Waverley Borough Council v Fletcher; Court of Appeal (Sir Thomas Bingham, Master of the Rolls, Lord Justice Auld and Lord Justice Ward) 13 July 1995
A medieval brooch, which was not treasure trove, found in council-owned parkland by a member of the public using a metal detector and digging below the surface belongs to the council under the general rule that an owner of land has a better title to an object found in or attached to his land than the finder.
The Court of Appeal allowed the council's appeal against Judge Fawcus's decision that the respondent, Ian Fletcher, was entitled to keep a brooch he found in the council's land.
While in a public park owned by the council for use as an open space and for recreational purposes, Mr Fletcher found, using a metal detector and by digging 9in below hard ground, a medieval gold brooch. A coroner's inquisition held it was not treasure trove. The council claimed a declaration that the brooch was its property. Mr Fletcher relied on the defence of "finders keepers".
Ian Croxford QC and Joanna Smith (Sharpe Pritchard) for the council; James Munby QC and Robert Beecroft (John Budd & Co, Blackpool) for Mr Fletcher.
Lord Justice Auld said that the starting-point was that the finder of an object was entitled to possess it against all but the rightful owner. That principle applied as between the owner of land and the finder in relation to unattached objects on land unless the former had made plain his intention to control the land and anything found on it.
There were reasons for distinguishing objects found in or attached to land. Such objects were to be treated as an integral part of the realty as against all but the true owner and the finder in detaching the object would, in the absence of licence to do so, become a trespasser. Removal of an object in or attached to land would normally involve interference with the land and might damage it.
Putting aside the borderline case of a recently lost article which had worked its way just under the surface, in the case of an object in the ground its original owner was unlikely in most cases to be there to claim it. The law, therefore, looked for a substitute owner, the owner or possessor of the land in which it was lodged. Whereas in the case of an unattached object on the surface, which was likely to have been recently lost, the true owner might well claim it.
In the meantime there was no compelling reason why it should pass to the landowner as against the finder unless the landlowner had manifested an intention to possess it. As to the borderline cases, it was 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 was found.
The distinction was now long and well-established. The two main principles stated by the authorities were: 1) Where an article was found in or attached to land, as between owner or lawful possessor of the land and the finder of the article, the owner or lawful possessor of the land had the better title; 2) Where an article was found unattached on land, as between the two, the owner or lawful possessor of the land had 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.
The judge's reasoning that metal detecting was a recreation which included a right to excavate was strained. The fact that the activity was inherently invasive was against its being recreational in this context.
The council, as owner of the park, was a trustee for the public under the Open Spaces Act 1906 and, as such, had a superior right to the brooch over that of Mr Fletcher. The absence of any by-law prohibiting by criminal sanction the use of metal detectors did not mean that the council had no corresponding civil right in its management and control of its land.
There was no basis for not applying the general rule that an owner or lawful possessor of land had a better title to an object found in or attached to his land than the finder, or for modifying it in some way. Mr Fletcher did not derive a superior right to the brooch simply because he was entitled as a member of the 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. 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 by-law.
Sir Thomas Bingham MR and Lord Justice Ward agreed.
Ying Hui Tan, Barrister
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