1.2 Finders versus finders

The law does not rely on a single, uniform metric, first in time, stronger in right, for comparing the relative merits of all rights to possess. Temporal priority does matter, but not because rights to possess are just so many identical rights to exclude. Indeed, within a system of property that is organized hierarchically around the concept of ownership as sovereignty, there are certain kinds of conflicts that are easily sorted out through a temporal ordering, precisely because they involve identical but independent rights. This is true of competing claims of finders, where one finder loses the thing and someone else subsequently takes possession of it qua finder.30 There is in these cases no deep normative nexus between finder one and finder two: there is no privity between them, and it would be absurd to treat finder number two as possessing in the name of the first finder. When a thing is lost, it is presumed to have an owner, but we cannot well say that it ought also be presumed to have had prior finders. In a contest between finder one and finder two, we are not dealing with rights that relate to one another hierarchically. The second finder, rather, asserts the same ground of possession that the first finder did: he takes as a finder, which is to say he takes on the responsibility of owner pro tem. We are thus are dealing with two claims of precisely the same kind.31 This is where a ‘first in time, stronger in right’ principle makes sense because we are then in the situation that exclusion theorists think we are always in: a situation where we have to decide as between identical and independent rights to possess who will prevail.32 Thus, finder number one prevails over finder number two because he has secured the position of owner pro tem first: his superior right emerges from the earlier finding of the thing and the prior assumption of responsibility to the true owner.33

2. Privity, Estoppel, and Rights to Possess outside of Ownership

The concept of ownership pro tem explains the relative merits of the rights of owners and finders and informs also the relative merits of the rights of finders and later possessors of the thing. But finders are not the only possessors who garner the

30We would have no reason to compare the relative merits of these two claims if the first right is extinguished for independent reasons. Of course if a finder voluntarily divests herself of possession, she ceases to be a finder: R v Harding 1807. If the finder loses the thing, there is some authority for continuing to treat her as responsible, qua finder, for the goods. See Douglas 2008 (discussing controversy). In that case, she remains an owner pro tem and the question is properly her relative priority vis-à-vis a later finder.

31Both finders, it is assumed, claim to have ‘special property’ in the goods derived from the true owner’s ‘absolute property’. See Chitty 1844, 1: 169. See also Bridges v Hawkesworth 1851.

32In Cumming v Cumming 1847, 18 the Supreme Court of Georgia stated in dicta that finder-

finder disputes exemplify qui prior est in tempore, potior est in jure.

33Deaderick v Oulds 1887, 489. Of course, this is not to deny the special powers that finder 1 derives from the true owner—the power to maintain an action of trover, for example. And as the Superior Court of Delaware stated in Clark v Maloney 1840, the rightful owner’s absolute power is not affected by any subsequent loss, meaning that the first finder’s ‘special property’ does not change either.

law’s protection. A thief and a person who assumes dominion of someone else’s thing by mistake are not in the same position as a finder.34 They are wrongdoers whose possession is irreconcilable with the owner’s position of authority.35 And yet the common law appears to protect such bare possessors36 against later comers.

What accounts for the protection of wrongdoers in these cases? Temporal priority predicts the winner in many cases involving wrongdoers, without, however, accounting for the normative relation between them. For that we need to look to other normative concerns, namely the state’s monopoly on the use of force and the protection of privity.

The law’s general prohibition against force explains (without controversy) some of the circumstances in which a wrongdoer can maintain a limited right to possess: there is reason to protect even wrongdoers against forcible dispossession. In our legal system, as in others, force is not limited to battery: it means the use of a forbidden personal power to overwhelm another’s agency, e.g. threats, intimidation as well as armed force, etc.37 There are not only private law reasons for banning forcible dispossession (unjustified interferences with our person) but public law ones as well (the state’s monopoly on the use of force even in the protection of rights, a basis for limiting even the use of force in self-help, e.g. by an owner against his own dispossessor).38 Courts put a wrongdoer back in possession not because of

34 R v Riley 1853. P1 will be liable in conversion to the person with an immediate right to possession (usually the owner, but not always) regardless of whether she took the object in good faith and without negligence. Cochrane v Rymill 1879; Consolidated Co. v Curtis 1892. There are cases where someone assumes dominion mistakenly believing that they are entitled to do so: Wilson v New Brighton Panelbeaters Ltd 1989. However, mere appropriation without any denial of the plaintiff ’s right to possession and enjoyment generally does not amount to more than a trespass. Fouldes v Willoughby 1841. The kind of possession matters in these cases: if a person takes possession as a mere bailee for a thief or a finder, he generally escapes liability for conversion: Hollins v Fowler 1872, 23 (‘Any person who, however innocently, obtains possession of the goods of a person who has been fraudulently deprived of them, and disposes of them, whether for his own benefit of that of another person, is guilty of a conversion, unless the possession was obtained by him as a finder or as bailee, or by purchase in market overt . . . ’). See also, Mackenzie v Blindman Valley Co-operative Association 1947.

35Although merely finding something is not a conversion, ‘the law of theft will bite’ where the finder appropriates the goods dishonestly: Sheehan 2011, 283. A mere finder who appropriates something honestly but without the intention of restoring it to the owner may be held liable in trespass: Pollock and Wright 1888, 18, 172. A person who appropriates lost goods dishonestly will certainly be held liable in trespass: Pollock and Wright 1888, 184, 206; Merry v Green 1841; Hibbert v McKiernan 1948.

36Clerk 1891; Buckley v Gross 1863 (bare naked possession, possession without interest). Finders are also said to be in ‘bare possession’, but this obscures the special role finders have to play. When I talk about bare possessors I deliberately leave finders out.

37Rastell 1721, 39: assault, ‘a kind of injury to a man’s person of a more large extent than battery, for it may be committed by offering a blow or by a terrifying speech’; Bürgerliches Gesetzbuch (Civil Code), s. 863 (Ger.) (forcible taking is a forbidden personal power). Stoljar 1984b (true ouster, where you orchestrate a coup d’état, may not involve armed force or even threats, but the takeover itself can be seen as a battle of wills in which the adverse possessor unilaterally overwhelms the owner’s will with her own). See also Getzler 2005.

38Even the owner is limited in what she can do to regain possession: the owner has the right to enter and repossess her land only before the statutory period expires and only without violence. See Oosterhoff and Rayner 1985. See also Merrill and Smith 2007b, 198; Dukeminier and Krier 2002, 125–6. The owner cannot force the squatter but, if she meets resistance, must bring an action to eject. See La Forest 2006 (the right to enter and retake possession independent of court action but any

the temporal priority of a right to possess (although a wrongdoer must necessarily have possessed first to have been dispossessed by force) but because of this ban on the use of unauthorized force.39 Indeed, normative concerns about force displace more measured consideration of the relative merits of property rights. As Bracton said, ‘Force must be dealt with before property.’40

Temporal priority similarly predicts the outcome in cases between wrongdoers and those whom they put in possession of a thing; however, once again, it does not account fully for the legal concepts and normative concerns that determine the relative merits of these rights. For this, we need to look to the concept of privity and principles of estoppel.41 Privity, as I explained above, arises where two or more people share the same foundation of right, whether that is a shared transaction, a shared estate, shared blood, or shared possession.42 Principles of estoppel follow from the shared nature of this foundation: a privy cannot deny the other’s right without at the same time undermining his own.43 A form of privity arises between a wrongdoer and someone he puts in possession: the foundation of any interest either has in the thing is the wrongdoer’s original possession of it. When a wrongdoer bails a thing to a second possessor, that second possessor grounds his own possession on the prior possession of the wrongdoer.

Why cannot a second possessor make out or rely on any independent foundation for his right to possess? Why for instance cannot a P2 simply point to the bare fact that he is currently in possession as the reason why he ought to be left in possession? Put another way: can a P2 not change his causa possessionis midway (from bailee of P1 to a bare possessor)? The answer is, simply, no.44 The salient normative concerns here are closely connected to the law’s protection of even bare possession against forcible interference. P2 must answer for his possession in a manner that satisfies the prior question of how he came to acquire it from P1 (the wrongdoer) without force and fraud. Any story that P2 can tell about how he came to be in

violence might amount to assault). See also Powell v McFarlane 1979, 476 citing Coke: ‘Until the possession of land has actually passed to the trespasser, the owner may exercise the remedy of self-help against him. Once possession has actually passed to the trespasser, this remedy is not available to the owner.’ Narrow exceptions carved out for resisting a disseisor who is in the process of dispossessing you. The prohibition on forcible dispossession is familiar to us at least from the great 19th-century debate between the German jurists, Savigny and Jhering.

39 This gives rise to the apparent paradox of adverse possession. For an account of adverse possession that makes sense of the law’s ultimate recognition of squatters who usurp ownership authority, see Katz 2010a.

40de Bracton 1250, vol. 3. A disseisor/intruder must be restored where Owner takes the thing back by force. ‘Prius enim cognoscendum est de vi quam de ipsa proprietate.’ [‘Though the [owner] puts himself in seisen rightfully from the point of view of right, he does so wrongfully since without judgment’.]

41Coke 1628, 461, 271; Viner 1742, 534–5 (‘privity’); Lampet’s Case 1613; Woodhouse v Jenkins 1832; Wingate 1658.

42Privity of contract, estate, blood, and possession, respectively.

43Only once you have effectively severed the privity by terminating the relationship in fact or in law can you ask courts to consider the true grounds of P1’s possession. Rastell 1721, 330–1 (estoppel, privity).

44This is what the Romans thought too: Salkowski 1886, 420 (discussing the ‘common dictum’ that no one can change the ground of his possession).

possession of the thing thus necessarily takes as its starting point P1’s own right to possess. This means that P2, once put in possession by P1, cannot claim a new basis for his possession that is independent of P1’s. So P2 cannot raise questions about ownership (his own or another’s) in answer to P1’s claim to possession of the thing if he has not first resolved the mystery of how he acquired it from P1 without force or fraud.45 P2 cannot say someone else owns the thing for this is to change the subject entirely—from the question of how P2 came to be in possession of the thing to the question of who owns the thing. A jus tertii defence, that shows that a third party has a stronger right to possess, does not answer the question of how P2 obtained the thing from P1. It is not even enough to say that P2 himself is really the owner. Ownership is not in and of itself an adequate answer to the question of how a person acquires possession from another legitimately. The fact that P2 owns the thing may of course have been a reason for P1 to have given the thing to P2. But, where P1 did not relinquish possession to P2 on this basis, P2 is not able to avoid the problem of legitimate acquisition. That would require us, I think, to infer an authority on the part of an owner to enforce the legal obligations of others, which no owner in fact has.46

Thus, a wrongdoer ought to be able to maintain a right to possess on grounds of privity even as against a later possessor who turns out to be the true owner. This sounds scandalous, but it has deep roots in our common law tradition. Thus, in an entry under estoppel in the ancient law dictionary, Termes de la ley,47 it was taken for granted that a person had to play out the role of privy even if it turns out that he was himself the owner with a supreme right to the thing:

Also if a man seised of land in fee simple will take a lease for years of the same land of a stranger by deed indented; this is an estoppel during the term of years and the lessee is thereby barred to say the truth, which is that he that leased the land has nothing in it at the time of the lease made and that the fee simple was in the lessee: But this he shall not be received to say til after the years are determined because it appears that he hath an estate of years and it was his folly to take a lease of his own lands and therefore shall thus be punished for his folly.48

It is only once privity is severed, once P2 is no longer in possession through P1, that he can then ask the courts to address the question of ownership. In a more recent

45It is uncontroversial that a P1 is protected against forcible dispossession.

46Thus, an owners’ right to self-help does not extend to the use of force to regain property, once lost. See Blackstone 1776, 3: 4; Davis v Whitridge 1848; Brantly 1890, ‘Where a recaption has been affected violently, the party is liable criminally or civilly, but the circumstance that force was used does not . . . oblige the owner to restore the thing to the possessor’, citing Scribner v Beach 1847.

47Termes de la ley (Rastell 1721) continues to hold sway over the common law: Meering v Graham White Aviation Company ltd 1918–19, 1502–3.

48Rastell 1721, 331. For a more recent application, see Doe d. Bullen v Mills 1834 (P3 buys possession for £20 from P2 and claims, as against the plaintiff Bullen to be the owner. In fact P2 is the real owner but had entered into a lease with Bullen. P3 is treated as an assignee of the lease in privity with Bullen (the landlord) and so is estopped from challenging Bullen’s title). See also Clarke v Adie 1876, 435 per Lord Blackburn: a licensee working under a patent owned by another ‘is very analogous indeed to the position of a tenant of lands who has taken a lease of those lands from another. So long as the lease remains in force . . . he is estopped from denying that his lessor had a title to that land.’

case of a tenant who turned out to be the owner of property he had leased, that means surrendering the lease, if that is indeed possible under its terms, or waiting for it to run, before challenging his landlord’s right.49

In summary, if P2 is content to play the role of privy, he can account for how he acquired the thing from P1 legitimately. But, by the same token, P2 cannot cast off his role as P1’s privy because that would deprive him of the ability to account for how he came into possession from P1 without force or fraud.50 Any right to possess that P2 has thus necessarily takes as its foundation P1’s right to possess. Now that is not reason for anyone else to take P1 to have a right to possess in fact; it is just reason for P2 to act as though P1 does.

This analysis makes sense of a case like Armory v Delamirie.51 In that case, a chimney sweep boy took a ring for appraisal to a jeweller,52 who removed the stone and refused to return it. The court ruled in favour of the boy, even though, had he been put to the task of establishing ownership, he almost certainly would not have been able to do so. The crucial point to take from this is that the jeweller could not put the boy to the task of proving ownership because the fact of the jeweller’s possession outside of privity is not something the law could recognize. The only thing the jeweller could be doing, in taking possession of the jewel, is to stand on the boy’s own right to possess, as his bailee. For the jeweller had acquired the stone from the boy without any intervening gap in possession. The only legitimate basis for the jeweller’s having acquired the thing from the boy (P1) was as his privy. And a privy cannot attack the foundation of his own right.

With this in mind, we can see even the famous case of Asher v Whitlock—locus classicus for the standard approach to the relativity of title with respect to land—in a different light, as a case concerned with a web of privity. In that case, a squatter (P1) drew up a will purporting to leave his personal interest in the land to his wife but if she should remarry to his daughter. His wife remarried the defendant (P2), who then came to live with her and her daughter on the land. The daughter subsequently died, leaving a will, in turn, in which she named the plaintiff as her heir. The case seems to highlight the crucial role of the concept of privity in safeguarding a P1 and those standing on his possession against the claim that, in pari delicto, the last in possession wins.53 The question was whether the defendant P2 was in possession independently of P1’s heirs or in privity with them, such that he

49The law takes an analogous approach to appeals to the fact of ownership to justify the use of force. Nicholls 1865, 1: 116: ‘And if he pleads that the horse was his own, and that he took him as his own and as his chattel lost out of his possession, and can prove it, the appeal shall be changed from felony to the nature of trespass. In this case let it be awarded that the defendant [the owner] lose his horse for ever; and the like of all usurpations in similar cases, because our will is that every one proceed rather by course of law than by force.’ See, however, Radin 1923, 262, calling into question the veracity of claims made by Britton, ‘the anonymous manipulator of Bracton’.

50The estoppel of P2 leaves us free to infer a conversion following a demand for a thing previously in possession of P1. ‘The ordinary presumptive proof of a conversion consists in evidence of a demand of the goods by the plaintiff and a refusal to deliver them by the defendant’: Chitty 1883, 2: 619.

51Armory v Delamirie 1722.

52The apprentice actually was the one who took the jewel but the relationship between the jeweller and his apprentice does not matter to me here so I will simply refer to the latter as the jeweller.

53Mellor acknowledges specifically that the law was that the last in possession wins.