Saturday 26 April 2014

I found it, so I can keep it, right?

On the Metal Detecting Forum is an interesting thread about whether you should sell stuff that you find.

It would appear that some detectorists think that if they have permission from the landowner to go and detect on their land that anything they find is theirs to do with what they may, including selling the find if they want. 

I believe this assumption is incorrect. Just because you have permission to detect metal doesn't mean that any metal you find is automatically then yours. 

Why?

Well in short then from digging around I think the simple answer is that if you own land then you also own everything in the land regardless of how it ended up in the land. This comes from a case called Elwes v Brigg Gas Co. (1886) 33 Ch.D 562 where the Judge, Chitty J, stated that lawful possession of land includes possession of everything in the land, naturally there or otherwise.

As such if a landowner gives someone permission to detect, or 'find', metal items on their land then that person, or 'metal detectorist' is merely finding what is the land owners. Just because the 'metal detectorist' has permission to find and dig,  it doesn't mean they have permission to 'take away'. 

If you are the 'metal detectorist' then if you have not entered into an agreement with the landowner that anything you find is yours then the find belongs to the landowner. 

Without such an agreement it doesn't stop the landowner letting the metal detectorist sell the item on say a 50/50 share basis. 

The ownership of property found in or on land is discussed in depth in Waverley BC v Fletcher 1996. This is a story about a chap who went detecting on a Council park and found a gold brooch. He thought the brooch was his, the Council thought otherwise. He went to the County Court and won his case. The Council then went to the Court of Appeal and won. 




7 comments:

  1. This is of course what Heritage Action (through the "Farmer Brown" posts) have been saying all along. I think also many farmers would be quite interested to see the 'valuation' sections of the two major UK metal detecting magazines for some quite mundane items, the sort metal detectorists seem to be taking away without a second thought. Even a few buckles or brooches at twenty quid each is a fairish sum when several are sold at once or at intervals.

    I also wonder how many detectorists seeking permissions leave a copy of several numbers of "Treasure Hunter" or "The Searcher' for the farmer to look over? I wonder how many farmers actually see the return of the full value of the items detectorists have taken away and later sold? We hear about the "bottle for Christmas" and the "small display case" but rarely about the return of the full value of the antiquities sold on their behalf.

    How can the seller prove that the landowner knows he'd taken it? This is why some of us think that the responsible approach is for each artefact taken away to be properly signed over by the landowner. Of course this is when the excuses begin...

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  2. Thanks Paul. It's difficult to know where to start as detecting ranges from the casual detectorist doing their mates garden to the full scale rallies etc. not sure there can be a universal way of policing it.

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  3. Maybe, but everyone bringing everything to the owner for him to get independently appraised would be a help, wouldn't it? Come to think of it, that should be top of the list of calls by Responsible Detectorists. It's totally crucial, for the landowner, the communal resource and the reputation of everyone in the hobby. A hobby that doesn't advocate that as a sine qua non is always going to be wide open to accusations of wrongdoing. Indeed, a hobby that doesn't even make an effort to be seen as honest can hardly claim a right to be considered honest - or legitimate. That's just plain logic isn't it?

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  4. hrm who would do the independent appraisal?

    I agree that if there is no agreement thing to the contrary then the landowner should be shown the finds and can then take what they want. It's at this stage that the honesty of the detectorist is paramount as I would think landowners could be duped by dishonest detectorists who say 'oh that's not worth much' or who don't volunteer information about the value of an item in the hope they can keep it.

    I can see how your point of independent appraisal might help this but I wouldn't know where to start as a landowner and you might well end up spending more money on getting the item appraised then it's worth.

    I'm not sure what is scary about the idea that the finds belong to the landowner as many landowners including the permissions I have aren't really that interested in low value (monetarily speaking) items so tend to just say you keep them. Furthermore in reality I believe that most / some? detectorists would hopefully at least have come to a 50 50 agreement on anything the landowner would like to share. Afterall if they aren't going to find anything without the detectorists help then 100 pct of nothing is well...

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  5. "hmm who would do the independent appraisal?"

    Eh? What possible business is it of a detectorist who advises a farmer about his property? (One advert in the farming press would sort that out anyway, trust me).

    It seems to me detectorists need to get it through their heads that the farmer's property is the farmer's property and if he wants to get it valued, or not, or value it high, or low, or give the detectorist all or some or none of it that is the farmer's business. The clue is in the word property. It's the farmer's property - and the last person on earth who should be advising him about it is someone who wants to be given some of it. How is that not just and businesslike? How many millions of pounds have left the fields without the owners having had the objects valued for themselves? How can anyone defend such arrangements?

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  6. I merely wondered about the appraisal part as I wasn't sure what some of companies / people do it.

    I imagine a whole lot of money has left fields and I haven't defended it anywhere hence the post.

    I would also say it is not all detectorists who presume what they find is theirs or have no prior agreement with the landowner, who should be informed before agreeing a contract that finds are theirs to give away etc as many won't know this when agreeing a contract.

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  7. The fact not all detectorists misbehave isn't the point though is it? Some are squeaky clean of course but how many finds agreements, club rules and other arrangements don't leave the door wide open for wrongdoing or even (as I believe can be demonstrated) to deliberately facilitate it? It's a murky world, nothing like amateur archaeology clubs or bell ringers associations and it needs cleaning up with a flame thrower for the sake of the good guys. No-one ever says other than "well I'M not ripping anyone off" yet they enter into finds agreements like the NCMD one that would make it a piece of cake if they wanted to. That's irrational.



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