Court of Appeal CA
Sir Thomas Bingham M.R., Auld and Ward L.JJ.
AULD L.J.
This appeal concerns the collision of two familiar notions of English law: "finders keepers" and that an owner or lawful possessor of land owns all that is in or attached to it. More particularly, it raises two questions. (1) Who, as between an owner or lawful possessor of land and a finder of an article in or attached to the land, is entitled to the article? (2) How is the answer to (1) affected by, or applied, when the land is public open space?
The appellant, Waverley Borough Council, is the freeholder of a park,Farnham Park , in Farnham, Surrey ,
to which it gave free access to the public for pleasure and recreational uses.
It exercised control over the park by means of a ranger and his staff and by
byelaws. On 28 August 1992
the respondent, Ian Fletcher, took a metal detector into the park to search for
metal objects which might be of interest or value. He found, by use of the
detector and some determined digging in hard ground, a mediaeval gold brooch
about nine inches below the surface. He reported his find, and a coroner's inquisition was held to determine
whether it was treasure trove. The jury found that it was not, and the coroner
returned the brooch to Mr. Fletcher.
The council then issued proceedings against Mr. Fletcher, claiming a declaration that the brooch was its property and delivery up of it or damages. Mr. Fletcher, by his defence, relied on the argument of "finders keepers." He maintained that the council's claim to ownership of the brooch required it to prove not only ownership, but also occupation, of the park. He admitted that it owned the park, but asserted that it did not occupy it because it was bound to allow the public to use it for pleasure and recreation. He said that he found the brooch whilst he was a lawful visitor there, and that, therefore, because the true owner of it had not been found, he was entitled, as finder, to keep it.
The judge, Judge Fawcus, sitting as a judge of the High Court, found for Mr. Fletcher. After reviewing the authorities he held that the rule that an owner of land owns everything in his land applies only to things that are naturally there, not to lost or abandoned objects; that the crucial factor is the control that he intends and is able to exercise over lawful visitors in relation to any objects that might be on or in the land; that Mr. Fletcher was a lawful visitor and did not become a trespasser by digging and removing the brooch; but that it was not necessary to decide the question of control because the council had not established "a paramount claim so as to displace the maxim "finders keepers."
On this appeal, Mr. Croxford, for the council, argued that an owner or lawful possessor of land is entitled by virtue of that ownership or possession without more, as against a finder with no interest in the land, to any object, other than treasure trove, found in the land. He acknowledged that a different rule applies to unattached objects found on the land.
Mr. Munby, for Mr. Fletcher, maintained that a common principle applies to objects in or unattached on land, namely, that to overcome a finder's claim the owner or lawful possessor of land must demonstrate an intention to exercise control over the land and things found in or on it. By "control" he meant a power and intent to "exclude unauthorised interference." That is effectively the English law concept of possession: see Holmes, The Common Law (1881), pp. 220-221; Pollock and Wright, Possession in the Common Law (1888), and for a modern judicial example of its expression in Parker v. British Airways Board [1982] Q.B. 1004, 1019E, per Eveleigh L.J. Mr. Munby said that the application of the principle may differ evidentially according to whether the object in dispute is found in or unattached on the land.
The starting point in considering those rival contentions is the firm principle established as long ago as 1722 in Armory v. Delamirie (1722) 1 Str. 505, that the finder of an object is entitled to possess it against all but the rightful owner. There was no claim in that case by the landowner; the dispute was between a chimney sweep's boy who found a jewel and a jeweller to whom he had offered it for sale. The boy won.
The same principle applies as between the owner or lawful possessor of land and the finder in relation to unattached objects on land unless the former has made plain his intention to control the land and anything that *340 might be found on it. As Pollock and Wright put it in their Essay, at p. 40, "The finder's right starts from the absence of any de facto control at the moment of finding:" see Bridges v. Hawkesworth (1851) 21 L.J.Q.B. 75, in which Patteson and Wightman JJ., sitting as a Divisional Court on appeal from a county court, held that the finder of bank notes dropped by someone unknown accidentally on the floor of a shop had a better claim to them than the shop-owner who, until the finder drew his attention to them, did not know they were there. A more recent example is Parker's case [1982] Q.B. 1004 where the finder of a gold bracelet dropped by an unknown traveller in an airline company's lounge at an airport was held to be entitled to it as against the airline company. In that case Donaldson L.J., giving the leading judgment, held, at p. 1014, that for the landowner's claim to prevail in such a case, he had to have both a right and a manifest intention to exercise control over anything which might be on his land.
As to articles found in or attached to land, the foundation of the modern rule is Elwes v. Brigg Gas Co. (1886) 33 Ch.D. 562, in which Chitty J. clearly regarded ownership or lawful possession of the land as determinative and the legal status of the object in dispute as immaterial. He held that a tenant for life as lessor of land was entitled against its lessee to ownership of a prehistoric boat embedded six feet below the surface in the demised land. In so holding, he said, at pp. 568-569, that it was unnecessary to determine whether the boat was a mineral, part of the soil in which it was embedded or a chattel because:
"he was in possession of the ground, not merely of the surface, but of everything that lay beneath the surface down to the centre of the earth, and consequently in possession of the boat. . . . The plaintiff then, being thus in possession of the chattel, it follows that the property in the chattel was vested in him. Obviously the right of the original owner could not be established; it had for centuries been lost or barred . . . The plaintiff, then, had a lawful possession, good against all the world, and therefore the property in the boat. In my opinion it makes no difference, in the circumstances, that the plaintiff was not aware of the existence of the boat."
Earlier in his judgment, at p. 567, he identified the breadth of that principle:
"In support of the contention that it ought to be deemed in law as part of the soil in which it was embedded, reference was made to the principle embodied in the maxim, 'Quicquid plantatur,' or as it is sometimes stated (see Broom's Legal Maxims, 6th ed., p. 376n. and the judgment in Climie v. Wood (1868) L.R. 3 Ex. 257, 260) 'fixatur solo, solo cedit.' This principle is an absolute rule of law, not depending on intention; for instance, if a man digs in the land of another, and permanently fixes in the soil stones or bricks, or the like, as the foundation of a house, the stones or bricks become the property of the owner of the soil, whatever may have been the intention of the person who so placed them there, and even against his declared intention that they should remain his property. Nor does it appear to me to be material that the things should have been *341 placed there by the hand of man; it would seem to be sufficient if they have become permanently fixed in the soil by the operation of natural causes."
As A. L. Goodhart concluded in his celebrated article, "Three Cases on Possession" (1929) 3 C.L.J. 195, 204, the lessor "was the possessor of the boat because he was in possession of the ground," to which I add what is implicit in that conclusion, because the boat had become permanently fixed in the ground. Chitty J. did not, therefore, need to considerBridges v. Hawkesworth, 21 L.J.Q.B. 75 which was cited to him, and the quite different principle governing unattached articles on land.
Unfortunately, the two principles became entangled in South Staffordshire Water Co. v. Sharman [1896] 2 Q.B. 44, another appeal to the Divisional Court from a county court, and a case which, on its facts, was just on the "in" side of the borderline between objects found in and on land. It concerned a landowner which had instructed its employee to clean the bottom of a pool on land owned by it. In the course of doing so the employee found two gold rings in mud at the bottom of the pool. The landowner and the employee each claimed the rings. Lord Russell of Killowen C.J., with whom Wills J. agreed, expressly based his judgment, at pp. 46-47, on the following passage in Pollock and Wright, Possession in the Common Law, at p. 41, dealing with objects attached to or in land:
"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. So it was lately held concerning a prehistoric boat imbedded in the soil. It is free to any one who requires a specific intention as part of de facto possession to treat this as a positive rule of law. But it seems preferable to say that the legal possession rests on a real de facto possession, constituted by the occupier's general power and intent to exclude unauthorized interference." (My emphasis.)
Lord Russell of Killowen C.J., at p. 47, distinguished certain cases cited to him because in none of them had there been "a real de facto possession, or a general power and intent to exclude unauthorized interference" and Bridges v.Hawkesworth, 21 L.J.Q.B. 75 on its quite different facts. He then stated the principle in his own words and, in doing so, both extended and qualified the passage from Pollock and Wright on which he had said he was basing his judgment. He said:
"the general principle seems to me to be that where a person has possession of house or land, with a manifest intention to exercise control over it and the things which may be upon or in it, then, if something is found on that land, whether by an employee of the owner or by a stranger, the presumption is that the possession of that thing is in the owner of the locus in quo." (My emphasis.)
Those words extended the Pollock and Wright principle about objects in or attached to land to unattached objects found on it, subject to an additional requirement of a manifest intention to exercise control: see Hannah v. Peel [1945] K.B. 509, 519-520, per Birkett J.; Grafstein v. Holme and Freeman (1958) 12 D.L.R. (2d) 727, 734, per LeBel J.A. and Parker v. British Airways Board [1982] Q.B. 1004, 1014, 1018,per Donaldson L.J. To that extent they were obiter. They are also capable of being read as applying that additional requirement of "a manifest intention to exercise control" to articles found in or attached to land.
Mr. Munby submitted that the latter qualification was a faithful application of the Pollock and Wright test, and he drew attention to the words in it "in general" and "general power and intent." He suggested that their effect was simply to apply the concept of possession, namely, control and intent to control, to objects in, as well as to those unattached and on, land. Mr. Croxford agreed that the test was one of possession. But he submitted that in this context that simply means that the possessor of land intends to possess it and whatever is in it, as distinct from any object which for a transitory period may be found on it.
The test of possession, in its most abstract form, may have a constant meaning whether applied to objects in or unattached and on land. But it is clear from Pollock and Wright's statement, citing Elwes v. Brigg Gas Co., 33 Ch.D. 562, that they regarded its application to objects in land to be free from the uncertainties inherent in disputes about entitlement to unattached objects found on land. Their proposition was that in practice possession of land should generally be taken as carrying with it an intent to possession of objects in or attached to it. To the extent that Lord Russell of Killowen C.J.'s words in the Sharman case [1896] 2 Q.B. 44 may be construed as ignoring that distinction, they go beyond Pollock and Wright's test for objects in or attached to land and beyond what was necessary for the decision. That is certainly how A. L. Goodhart viewed it in his article in 3 C.L.J. 195, 206- 207. He wrote, at p. 206, referring to Pollock and Wright's statement of the principle:
"It is important to note the . . . words 'attached to or under that land.' These are sufficient to cover the Sharman case, and, therefore, are the basis of the ratio decidendi, as the rings were in the mud and were also covered by a pool of water. They were not on the surface of the land, and were not visible to the casual passer-by. These facts must qualify Lord Russell's final statement, in which he departs from the principle stated in the quotation from Pollock and Wright."
Later, at p. 207, he suggested that the authorities supported the following, among other, principles:
"A man possesses everything which is attached to or under the land which he possesses. As Chitty J. said in the Elwes case, a man who is in possession of the ground is in possession 'not merely of the surface, but of everything that lies beneath the surface down to the centre of the earth.' It is true that in the Sharman case Lord Russell of Killowen described this rule as being merely a ' presumption,' but he did not give any reasons for such a limitation. . . . It is difficult to conceive of any set of circumstances under which this rule or presumption would not be applicable."
A. L. Goodhart's analysis of the Sharman case [1896] 2 Q.B. 44 and of the principle has powerful judicial support. In City of London Corporation v. Appleyard [1963] 1 W.L.R. 982, a dispute about entitlement to bank notes found in a wall safe on a building site, McNair J. commented on Lord Russell of Killowen C.J.'s words, at p. 987:
"I do not regard this passage as being intended to qualify or extend the principle stated in Pollock and Wright, though in terms the words ' upon or in' used by the Chief Justice are wider than the words ' attached to or under' appearing in Pollock and Wright."
Donaldson L.J. in his review of the authorities and statement of the principles that he derived from them in Parker v. British Airways Board [1982] Q.B. 1004, appears to have been of the same view. As to objects found in or attached to land, he said, at p. 1010:
"In the interests of clearing the ground and identifying the problem, let me now turn to another situation in respect of which the law is reasonably clear. This is that of chattels which are attached to realty (land or buildings) when they are found. If the finder is not a wrongdoer, he may have some rights, but the occupier of the land or building will have a better title. The rationale of this rule is probably either that the chattel is to be treated as an integral part of the realty as against all but the true owner and so incapable of being lost or that the 'finder' has to do something to the realty in order to get at or detach the chattel and, if he is not thereby to become a trespasser, will have to justify his actions by reference to some form of licence from the occupier. In all likely circumstances that licence will give the occupier a superior right to that of the finder. Authority for this view of the law is to be found in South Staffordshire Water Co. v. Sharman [1896] 2 Q.B. 44. . ."
As to articles found unattached and on land, he said at p. 1014:
". . . I would accept Lord Russell of Killowen C.J.'s statement of the general principle . . . provided that the occupier's intention to exercise control over anything which might be on the premises was manifest. But it is impossible to go further and to hold that the mere right of an occupier to exercise such control is sufficient to give him rights in relation to lost property on his premises without overruling Bridges v. Hawkesworth, 21 L.J.Q.B. 75. Mr. Hawkesworth undoubtedly had a right to exercise such control, but his defence failed."
He then set out a number of "general principles or rules of law" that he derived from the authorities including, at pp. 1017-1018, the following two, in the context mainly of objects found in a building:
"1. An occupier of land has rights superior to those of a finder over chattels in or attached to that land and an occupier of a building has similar rights in respect of chattels attached to that building, whether in either case the occupier is aware of the presence of the chattel. 2. An occupier of a building has rights superior to those of a finder over chattels upon or in, but not attached to, that building if, but only if, before the chattel is found, he has manifested an intention to exercise control over the building and the things which may be upon it or in it."
Mr. Munby suggested that the first of those two principles was obiter because the case concerned an object found unattached on, not in, land. I do not agree that it was obiter. Donaldson L.J.'s identification of that principle was a necessary step in his identification of the second, which did apply to the facts of the case. As he put it, he was "clearing the ground and identifying the problem." Moreover, for the reasons I have given, I respectfully regard his analysis as accurate.
McNair J.'s reservations about Lord Russell of Killowen C.J.'s wording and Donaldson L.J.'s statement of the general principles were echoed by Finlay C.J., giving the leading majority judgment of the Supreme Court of Ireland in Webb v. Ireland [1988] I.R. 353, which concerned the finding by use of a metal detector of a hoard of treasure in the land of a ruined abbey. Finlay C.J. said, at pp. 377-378:
"The decision of Chitty J. in Elwes v. Brigg Gas Co., 33 Ch.D. 562, is a clear and unequivocal authority for the proposition that the owner of a fee simple interest in land is entitled to any chattel which may be in the land as against the finder of that chattel, even where the finder is excavating the land with the licence of the owner. I have carefully considered the judgment in that case and I find it a very persuasive precedent."
He went on to refer to Lord Russell of Killowen C.J.'s judgment in the Sharman case [1896] 2 Q.B. 44, including his quotation of the passage from Pollock and Wright, and continued, at p. 378:
"Later on in his judgment the Chief Justice stated this principle in somewhat different form and, in particular, appeared to apply it to things which may be 'upon or in' the land, where the statement would appear to apply to everything which is attached to or under the land. This slight qualification, if it is such, of the earlier statement is dealt with in the judgment of McNair J. in City of London Corporation v. Appleyard [1963] 1 W.L.R. 982. I am satisfied that the true legal position is that there must be distinguished, with regard to the question of control, things which are on land and things which are attached to or under it. This distinction makes consistent the decision in Bridges v. Hawkesworth, 21 L.J.Q.B. 75, and the decision in Parker v. British Airways Board [1982] Q.B. 1004 which dealt with objects on land and with an absence of control over them with the decisions . . . dealing with objects attached to or under the land. The extent to which, where objects are attached to or under the land, an absence of control may deprive the owner against a finder is probably limited to cases such as Hannah v. Peel [1945] K.B. 509, where the owner of a house had never entered into possession of it though the title had devolved upon him."
See alsoTamworth Industries Ltd. v. Attorney-General [1991] 3 N.Z.L.R. 616, in which Eichelbaum C.J., at pp. 619, 621 and 624, accepted as established law the clear distinction to be made between articles found in and on land.
Mr. Munby, undaunted by that weight of authority, submitted that there is no sensible basis for the distinction. He argued that it is against *345 commonsense that it should make all the difference whether an object is just under or on the surface. That was also the view of the judge. He said that he could see no reason in common sense why the better possessory claim should depend upon whether an object was found on or in ground. Mr. Munby gave as one of a number of examples in support of his argument, a lost watch on a muddy path which might within a day or two become covered by a thin coating of mud. Why, he asked, should the landowner's claim be different and stronger when the watch finally, but only just, disappears from sight?
In my view, the authorities reveal a number of sound and practical reasons for the distinction.
First, as Donaldson L.J. said in Parker v. British Airways Board [1982] Q.B. 1004, 1010, an object in land "is to be treated as an integral part of the realty as against all but the true owner" or that the finder in detaching the object would, in the absence of licence to do so, become a trespasser. Mr. Munby suggested that this is wrong because if an object is treated as part of the realty the true owner cannot have priority. However, the English law of ownership and possession, unlike that of Roman Law, is not a system of identifying absolute entitlement but of priority of entitlement, and Donaldson L.J.'s rationale is consistent with that: see Buckland and McNair, Roman Law and Common Law, 2nd ed. revise (1965), p. 67. It is also consistent with Chitty J.'s reasoning in the Elwes case, 33 Ch.D. 562, 567, which I have quoted. See also Wake v. Hall (1883) 8 App.Cas. 195, 203-204, per Lord Blackburn and Simmons v. Midford [1969] 2 Ch. 415, 421F-G, per Buckley J.
Second, removal of an object in or attached to land would normally involve interference with the land and may damage it: cf. A. L. Goodhart's view in his article in 3 C.L.J. 195, 207, that this distinction is not of sufficient importance in principle to warrant separate rules as to possession.
Third, putting aside the borderline case of a recently lost article which has worked its way just under the surface, in the case of an object in the ground its original owner is unlikely in most cases to be there to claim it. The law, therefore, looks for a substitute owner, the owner or possessor of the land in which it is lodged. Whereas in the case of an unattached object on the surface, it is likely in most cases to have been recently lost, and the true owner may well claim it. In the meantime, there is no compelling reason why it should pass into the possession of the landowner as against a finder unless he, the landowner, has manifested an intention to possess it. As to borderline cases of the sort mentioned by Mr. Munby, potential absurdities can always be found at the margins in the application of any sound principle. It is for the trial judge to determine as a matter of fact and degree on which side of the line, on or in the land, an object is found.
The distinction is now long and well established. In addition to the judicial and academic authority to which I have referred, it is to be found in Annex 1 to the Eighteenth Report (Conversion and Detinue) of the Law Reform Committee (1971) (Cmnd. 4774); the Law Commission's paper "Treasure Trove - Law Reform Issues" (1987), para. 9; Megarry & Wade, The Law of Real Property, 5th ed. (1984), p. 61; and Halsbury's *346 Laws of England, 4th ed. reissue, vol. 2 (1991), p. 840, para. 1814 and 4th ed., vol. 35 (1981), p. 623, para. 1120.
In my view, the two main principles established by the authorities, and for good practical reasons, are as stated by Donaldson L.J. in Parker v. British Airways Board [1982] Q.B. 1004. I venture to restate them with particular reference to objects found on or in land, for he was concerned primarily with an object found in a building. (1) Where an article is found in or attached to land, as between the owner or lawful possessor of the land and the finder of the article, the owner or lawful possessor of the land has the better title. (2) Where an article is found unattached on land, as between the two, the owner or lawful possessor of the land has a better title only if he exercised such manifest control over the land as to indicate an intention to control the land and anything that might be found on it.
I turn now to the judgment of the judge in which he sought to qualify the first of those principles by narrowing the ratio of the Elwes case, 33 Ch.D. 562 by reference to the particular proprietary interest of the lessor as against the lessee and distinguishing between things naturally in the ground and those put there. He said:
"It seems to me that this case decided two matters. Firstly, that a person in possession of land as an inheritance under a settlement prima facie has the property and anything on or under that land. Secondly, that the defendant, whose only right to be on the land was under the terms of the lease, could not establish any express or implied licence to remove anything that would not be contemplated as being found during excavation of the land. I say 'on or under' because it could not in common sense have made any difference to the plaintiff's title whether the boat was resting on the top or six feet under. . . .
"The general rule that an owner of land owns everything that is under his land right up to the centre of the earth, from a common sense point of view, would be applicable to things that are naturally there. It would, for example, include minerals, and any objects which in former days might have become attached to the surface of the land so as to form part of the realty, but which over the years, perhaps centuries, have become covered. But why in the case of lost or abandoned chattels there should be any difference as to who has the better possessory claim dependent merely upon whether the chattel is above or below ground (or on a window ledge as opposed to within a crevice therein), I wholly fail to understand, as I have already commented in relation to the boat in Elwes v. Brigg Gas Co. (1886) 33 Ch.D. 562."
I can find nothing in the authorities to justify the judge's restriction of the ratio in the Elwes case to things that are naturally in the ground, as distinct from lost or abandoned articles. It is true that in Parker v. British Airways Board [1982] Q.B. 1004, 1010G, Donaldson L.J. categorised it as a dispute between a tenant for life of the realty and his lessee rather than a dispute between landowner and finder, but, in the first of his propositions that I have set out, he clearly accepted the general principle enunciated by Chitty J. that lawful possession of land includes possession of everything *347 in the land, naturally there or otherwise. Whatever the correct categorisation of the Elwes case, Chitty J. clearly regarded the nature of the article or matter in dispute as immaterial. In any event, it is far too late now for it to be suggested that his general proposition should be modified as suggested by the judge.
The second question is whether and, if so, in what circumstances a different rule applies to land which is a public open space. The judge found that the council had neither the manifest intent nor the ability to prevent metal detecting in the park and the associated digging and removal of objects. He contrasted the circumstances in the cases of Elwes, 33 Ch.D. 562, Sharman [1896] 2 Q.B. 44 and Webb [1988] I.R. 353 by suggesting as the ratio in each case that the unsuccessful finder was only allowed on the land for a limited purpose which did not include the taking of the article in question.
The undisputed facts here were that the council's ownership of the park was subject to two covenants in the conveyance under which it derived title: (1) that it was to be used only for purposes "of or incidental to a pleasure or recreation ground for the use of the public;" (2) that it was not to be used for "horse or dog racing or for any other sports pastimes or recreations except the playing of cricket, hockey, netball, football, golf and skating and other games or sports of a like nature" and that the council would "at all times use the . . . park as an open space within the meaning of the Open Spaces Act 1906 or a recreation ground within the meaning of the Public Health Acts."
Section 9(b)of the Open Spaces Act 1906 empowered the council to undertake the "management and control" of the park. Section 10 empowered it (a) to "hold and administer" the park "with a view to the enjoyment thereof by the public as an open space within the meaning of this Act and under proper control and regulation," and (b) to "maintain and keep" it "in a good and decent state. " Section 10 also empowered it to enclose the park and to do various works of improvement to it for the benefit of the public. Section 15 empowered it to make byelaws subject to the approval of the Home Office for the "regulation" of the park, of the days and times of admission and for the "preservation of order and prevention of nuisances."
As to the Public Health Acts, section 164 of the Public Health Act 1875 (38 & 39 Vict. c. 55) and section 76 of the Public Health Acts Amendment Act 1907 give local authorities wide powers to provide and equip places of public recreation. But neither they nor the many other statutory provisions on the subject (see the helpful summary in Halsbury's Statutes, 4th ed. reissue, vol. 35 (1993), p. 11) assist on the question whether metal detecting is a recreation for this purpose.
Members of the public have access to the park at all times, save for part of it given over to a golf course and the ranger's house and garden. The council employed a ranger who, with other part-time voluntary rangers, regularly patrolled and managed the maintenance of the park and supervised the use of it by the public. The council's declared policy was not to permit the use of metal detectors in the park. But, though it had made approved byelaws forbidding certain activities, it had not been able to persuade the Home Office to approve a byelaw prohibiting the use of *348 metal detectors. There had been notices prohibiting the use of metal detectors in the park, but they had been pulled down, and there was none at the material time. Despite the absence of such notices, the ranger had on two or three occasions stopped people using them. Mr. Fletcher was unaware of the council's policy and had regularly used his metal detector there.
The judge held, on those facts: first, that metal detecting was a "recreation " which the council was obliged to permit under the terms on which it held the land; second, that "digging in response to the metal detector's signal, provided it is within reasonable bounds, is incidental to such recreational activity;" third, that the council had not made plain to Mr. Fletcher its policy to prohibit metal detecting; and, fourth, that, in any event, in the absence of any applicable byelaws, the council had no authority to stop him.
In my view, the judge's reasoning that metal detecting was a recreation within the terms under which the council held the land and that, therefore, it included a right to excavate and carry away objects found, is strained. Whilst some sports or recreations, such as golf or cricket, may involve some disturbance of the soil, metal detecting is not, in my view, "of a like nature " to the "sports pastimes or recreations" mentioned in the second of the covenants to which I have referred. Moreover, the very fact that the activity is inherently invasive is against it being recreational in this context. Even if I am wrong about that, it cannot entitle members of the public to excavate the soil, whether "within reasonable bounds" or not. In Webb v. Ireland [1988] I.R. 353, 379, Finlay C.J. said:
"The learned trial judge found that the act of digging was an act of trespass, and even though the plaintiffs may have entered with the implied licence of the owners, as was found by him, this would lead to the legal conclusion that they then became, upon commencing to dig, trespassers ab initio."
Further, even if it could be said that such a right existed in this case, it could not include a right to remove anything found. In the Elwes case, 33 Ch.D. 562, 568 and 569, Chitty J. said that a licence to dig does not amount to a licence to take away.
Finlay C.J., in another passage in Webb's case [1988] I.R. 353, 379, provides the answer to Mr. Munby's suggestion that digging and taking away incidental to metal detecting should, in the circumstances, be regarded as de minimis. Presumably, that is what the judge had in mind in his qualification "within reasonable bounds." Finlay C.J. said:
"The principle . . . that the law leans against the acquisition by a person of property rights by trespass, save in cases of prescription, is based on the requirement of the common good that the ownership and right to possession of land shall be protected from an unlawful invasion of it. There does not appear to me to be any grounds in logic or justice for a rule of law that a person who by a trespass of little extent obtains possession of a very valuable chattel would be exempt from this provision of the law, whereas a person committing a larger or more extensive trespass, and possibly deriving a much smaller profit would be penalised by it."
Accordingly, in my view, neither Mr. Fletcher's metal detecting nor his digging nor his removal of the brooch was within any of the purposes for which the council was permitted to, or did, allow the public use of the park.
The judge declined to rule on a submission made on behalf of Mr. Fletcher, and repeated on this appeal, that the council was not the occupier of the park and for that reason could not assert sufficient control over it to entitle it to things in it. However, as I have said, he ruled that the council had no authority to prevent Mr. Fletcher from metal detecting, digging and removing objects in the park. He appears to have taken the view that the only way in which the council could enforce its power and duty of management and control was by prosecution for infringement of byelaws or by recourse to the general criminal law. He said:
"There are no relevant byelaws and it seems to me that even had the defendant been aware of the council's desire to prevent metal detecting, which he was not, he would have been entitled to say, 'You cannot stop me. What is your authority for trying to?'"
The basis of that ruling, and of Mr. Munby's submission to like effect before us, was a decision of Finnemore J. in Hall v. Beckenham Corporation [1949] 1 K.B. 716, which concerned an action of nuisance against a local authority in respect of noise from the flying of model aircraft in a recreation ground owned, managed and controlled by the authority. Finnemore J. found for the local authority holding, in reliance on a rating case, that it was not the occupier of the recreation ground, but merely its custodian or trustee for the public; that its only power to control activities in it was by way of byelaws or enforcement of the general criminal law; and that, as the flying of model aircraft did not contravene either, it had no power to abate the alleged nuisance.
Mr. Munby submitted in reliance on Hall's case that the council did not occupy the park; and that it had no right qua owner to regulate its use by a member of the public, who could do what he liked there unless he breached a byelaw or the general criminal law.
In my view, the council, whether as owner, possessor or occupier of the park, was a trustee for the general public in the exercise of its powers and duties of management and control under the Act of 1906 and the terms under which it held the land. As such it had a superior right to the brooch over that of Mr. Fletcher who, in the absence of a licence from the council, had no entitlement to dig and remove it. In my view, the council was not restricted in its enforcement of that right to the mechanisms of prosecution under byelaws or the general criminal law. The purpose of a byelaw is simply to provide a local authority with a convenient criminal sanction in the enforcement of its public powers and duties. The absence of a byelaw on any matter does not mean that the council has no corresponding civil right, in this instance in its management and control of its land.
Hall's case was quite different. The question there was whether a local authority was liable in nuisance for noise caused by members of the public using it for a recreational purpose which the authority did not claim an entitlement to control. Here the council sought, in accordance with its power and duty of management and control of the park on behalf of the general public, to protect its property. If and to the extent that Finnemore J.'s judgment could be said to suggest that such power and duty can be enforced only through the medium of byelaws or the general criminal law, my view is that it went too far.
Accordingly, I can see no basis for not applying the general rule that an owner or lawful possessor of land has a better title to an object found in or attached to his land than the finder, or for modifying it in some way to produce a different result in the circumstances of this case. Mr. Fletcher did not derive a superior right to the brooch simply because he was entitled as a member of public to engage in recreational pursuits in the park. Metal detecting was not a recreation of the sort permitted under the terms under which the council held the land on behalf of the general public. In any event, digging and removal of property in the land were not such a permitted use, and were acts of trespass. and the council was entitled to exercise its civil remedy for protection of its property regardless of the absence of any applicable byelaw.
As to the judge's third point, the absence of a manifest intention to control, it is, for the reasons I have given in the earlier part of this judgment, not the test for objects found in or attached to land; and, for the reasons I have just given, there is no reason for its application to the circumstances of this case. If there were, given the council's statutory powers and duties, the terms under which it holds and controls and manages the park and the way in which it exercises that control and management, I would regard it as clearly having the requisite intent and ability to control.
For those reasons I would allow the appeal.
WARD L.J.
I agree.
SIR THOMAS BINGHAM M.R.
I have had the benefit of reading in draft the judgment of Auld L.J. I am in complete agreement with it, and would allow this appeal for the reasons which he gives.
Appeal allowed with costs. Declaration accordingly. Leave to appeal refused. Petition: 18 December 1995. The Appeal Committee of the House of Lords (Lord Goff of Chieveley, Lord Mustill and Lord Steyn) dismissed a petition by the defendant for leave to appeal.
[1996] Q.B. 334
This appeal concerns the collision of two familiar notions of English law: "finders keepers" and that an owner or lawful possessor of land owns all that is in or attached to it. More particularly, it raises two questions. (1) Who, as between an owner or lawful possessor of land and a finder of an article in or attached to the land, is entitled to the article? (2) How is the answer to (1) affected by, or applied, when the land is public open space?
The appellant, Waverley Borough Council, is the freeholder of a park,
The council then issued proceedings against Mr. Fletcher, claiming a declaration that the brooch was its property and delivery up of it or damages. Mr. Fletcher, by his defence, relied on the argument of "finders keepers." He maintained that the council's claim to ownership of the brooch required it to prove not only ownership, but also occupation, of the park. He admitted that it owned the park, but asserted that it did not occupy it because it was bound to allow the public to use it for pleasure and recreation. He said that he found the brooch whilst he was a lawful visitor there, and that, therefore, because the true owner of it had not been found, he was entitled, as finder, to keep it.
The judge, Judge Fawcus, sitting as a judge of the High Court, found for Mr. Fletcher. After reviewing the authorities he held that the rule that an owner of land owns everything in his land applies only to things that are naturally there, not to lost or abandoned objects; that the crucial factor is the control that he intends and is able to exercise over lawful visitors in relation to any objects that might be on or in the land; that Mr. Fletcher was a lawful visitor and did not become a trespasser by digging and removing the brooch; but that it was not necessary to decide the question of control because the council had not established "a paramount claim so as to displace the maxim "finders keepers."
On this appeal, Mr. Croxford, for the council, argued that an owner or lawful possessor of land is entitled by virtue of that ownership or possession without more, as against a finder with no interest in the land, to any object, other than treasure trove, found in the land. He acknowledged that a different rule applies to unattached objects found on the land.
Mr. Munby, for Mr. Fletcher, maintained that a common principle applies to objects in or unattached on land, namely, that to overcome a finder's claim the owner or lawful possessor of land must demonstrate an intention to exercise control over the land and things found in or on it. By "control" he meant a power and intent to "exclude unauthorised interference." That is effectively the English law concept of possession: see Holmes, The Common Law (1881), pp. 220-221; Pollock and Wright, Possession in the Common Law (1888), and for a modern judicial example of its expression in Parker v. British Airways Board [1982] Q.B. 1004, 1019E, per Eveleigh L.J. Mr. Munby said that the application of the principle may differ evidentially according to whether the object in dispute is found in or unattached on the land.
The starting point in considering those rival contentions is the firm principle established as long ago as 1722 in Armory v. Delamirie (1722) 1 Str. 505, that the finder of an object is entitled to possess it against all but the rightful owner. There was no claim in that case by the landowner; the dispute was between a chimney sweep's boy who found a jewel and a jeweller to whom he had offered it for sale. The boy won.
The same principle applies as between the owner or lawful possessor of land and the finder in relation to unattached objects on land unless the former has made plain his intention to control the land and anything that *340 might be found on it. As Pollock and Wright put it in their Essay, at p. 40, "The finder's right starts from the absence of any de facto control at the moment of finding:" see Bridges v. Hawkesworth (1851) 21 L.J.Q.B. 75, in which Patteson and Wightman JJ., sitting as a Divisional Court on appeal from a county court, held that the finder of bank notes dropped by someone unknown accidentally on the floor of a shop had a better claim to them than the shop-owner who, until the finder drew his attention to them, did not know they were there. A more recent example is Parker's case [1982] Q.B. 1004 where the finder of a gold bracelet dropped by an unknown traveller in an airline company's lounge at an airport was held to be entitled to it as against the airline company. In that case Donaldson L.J., giving the leading judgment, held, at p. 1014, that for the landowner's claim to prevail in such a case, he had to have both a right and a manifest intention to exercise control over anything which might be on his land.
As to articles found in or attached to land, the foundation of the modern rule is Elwes v. Brigg Gas Co. (1886) 33 Ch.D. 562, in which Chitty J. clearly regarded ownership or lawful possession of the land as determinative and the legal status of the object in dispute as immaterial. He held that a tenant for life as lessor of land was entitled against its lessee to ownership of a prehistoric boat embedded six feet below the surface in the demised land. In so holding, he said, at pp. 568-569, that it was unnecessary to determine whether the boat was a mineral, part of the soil in which it was embedded or a chattel because:
"he was in possession of the ground, not merely of the surface, but of everything that lay beneath the surface down to the centre of the earth, and consequently in possession of the boat. . . . The plaintiff then, being thus in possession of the chattel, it follows that the property in the chattel was vested in him. Obviously the right of the original owner could not be established; it had for centuries been lost or barred . . . The plaintiff, then, had a lawful possession, good against all the world, and therefore the property in the boat. In my opinion it makes no difference, in the circumstances, that the plaintiff was not aware of the existence of the boat."
Earlier in his judgment, at p. 567, he identified the breadth of that principle:
"In support of the contention that it ought to be deemed in law as part of the soil in which it was embedded, reference was made to the principle embodied in the maxim, 'Quicquid plantatur,' or as it is sometimes stated (see Broom's Legal Maxims, 6th ed., p. 376n. and the judgment in Climie v. Wood (1868) L.R. 3 Ex. 257, 260) 'fixatur solo, solo cedit.' This principle is an absolute rule of law, not depending on intention; for instance, if a man digs in the land of another, and permanently fixes in the soil stones or bricks, or the like, as the foundation of a house, the stones or bricks become the property of the owner of the soil, whatever may have been the intention of the person who so placed them there, and even against his declared intention that they should remain his property. Nor does it appear to me to be material that the things should have been *341 placed there by the hand of man; it would seem to be sufficient if they have become permanently fixed in the soil by the operation of natural causes."
As A. L. Goodhart concluded in his celebrated article, "Three Cases on Possession" (1929) 3 C.L.J. 195, 204, the lessor "was the possessor of the boat because he was in possession of the ground," to which I add what is implicit in that conclusion, because the boat had become permanently fixed in the ground. Chitty J. did not, therefore, need to considerBridges v. Hawkesworth, 21 L.J.Q.B. 75 which was cited to him, and the quite different principle governing unattached articles on land.
Unfortunately, the two principles became entangled in South Staffordshire Water Co. v. Sharman [1896] 2 Q.B. 44, another appeal to the Divisional Court from a county court, and a case which, on its facts, was just on the "in" side of the borderline between objects found in and on land. It concerned a landowner which had instructed its employee to clean the bottom of a pool on land owned by it. In the course of doing so the employee found two gold rings in mud at the bottom of the pool. The landowner and the employee each claimed the rings. Lord Russell of Killowen C.J., with whom Wills J. agreed, expressly based his judgment, at pp. 46-47, on the following passage in Pollock and Wright, Possession in the Common Law, at p. 41, dealing with objects attached to or in land:
"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. So it was lately held concerning a prehistoric boat imbedded in the soil. It is free to any one who requires a specific intention as part of de facto possession to treat this as a positive rule of law. But it seems preferable to say that the legal possession rests on a real de facto possession, constituted by the occupier's general power and intent to exclude unauthorized interference." (My emphasis.)
Lord Russell of Killowen C.J., at p. 47, distinguished certain cases cited to him because in none of them had there been "a real de facto possession, or a general power and intent to exclude unauthorized interference" and Bridges v.Hawkesworth, 21 L.J.Q.B. 75 on its quite different facts. He then stated the principle in his own words and, in doing so, both extended and qualified the passage from Pollock and Wright on which he had said he was basing his judgment. He said:
"the general principle seems to me to be that where a person has possession of house or land, with a manifest intention to exercise control over it and the things which may be upon or in it, then, if something is found on that land, whether by an employee of the owner or by a stranger, the presumption is that the possession of that thing is in the owner of the locus in quo." (My emphasis.)
Those words extended the Pollock and Wright principle about objects in or attached to land to unattached objects found on it, subject to an additional requirement of a manifest intention to exercise control: see Hannah v. Peel [1945] K.B. 509, 519-520, per Birkett J.; Grafstein v. Holme and Freeman (1958) 12 D.L.R. (2d) 727, 734, per LeBel J.A. and Parker v. British Airways Board [1982] Q.B. 1004, 1014, 1018,per Donaldson L.J. To that extent they were obiter. They are also capable of being read as applying that additional requirement of "a manifest intention to exercise control" to articles found in or attached to land.
Mr. Munby submitted that the latter qualification was a faithful application of the Pollock and Wright test, and he drew attention to the words in it "in general" and "general power and intent." He suggested that their effect was simply to apply the concept of possession, namely, control and intent to control, to objects in, as well as to those unattached and on, land. Mr. Croxford agreed that the test was one of possession. But he submitted that in this context that simply means that the possessor of land intends to possess it and whatever is in it, as distinct from any object which for a transitory period may be found on it.
The test of possession, in its most abstract form, may have a constant meaning whether applied to objects in or unattached and on land. But it is clear from Pollock and Wright's statement, citing Elwes v. Brigg Gas Co., 33 Ch.D. 562, that they regarded its application to objects in land to be free from the uncertainties inherent in disputes about entitlement to unattached objects found on land. Their proposition was that in practice possession of land should generally be taken as carrying with it an intent to possession of objects in or attached to it. To the extent that Lord Russell of Killowen C.J.'s words in the Sharman case [1896] 2 Q.B. 44 may be construed as ignoring that distinction, they go beyond Pollock and Wright's test for objects in or attached to land and beyond what was necessary for the decision. That is certainly how A. L. Goodhart viewed it in his article in 3 C.L.J. 195, 206- 207. He wrote, at p. 206, referring to Pollock and Wright's statement of the principle:
"It is important to note the . . . words 'attached to or under that land.' These are sufficient to cover the Sharman case, and, therefore, are the basis of the ratio decidendi, as the rings were in the mud and were also covered by a pool of water. They were not on the surface of the land, and were not visible to the casual passer-by. These facts must qualify Lord Russell's final statement, in which he departs from the principle stated in the quotation from Pollock and Wright."
Later, at p. 207, he suggested that the authorities supported the following, among other, principles:
"A man possesses everything which is attached to or under the land which he possesses. As Chitty J. said in the Elwes case, a man who is in possession of the ground is in possession 'not merely of the surface, but of everything that lies beneath the surface down to the centre of the earth.' It is true that in the Sharman case Lord Russell of Killowen described this rule as being merely a ' presumption,' but he did not give any reasons for such a limitation. . . . It is difficult to conceive of any set of circumstances under which this rule or presumption would not be applicable."
A. L. Goodhart's analysis of the Sharman case [1896] 2 Q.B. 44 and of the principle has powerful judicial support. In City of London Corporation v. Appleyard [1963] 1 W.L.R. 982, a dispute about entitlement to bank notes found in a wall safe on a building site, McNair J. commented on Lord Russell of Killowen C.J.'s words, at p. 987:
"I do not regard this passage as being intended to qualify or extend the principle stated in Pollock and Wright, though in terms the words ' upon or in' used by the Chief Justice are wider than the words ' attached to or under' appearing in Pollock and Wright."
Donaldson L.J. in his review of the authorities and statement of the principles that he derived from them in Parker v. British Airways Board [1982] Q.B. 1004, appears to have been of the same view. As to objects found in or attached to land, he said, at p. 1010:
"In the interests of clearing the ground and identifying the problem, let me now turn to another situation in respect of which the law is reasonably clear. This is that of chattels which are attached to realty (land or buildings) when they are found. If the finder is not a wrongdoer, he may have some rights, but the occupier of the land or building will have a better title. The rationale of this rule is probably either that the chattel is to be treated as an integral part of the realty as against all but the true owner and so incapable of being lost or that the 'finder' has to do something to the realty in order to get at or detach the chattel and, if he is not thereby to become a trespasser, will have to justify his actions by reference to some form of licence from the occupier. In all likely circumstances that licence will give the occupier a superior right to that of the finder. Authority for this view of the law is to be found in South Staffordshire Water Co. v. Sharman [1896] 2 Q.B. 44. . ."
As to articles found unattached and on land, he said at p. 1014:
". . . I would accept Lord Russell of Killowen C.J.'s statement of the general principle . . . provided that the occupier's intention to exercise control over anything which might be on the premises was manifest. But it is impossible to go further and to hold that the mere right of an occupier to exercise such control is sufficient to give him rights in relation to lost property on his premises without overruling Bridges v. Hawkesworth, 21 L.J.Q.B. 75. Mr. Hawkesworth undoubtedly had a right to exercise such control, but his defence failed."
He then set out a number of "general principles or rules of law" that he derived from the authorities including, at pp. 1017-1018, the following two, in the context mainly of objects found in a building:
"1. An occupier of land has rights superior to those of a finder over chattels in or attached to that land and an occupier of a building has similar rights in respect of chattels attached to that building, whether in either case the occupier is aware of the presence of the chattel. 2. An occupier of a building has rights superior to those of a finder over chattels upon or in, but not attached to, that building if, but only if, before the chattel is found, he has manifested an intention to exercise control over the building and the things which may be upon it or in it."
Mr. Munby suggested that the first of those two principles was obiter because the case concerned an object found unattached on, not in, land. I do not agree that it was obiter. Donaldson L.J.'s identification of that principle was a necessary step in his identification of the second, which did apply to the facts of the case. As he put it, he was "clearing the ground and identifying the problem." Moreover, for the reasons I have given, I respectfully regard his analysis as accurate.
McNair J.'s reservations about Lord Russell of Killowen C.J.'s wording and Donaldson L.J.'s statement of the general principles were echoed by Finlay C.J., giving the leading majority judgment of the Supreme Court of Ireland in Webb v. Ireland [1988] I.R. 353, which concerned the finding by use of a metal detector of a hoard of treasure in the land of a ruined abbey. Finlay C.J. said, at pp. 377-378:
"The decision of Chitty J. in Elwes v. Brigg Gas Co., 33 Ch.D. 562, is a clear and unequivocal authority for the proposition that the owner of a fee simple interest in land is entitled to any chattel which may be in the land as against the finder of that chattel, even where the finder is excavating the land with the licence of the owner. I have carefully considered the judgment in that case and I find it a very persuasive precedent."
He went on to refer to Lord Russell of Killowen C.J.'s judgment in the Sharman case [1896] 2 Q.B. 44, including his quotation of the passage from Pollock and Wright, and continued, at p. 378:
"Later on in his judgment the Chief Justice stated this principle in somewhat different form and, in particular, appeared to apply it to things which may be 'upon or in' the land, where the statement would appear to apply to everything which is attached to or under the land. This slight qualification, if it is such, of the earlier statement is dealt with in the judgment of McNair J. in City of London Corporation v. Appleyard [1963] 1 W.L.R. 982. I am satisfied that the true legal position is that there must be distinguished, with regard to the question of control, things which are on land and things which are attached to or under it. This distinction makes consistent the decision in Bridges v. Hawkesworth, 21 L.J.Q.B. 75, and the decision in Parker v. British Airways Board [1982] Q.B. 1004 which dealt with objects on land and with an absence of control over them with the decisions . . . dealing with objects attached to or under the land. The extent to which, where objects are attached to or under the land, an absence of control may deprive the owner against a finder is probably limited to cases such as Hannah v. Peel [1945] K.B. 509, where the owner of a house had never entered into possession of it though the title had devolved upon him."
See alsoTamworth Industries Ltd. v. Attorney-General [1991] 3 N.Z.L.R. 616, in which Eichelbaum C.J., at pp. 619, 621 and 624, accepted as established law the clear distinction to be made between articles found in and on land.
Mr. Munby, undaunted by that weight of authority, submitted that there is no sensible basis for the distinction. He argued that it is against *345 commonsense that it should make all the difference whether an object is just under or on the surface. That was also the view of the judge. He said that he could see no reason in common sense why the better possessory claim should depend upon whether an object was found on or in ground. Mr. Munby gave as one of a number of examples in support of his argument, a lost watch on a muddy path which might within a day or two become covered by a thin coating of mud. Why, he asked, should the landowner's claim be different and stronger when the watch finally, but only just, disappears from sight?
In my view, the authorities reveal a number of sound and practical reasons for the distinction.
First, as Donaldson L.J. said in Parker v. British Airways Board [1982] Q.B. 1004, 1010, an object in land "is to be treated as an integral part of the realty as against all but the true owner" or that the finder in detaching the object would, in the absence of licence to do so, become a trespasser. Mr. Munby suggested that this is wrong because if an object is treated as part of the realty the true owner cannot have priority. However, the English law of ownership and possession, unlike that of Roman Law, is not a system of identifying absolute entitlement but of priority of entitlement, and Donaldson L.J.'s rationale is consistent with that: see Buckland and McNair, Roman Law and Common Law, 2nd ed. revise (1965), p. 67. It is also consistent with Chitty J.'s reasoning in the Elwes case, 33 Ch.D. 562, 567, which I have quoted. See also Wake v. Hall (1883) 8 App.Cas. 195, 203-204, per Lord Blackburn and Simmons v. Midford [1969] 2 Ch. 415, 421F-G, per Buckley J.
Second, removal of an object in or attached to land would normally involve interference with the land and may damage it: cf. A. L. Goodhart's view in his article in 3 C.L.J. 195, 207, that this distinction is not of sufficient importance in principle to warrant separate rules as to possession.
Third, putting aside the borderline case of a recently lost article which has worked its way just under the surface, in the case of an object in the ground its original owner is unlikely in most cases to be there to claim it. The law, therefore, looks for a substitute owner, the owner or possessor of the land in which it is lodged. Whereas in the case of an unattached object on the surface, it is likely in most cases to have been recently lost, and the true owner may well claim it. In the meantime, there is no compelling reason why it should pass into the possession of the landowner as against a finder unless he, the landowner, has manifested an intention to possess it. As to borderline cases of the sort mentioned by Mr. Munby, potential absurdities can always be found at the margins in the application of any sound principle. It is for the trial judge to determine as a matter of fact and degree on which side of the line, on or in the land, an object is found.
The distinction is now long and well established. In addition to the judicial and academic authority to which I have referred, it is to be found in Annex 1 to the Eighteenth Report (Conversion and Detinue) of the Law Reform Committee (1971) (Cmnd. 4774); the Law Commission's paper "Treasure Trove - Law Reform Issues" (1987), para. 9; Megarry & Wade, The Law of Real Property, 5th ed. (1984), p. 61; and Halsbury's *346 Laws of England, 4th ed. reissue, vol. 2 (1991), p. 840, para. 1814 and 4th ed., vol. 35 (1981), p. 623, para. 1120.
In my view, the two main principles established by the authorities, and for good practical reasons, are as stated by Donaldson L.J. in Parker v. British Airways Board [1982] Q.B. 1004. I venture to restate them with particular reference to objects found on or in land, for he was concerned primarily with an object found in a building. (1) Where an article is found in or attached to land, as between the owner or lawful possessor of the land and the finder of the article, the owner or lawful possessor of the land has the better title. (2) Where an article is found unattached on land, as between the two, the owner or lawful possessor of the land has a better title only if he exercised such manifest control over the land as to indicate an intention to control the land and anything that might be found on it.
I turn now to the judgment of the judge in which he sought to qualify the first of those principles by narrowing the ratio of the Elwes case, 33 Ch.D. 562 by reference to the particular proprietary interest of the lessor as against the lessee and distinguishing between things naturally in the ground and those put there. He said:
"It seems to me that this case decided two matters. Firstly, that a person in possession of land as an inheritance under a settlement prima facie has the property and anything on or under that land. Secondly, that the defendant, whose only right to be on the land was under the terms of the lease, could not establish any express or implied licence to remove anything that would not be contemplated as being found during excavation of the land. I say 'on or under' because it could not in common sense have made any difference to the plaintiff's title whether the boat was resting on the top or six feet under. . . .
"The general rule that an owner of land owns everything that is under his land right up to the centre of the earth, from a common sense point of view, would be applicable to things that are naturally there. It would, for example, include minerals, and any objects which in former days might have become attached to the surface of the land so as to form part of the realty, but which over the years, perhaps centuries, have become covered. But why in the case of lost or abandoned chattels there should be any difference as to who has the better possessory claim dependent merely upon whether the chattel is above or below ground (or on a window ledge as opposed to within a crevice therein), I wholly fail to understand, as I have already commented in relation to the boat in Elwes v. Brigg Gas Co. (1886) 33 Ch.D. 562."
I can find nothing in the authorities to justify the judge's restriction of the ratio in the Elwes case to things that are naturally in the ground, as distinct from lost or abandoned articles. It is true that in Parker v. British Airways Board [1982] Q.B. 1004, 1010G, Donaldson L.J. categorised it as a dispute between a tenant for life of the realty and his lessee rather than a dispute between landowner and finder, but, in the first of his propositions that I have set out, he clearly accepted the general principle enunciated by Chitty J. that lawful possession of land includes possession of everything *347 in the land, naturally there or otherwise. Whatever the correct categorisation of the Elwes case, Chitty J. clearly regarded the nature of the article or matter in dispute as immaterial. In any event, it is far too late now for it to be suggested that his general proposition should be modified as suggested by the judge.
The second question is whether and, if so, in what circumstances a different rule applies to land which is a public open space. The judge found that the council had neither the manifest intent nor the ability to prevent metal detecting in the park and the associated digging and removal of objects. He contrasted the circumstances in the cases of Elwes, 33 Ch.D. 562, Sharman [1896] 2 Q.B. 44 and Webb [1988] I.R. 353 by suggesting as the ratio in each case that the unsuccessful finder was only allowed on the land for a limited purpose which did not include the taking of the article in question.
The undisputed facts here were that the council's ownership of the park was subject to two covenants in the conveyance under which it derived title: (1) that it was to be used only for purposes "of or incidental to a pleasure or recreation ground for the use of the public;" (2) that it was not to be used for "horse or dog racing or for any other sports pastimes or recreations except the playing of cricket, hockey, netball, football, golf and skating and other games or sports of a like nature" and that the council would "at all times use the . . . park as an open space within the meaning of the Open Spaces Act 1906 or a recreation ground within the meaning of the Public Health Acts."
Section 9(b)of the Open Spaces Act 1906 empowered the council to undertake the "management and control" of the park. Section 10 empowered it (a) to "hold and administer" the park "with a view to the enjoyment thereof by the public as an open space within the meaning of this Act and under proper control and regulation," and (b) to "maintain and keep" it "in a good and decent state. " Section 10 also empowered it to enclose the park and to do various works of improvement to it for the benefit of the public. Section 15 empowered it to make byelaws subject to the approval of the Home Office for the "regulation" of the park, of the days and times of admission and for the "preservation of order and prevention of nuisances."
As to the Public Health Acts, section 164 of the Public Health Act 1875 (38 & 39 Vict. c. 55) and section 76 of the Public Health Acts Amendment Act 1907 give local authorities wide powers to provide and equip places of public recreation. But neither they nor the many other statutory provisions on the subject (see the helpful summary in Halsbury's Statutes, 4th ed. reissue, vol. 35 (1993), p. 11) assist on the question whether metal detecting is a recreation for this purpose.
Members of the public have access to the park at all times, save for part of it given over to a golf course and the ranger's house and garden. The council employed a ranger who, with other part-time voluntary rangers, regularly patrolled and managed the maintenance of the park and supervised the use of it by the public. The council's declared policy was not to permit the use of metal detectors in the park. But, though it had made approved byelaws forbidding certain activities, it had not been able to persuade the Home Office to approve a byelaw prohibiting the use of *348 metal detectors. There had been notices prohibiting the use of metal detectors in the park, but they had been pulled down, and there was none at the material time. Despite the absence of such notices, the ranger had on two or three occasions stopped people using them. Mr. Fletcher was unaware of the council's policy and had regularly used his metal detector there.
The judge held, on those facts: first, that metal detecting was a "recreation " which the council was obliged to permit under the terms on which it held the land; second, that "digging in response to the metal detector's signal, provided it is within reasonable bounds, is incidental to such recreational activity;" third, that the council had not made plain to Mr. Fletcher its policy to prohibit metal detecting; and, fourth, that, in any event, in the absence of any applicable byelaws, the council had no authority to stop him.
In my view, the judge's reasoning that metal detecting was a recreation within the terms under which the council held the land and that, therefore, it included a right to excavate and carry away objects found, is strained. Whilst some sports or recreations, such as golf or cricket, may involve some disturbance of the soil, metal detecting is not, in my view, "of a like nature " to the "sports pastimes or recreations" mentioned in the second of the covenants to which I have referred. Moreover, the very fact that the activity is inherently invasive is against it being recreational in this context. Even if I am wrong about that, it cannot entitle members of the public to excavate the soil, whether "within reasonable bounds" or not. In Webb v. Ireland [1988] I.R. 353, 379, Finlay C.J. said:
"The learned trial judge found that the act of digging was an act of trespass, and even though the plaintiffs may have entered with the implied licence of the owners, as was found by him, this would lead to the legal conclusion that they then became, upon commencing to dig, trespassers ab initio."
Further, even if it could be said that such a right existed in this case, it could not include a right to remove anything found. In the Elwes case, 33 Ch.D. 562, 568 and 569, Chitty J. said that a licence to dig does not amount to a licence to take away.
Finlay C.J., in another passage in Webb's case [1988] I.R. 353, 379, provides the answer to Mr. Munby's suggestion that digging and taking away incidental to metal detecting should, in the circumstances, be regarded as de minimis. Presumably, that is what the judge had in mind in his qualification "within reasonable bounds." Finlay C.J. said:
"The principle . . . that the law leans against the acquisition by a person of property rights by trespass, save in cases of prescription, is based on the requirement of the common good that the ownership and right to possession of land shall be protected from an unlawful invasion of it. There does not appear to me to be any grounds in logic or justice for a rule of law that a person who by a trespass of little extent obtains possession of a very valuable chattel would be exempt from this provision of the law, whereas a person committing a larger or more extensive trespass, and possibly deriving a much smaller profit would be penalised by it."
Accordingly, in my view, neither Mr. Fletcher's metal detecting nor his digging nor his removal of the brooch was within any of the purposes for which the council was permitted to, or did, allow the public use of the park.
The judge declined to rule on a submission made on behalf of Mr. Fletcher, and repeated on this appeal, that the council was not the occupier of the park and for that reason could not assert sufficient control over it to entitle it to things in it. However, as I have said, he ruled that the council had no authority to prevent Mr. Fletcher from metal detecting, digging and removing objects in the park. He appears to have taken the view that the only way in which the council could enforce its power and duty of management and control was by prosecution for infringement of byelaws or by recourse to the general criminal law. He said:
"There are no relevant byelaws and it seems to me that even had the defendant been aware of the council's desire to prevent metal detecting, which he was not, he would have been entitled to say, 'You cannot stop me. What is your authority for trying to?'"
The basis of that ruling, and of Mr. Munby's submission to like effect before us, was a decision of Finnemore J. in Hall v. Beckenham Corporation [1949] 1 K.B. 716, which concerned an action of nuisance against a local authority in respect of noise from the flying of model aircraft in a recreation ground owned, managed and controlled by the authority. Finnemore J. found for the local authority holding, in reliance on a rating case, that it was not the occupier of the recreation ground, but merely its custodian or trustee for the public; that its only power to control activities in it was by way of byelaws or enforcement of the general criminal law; and that, as the flying of model aircraft did not contravene either, it had no power to abate the alleged nuisance.
Mr. Munby submitted in reliance on Hall's case that the council did not occupy the park; and that it had no right qua owner to regulate its use by a member of the public, who could do what he liked there unless he breached a byelaw or the general criminal law.
In my view, the council, whether as owner, possessor or occupier of the park, was a trustee for the general public in the exercise of its powers and duties of management and control under the Act of 1906 and the terms under which it held the land. As such it had a superior right to the brooch over that of Mr. Fletcher who, in the absence of a licence from the council, had no entitlement to dig and remove it. In my view, the council was not restricted in its enforcement of that right to the mechanisms of prosecution under byelaws or the general criminal law. The purpose of a byelaw is simply to provide a local authority with a convenient criminal sanction in the enforcement of its public powers and duties. The absence of a byelaw on any matter does not mean that the council has no corresponding civil right, in this instance in its management and control of its land.
Hall's case was quite different. The question there was whether a local authority was liable in nuisance for noise caused by members of the public using it for a recreational purpose which the authority did not claim an entitlement to control. Here the council sought, in accordance with its power and duty of management and control of the park on behalf of the general public, to protect its property. If and to the extent that Finnemore J.'s judgment could be said to suggest that such power and duty can be enforced only through the medium of byelaws or the general criminal law, my view is that it went too far.
Accordingly, I can see no basis for not applying the general rule that an owner or lawful possessor of land has a better title to an object found in or attached to his land than the finder, or for modifying it in some way to produce a different result in the circumstances of this case. Mr. Fletcher did not derive a superior right to the brooch simply because he was entitled as a member of public to engage in recreational pursuits in the park. Metal detecting was not a recreation of the sort permitted under the terms under which the council held the land on behalf of the general public. In any event, digging and removal of property in the land were not such a permitted use, and were acts of trespass. and the council was entitled to exercise its civil remedy for protection of its property regardless of the absence of any applicable byelaw.
As to the judge's third point, the absence of a manifest intention to control, it is, for the reasons I have given in the earlier part of this judgment, not the test for objects found in or attached to land; and, for the reasons I have just given, there is no reason for its application to the circumstances of this case. If there were, given the council's statutory powers and duties, the terms under which it holds and controls and manages the park and the way in which it exercises that control and management, I would regard it as clearly having the requisite intent and ability to control.
For those reasons I would allow the appeal.
WARD L.J.
I agree.
SIR THOMAS BINGHAM M.R.
I have had the benefit of reading in draft the judgment of Auld L.J. I am in complete agreement with it, and would allow this appeal for the reasons which he gives.
Appeal allowed with costs. Declaration accordingly. Leave to appeal refused. Petition: 18 December 1995. The Appeal Committee of the House of Lords (Lord Goff of Chieveley, Lord Mustill and Lord Steyn) dismissed a petition by the defendant for leave to appeal.
[1996] Q.B. 334
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