Waverley Borough Council v Fletcher
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE AULD,LORD JUSTICE WARD,THE MASTER OF THE ROLLS |
| Judgment Date | 13 July 1995 |
| Judgment citation (vLex) | [1995] EWCA Civ J0713-7 |
| Docket Number | QBENF 94\0428\C |
| Court | Court of Appeal (Civil Division) |
| Date | 13 July 1995 |
[1995] EWCA Civ J0713-7
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
His Honour Judge Fawcus (Sitting as a High Court Judge)
Before The Master of the Rolls (Sir Thomas Bingham) Lord Justice Auld Lord Justice Ward
QBENF 94\0428\C
MR I CROXFORD QC and MISS J SMITH (Instructed by Sharpe Pritchard, London WC1V 6HG) appeared on behalf of the Appellant.
MR J MUNBY QC and MR R BEECHCROFT (Instructed by John Budd & Co. Blackpool, FY1 3PG) appeared on behalf of the Respondents.
This appeal concerns the collision of two familiar notions of English law: "finders keepers" and that an owner or lawful possessor of land owns all that is in or attached to it. More particularly, it raises two questions:
1. Who, as between an owner or lawful possessor of land and a finder of an article in or attached to the land, is entitled to the article?
2. How is the answer to 1 affected by, or applied, when the land is public open space?
The appellant, Waverley Borough Council, is the freeholder of a park, Farnham Park, in Farnham, Surrey, to which it gave free access to the public for pleasure and recreational uses. It exercised control over the Park by means of a ranger and his staff and by bye-laws. On 28th August 1992 the respondent, Ian Fletcher, took a metal detector into the Park to search for metal objects which might be of interest or value. He found, by use of the detector and some determined digging in hard ground, a mediaeval gold brooch about 9" below the surface. He reported his find, and a Coroner's inquisition was held to determine whether it was Treasure Trove. The jury found that it was not, and the Coroner returned the brooch to Mr. Fletcher.
The Council then issued proceedings against Mr. Fletcher, claiming a declaration that the brooch was its property and delivery up of it or damages. Mr. Fletcher, by his defence, relied on a defence of "finders keepers". He maintained that the Council's claim to ownership of the brooch required it to prove not only ownership, but also occupation, of the Park. He admitted that it owned the Park, but asserted that it did not occupy it because it was bound to allow the public to use it for pleasure and recreation. He said that he found the brooch whilst he was a lawful visitor there, and that, therefore, because the true owner of it had not been found, he was entitled, as finder, to keep it.
The Judge, His Hon. Judge Fawcus, sitting as a Judge of the High Court, found for Mr. Fletcher. After reviewing the authorities, he held: that the rule that an owner of land owns everything in his land applies only to things that are naturally there, not to lost or abandoned objects; that the crucial factor is the control that he intends and is able to exercise over lawful visitors in relation to any objects that might be on or in the land; that Mr. Fletcher was a lawful visitor and did not become a trespasser by digging and removing the brooch; but that it was not necessary to decide the question of control because the Council had not established "a paramount claim so as to displace the maxim "finders keepers".
On this appeal, Mr. I. Croxford, QC, for the Council, argued that an owner or lawful possessor of land is entitled by virtue of that ownership or possession without more, as against a finder with no interest in the land, to any object, other than Treasure Trove, found in the land. He acknowledged that a different rule applies to unattached objects found on the land.
Mr. J. Munby, QC, for Mr. Fletcher, maintained that a common principle applies to objects in or unattached on land, namely that to overcome a finder's claim the owner or lawful possessor of land must demonstrate an intention to exercise control over the land and things found in or on it. By "control" he meant a power and intent to "exclude unauthorised interference". That is effectively the English law concept of possession. See Holmes, "The Common Law", 1881, p. 220–221; Pollock and Wright, "An Essay On Possession In The Common Law", 1888, and for a modern judicial example of its expression, per Eveleigh LJ in Parker v. British Airways Board [1982] 1 QB 1004,at 1019E. Mr Munby said that the application of the principle may differ evidentially according to whether the object in dispute is found in or unattached on the land.
The starting point in considering those rival contentions is the firm principle established as long ago as 1722 in Armory v. Delamirie 1 Strange 505, that the finder of an object is entitled to possess it against all but the rightful owner. There was no claim in that case by the landowner; the dispute was between a chimney sweep's boy who found a jewel and a jeweller to whom he had offered it for sale. The boy won.
The same principle applies as between the owner or lawful possessor of land and the finder in relation to unattached objects on land unless the former has made plain his intention to control the land and anything that might be found on it. As Pollock and Wright put it in their Essay, at 40, "[t]he finder's right starts from the absence of any de facto control at the moment of finding". See Bridges v. Hawkesworth (1851) 21 LJQB 75, in which Patteson and Wightman JJ, sitting as a Divisional Court on appeal from a county court, held that the finder of bank-notes dropped by someone unknown accidentally on the floor of a shop had a better claim to them than the shop-owner who, until the finder drew his attention to them, did not know they were there. A more recent example is Parker [supra], where the finder of a gold bracelet dropped by an unknown traveller in an airline company's lounge at an airport was held to be entitled to it as against the airline company. In that case, Donaldson LJ, as he then was, giving the leading judgment, held at 1014B-C, that for the landowner's claim to prevail in such a case, he had to have both a right and a manifest intention to exercise control over anything which might be on his land.
As to articles found in or attached to land, the foundation of the modern rule is Elwes v. Brigg Gas Company (1886) 33 Ch.D 562, in which Chitty J clearly regarded ownership or lawful possession of the land as determinative and the legal status of the object in dispute as immaterial. He held that a tenant for life as lessor of land was entitled against its lessee to ownership of a prehistoric boat embedded 6 feet below the surface in the demised land. In so holding, he said, at 568, that it was unnecessary to determine whether the boat was a mineral, part of the soil in which it was embedded or a chattel because:
"… he was in possession of the ground, not merely of the surface, but of everything that lay beneath the surface down to the centre of the earth, and consequently in possession of the boat. … The Plaintiff then, being thus in possession of the chattel, it follows that the property in the chattel was vested in him.. Obviously the right of the original owner could not be established; it had for centuries been lost or barred … The Plaintiff, then, had a lawful possession, good against all the world, and therefore the property in the boat. In my opinion it makes no difference, in the circumstances, that the plaintiff was not aware of the existence of the boat."
Earlier in his judgment, at 567, he identified the breadth of that principle:
"In support of the contention that it ought to be deemed in law as part of the soil in which it was embedded, reference was made to the principle embodied in the maxim 'Quicquid plantatur,' or as it is sometimes stated (see Broom's Legal Maxims … and the judgment in Climie v. Wood… 'fixatur solo, solo cedit.' This principle is an absolute rule of law, not depending on intention; for instance, if a man digs in the land of another, and permanently fixes in the soil stones or bricks, or the like, as the foundation of a house, the stones or bricks become the property of the owner of the soil, whatever may have been the intention of the person who so placed them there, and even against his declared intention that they should remain his property. Nor does it appear to me to be material that the things should have been placed there by the hand of man; it would seem to be sufficient if they have become permanently fixed in the soil by the operation of natural causes."
As A.L. Goodhart concluded in his celebrated article, "Three Cases on Possession", in (1927–9) 3 Camb. L.J. 195, at 204, the lessor "was the possessor of the boat because he was in possession of the ground", to which I add what is implicit in that conclusion, because the boat had become permanently fixed in the ground. Chitty J. did not, therefore, need to consider Bridges v. Hawkesworth, which was cited to him, and the quite different principle governing unattached articles on land.
Unfortunately, the two principles became entangled in South Staffordshire Water Company v. Sharman [1896] 2 QB 44, another appeal to the Divisional Court from a county court, and a case which, on its facts, was just on the "in" side of the border-line between objects found in and on land. It concerned a landowner which had instructed its employee to clean the bottom of a pool on land owned by it. In the course of doing so the employee found two gold rings in mud at the bottom of the pool. The landowner and the employee each claimed the rings. Lord Russell of Killowen CJ, with whom Wills J agreed, expressly based his judgment, at 47–48, on the following passage in Pollock and Wright's Essay, at p. 41, dealing with objects...
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