Under the common law, the finder of lost property has title to the property as against the entire world except the true owner. This rule was established in the seminal case of Armory v. Delamirie, where the court held that a jewel found by a chimney sweep belonged to the chimney sweep since the original owner could not be found.1 The Armory rule set forth two principles: (1) “[T]he finder . . . does not by such finding acquire an absolute property or ownership” in the lost item; and (2) Notwithstanding the above, the finder does have “such a property as will enable him to keep it against all but the rightful owner. . . .”2 Thus, under the common law, a finder of any lost object has a property interest in that object, only it is one that can be superseded by that of the true owner. Indeed, under most current law, a true owner never loses legal title to their lost property. However, under the common law, a finder is under no obligation to affirmatively protect the true owner from the loss by picking up the item.3 Additionally, the common law makes no distinction as to the nature of the lost item, or whether it had any identifying marks: as long as one finds an item that was lost and not simply mislaid,4 the law was prepared to vest a property interest in the finder, with no affirmative obligations on his part with regard to using any identifying marks to seek out the owner.5
However, Talmudic law sees property ownership not as a utilitarian or pragmatic convention to assist in a functioning society, but as a reality. Therefore, ownership rights are never terminated unless there is some mechanism to bring about that change.6 The owner must actively relinquish ownership before someone else is able to take possession of it. Often, circumstances cause an owner to lose hope that he will ever be able to find the lost object. This is referred to in the Talmud as ye’ush—despair. As a result of such despair, a mental state of abandonment is created whereby the owner relinquishes possession. As a consequence of this abandonment, the finder of the lost object is able to take possession of it.7 When this happens, the finder is vested with complete ownership rights, and the true owner can make no claim on the lost property.
Jewish law recognizes a fundamental distinction between lost property and mislaid property. While one who encounters lost property has an affirmative obligation to seek out the true owner, no such obligation is present for mislaid property. Indeed, one who encounters mislaid property not only need not pick it up, they are prohibited from picking up the property.8 The rationale for this is obvious: if the property is placed in a particular place, the easiest way to ensure that the object is returned to its owner is to do nothing; the owner will return to retrieve his possession.9
The distinction between lost and mislaid property is recognized by the common law as well. Under the common law rule, the “finder” of the mislaid item must leave the item as a bailment with the person on whose property it was found, since the one who mislaid the property is most likely to remember where the item was placed, and return to that spot to retrieve his item.10 Indeed, to intentionally place an item somewhere and forget to take it from where it was placed, “is not to lose it, in the sense in which the authorities referred to speak of lost property.”11
The common law, like Jewish law, also looked to the place where the object was found as the crucial factor in determining whether an item was lost or mislaid. Thus, in McAvoy v. Medina, where the owner of a purse left it on the counter of a barber shop, the court awarded the shop owner possession until the owner would return.12 In contrast, in the English case of Bridges v. Hawkesworth a visitor to a shop found a packet of money on the floor of the shop. The court in that case ultimately awarded possession to the finder and not to the possessor of the property.13 The difference between the Bridges and McAvoy cases can likely be explained by reference to the places wherein each was found: in Bridges, the notes were found in a public area of the store, an area that was much like the street in the amount of foot traffic it had. Therefore, the notes were awarded to the finder since we assume that the owner will not think of returning to the store to find his money. Per contra, in McAvoy the purse seemed to have been intentionally placed on the store counter, where it was more likely that the true owner would return to retrieve the item. For that reason the court awarded the purse to the storekeeper as this was the most likely place to have the item eventually returned to the true owner.
In sum then, the common law would recognize this statement regarding the definitions of lost and mislaid property: “Mislaid property is that which is intentionally put in a certain place and later forgotten; property is lost when it is unintentionally separated from the dominion of its owner; and property is abandoned when the owner, intending to relinquish all rights to the property, leaves it free to be appropriated by any other person.”14 Because of this particular definition of lost, mislaid, and abandoned property, the common law establishes the rule for each shall be that “[A] finder of property acquires no rights in mislaid property, is entitled to possession of lost property against everyone except the true owner, and is entitled to keep abandoned property.”15
The common law gave a landowner constructive possession of any chattel on his property.16 Utilizing the principles above, this resulted in a property owner being entitled to any lost or abandoned item on his property, even if another person—for example an invitee—actually found that item first. Because the property owner already had constructive possession of the lost item from the minute he purchased the property, his possession will always override any subsequent possession (but not an earlier possession, i.e., he will still not have title against the true owner).
However, where an item is found in a public area within general private property, say the front area of a private store, constructive possession will not apply, as discussed earlier with regard to Bridges v. Hawkesworth. The public nature of such an area, and thus the lack of actual dominion over the public area, functionally precludes the property owner from claiming the area is his.17 In fact, courts have expressly used this public/private principle to explain that even if U.S. courts were to follow the master-servant rule—a matter of great disagreement among the courts18—which principle gives the employer any lost items found by an employee during the course of employment, this would not apply where the lost item was found in a public place, an area wherein the employer has no controlling possession.19
This analysis of prior possession and constructive possession as establishing the prior possession of a property owner helps explain a number of classic English cases. For example, it explains why the property owner in Hannah v. Peel20 who had never taken actual possession or exercised dominion over a home was not entitled to a brooch found by an officer.21 It further explains why workers who found rings on the bottom of a pool of water were not entitled to keep the rings, even if the rings were deemed lost and not mislaid: because the property owner had prior constructive possession of the rings, he was entitled to keep them.22 Finally, it explains why the owner of property in Elwes v. Brigg Gas Co.23 was entitled to a prehistoric ship found on his property, and this, over the objections of the long-term lessee who had present possession of the property. The court in Elwes reasoned that the owner had constructive possession of the ship that preceded the present possession of the lessee.
Applying the holding in Elwes, U.S. courts have held that constructive possession will only work to give the landowner rights to a lost or abandoned property embedded in his property, not on it.24 For property found on the property, but not attached to it, the owner will be entitled to it only if it is mislaid property, but not if it is lost or abandoned property.25 However, some modern courts appear to apply the doctrine of constructive possession even to lost or abandoned property found on, not in, the property.26
At common law, money or bullion found in the earth, and where the facts indicate that it was there long enough for the intentionally buried items to have been abandoned,27 was considered a treasure trove,28 and belonged to the king. However, in U.S. jurisprudence, treasure trove does not belong to the government, but is treated like any other lost item, and may be categorized as either lost, mislaid, or abandoned, depending on the circumstances of the find. For example, the decision in Corliss v. Wenner refused to recognize the old doctrine of treasure trove which would have treated the property as lost and granted it to the finder, and instead held that all treasure trove property shall henceforth be considered embedded property, and thus held that the gold coins belonged to the property owner under the rule of constructive possession.29 In Benjamin v. Lindner Aviation, Inc.,30 the court held that money found in the wing of an airplane was obviously mislaid, not lost, since it was intentionally put there.31 Further, it could not be deemed treasure trove, because the money had not been in the wing long enough to be classified as such.32 However, according to Benjamin, if the money had been considered treasure trove, it would have gone to the finder, not to the owner of the premises, because that court held that the place wherein an item is found is immaterial (and thereby not following the cases that rely on an owner’s constructive possession to give him rights to property found or abandoned on his property).33 Finally, in In re Seizure of $82,000 More or Less,34 the court held that money found in a gas tank of a car seized by the government in a drug sting was abandoned property and not mislaid property.35 The court distinguished Benjamin, explaining that the drug dealer who placed the money there had abandoned it as soon as police seized the car, since they could not get the money back without risking arrest.36 Nonetheless, the court awarded the property to the car owners who had bought the car from the government because the mechanic-finder was an agent of the owners and had found it while working on their property.37
Comparing U.S. Common Law and Talmudic Principles
It is quite clear that Corliss and other modern courts will give all property found on or in property to the property owner. Only where an item may be found in a public or quasi-public place, might there be a distinction between lost, mislaid or abandoned property. This is clearly in contrast to the Talmudic view, at least with regard to treasure trove and embedded property,38 where the Talmud almost always grants the items to the finder.39 However, other cases, relying on the holding in Elwes v. Brigg Gas Co., will only grant mislaid or embedded property to the landowner, but lost, abandoned, or treasure trove property—even if found on private property—will go to the finder. Accordingly, these courts would reach a result similar to that reached under Talmudic principles in treasure trove cases.40
Additionally, we have seen that courts are clearly split on the question of whether an employer is entitled to items found by an employee during the course of employment. On the one hand, Ray v. Flower Hospital found a “long line of cases where hotel chambermaids, bank janitors, bank tellers, grocery store bagboys and other employees have found property while in their employ, [and] virtually every case has charged the employee with the duty to turn the found property over to the employer.”41 On the other side, we have seen that Kalyvakis v. The Olympia held that the established trend in New York “tends to reject any master-servant exception to the law of finders.”42
However, under well-established Talmudic principles, “[T]he hand of a worker is like the hand of his employer.”43 As such, an employee’s find always belongs to the employer, as long as the find was made during and within the scope of his specified employment responsibilities.44 Thus, the terms of employment would determine whether the Talmudic view accords with those U.S. courts that, like Ray, have applied agency principles to lost and abandoned items found by an employee.
You Be the Judge II (New York: Rohr Jewish Learning Institute, 2009), pp. 44–48
1 Armory v. Delamirie, Kings Bench, 1722 (1 Strange 505).
3 However, under many statutory schemes, one who voluntarily decides to pick up a lost item must then bring the item to a designated place (usually the police) and the finder will only be given the lost item after some statutory time has elapsed. See Benjamin v. Lindner Aviation, Inc., 534 N.W.2d 400 (Iowa 1995).
4 Mislaid items will be discussed below.
5 However, by voluntarily taking the lost item, the finder is subject to the obligations of a bailee. According to the modern view, the bailment requires the finder to exercise reasonable care with regard to the item. See Richard H. Helmholz, “Bailment Theories and the Liability of Bailees: The Elusive Uniform Standard of Reasonable Care,” 41 Kan. L. Rev. 97 (1992).
6 In other words, under the common law, property law was created not to reflect the realities of ownership, but instead to assist in the administration of a just and orderly society. See 11 Blackstone, Commentaries on the Laws of England, Book II, Ch. 1 (“[W]hen mankind increased in number, craft, and ambition, it became necessary to entertain conceptions of more permanent dominion. . . . Otherwise innumerable tumults must have arisen . . . while a variety of persons were trying to get the first occupation of the same thing. . . .”). Talmudic law, however, sees ownership in property as reflecting the absolute reality of ownership. Thus, even where recognizing ownership rights might offend our moral or societal sensibilities, the law will still protect those rights. This is also the reason Talmudic law recognizes a contract as a contract, even if the terms of that contract (e.g., contracting for a hitman) violate public policy and would otherwise be voidable under the common law. See Rest. 2d Contracts § 178. See also H. Patrick Glenn, Legal Traditions of the World 121 (2d ed. 2004).
7 See, generally, Babylonian Talmud, Bava Metzia, 27a.
8 Code of Jewish Law, Choshen Mishpat 260:9-10.
9 See Rabbi Moshe Isserles, Glosses to the Code of Jewish Law, Choshen Mishpat 260:9.
10 See McAvoy v. Medina, 93 Mass. (11 Allen) 548, (1866). See also Walter Wheeler Cook, “Ownership and Possession,” 11 Encyclopedia of the Social Sciences 521, 524 (1937) (“[I]t is obvious . . . that from the point of view of social policy the shopkeeper ought to be preferred to the customer, as in that event the article would be more likely to get back into the possession of the true owner.”).
11 McAvoy, supra note 10.
13 7 Eng. Law & Eq. R. 424.
14 Paset v. Old Orchard Bank & Trust Co., 62 Ill. App. 3d 534, 537 (1978) (emphasis added).
15 Id. (emphasis added).
16 See South Staffordshire Water Co. v. Sharman,  2 Q. B. 44, 46-47 (“The possession of land carries with it in general, by our law, possession of everything which is attached to or under that land, and, in the absence of a better title elsewhere, the right to possess it also. And it makes no difference that the possessor is not aware of the thing’s existence.” citing Pollock and Wright’s An Essay on Possession in the Common Law at 41.
17 However, some see the decision in Hawkesworth as based on the fact that the item was found on top of the land, in contrast to inside the land. See Hannah v. Peel,  K.B. 509, 521.
18 Compare Jackson v. Steinberg, 200 P.2d 376, 378 (1948) (holding agency principles applicable to give lost item found by employee to employer); Ray v. Flower Hosp., 439 N.E.2d 942, 945 (1981) (“In a long line of cases where hotel chambermaids, bank janitors, bank tellers, grocery store bagboys and other employees have found property while in their employ, virtually every case has charged the employee with the duty to turn the found property over to the employer for safekeeping [because] . . . the possession of the servant . . . [is] the possession of the [employer] and that, therefore, the element is wanting which would give the title to the servant as against the master. . . .”); In re Seizure of $82,000 More or Less, 119 F. Supp. 2d 1013, 1020 (W.D. Mo. 2000) (same) with Kalyvakis v. The Olympia, 181 F. Supp. 32, 36-37 (S.D.N.Y. 1960) (New York law “tends to reject any master-servant exception to the law of finders.”); Hamaker v. Blanchard, 90 Pa. 377 (1879) (same).
19 See, e.g., Kalyvakis v. The Olympia, 181 F. Supp. 32, 36-37, n.15 (S.D.N.Y. 1960) (granting employee-finder ownership of cash and explaining that “since it was found in a public place the finder would be entitled to it against all but the true owner,” and further opining that English cases cited by employer “indicate significant differences from the case at bar in that the finding occurred in a private place as distinguished from a place open to the public.”).
20 Hannah v. Peel,  K.B. 509.
21 Id. at 520–21.
22 See South Staffordshire Water Co. v. Sharman,  2 Q. B. 44.
23 Elwes v. Brigg Gas Co., 33 Ch. D. 562.
24 See, e.g., Corliss v. Wenner, 34 P.3d 1100, 1104 (Idaho App. 2001) (“Possession of embedded property goes to owner of the land on which the property was found.”).
26 See id. at 1106 (in order to discourage trespass, the court concludes that “We hold that the owner of the land has constructive possession of all personal property secreted in, on or under his or her land.”
27 See Ritz v. Selma United Methodist Church, 467 N.W.2d 266, 269 (Iowa 1991). See also Corliss, supra note 25 (“Treasure trove carries with it the thought of antiquity, i.e., that the treasure has been concealed for so long as to indicate that the owner is probably dead or unknown.”).
28 Treasure trove derives from the Old French tresor trove, found treasure.
29 See Corliss, 34 P.3d at 1105 (“[T]he modern trend . . . as illustrated by decisions of the state and federal courts, is decidedly against recognizing the ‘finders keepers’ rule of treasure trove.”) (emphasis added).
30 Benjamin v. Lindner Aviation, Inc., 534 N.W.2d 400 (Iowa 1995).
31 Id. at 407.
32 Id. at 407-08.
33 See id. at 406 (citing Zornes v. Bowen, 274 N.W. 877, 879 [Iowa 1937]). See also Weeks v. Hackett, 71 A. 858, 860 (Me. 1908) (“In the absence of legislation upon the subject, the title to such property belongs to the finder as against all the world except the true owner and that ordinarily the place where it is found is immaterial.”).
34 In re Seizure of $82,000 More or Less, 119 F. Supp. 2d 1013 (W.D. Mo. 2000).
35 Id. at 1018–19.
37 Id. at 1019.
38 But not mislaid property, as discussed earlier.
39 Talmud, Bava Metsi’a 25b–26a.
40 This is only in most cases, since Talmudic law does not make a distinction for embedded property, per se, that is, embedded property that does not appear to be mislaid.
41 See supra note 18.
42 Supra note 18.
43 Talmud, Bava Metsi’a 10a.