. The rule as stated by Pratt C.J. must be right as a general proposition, for otherwise lost property would be subject to a free-for-all in which the physically weakest would go to the wall.
Pratt C.J.’s ruling is, however, only a general proposition which requires definition. Thus one who “finds” a lost chattel in the sense of becoming aware of its presence, but who does no more, is not a “finder” for this purpose and does not, as such, acquire any rights.
Some qualification has also to be made in the case of the trespassing finder. The person vis à vis whom he is a trespasser has a better title. 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 the free-for-all situation to which I have already referred, 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.
Curiously enough, it is difficult to find any case in which the rule is stated in this simple form, but I have no doubt that this is the law. It is reflected in the judgment of Chitty J. in Elwes v. Brigg Gas Co. (1886) 33 Ch.D. 562, 568, although the chattel concerned was beneath the surface of the soil and so subject to different considerations. It is also reflected in the judgment of Lord Goddard C.J. in Hibbert v. McKiernan [1948] 2 K.B. 142, 149. That was a criminal case concerning the theft of “lost” golf balls on the private land of a club. The only issue was whether for the purposes of the criminal law property in the golf balls could be laid in someone other than the alleged thief. The indictment named the members of the club, who were occupiers of the land, 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.
It was in this context that we were also referred to the opinion of the Judicial Committee in Glenwood Lumber Co. Ltd. v. Phillips [1904] A.C. 405 and in particular to remarks by Lord Davey, at p. 410. However, there the occupier knew of the presence of the logs on the land and had a claim to them as owner as well as occupier. Furthermore, it was not a finding case, for the logs were never lost.
One might have expected there to be decisions clearly qualifying the general rule where the circumstances are that someone finds a chattel and thereupon forms the dishonest intention of keeping it regardless of the rights of the true owner or of anyone else. But that is not the case. There could be a number of reasons. Dishonest finders will often be trespassers. They 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: see, for example, Buckley v. Gross (1863) 3 B. & S. 566. However, he probably has some title, albeit a frail one because of the need to avoid a free-for-all. This seems to be the law in Ontario, Canada: Bird v. Fort Frances [1949] 2 D.L.R. 791.
In the interests of clearing the ground and identifying the problem, let me now turn to another situation in respect of which the law is reasonably clear. This is that of chattels which are attached to realty (land or buildings) when they are found. If the finder is not a wrongdoer, he may have some rights, but the occupier of the land or building will have a better title. 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 from the occupier. In all likely circumstances that licence will give the occupier a superior right to that of the finder.
Authority for this view of the law is to be found in South Staffordshire Water Co. v. Sharman [1896] 2 Q.B. 44 where the defendant was employed by the occupier of land to remove mud from the bottom of a pond. He found two gold rings embedded in the mud. The plaintiff occupier was held to be entitled to the rings. Dicta of Lord Russell of Killowen C.J., with whom Wills J. agreed, not only support the law as I have stated it, but go further and may support the defendants’ contention that an occupier of a building has a claim to articles found in that building as opposed to being found attached to or forming part of it. However, it is more convenient to consider these dicta hereafter. Elwes v. Brigg Gas Co., 33 Ch.D. 562 , to which we were also referred in this context, concerned a prehistoric boat embedded in land. But I think that, when analysed, the issue really turned upon rival claims by the plaintiff to be the true owner in the sense of being the tenant for life of the realty, of the minerals in the land and of the boat if it was a chattel and by the defendants as lessees rather than as finders.
Again, in the interest of clearing the ground, I should like to dispose briefly of some of the other cases to which we were quite rightly referred and to do so upon the grounds that, when analysed, they do not really bear upon the instant problem. Thus, In re Cohen, decd. [1953] Ch. 88 concerned money hidden in a flat formerly occupied by a husband and wife who had died. The issue was whether the money belonged to the estate of the husband or to that of the wife. The money had been hidden and not lost and this was not a finding case at all. In Johnson v. Pickering [1907] 2 K.B. 437 the issue was whether the sheriff on behalf of a judgment creditor had a claim to money which the judgment debtor took to his house at a time when the sheriff had taken walking possession of that house, albeit the sheriff had been unaware of the arrival of the money. This again is not a finding case. In Moffatt v. Kazana [1969] 2 Q.B. 152 the claimant established a title derived from that of the true owner. This does not help. Finally, there is Hannah v. Peel [1945] K.B. 509. This was indeed a finding case, but the claimant was the non-occupying owner of the house in which the brooch was found. The occupier was the Crown, which made no claim either as occupier or as employer of the finder. It was held that the non-occupying owner had no right to the brooch and that therefore the finder’s claim prevailed. What the position would have been if the Crown had made a claim was not considered.
I must now return to the respective claims of the plaintiff and the defendants. Mr. Brown, for the plaintiff, relies heavily upon the decision of Patteson J. and Wightman J., sitting in banc in Bridges v. Hawkesworth (1851) 21 L.J.Q.B. 75; 15 Jur. 1079 . It was an appeal from the county court by case stated. The relevant facts, as found, were as follows. Mr. Bridges was a commercial traveller and in the course of his business he called upon the defendant at his shop. As he was leaving the shop, he picked up a small parcel which was lying on the floor, showed it to the shopman and, upon opening it in his presence, found that it contained £65 in notes. Mr. Hawkesworth was called and Mr. Bridges asked him to keep the notes until the owner claimed them. Mr. Hawkesworth advertised for the true owner, but no claimant came forward. Three years later Mr. Bridges asked for the money and offered to indemnify Mr. Hawkesworth in respect of the expenses which he had incurred in advertising for the owner. Mr. Hawkesworth refused to pay over the money and Mr. Bridges sued for it. The county court judge dismissed his claim and he appealed.
Patteson J. gave the judgment of the court. The decision is sufficiently important, and the judgment sufficiently short and difficult to find, for me to feel justified in reproducing it in full. In so doing, I take the text of the report in the Jurist, 15 Jur. 1079 , 1082 but refer to the Law Journal version, 21 L.J. Q.B. 75 , 77–78, in square brackets where they differ. It reads:
“The notes which are the subject of this action were incidentally [‘evidently’] dropped, by mere accident, in the shop of the defendant, by the owner of them. The facts do not warrant the supposition that they had been deposited there intentionally, nor has the case been put at all upon that ground. The plaintiff found them on the floor, they being manifestly lost by some one. The general right of the finder to any article which has been lost, as against all the world, except the true owner, was established in … Armory v. Delamirie, 1 Stra. 505 , which has never been disputed. This right would clearly have accrued to the plaintiff had the notes been picked up by him outside the shop of the defendant; and if he once had the right, the case finds that he did not intend, by delivering the notes to the defendant, to waive the title (if any) which he had to them, but they were handed to the defendant merely for the purpose of delivering them to the owner, should he appear. Nothing that was done afterwards has altered the state of things; the advertisements inserted [‘indeed’] in the newspaper, referring to the defendant, had the same object; the plaintiff has tendered the expense of those advertisements to the defendant, and offered him an indemnity against any claim to be made by the real owner, and has demanded the notes. The case, therefore, resolves itself into the single point on which it appears that the learned judge decided it, namely, whether the circumstance of the notes being found inside [word emphasised in Law Journal] the defendant’s shop gives him, the defendant, the right to have them as against the plaintiff, who found them. There is no authority in our law to be found directly in point. Perhaps the nearest case is that of Merry v. Green (1841) 7 M. & W. 623, but it differs in many respects from the present. We were referred, in the course of the argument, to the learned work of Von Savigny, edited by Perry C.J.; but even this work, full as it is of subtle distinctions and nice reasonings, does not afford a solution of the present question. It was well asked, on the argument, if the defendant has the right, when did it accrue to him? If at all, it must have been antecedent to the finding by the plaintiff, for that finding could not give the defendant any right. If the notes had been accidentally kicked into the shop [‘the street’ in Law Journal, which must be right], and there found by someone passing by, could it be contended that the defendant was entitled to them from the mere fact of their being originally dropped in his shop? If the discovery had never [‘not’] been communicated to the defendant, could the real owner have had any cause of action against him because they were found in his house? Certainly not. The notes never were in the custody of the defendant, nor within the protection of his house, before they were found, as they would have been had they been intentionally deposited there; and the defendant has come under no responsibility, except from the communication made to him by the plaintiff, the finder, and the steps taken by way of advertisement. These steps were really taken by the defendant as the agent of the plaintiff, and he has been offered an indemnity, the sufficiency of which is not disputed. We find, therefore, no circumstances in this case to take it out of the general rule of law, that the finder of a lost article is entitled to it as against all persons except the real owner, and we think that that rule must prevail, and that the learned judge was mistaken in holding that the place in which they were found makes any legal difference. Our judgment, therefore, is, that the plaintiff is entitled to these notes as against the defendant; that the judgment of the court below must be reversed, and judgment given for the plaintiff for £50.”
The ratio of this decision seems to me to be solely that the unknown presence of the notes on the premises occupied by Mr. Hawkesworth could not without more, give him any rights or impose any duty upon him in relation to the notes.
Mr. Desch. for the defendants, submits that Bridges v. Hawkesworth, 15 Jur. 1079 , can be distinguished and he referred us to the judgment of Lord Russell of Killowen C.J., with which Wills J. agreed, in South Staffordshire Water Co. v. Sharman [1896] 2 Q.B. 44. Sharman’s case itself is readily distinguishable, either upon the ground that the rings were in the mud and thus part of the realty or upon the ground that the finders were employed by the plaintiff to remove the mud and had a clear right to direct how the mud and anything in it should be disposed of, or upon both grounds. However, Lord Russell of Killowen C.J. in distinguishing Bridges v. Hawkesworth expressed views which, in Mr. Desch’s submission, point to the defendants having a superior claim to that of the plaintiff on the facts of the instant case. Lord Russell of Killowen C.J. said, at pp. 46–17:
““The principle on which this case must be decided, and the distinction which must be drawn between this case and that of Bridges v. Hawkesworth, is to be found in a passage in Pollock and Wright, …Possession in the Common Law, p. 41: ‘The possession of land carries with it in general, by our law, possession of everything which is attached to or under that land, and, in the absence of a better title elsewhere, the right to possess it also. And it makes no difference that the possessor is not aware of the thing’s existence … It is free to anyone who requires a specific intention as part of a de facto possession to treat this as a positive rule of law. But it seems preferable to say that the legal possession rests on a real de facto possession, constituted by the occupier’s general power and intent to exclude unauthorised interference.’ That is the ground on which I prefer to base my judgment. There is a broad distinction between this case and those cited from [Blackstone’s Commentaries]. Those were cases in which a thing was cast into a public place or into the sea — into a place, in fact, of which it could not be said that anyone had a real de facto possession, or a general power and intent to exclude unauthorised interference … Bridges v. Hawkesworth stands by itself, and on special grounds; and on those grounds it seems to me that the decision in that case was right. Someone had accidentally dropped a bundle of banknotes in a public shop. The shopkeeper did not know they had been dropped, and did not in any sense exercise control over them. The shop was open to the public, and they were invited to come there. A customer picked up the notes and gave them to the shopkeeper in order that he might advertise them. The owner of the notes was not found, and the finder then sought to recover them from the shopkeeper. It was held that he was entitled to do so, the ground of the decision being, as was pointed out by Patteson J., that the notes, being dropped in the public part of the shop, were never in the custody of the shopkeeper, or ‘within the protection of his house.’ It is somewhat strange that there is no more direct authority on the question; but the general principle seems to me to be that where a person has possession of house or land, with a manifest intention to exercise control over it and the things which may be upon or in it, then, if something is found on that land, whether by an employee of the owner or by a stranger, the presumption is that the possession of that thing is in the owner of the locus in quo.”
For my part, I can find no trace in the report of Bridges v. Hawkesworth, 21 L.J.Q.B. 75 , of any reliance by Patteson J. upon the fact that the notes were found in what may be described as the public part of the shop. He could, and I think would, have said that if the notes had been accidentally dropped in the private part unbeknownst to Mr. Hawkesworth and had later been accidentally kicked into the street, Mr. Hawkesworth would have had no duty to the true owner and no rights superior to that of the finder.
However, I would accept Lord Russell of Killowen C.J.’s statement of the general principle in South Staffordshire Water Co. v. Sharman [1896] 2 Q.B. 44, 46–47, provided that the occupier’s intention to exercise control over anything which might be on the premises was manifest. But it is impossible to go further and to hold that the mere right of an occupier to exercise such control is sufficient to give him rights in relation to lost property on his premises without overruling Bridges v. Hawkesworth, 21 L.J.Q.B. 75 . Mr. Hawkesworth undoubtedly had a right to exercise such control, but his defence failed.
South Staffordshire Water Co. v. Sharman was followed and applied by McNair J. in City of London Corporation v. Appleyard [1963] 1 W.L.R. 982. There workmen demolishing a building found money in a safe which was recessed in one of the walls. The lease from the corporation to the building owners preserved the corporation’s right to any article of value found upon any remains of former buildings and the workmen were employed by contractors working for the building owners. McNair J. upheld the corporation’s claim. The workmen claimed as finders, but it is clear law that a servant or agent who finds in the course of his employment or agency is obliged to account to his employer or principal. The contractor similarly was bound to account to the building owner and the building owner, who was the occupier, was contractually bound to account to the corporation. The principal interest of the decision lies in the comment of McNair J., at p. 987, that he did not understand Lord Russell of Killowen C.J. as intending to qualify or extend the principle stated in Pollock and Wright, Possession in the Common Law (1888), p. 41, that possession of land carries with it possession of everything which is attached to or under that land when the Chief Justice restated the principle [1896] 2 Q.B. 44, 47:
“…where a person has possession of house or land, with a manifest intention to exercise control over it and the things which may be upon or in it, then, if something is found on that land, whether by an employee of the owner or by a stranger, the presumption is that the possession of that thing is in the owner of the locus in quo.” (My emphasis).
We were also referred to two Canadian authorities. In Grafstein v. Holme and Freeman (1958) 12 D.L.R. (2d) 727, the Ontario Court of Appeal considered the competing claims of Mr. Grafstein, the owner-occupier of a dry goods store, and Mr. Holme and Mr. Freeman, his employees. Mr. Holme found a locked box in premises which Mr. Grafstein had acquired as an extension to his store. He showed it unopened to Mr. Grafstein and was told to put it on a shelf and leave it there. Two years later Mr. Holme and Mr. Freeman decided to open the box and found that it contained Canadian $38,000 in notes. The court treated the moment of finding the money as that at which the box was opened, rather than when the box was found. It held that Mr. Grafstein had a superior claim because he took possession and control of the box and of its unknown contents when its existence was first brought to his attention. LeBel J.A. took a different view of Lord Russell of Killowen C.J.’s judgment in South Staffordshire Water Co. v. Sharman [1896] 2 Q.B. 44 from that of McNair J. in City of London Corporation v. Appleyard [1963] 1 W.L.R. 982. He considered that Lord Russell of Killowen C.J. intended to extend the statement of principle in Pollock and Wright, Possession in the Common Law to include things upon land or in a house. He commented, 12 D.L.R. (2d) 727 , 734:
“… I do not think that anyone could seriously quarrel with the principle as extended by Lord Russell in that way so long as it is established in evidence as a basis for the presumption that the occupier has in fact the ‘possession of house or land, with a manifest intention to exercise control over it (i.e., the land or the house) and the things which may be upon or in it …’ I say this because I think there must be a natural presumption of possession in favour of the person in occupation — a presumption which hardly needs a legal decision for its authority.”
The court did not decide the issues upon the basis that Messrs. Holme and Freeman were the employees of Mr. Grafstein acting within the scope of their employment, and LeBel J.A. indicated that in his view a claim by Mr. Grafstein based upon that relationship might well have failed.
The second Canadian decision is that of the Manitoba Court of Appeal in Kowal v. Ellis (1977) 76 D.L.R. (3d) 546. The plaintiff was driving across the defendant’s land when he saw an abandoned pump on that land. Some question arose as to whether he was a trespasser, but the court held that at the time when he took possession of the pump he had the defendant’s permission to go on the land. The judgment of the court was delivered by O’Sullivan J.A. and, so far as is material, was in the following terms, at pp. 548–549:
“The plaintiff, when he took possession of the pump, acquired a special property in it arising out of his relationship to the unknown owner. The relationship was one of bailment and, like any other bailee, the plaintiff has become entitled to sue in trover or, as here, in detinue anyone who has interfered with his right of possession, save only the true owner or someone claiming through or on behalf of the true owner. This is in accord with what was decided by Patteson J., in Bridges v. Hawkesworth, 21 L.J.Q.B. 75 , 78: ‘We find, therefore, no circumstances in this case to take it out of the general rule of law, that the finder of a lost article is entitled to it as against all parties except the real owner, and we think that that rule must prevail ….’ Bridges v. Hawkesworth was followed by Birkett J. in Hannah v. Peel [1945] K.B. 509. It follows that the plaintiff is entitled to possession of the pump, unless the defendant asserts and proves a title to the pump superior to that of the plaintiff. Such a superior title may arise independently of the original owner of the pump if the original owner has dealt with it in such a way as to enable the landowner to assert a claim as owner of the chattel, or it may arise by reason of the landowner having himself already become the bailee of the chattel on behalf of the true owner. In Elwes v. Brigg Gas Co., 33 Ch.D. 562 , the landowner succeeded against the finder of a boat because the landowner proved that it was the owner of the boat, which had become embedded in the soil. In that case, Chitty J. said, at p. 568: ‘The first question which does actually arise in this case is whether the boat belonged to the plaintiff [landowner] … I hold that it did …’ Naturally, a bailee by finding must surrender possession to the true owner of the chattel and, once it was held that the landowner owned the boat, the case was closed. A similar result was effected in Hibbert v. McKiernan [1948] 2 K.B. 142. Once there was a finding that the golf balls belonged to the members of the golf course, it followed that the finder had no right of possession as against the true owners of the balls. One can imagine cases where a chattel is abandoned by its first owner and may then become the property of someone else, perhaps a landowner who exercises control and dominion over it. In such a case, the landowner would assert a claim against the finder, not by virtue of his right as owner of land, but by virtue of his right as owner of the chattel. In the case before us, however, the defendant asserts no such right of ownership. The pump in question appears to have been cached rather than abandoned. So this is a case where the defendant does not even assert that he is the owner of the chattel in question; that being so, the defendant can succeed only by showing that he himself was in possession of the pump at the time of the finding in such a way that he, the defendant, had already constituted himself a bailee for the true owner. I know there have been weighty opinions expressed in favour of the proposition that the possessor of land possesses all that is on the land, and there is a sense in which that may be so, but to oust the claim of a bailee by finding it is not enough to establish some kind of metaphysical possession. What must be shown is that the landowner claimant, who has not acquired ownership of a chattel, is a prior bailee of the chattel with all the rights, but also with all the obligations, of a bailee. I am sure that no one would be more surprised than the defendant if, prior to the finding by the plaintiff, the true owner had come along and asserted that the defendant landowner owed him any duty either to take care of the pump or to seek out the owner of it. The reality is that the defendant, not even being aware of the existence of the pump, owed no duty with respect to it to its true owner. He was not a bailee of the pump and consequently has no claim to possession which can prevail over the special property which the plaintiff has by virtue of his having become a bailee by finding.”
One of the great merits of the common law is that it is usually sufficiently flexible to take account of the changing needs of a continually changing society. Accordingly, Mr. Desch rightly directed our attention to the need to have common law rules which will facilitate rather than hinder the ascertainment of the true owner of a lost chattel and a reunion between the two. In his submission the law should confer rights upon the occupier of the land where a lost chattel was found which were superior to those of the finder, since the loser is more likely to make inquiries at the place of loss. I see the force of this submission. However, I think that it is also true that if this were the rule and finders had no prospect of any reward, they would be tempted to pass by without taking any action or to become concealed keepers of articles which they found. Furthermore, if a finder is under a duty to take reasonable steps to reunite the true owner with his lost property, this will usually involve an obligation to inform the occupier of the land of the fact that the article has been found and where it is to be kept.
In a dispute of this nature there are two quite separate problems. The first is to determine the general principles or rules of law which are applicable. The second, which is often the more troublesome, is to apply those principles or rules to the factual situation. I propose to confront those two problems separately.
Rights and obligations of the finder
Rights and liabilities of an occupier
Application to the instant case
The plaintiff was not a trespasser in the executive lounge and, in taking the bracelet into his care and control, he was acting with obvious honesty. Prima facie, therefore, he had a full finder’s rights and obligations. He in fact discharged those obligations by handing the bracelet to an official of the defendants’ although he could equally have done so by handing the bracelet to the police or in other ways such as informing the police of the find and himself caring for the bracelet.
The plaintiff’s prima facie entitlement to a finder’s rights was not displaced in favour of an employer or principal. There is no evidence that he was in the executive lounge in the course of any employment or agency and, if he was, the finding of the bracelet was quite clearly collateral thereto. The position would have been otherwise in the case of most or perhaps all the defendants’ employees.
The defendants, for their part, cannot assert any title to the bracelet based upon the rights of an occupier over chattels attached to a building. The bracelet was lying loose on the floor. Their claim must, on my view of the law, be based upon a manifest intention to exercise control over the lounge and all things which might be in it. The evidence is that they claimed the right to decide who should and who should not be permitted to enter and use the lounge, but their control was in general exercised upon the basis of classes or categories of user and the availability of the lounge in the light of the need to clean and maintain it. I do not doubt that they also claimed the right to exclude individual undesirables, such as drunks, and specific types of chattels such as guns and bombs. But this control has no real relevance to a manifest intention to assert custody and control over lost articles. There was no evidence that they searched for such articles regularly or at all.
Evidence was given of staff instructions which govern the action to be taken by employees of the defendants if they found lost articles or lost chattels were handed to them. But these instructions were not published to users of the lounge and in any event I think that they were intended to do no more than instruct the staff on how they were to act in the course of their employment.
It was suggested in argument that in some circumstances the intention of the occupier to assert control over articles lost on his premises speaks for itself. I think that this is right. If a bank manager saw fit to show me round a vault containing safe deposits and I found a gold bracelet on the floor, I should have no doubt that the bank had a better title than I, and the reason is the manifest intention to exercise a very high degree of control. At the other extreme is the park to which the public has unrestricted access during daylight hours. During those hours there is no manifest intention to exercise any such control. In between these extremes are the forecourts of petrol filling stations, unfenced front gardens of private houses, the public parts of shops and supermarkets as part of an almost infinite variety of land, premises and circumstances.
This lounge is in the middle band and in my judgment, on the evidence available, there was no sufficient manifestation of any intention to exercise control over lost property before it was found such as would give the defendants a right superior to that of the plaintiff or indeed any right over the bracelet. As the true owner has never come forward, it is a case of “finders keepers.”
I would therefore dismiss the appeal.
EVELEIGH L.J. It is accepted on both sides that for the defendants to succeed it must be shown that they had possession of the bracelet at the time when the plaintiff found it and took it into his possession. Whatever the difficulties which surround the concept of possession in English law, the two elements of control and animus possidendi must co-exist. Each of these elements varies greatly in the circumstances of each case. We are concerned to consider them in relation to a bracelet, obviously lost by its owner, found on the floor of the executive lounge at London Airport. Against all but the true owner a person in possession has the right to possess. It should follow therefore that an innocent handler of property who intends to take it for the purpose of discovering the owner and returning it to him should not be in danger of infringing any right in a third party. This makes it essential that the elements of possession should be apparent.
In South Staffordshire Water Co. v. Sharman [1896] 2 Q.B. 44, 47, Lord Russell of Killowen C.J. said:
“It is somewhat strange that there is no more direct authority on the question; but the general principle seems to me to be that where a person has possession of house or land, with a manifest intention to exercise control over it and the things which may be upon or in it, then, if something is found on that land, whether by an employee of the owner or by a stranger, the presumption is that the possession of that thing is in the owner of the locus in quo.”
1020
In relation to the facts of the present case, I respectfully agree with Donaldson L.J. when he says that he would accept Lord Russell of Killowen C.J.’s statement of the general principle, provided that the occupier’s intention to exercise control over anything which might be on the premises was manifest. Indeed, I regard Lord Russell of Killowen C.J. as saying that it is necessary for the occupier to prove that his intention was obvious. A person permitted upon the property of another must respect the lawful claims of the occupier as the terms upon which he is allowed to enter, but it is only right that those claims or terms should be made clear. What is necessary to do this must depend on the circumstances. Take the householder. He has the key to the front door. People do not enter at will. They come by very special invitation. They are not members of a large public group, even a restricted group of the public, as users of the executive lounge may be. I would be inclined to say that the occupier of a house will almost invariably possess any lost article on the premises. He may not have taken any positive steps to demonstrate his animus possidendi, but so firm is his control that the animus can be seen to attach to it. It is rather like the strong room of a bank, where I think it would be difficult indeed to suggest that a bracelet lying on the floor was not in the possession of the bank. The firmer the control, the less will be the need to demonstrate independently the animus possidendi.
The absence of both elements in Bridges v. Hawkesworth, 21 L.J.Q.B. 75, was emphasised by Lord Russell of Killowen C.J. in South Staffordshire Water Co. v. Sharman [1896] 2 Q.B. 44, 47, when he said:
“The shopkeeper did not know they had been dropped, and did not in any sense exercise control over them. The shop was open to the public, and they were invited to come there.”
I do not myself support the criticism that has been levelled against Lord Russell of Killowen C.J.’s words by those who state broadly that the place makes no difference and call in support the words of Patteson J. in Bridges v. Hawkesworth, 21 L.J.Q.B. 75 , 78: “… the learned judge was mistaken in holding that the place in which they were found makes any legal difference.” He was not saying that the place is an irrelevant consideration. He was saying that there was nothing in the place where the notes were found to rebut the principle of “finders keepers.” There was nothing special about it. It was open to the public. One could not infer any special conditions of entry. Earlier, however, he said, at p. 78: “The notes never were in the custody of the defendant, nor within the protection of his house before they were found …” I see in those words a recognition of the fact that other considerations might apply in the case of a private house. In the present case I have come to the conclusion that there is nothing so special in the place and no other evidence to indicate that the defendants, on whom is the burden of proof, in any way demonstrated that they possessed the intention to exercise exclusive control over lost property or that the permission to enter as a member of the travelling public, albeit having purchased the special privilege of the executive lounge, was upon the terms that the commonly understood maxim “finders keepers” would not apply. I therefore would dismiss this appeal.
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SIR DAVID CAIRNS. I agree that this appeal should be dismissed. While there is no authority which is binding on this court, it seems to me that Bridges v. Hawkesworth, 21 L.J.Q.B. 75, is the closest case on its facts to the present case. Though Bridges v. Hawkesworth has been the subject of much academic discussion, it has been either applied or distinguished in all the reported cases of disputes between finders and occupiers for 130 years and I consider that it should be followed on this occasion unless it can properly be distinguished.
The only possible distinction is that in Bridges v. Hawkesworth the notes were apparently found in the part of the shop to which the public had, in practice, unrestricted access, whereas in the instant case there was some degree of control of access to the lounge where the bracelet was found.
In my judgment, that is not a sufficient ground for deciding this dispute in favour of the occupier rather than the finder. There could be no logical reason for according more favourable treatment to an airways board which admits only a fraction of the public to a particular lounge (but a fraction which includes all first class passengers and some others) and a shopkeeper who imposes no restriction on entry to his shop while it is open (but who would be entitled to refuse entry to anybody if he thought fit).
I agree with both Donaldson L.J. and Eveleigh L.J., that, in a situation at all similar to that which we are considering, the occupier has a better claim than the finder only if he had possession of the article immediately before it was found and that this is only so (in the case of an article not in or attached to the land but only on it) when the occupier’s intention to exercise control is manifest. I also agree that such an intention would probably be manifest in a private house or in a room to which access is very strictly controlled. Where the borderline should be drawn would be difficult to specify, but I am satisfied that this case falls on the wrong side of the borderline from the defendants’ point of view.
I am in full agreement with the analysis of the authorities which Donaldson L.J. has made in his judgment in relation to the facts in this case. As to thieves and trespassers (in the sense of trespassers to the place where the thing was found) I express no concluded opinion, since the plaintiff was not in either of those categories.
Appeal dismissed with costs.
Leave to appeal on condition that defendants do not seek to disturb order for costs and do not seek an order for costs against plaintiff in the House of Lords.
Solicitors: Richards, Butler & Co.; Edward Isaacs & Co.
