Jackson v. Steinberg , 186 Or. 129 ( 1948 )

DENIED. Respondent has petitioned for a rehearing in this case, chiefly upon the ground that our decision is contrary to previous decisions of this court.

It is argued that the court erred in holding that the bills were not treasure trove.

Coke's definition of treasure trove is as follows:

"Treasure trove is when any gold or silver, in coin, plate, or bullion hath been of ancient time hidden, wheresoever it be found, whereof no person can prove any property." 3 Inst. 132.

The treasure must have been hidden or concealed so long as to indicate that its owner, in all probability, is dead or unknown. 26 A. E. Encyc. of Law, 1 ed., 537; Danielson v. Roberts,44 Or. 108, 115, 74 P. 913, 65 L.R.A. 526, 102 Am. St. Rep. 627;Roberson v. Ellis, 58 Or. 219, 228, 114 P. 100, 35 L.R.A. (N.S.) 979. In the case at bar, the bills had been concealed within a period of two and one-half months immediately prior to the time of their discovery. The recentness of the deposit justifies the inference that, at the time of the finding, the owner probably was still alive and would be discovered. These considerations further confirm our opinion that the bills were not treasure trove.

Danielson v. Roberts, supra, cited and relied upon by plaintiff, was an action in trover for conversion of money. Plaintiffs were employed by defendants to clean out an old henhouse situated on defendants' premises. In doing so, they discovered, partially buried in the ground, an old tin can containing over $7,000 in gold coin. They delivered the money to defendants, but afterwards sued them in trover for conversion thereof, alleging in their complaint facts tending to show that the money was treasure trove, and claiming possession thereof as finders. This court held that it was immaterial whether the money was technically lost property or treasure trove; in either case, the plaintiffs were entitled to its possession as against the defendants "unless the latter can show a better title". The court said, in part:

"* * * The fact that the money was found on the premises of the defendants, or that the plaintiffs were in their service at the time, can in no way affect the plaintiffs' right to possession, or their duty in reference to the lost treasure: Hamaker v. Blanchard, 90 Pa. 377, 35 Am. Rep. 664; Bowen v. Sullivan, 62 Ind. 281, 30 Am. Rep. 172; Tatum v. Sharpless, 6 Phila. 18; Durfee v. Jones, 11 R.I. 588, 23 Am. Rep. 528; Bridges v. Hawkesworth, 21 L.J.Q.B. 75. * * *"

It is to be observed that not a single one of the cases cited by the court sustained the court's view that plaintiffs' claim was not defeated by the facts that the money was concealed in a private place upon premises in the occupation of defendants and was found there by plaintiffs while working upon the premises as defendants' employees. All of the cited cases, except Durfee v. Jones, had to do with lost money found in places to which the public had access, such as the floor of a hotel parlor, and the floor of a shop or store. Durfee v. Jones concerned money which had been lost by having fallen behind the lining of an old safe. The money did not belong to the owner of the safe, and it was successfully claimed by a person with whom the safe was left for purposes of sale. The decision has been criticized as "utterly indefensible". Aigler: Rights of Finders, 21 Mich. L. Rev. 664, 670. None of the cases cited dealt with treasure trove found upon private premises by a servant, or even with lost or mislaid property found by a servant upon private premises.

The legal principle that the possession of land includes possession of everything upon or within such land was expressly adopted by this court in Ferguson v. Ray, 44 Or. 557,77 P. 600, 1 L.R.A. (N.S.) 477, 102 Am. St. Rep. 648, 1 Ann. Cas. 1, decided only six months after the Danielson case. Ferguson, a tenant in possession of a farm under a lease from Ray, discovered thereon a rich specimen of gold-bearing quartz lying upon the surface of the ground. Excavation upon the spot discovered other pieces of such quartz, the evidence indicating that it had been voluntarily deposited where found. Both Ferguson and Ray claimed possession of the quartz. Held, that the quartz was not treasure trove; that it was neither lost nor abandoned "in the sense that the finder is entitled to its possession or ownership as against the owner of the soil"; and that Ray, "being in the possession of the land, and exercising ownership of it, thus manifesting an intention to prevent unauthorized interference", there was a presumption that the right to possession of the quartz was in him.

In so holding, this court cited with approval SouthStaffordshire Waterworks v. Sharman, 2 Q.B. 44, 65 L.J.Q.B.N.S. 460, 74 L.T.N.S. 761. That case involved a dispute between a hired laborer and his employer. The laborer was engaged in cleaning out the bed of a pool of water on the employer's land, and, in so doing, found two gold rings, which he claimed as finder. It was held, as a matter of general principle, that when one is in possession of house or land, over which he manifests an intention of exercising control and preventing unauthorized interference, and something is found in that house or on that land, whether by an employee of the owner or by a stranger, the presumption is that possession of that thing is in the possessor of the land. The court quoted with approval from Pollock and Wright: Possession in the Common Law, 41, the following, which is also quoted with approval by this court in Ferguson v. Ray, supra:

"The possession of the 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."

A recent English case (Hannah v. Peel, K.B., 1945, p. 509) questions the correctness of the Sharman holding to the extent that it covered things upon the land as distinguished from things attached to or under it. The court held, however: "It is fairly clear from the authorities that a man possesses everything which is attached to or under his land."

The case of Roberson v. Ellis, supra, (58 Or. 219,114 P. 100, 35 L.R.A. (N.S.) 979) reaffirms the rule of Danielson v.Roberts, supra (44 Or. 108, 74 P. 913, 65 L.R.A. 526, 102 Am. St. Rep. 627) as to treasure trove, and, without discussing the effect of possession of the premises by someone other than the finder, undertakes to distinguish Ferguson v. Ray on the mere ground that it was not a treasure trove case. The court said, in part:

"It seems to be the principle respecting treasure trove, owing to its peculiar nature of being coin, that the present property is in the finder, as against every one but the true owner, provided that the true owner is unknown, and it matters not where or when the same is found, so that it is secreted in the earth or other private place. * * *"

It is not necessary to a decision of the present case that we should attempt to reconcile the doctrine of Danielson v.Roberts and Roberson v. Ellis, supra, with that of Fergusonv. Ray, supra. It is sufficient to say that the present case is, in our opinion, governed by the rule of Ferguson v. Ray.

Our statute relating to innkeepers (sections 55-201, 55-202 and 55-203, O.C.L.A.) places certain limitations upon the liability of an innkeeper for loss or injury to the property of his guests. The first two sections do not appear to be applicable to the facts of the instant case. Under section 55-203, it is provided:

"* * * whenever any person shall suffer his baggage or property to remain in any inn or hotel, after leaving the same as a guest, and after the relation of innkeeper and guest between such guest and the proprietor of such inn or hotel has ceased, * * * such innkeeper may at his option hold such baggage or property at the risk of such owner."

Respondent says that, as the innkeeper had an option, he had a choice of alternatives, and might either have taken possession of the property as bailee or have refused to do so. But the fact is that defendant did not have much freedom of choice. While he was reasonably entitled to assume that the bills were the property of a former guest, he was unaware of the identity of such guest, and, therefore, had no opportunity of relieving himself of possession of the bills. The circumstances thrust upon him the role of an involuntary or quasi bailee. 8 C.J.S., Bailments, section 15b; 28 Am. Jur., Innkeepers, section 94; 43 C.J.S., Innkeepers, section 18b.

Defendant's good faith is impugned, because of the fact that, instead of holding the actual bills, he deposited them to his credit in his own individual bank account, thereby rendering their identification by the true owner impossible. The bills were new. There was no evidence that they had been marked for identification purposes in any manner. Defendant testified that his attorney, Mr. Young, had made a record of the serial numbers. It would seem that this was a sufficient precaution to protect the interests of the true owner under the circumstances.

Finally, it is contended that the court erred in holding that plaintiff was in duty bound to deliver the bills to her employer.

There is no question but that it was admittedly a part of plaintiff's duty to defendant to seek for and find valuable property left behind in guest rooms by guests, and to deliver such property to defendant. Under such circumstances, the defendant had the absolute right to hold such property as against everyone but the true owner. See Fryer: Readings on Personal Property, 3 ed., 361. Plaintiff cites, as contrary to this view,Burns v. Clark, 133 Cal. 634, 66 P. 12, 85 Am. St. Rep. 233. In that case, gold quartz was discovered by plaintiff while he was engaged, as defendant's employee, in leveling a site for a quartz mill. The quartz found was actually in place outside the boundaries of the mill site and upon public land of the United States. Held, inter alia, that, if digging for gold had been one of the objects of the work for which plaintiff was employed, any gold found by him would doubtless have belonged to his employer. The case is of no value as authority for plaintiff here, but tends rather to support defendant's position. The English case of Hannah v. Peel, supra, holds "if a man finds a thing as the servant or agent of another, he finds it not for himself, but for that other." We are satisfied that our holding as to plaintiff's duty to her employer in the premises was a correct statement of the law.

The petition for rehearing is denied.