In Bridges v. Hawkesworth[[226]] a parcel of bank-notes was dropped on the floor of the defendant’s shop, where they were found by the plaintiff, a customer. It was held that the plaintiff had a good title to them as against the defendant. For the plaintiff, and not the defendant, was the first to acquire possession of them. The defendant had not the necessary animus, for he did not know of their existence.
In R. v. Moore[[227]] a bank-note was dropped in the shop of the prisoner, who on discovering it, picked it up and converted it to his own use, well knowing that the owner could be found. It was held that he was rightly convicted of larceny; from which it follows that he was not in possession of the note until he actually discovered it.
In Merry v. Green[[228]] the plaintiff purchased a bureau at auction, and subsequently discovered money in it, hidden in a secret drawer and belonging to the vendor. The plaintiff thereupon appropriated the money; and it was held that in doing so he committed theft, as he obtained possession of the money not when he innocently bought the bureau, but when he fraudulently abstracted the contents of it.
In Cartwright v. Green[[229]] a bureau was delivered for the purpose of repairs to a carpenter, who discovered in a secret drawer money which he converted to his own use. It was held that he committed larceny, by feloniously taking the money into his possession.
On the other hand the possession of the receptacle may confer possession of the contents, even though their existence is unknown; for there may at the time of taking the receptacle be a general intent to take its contents also. He who steals a purse, not knowing whether there is money in it, steals the money in it at the same time.
Thus in R. v. Mucklow[[230]] a letter containing a bank-draft was delivered by mistake to the prisoner, whose name was identical with that of the person for whom the letter was intended. He received the letter innocently; but on subsequently opening it and finding that it was not meant for him, he appropriated the draft. It was held that he was not guilty of larceny. For the innocent possession of the letter brought with it the innocent possession of its contents, and no subsequent fraudulent dealing with the thing thus innocently obtained could amount to theft.
There are, however, certain cases which seem to indicate that the possessor of land possesses whatever is in it or under it.
In Elwes v. Brigg Gas Co.[[231]] the defendant company took a lease of land from the plaintiff for the purpose of erecting gas works, and in the process of excavation found a prehistoric boat six feet below the surface. It was held that the boat belonged to the landlord, and not to the tenants who discovered it. Chitty, J., says of the plaintiff: “Being entitled to the inheritance ... and in lawful possession, 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.... In my opinion it makes no difference in these circumstances that the plaintiff was not aware of the existence of the boat.”
So in South Staffordshire Water Co. v. Sharman[[232]] the defendant was employed by the plaintiff company to clean out a pond upon their land, and in doing so he found certain gold rings at the bottom of it. It was held that the company was in first possession of these rings, and the defendant, therefore, had acquired no title to them.
Cases such as these, however, are capable of explanation on other grounds, and do not involve any necessary conflict either with the theory of possession or with the cases already cited, such as Bridges v. Hawkesworth. The general principle is that the first finder of a thing has a good title to it against all but the true owner, even though the thing is found on the property of another person (Armory v. Delamirie,[[233]] Bridges v. Hawkesworth). This principle, however, is subject to important exceptions, in which, owing to the special circumstances of the case, the better right is in him on whose property the thing is found. The chief of these exceptional cases are the following:—