First Impressions and
First Impressions and Ancient Wisdom
- Children's Rhyme
When a construction contractor finds a hidden box of cash and other valuables while working on a farm or in a motel - - who owns it? This is one of those ancient property questions discussed in Talmudic and law school classes. Appellate courts have answered that question the same way in two recent cases. Terry v. Lock Hospitality, Inc., 343 Ark. 452 (2001); and Corliss v. Wenner, 2001 WL 1007928 (Idaho App.)
The simplistic answer is that the property belongs to the original owner who hid it there. But if that owner cannot be found, does it belong to the contractor or the real estate owner?
The Motel Ceiling
In Terry v. Lock Hospitality, the contractors were renovating a Best Western Hotel in Conway, Arkansas, when they found a dusty box behind ceiling tiles that contained over $38,000 in old currency. At the time of discovery the owner was in the room and the contractor gave him the box. When the contractor sued to resolve ownership rights, the Arkansas Supreme Court held that the money belongs to the owner of the motel because the circumstances showed that it was property that had been intentionally hidden in the ceiling and apparently forgotten. The Court commented that the issue was one "of first impression" in Arkansas, and relied heavily on an Iowa Supreme Court case that set up four categories for found property:
Under these doctrines, the finder of lost or abandoned property and treasure trove has a right of possession against everyone except the rightful owner. However, a finder of mislaid property must turn it over to the landowner, who in turn must safeguard it for the true owner.
Abandoned Property: Property discarded with the intention of terminating ownership.
- Lost Property: Property unintentionally left because of carelessness or inadvertness.
- Mislaid Property: Property intentionally left in a place where the owner can find it and the place is later forgotten.
- Treasure Trove: Gold, silver or paper money concealed in the earth or a private place under circumstances indicating that the treasure has been concealed for so long that the owner is likely dead or unknown.
The Ranch Driveway
The Idaho Court of Appeals also favored the landowner in the case of Corliss v. Wenner, which was decided on September 5, 2001. It involved a suit by an asphalt-paving contractor who was installing a driveway on a ranch when he unearthed a glass jar containing paper-wrapped rolls of gold coins with a contested value ranging between $30,000 - $1,000,000. The coins dated from 1857 to 1914, and the glass jar was estimated to be about 70 years old. As in Arkansas, this was also viewed as a case "of first impression" for Idaho.
After applying an analysis similar to that of the Arkansas court, the Idaho court awarded the coins to the ranch owner, who, theoretically, must hold them for the true owner. The Court noted that only lost or abandoned property should go to the finder because those circumstances involve an element of involuntariness, in contrast with the other categories which involve intentional acts by the true owner in placing the property where it was found.
The Court held that the "modern trend" favored characterizing the find as mislaid property, under which the right-of-possession goes to the landowner. The coins in this case were not abandoned because the condition in which they were found evidenced an intent to keep them safe. They were not lost since they were secreted with care in a specific place to protect them from the elements and from other people.
The decision analyzed and rejected the ancient rule of treasurer trove which supported the "finders-keepers" rule. This rule was followed by a number of states before 1950; however, the Court cited more current cases throughout the United States that awarded found treasure and coins to the landowner. It concluded that the finders-keepers rule for treasure trove was not even a part of the common law of England as defined by the Idaho Code, Section 73-116, and therefore, that Code did not require that it be adopted under Idaho's law. In a footnote, it quoted one wry commentator on this issue, "The old rule of treasure trove may make good theatre, but it's poor law and its death can come none too soon."
The modern rules are best, but not always easy to apply. The easier rule would be "finders keepers," which would have awarded the found property to the contractors.
Some commentators have rationalized the rule of leaving the property with the landowner because that person is more likely to eventually find the original owner. They reason that that owner may someday come back for the property and claim it from the landowner. On the other hand, if the contractor takes it with him, the rightful owner may never locate that property again - - or the contractor.
This rationale is somewhat questionable because it is not clear that the landowner has any more of an incentive to try to locate the original owner than the contractor - - or to admit that he has the property, if and when the original owner ever shows up.
For that matter, from a philosophical perspective why is a motel owner any more entitled to found property than, say, a former owner of the motel? Suppose the current owner had recently bought a motel from someone that had owned it for many years. Suppose the found property was worth more than the motel itself. Should it be said that the new owner of the motel has any more right to it than the old owner - - or the one who owned the motel when the box was left there? Certainly, the parties never intended to transfer the lost property, and any implied intent would have to favor the conclusion that the seller never intended to include it in the sale.
What about lenders? Suppose the motel were encumbered with a mortgage and all of its fixtures, equipment and other property were included in the security agreement and filed financing statements under the Uniform Commercial Code. Would the lender have a claim that any discovered property covered by the UCC should be treated as part of its collateral?
Ancients struggled with the law of lost property long before the UCC. Rules of return were set up in Deuteronomy:
1) If you see your fellow's ox or sheep gone astray, do not ignore it, you must
take it back to your fellow; 2) If your fellow does not live near you or you do not know who he is, you shall bring it home and it shall remain with you until your fellow claims it; then you shall give it back to him; 3) You shall do the same thing with his ass; you shall do the same with his garment; and so too shall you do with anything that your fellow loses and you find: you must not remain indifferent.
Deuteronomy 22 (underlining added)
The Hebrew Talmud, which includes the Mishnah and the Gemara, was written by scholars and elaborates on the Deuteronomy passage. The Mishnah is a collection of interpretations of biblical passages and laws that were eventually edited in the second century of the Christian Era. The Gemara consists of commentaries on the Mishnah which were edited around the year 380 C.E. in Tiberius and supplemented, around 500, in Babylonia.
The Baba Mezia is the treatise of Talmudic law which includes the law of lost property. The quotes and the references to the Baba Mezia in the following passages are taken from an English translation of the Babylonian Talmud by Rabbi Dr. I. Epstein, Vol. II (London, The Soncino Press 1935).
Much of the Talmudic discourse on ownership of lost property dealt with the ability to identify the original owner and the circumstances under which the property was found. The established rules were similar to those applied in the motel and ranch cases discussed earlier.
The Talmudic law distinguished between those finds that belonged to the finder and other finds that must be "announced" or "proclaimed" so that the original owner may claim them. For example, "scattered money" belonged to the finder because the rabbis thought that money like that could not be identified by the loser and was therefore given up by him as beyond recovery.
On the other hand, the rabbis required the finder to attempt to return those objects that the loser could identify. The Mishnah provides:
The following objects have to be proclaimed: If one finds fruit in a vessel, or a vessel by itself, money in a purse, or a purse by itself; heaps of fruit, heaps of coins, three coins on top of each other, bundles of sheaves in private premises, home-made loaves, fleeces of wool from the craftsman's workshop, jars of wine or jars of oil, they have to be proclaimed. (B.M. 24b-25a) (underlining added)
In that section the rabbis then debated how to handle found coins. Scattered coins belonged to the finder because they could not easily be identified . On the other hand, "heaps of coins" might be identified. For example, Rabbi Isaac maintained that if coins were found arranged in a pyramid fashion, with a large coin at the bottom, a smaller one above it, etc., they must have been placed that way by the owner; and, therefore, the finder must proclaim.
The rabbis then discussed why a single coin which was found would not have to be returned to a claimant. They used the example of a found "Nero coin" or a coin of "such-and-such emperor," and made a fine distinction worthy of the most sophisticated modern legal minds:
Moreover, even if his name is written upon it, his claim is still rejected, because an identification mark is of no avail in respect to a coin, for one can say, he may have expended it and someone else lost it. (B.M. 25a-25b)
The comment also dealt with articles that were found inside of a wall. The Mishnah says:
If he finds [an article] amidst debris or in an old wall, they belong to him. If he finds aught in a new wall: if in the outer half [thereof], it is his; in the inner half, it belongs to the owner of the house. But if it [the house] used to be rented to others, even if he finds [articles] in the house itself, they belong to him. (B.M.25b-26a) (underlining added)
On the face of it, the distinctions made in this passage seem rather arbitrary. However, the Gemara sheds some light on the ancient reasoning. The reference to the "outer half" of the wall describes a wall that fronted a public thoroughfare, and the rabbis assumed that the found article must have been placed in the part facing the street by a passer-by who would not return. Therefore, it belonged to the finder. They also assumed the "inner half," which was the part facing the house it enclosed, was a likely hiding place for the owner of the house. Therefore, the owner of the house should have the right to a find in that half.
The other distinction is between an "old wall" and a "new wall." One of the commentators said that the article found in the old wall belongs to the finder because that rule applies only if the find is "exceedingly rusty." The finder can then argue to the owner of the house that the "find belonged to Amorites," who were one of the races that formerly inhabited Palestine and who were no longer there.
The Gemara also explains the rule that favors the finder if the house "used to be rented to others." In this conclusion the rabbis assumed that the finder was the present tenant and they reasoned that before a tenant had left the house, he would have made a thorough search to see that he left nothing behind. One of the sages, Rabbi Shemaia b. Zé ira, supported his conclusion with a creative and graphic analogy:
What is the reason? Because the streets of Jerusalem were swept daily. This proves that we assume: the earlier [losses] have gone, and these [coins] are different ones. So here too, the earlier [deposits] have gone, and these belong to the last [tenant]. (B.M. 26a-26b)
The Mishnah also emphasizes the importance of identification when determining that a finder must not keep a lost garment, as mentioned in the Deuteronomy passage. The Mishnah states:
The garment too was included in all of these: Why then was it singled out? That an analogy might be drawn therewith, teaching: just as a garment is distinguished in that it bears identification marks and is claimed, so must everything be announced, if it bears identification marks and is claimed. (B.M. 27a)
The Encyclopedia Judaica, Vol. 11, page 504-506 (Keter Publishing House, Jerusalem Ltd.), summarizes that lost property, called avedah, is property that has passed out of its owner's possession and its whereabouts are unknown to him. Generally, that property must be returned to its rightful owner, but when that owner has clearly abandoned any search for it, his ownership in it ceases and the finder may retain it for himself (B.M. 21(b)). The finder who improperly appropriates an avedah for himself was considered a thief (B.M. 26(b)). Some scholars were of the opinion that the finder's degree of responsibility for an avedah, as long as it was in his care, was the same as that of an unpaid bailee, while others equated the standard of care required to that of a paid bailee (B.M. 29(a)).
Detailed rules were even established about what the finder must do to facilitate returning the found property to the original owner. When the owner's identity was unknown, he must bring the avedah to public notice, i.e., by announcing it. If the claimant-owner offers notable identification marks, the property must be returned to him, but if he is suspected of being an imposter he must produce other evidence of his ownership (B.M. 28(b)).
Before the destruction of the Temple, the announcement was made from a stone platform in Jerusalem, during the three festivals when the people were gathered there. In later times the announcement was made in synagogues, and it was also decreed that in places where the secular authorities expropriated all lost property, a finder only had to tell his neighbors and acquaintances (B.M. 28(b)). If no claimant responded to the announcement, the finder was required to retain the avedah in trust for the owner, indefinitely.
Other issues sometimes entered into the Talmudic deliberations. The story is told about a respected Rabbi who asked his students: "If a non-Jew sells a camel to a Jew and the buyer finds a valuable jewel hidden in the collar of the camel, who owns the jewel?" The student answered that under Talmudic law the jewel belongs to the finder because neither party knew that it was there, and the owner of the jewel could not be identified. When the Rabbi responded that it belonged to the seller, the student protested, "But you have taught us that under these circumstances the found property belongs to the buyer." "Yes, but in this case," said the Rabbi, "think about what the seller will say about our God."
When modern courts reach the conclusion that a contractor should not walk away with a valuable find, an implicit assumption may be operating which is not related to whose god will be honored. When you invite a contractor or other business visitor into your building, you would never expect that person to leave with valuable property any more than the ceiling tiles - - unless there were some kind of advance arrangement about this. The unstated business premise is that the invitee comes there for a specific purpose, and no other one. A contractor contracts to perform designated work for a specific amount of money. It would seem to be a major distortion of that understanding for the contractor to be able to receive a windfall, which could be worth many times more than the contract price.
Think of it this way. If the law were otherwise, owners should use a standard form AIA construction contract spelling out that if the contractor should discover anything on the property, it belongs to the landowner. You will not see that provision in many construction contracts, and it should not be needed. Under the circumstances in the cited cases, why should the ownership of found property be determined by whether or not we find such language in a contract?
The big mystery in these types of cases is about the characters who left the valuables originally. Were they hiding ill-gotten gains? Are they still planning to rent the motel room at some time in the future and come back to collect their box? Do they intend to sneak onto the ranch to dig up their jar on some dark night? Are they in jail? Have they been killed? Have they developed Alzheimer's?
In any event, somebody may be out there somewhere who is entitled to large sums of money that are being held by the owners of the properties where they were left. If you are that somebody and happen to read this article, get back as soon as you can to the Wenner Ranch. Or the Conway Best Western Motel. And when you recover your money, don't forget me.
* Harris Ominsky is a partner in the law firm of Blank Rome Comisky & McCauley LLP, which has offices in Pennsylvania, New York, New Jersey, Delaware, District of Columbia, Maryland, Florida and Ohio. He participates every Saturday morning in a Torah discussion group at Beth David Synagogue in Gladwyne, Pennsylvania.
Mr. Ominsky can be reached at Blank Rome Comisky & McCauley LLP, One Logan Square, Philadelphia, PA 19103; by telephone at (215) 569-5668; or by e-mail at firstname.lastname@example.org.