Citation: [1995] 4 All ER 756.
Decided by: LORD JUSTICE AULD, LORD JUSTICE WARD, THE MASTER OF THE ROLLS
Waverley Borough Council -- Plaintiff
Versus
Fletcher -- Defendant
Brief of the case:
Ian Fletcher, a metal detector enthusiast, went to Farnham Park, owned by Waverley Borough Council, to use his metal detector and see if he could find any items of interest. The park was open to the public for recreation and recreational use and Mr Fletcher was a legitimate visitor to the park. The item proved not to be a treasure trove and was returned to Mr Fletcher. The council then filed a lawsuit against Mr Fletcher claiming ownership of the brooch.
Facts:
A man with a metal detector finds a gold needle underground in a park owned by Waverly City Council. The Park was open to the public for recreational and recreational purposes and Mr Fletcher was a legitimate visitor to the park. He found a medieval gold brooch nine inches below the surface. He reported his findings and a forensic investigation was launched to determine if the item was a hidden treasure. The item turned out not to be treasure and he gave it back to Mr. Fletcher. The council then brought suit against Mr. Fletcher in, claiming ownership of the brooch.
Issue:
Is an object found under the ground the finders, or the occupiers?
Arguments:
The defendant used a metal detector in a park owned by the Plaintiffs Council. The accused found a brooch and reported it to the authorities. The coroner ruled that it was not a hidden treasure. The question then was who could claim the brooch: the plaintiff or the defendant.
Judgement:
The Court of Appeal ruled that the council had more claim to the brooch. Since it was found or fixed in the ground and not on the surface, it belonged to the person who owned the property. Items below ground belong to the dweller.
∙ There is a little wiggle room here
∙ It belongs to the land
∙ Digging is trespassing
∙ Owners not only own the surface; they own what is beneath the surface
∙ The brooch belonged to the City Council as owner of the Lands in that was found
CONCLUSION:
The complainant, Waverley Borough Council, is the sole owner of a park, Farnham Park, in Farnham, Surrey, which it has opened to the public free of charge for recreational and recreational purposes. He exercised control of the park through a park ranger and his staff, and through city ordinances. On August 28, 1992, defendant Ian Fletcher took a metal detector into the park to look for any metal objects that might be of interest or value. Using the detector and determined digging in hard ground, he found a medieval gold brooch dating to about 9 inches below the surface. He reported his find and a forensic examination was conducted to determine if it was a treasury. The jury found that it was not, and the coroner returned the pin to Mr. Fletcher.
The Council then instituted proceedings against Mr Fletcher, demanding a declaration that the brooch was his property and its return or damages. Mister. Fletcher relied on a "seeker, keeper" defence to defend himself. He felt that the council's claim to ownership of the brooch required proof not only of ownership but of occupancy of the park. He admitted that he owned the park but claimed that he did not inhabit it because he was obligated to allow the public to use it for pleasure and recreation. He said that he found the brooch while he was a legal visitor there and therefore, since the true owner had not been found, as a discoverer he was entitled to keep it. The Judge, His Hon.Judge Fawkes, acting as Superior Court Judge, ruled in favor of Mr Fletcher.
After verification by the authorities, he claimed: that the rule that a landowner owns everything on his land applies only to things that are there naturally, not to lost or abandoned items; that the determining factor is the control it intends and is able to exercise over legal visitors in relation to any objects that may be on or in the country; that Mr. Fletcher was a lawful visitor and did not become an intruder by digging up and removing the brooch; but that it was not necessary to decide the question of scrutiny because the Council "did not make any overriding claim to supersede the maxim 'those who stay’”. I. Croxford, QC, for the Council, argued that an owner or rightful owner of land has, by virtue of that ownership or possession, a vested right against a seeker with no interest in the land to treasure any object except Trove, found in the Earth. He acknowledged that a different rule applies to loose items found on the ground.
Mr J. Munby, QC, argued on behalf of Mr Fletcher that a common principle applies to items fixed to the ground or not fixed to the ground, namely that to overcome the claim of a seeker, the owner or rightful possessor of the Property must demonstrate intent to exercise control of the property. the earth and the things that are in or on it. By "control" he meant the power and intention to "preclude unauthorized interference". This is effectively the concept of English ownership.
See Holmes, "The Common Law", 1881, p. 220-221; Pollock and Wright, “An Essay on Possession in The Common Law", 1888, and as a modern legal example of its expression, by Eveleigh LJ in Parker v. British Airways Board [1982] 1 QB 1004, at 1019E. Mr Munby said that the application of the principle can obviously differ depending on whether the object at issue is on the ground or off the ground. The starting point for considering these competing arguments is the firm principle already established in 1722 in Armory v. Delamare 1 Strange 505 that the seeker of an object has the right to possess it against all but the rightful owner. A claim by the property owner did not exist in this case; The argument broke out between a chimney sweep boy who had found a piece of jewellery and a jeweller to whom he had offered it for sale. The boy won.
The same principle applies between the owner or rightful owner of the property and the discoverer in relation to loose items on the property, unless the former has made clear his intention to inspect the property and everything on it . As Pollock and Wright put it in their essay at 40, "the right of the seeker begins with the absence of any de facto control at the time of finding." See Bracken v. Hawksworth (1851) 21 LJQB 75 in which Pattison and Wightman JJ, sitting on a district court appeal as Divisional Court, held that the note finder accidentally dropped on the floor of a shop by someone unknown made a better claim to she had as the shopkeeper who didn't know they were there until the seeker drew his attention to them. A more recent example is Parker [supra], where anyone who found a gold bracelet dropped by an unknown traveller in an airline's VIP lounge at an airport was deemed to have a claim against the airline. In this case Donaldson LJ, as it then was, in making the judgment at 1014 B-C, ruled that the owner's claim in such a case must have both the right and the apparent intent to exercise control over all that is upon their country. The soil through the action of natural causes".
The Court of Appeal ruled that the council had more claim to the brooch. Since it was found or fixed in the ground and not on the surface, it belonged to the person who owned the property. Items below ground belong to the dweller.
This article is written by Rashmi Jha of Galgotias University.