Finding cases are a treasurer trove of legal issues. The dispute over the treasure trove found in a Perth garden proves the point.
Non-lawyers usually seek a simple answer. Is it finders keepers? Who gets the treasure?
In Perth, a gardener, Cliff Anderson, uncovered $19,000 in cash when dig the rose garden. The house-owners Eunice and Joseph Borges are claiming finders keepers. The previous owners, the Konior family, say the stash is part of the money their widowed Russian mother, Anna, stashed away for hard times. She died suddenly in 1997. Her three children searched for the stash, but eventually sold the house and split the proceeds. They reported the matter to the police and the Director of Public Prosecutions.
The DPP ruled late last week it would do nothing. Quite right. Even if the money proves to be the Russian mother’s, the new owners believed they had a right to it, so could never be convicted of theft.
It is terrible that only $19,000 at stake. In these times of vicious legal costs, the costs will quickly outstrip the amount at stake.
That was not so in the past when finding cases went to court over lesser treasures.
What would happen in such a case? It is a wonderful illustration of the complexity and logic of tort and property law.
Finders keepers is not the law in all cases in Australia, but it has been applied to many cases.
The cases go back more than 200 years. In 1772 a chimney sweep’s boy found a jewel and took it to a jewel shop. The jeweller offered threepence halfpenny, but the boy wanted the jewel back. The court awarded that he be given the jewel back.
English law does not search for a “”true owner”. It gives the possessor the right to possess against all the world but the true owner. The sweep’s boy got possession and could enforce it against all the world but the true owner (if ever one should emerge). This is the real meaning of possession is nine-tenths of the law.
Some finding cases are bizarre.
In the 1960s, a Queensland policeman found a gold ingot near the exit of a drive-in theatre. The true owner could not be found. Held the policeman could keep it against the land-owner and the policeman’s employer because the policeman’s finding was incidental to his employment – if the search and finding had been an essential part of his employment, the employer would have keep the treasure. The land-owner did not have a great deal of control over his land, allowing the public to come and go, so his claim was rejected.
In the 1980s, a father and son searched a Irish bog with metal detectors and found the Derrynaflan Hoard of medieval Christian art – a chalice, paten, stand and strainer, valued at $A10 million – on someone else’s land. The land-owners got $50,000 reward and the state offered the two finders just $10,000 each. The court ordered the rewards increased, but the treasure stayed with the estate. The court ruled there was a great public interest in high rewards to encourage people to turn in nationally significant treasure. All Australian jurisdictions have rules about nationally significant artefacts.
In the 1930s, coins were found by a bowswain in the bow of the SS Paiko on it sway across the Tasman. Customs got to keep them – mainly due to lack of evidence about the way the coins were found.
In the 1980s a passenger found a gold necklace in a British airport waiting lounge. He got to keep it because the airline authority allowed the public to come and go.
In the 1990s, there was an odd case in Sydney. The National Crime Authority raided a house for drug money. The house was rented from the NSW Housing Trust by Margaret Flack – mother of the suspected drug trader. The NCA searchers found a brief case with $433,000 in recently minted notes in it. Mrs Flack said she had never seen it before. The NCA took the money away. Mrs Flack and her son denied ever having seen the briefcase before. The case against he son came to nothing. Mrs Flack sued to get the money back. The true owner was never found. Mrs Flack won. Her possession held good against everyone one else in the world, including the NCA. The court said she controlled her house. There was no public access to it. A member of the public could not “”find” anything there, in the sense that the airline passenger could. It did not matter that she had no knowledge of the existence of the money.
An English wartime case went a similar way. A lance-corporal found an expensive brooch stashed in a pelmet in a house owned by a major, who had never occupied it because it was requisitioned for war use. The lance corporal handed it in. The court awarded it to the major.
And in a case reminiscent of the Perth case in the 1960s, an English house-seller forgot to take with him a biscuit tin with 1987 one pound notes he had stashed in the chimney. It was found by the new owner. The court in England ruled that the former owner should get the money back – mere forgetfulness was not enough to amount to the abandonment of title.
But after a long time, title will be deemed to have been abandoned, or a statute of limitations of six or 12 years might run against a “”true owner”.
The circumstances are critical. Was the finder employed, invited on to the land or trespasser? Was the finding place open to the public? Was there a “”true owner”? How long had the treasure been stashed? Was the treasure nationally significant?
In the Perth case the previous owners of the property would have a good case if they could show their Russian mother did stash the money away. The trouble is that, these days, the legal costs might make it more trouble than it is worth. They would be better off splitting it than risking a “”lawyer take all” outcome, which would be the most likely if they went to court.