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E. Treasure-trove: Cases 99–101

Chapter 3: Acquiring Ownership and Losing Ownership

Case 99
Cases 100–101

Case 99. Many, but not all, common law jurisdictions recognize the doctrine of “treasure trove,” originally limited to long buried money, bullion, or plate, the owner of which was unknown.  Where the doctrine applies, the property is awarded to the finder.  This differs from other buried or “embedded” property, which is usually deemed to be in the constructive possession of the owner of the land.  Where the doctrine of treasure trove is not recognized, the disposition of treasure trove is not materially different from that of “lost” property in general.

Discussion Questions:
  1. Formerly at common law the possessory interest in treasure trove was claimed by the sovereign as against the finder. What would have been the justification for that?

  2. Do the Roman cases clarify the justification for treating treasure trove differently from other found property?

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Cases 100–101. At common law, generally speaking, the determination of possessory rights to found property as between the finder and the owner of the premises on which the property is found depends upon whether the property is deemed to be “mislaid” or “lost.”  See above under Cases 45–47a: possession of mislaid property is granted to the owner of the premises; possession of lost property, to the finder.  In those jurisdictions that do not recognize the common law doctrine of “treasure trove,” this third category of property, as noted in the comment to Case 99, is usually handled in a manner analogous to “mislaid” property.  See, e.g., Corliss v. Wenner, 34 P.3d 1100 (Idaho Ct. App. 2001) (paving company employee was not entitled to possession of cache of 19th century $5 gold coins found while installing a driveway).

Discussion Question:
  1. Do equitable and/or policy arguments have any relevance to how these categorizations of lost property affect the rights of finders as opposed to owners of the land or premises?  Should they?  See Morgan v. Wiser, 711 SW2d 220 (1985): “[W]e find the rule with respect to treasure-trove to be out of harmony with modern notions of fair play. The common-law rule of treasure-trove invites trespassers to roam at large over the property of others with their metal detecting devices and to dig wherever such devices tell them property might be found.”

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Chapter 3: Introduction | A. Cases 67–71 | B. Cases 72–93
C. Cases 94–96 | D. Cases 97–98 | E. Cases 99–101
F. Cases 102–104 | G. Cases 105–119 | H. Case 120

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