446Property Law

(although Eveleigh and Cairns LJJ are non-committal on these points) it is irrelevant whether the goods were lost, abandoned, hidden, or simply left in their right place, and it is equally irrelevant whether the ‘finder’ took possession by genuinely ‘finding’, or by stealing, or by absent-mindedly walking off with something he thought was his own. A fortiori, it is irrelevant whether the finder was a trespasser or lawfully on the occupier’s land. All of this must follow from the Court of Appeal decision in Costello v. Chief Constable of Derbyshire Constabulary

[2001] 3 All ER 150 (extracted at www.cambridge.org/propertylaw/). By the same token, attachment of the goods to the land is only relevant if the degree of attachment is sufficient to make them part of the realty – if it is, ownership (even as against the true owner) shifts to the owner of the land (subject to some refinements as between landowner and tenant of the land if they constitute tenant’s fixtures).

The second analysis – that put forward by Donaldson LJ – assumes that finders are a special category of taker. This involves making three distinctions. The first, between innocent takers on the one hand and thieves and trespassers on the other, is clearly at odds with the basic principle that possession itself founds title, and that possession is acquired by a combination of intention and physical control, irrespective of whether it is acquired wrongfully or unlawfully. The second, between lost and abandoned goods on the one hand and those cached or in their right place on the other, is objectionable on the same ground. If I take your book with the intention of assuming possession of it, I acquire possession of it regardless of whether, at the time I took it, the book was lying in the street where you had lost it or thrown it away, or hidden by you under a cushion in a friend’s house, or in its proper place on your bookshelf. The third distinction assumed by Donaldson LJ involves adopting detailed and illogical rules on attachment of goods to the land which are special to finding cases, seemingly with no justification for departing from established rules on annexation and fixtures.

Notes and Questions 11.5

Read Parker v. British Airways Board [1982] QB 1004, CA, and Costello v. Chief Constable of Derbyshire Constabulary [2001] 3 All ER 150, either in full or as extracted at www.cambridge.org/propertylaw/, and consider the following:

1.In Waverley Borough Council v. Fletcher [1996] QB 334, the Court of Appeal had to consider the claims of Mr Fletcher, who found a medieval brooch in a public park, using his metal detector. The brooch was buried about nine inches below the surface of the ground. Mr Fletcher was lawfully in the park but, unknown to him, use of metal detectors in the park was forbidden. The council, owners of the park, brought an action against him claiming they were entitled to the brooch. The Court of Appeal found in the council’s favour, on the basis that where, as here, an object is found in, under or attached to the land (as