All is not lost: the law of lost and found.

• Author: Bowal, Peter
• Position: Personal property law

"Property and law were born and die together"

--Jeremy Bentham, English philosopher, The Theory of Legislation (1931)

Introduction

We all know the feeling when we lose something. Cell phone? Car keys? Most of us also know what it feels like to find something, such as a wallet. Losing a thing is a sad occasion while finding tends to be a happy one. Like many things in life, there are legal consequences to losing and finding things. We will look at the law in this area.

The law of lost and found falls under the judge-made (common law) category of 'personal property' law. Judicial decisions are usually unique to their own facts. The legal principles laid down frequently seem inconsistent and outcomes are difficult to predict. Since the losers and finders are usually private parties, this is private law and there is often no government regulation on the subject.

What do You Think Should Happen Here?

We start with a famous Ontario case where a young boy found a tin can full of money under a nearby private house while he was playing outside. The boy took a portion of the money and handed the rest to his mother. The boy spent the money he took lavishly, which piqued attention of the local police. During the investigation, the mother handed the rest of the money in her possession to the police to be returned to its original owner.

Most finder disputes revolve around who found the thing and took its possession and whether someone else had possessory rights.

The question arising from the case was: to whom did this can of money belong? To the boy who found the money? To the mother who was in possession of the money? To the police? To the owner of the property where the money was found? Or, perhaps to someone else such as the person who owned the money and put the can containing it in that location?

We will let you know what the court decided, but first we set out some personal property law principles that relate to retaining and losing possession of chattels.

What is Property?

The two criteria for property possession are physical control and manifest intent to exclude others. Property is not a "thing" itself as much as it is a collection of rights and obligations over things, enforceable against others (Macpherson). These include possession, management and control, taking income and capital, transferability, and prevention of harm from the thing (Ziff).

Who owns Property?

If a thing is first discovered in nature, such as gold nugget or wild animal, the first finder becomes the owner of the rights when he or she manifests the intent to exclude others by, for instance, pocketing the nugget...