Boys Will be Boys

26 June 2020

Context: The Can

Bird v. The Town of Fort Frances[1] is about a boy being a boy. 

Bird, a boy of twelve while playing in the back of a pool-room on private property, made a fortuitous discovery. Although it is not clear how he found himself underneath the building and even though the can was clearly hidden, knowing that it did not belong to him, Bird dislodged it from the underside, looked inside, and took over possession of the contents. Now, as everyone also knows, curiosity killed the cat, but this adage does not always apply to boys who are being boys. Like opening a can of worms, Bird released the intricacies of property law as if from anything but Pandora’s box.

Reasoning: The Legal Worms

The pivotal issue in this case is whether a trespasser can claim better title to found property and whether they have priority to a subsequent taking on statutory authority. 

The general rule is “[t]hat the finder … though he does not by such finding acquire an absolute property or ownership, yet he has such a property as will enable him to keep it against all but the rightful owner, and consequently may maintain trover.”[2] On discovery and by taking possession, the finder acquires a qualified title that only accedes to a prior owner with better title subject to statutory exceptions.

Possession is solidified with “exclusive and exclusory control.”[3] Abandoned property that is found pursuant to civil trespass is not theft. There is no intention to steal and the taking is not without consent so the finder will maintain qualified possessory rights.[4] In fact, mere possession, regardless of how it is derived, is superior to all except an owner with better priority rights.[5]

While the money may have been abandoned, it was not lost. Clearly Bird was not an innocent taker and this is further evidenced by his attempt to conceal his actions. The law however, does not care. Even if Bird entertained an intent to steal, and even if the taking of the money could amount to theft, he still maintains possessory rights over that property. Possession is maintained with the ability to resume effective control.[6]It was therefore found that Bird’s possessory rights were not relinquished to his mother and were good to assert against the police.

Buckley v. Gross[7] was narrowed in its application as authority for the limited power of police to arrest someone found in the streets at night for whom there is reasonable ground to suspect of a felony.[8] There is no common law power for the police to take as of right. Acting as a bailee to find the true owner, the police were liable to return the property to Bird on request. 

Judgment was made for the plaintiff in the amount of $1430 plus interest and costs to be paid out when he turned 21. A boy rewarded for being a boy. Questions about whether this decision sustains public policy scrutiny and possible avenues for progress in the area of possession will be explored in the following section. 

Analysis: The Worms Unearthed

Although McRuer CJHC surveyed the conflicting law looking at priority between finder and an owner of the premises where the property is found, he considered it merely indirectly illuminating. In declining to hear evidence from the owner, John Sandul, on the basis that he had failed to make a claim, McRuer CJHC failed to prioritize facts over fiction. While Sandul did not file a claim for the money found on his property, it was alleged that he did this because of possible financial consequences of having to pay costs in the matter. Truth was silenced by mere legal technicalities. The light that Sandul was willing to divulge may well have been material to the matter. In fact, priority vests in the owner over property that is not “lost” per se but possibly abandoned where the owner asserts a manifest intention to control.[9] Sandul, may well have taken priority over Bird by demonstrating a manifest intention to control the area in which the property was found.

The aspect of wrongdoing in this matter is also cause for concern. Public policy considerations associated with the doctrine of ex turpi causa non oritur actio may guard against deciding in favour of a wrongdoer. As comparison, while the court in Buckley[10] was unified in their agenda to divest the wrongdoer of his property rights, each member did so differently. Lightman J achieved divestment of the property title through an order of the court, Crompton J through vesting by the police, while Cockburn CJ established this through the authority of statute. It was held that the force of law in taking the property broke the chain of possession leaving the subsequent purchaser of the property with superior title against the bare naked one of the wrongdoer. Yet, in this case, Bird, classified as a trespasser, was able to claim against the police. Had the police acquired the property through a search warrant and on duly convicting the boy, they may have been able to retain the property while they searched for the true owner. Instead, the property was acquired from the mother on consent and they were obligated to deal with it under the terms of a bailment. 

The fact that Bird did not exercise his obligations as a finder to seek out the true owner and take reasonable care of the property does not seem to bear on the matter. Any dishonesty in the analysis is precluded by the finding that the law supports possession for the most part or at least up to the proverbial 9/10ths. Both honest and dishonest takers share the same rights in possession. No advantage is extended for doing the right thing. Bird’s claim to the property was successful despite his attempted concealment of the property and flagrant spending of the money. 

Despite the mischievous underpinnings of Bird’s possession, the law stood guard over his right to be a boy and rewarded him for acting as such. As it stands, possession clearly trumps principle making this an area of the law difficult to reconcile rights with reason. Expanding the common law rule to embrace the moral obligations of a finder may well help to appease the court of public policy. Requiring finders to care for the property while they actively seek out the true owner would help align the like treatment of the innocent finder with the trespassing taker. Finders in breach of their obligations could be relieved of their duties by priority given to a more responsible link in the possessory chain. Although owners have superior property rights compared to the qualified rights of a finder, a presumption in favour of an owner where property is found on private property that could be rebutted by a finder may help to alleviate some of the discomfort around access to justice true owners may experience as with Mr. Sandul. Property that is not lost has no reason to be found in order for its better utilization. 

Enlarging the common law with such common-sense ideas could help enrich and enjoin the fruits of morality with the labour of law and supporting a world where use and enjoyment can be shared without fear of forced taking. Boys may be boys but surely the law deserves the opportunity to grow.

[1] [1949] OR 292, [1949] 2 DLR 791 [Bird].

[2] Armory v. Delamirie, [1722] EWHC KB J94, (1722) 1 Strange 5O5; 93 ER 664, KB, Pratt CJ as cited in Birdsupra note 1.

[3] Harold Potter, Goodeve on Personal Property 8th ed (London: Sweet & Maxwell Ltd, 1937) at 38–9 as cited in Bird, supra note 1.
[4] Sir Frederick Pollock & Samuel Wright, An Essay on Possession in the Common Law (Ithaca, NY: Cornell University Press, 1888) at 187.
[5] Daniel v. Rogers, [1918] 2 K.B. 228 at 234, Scrutton LJ.
[6] T. Cyprian Williams & Williams Joshua, Personal Property, 18th ed (London: Sweet & Maxwell Ltd, 1926) at 53.
[7] (1863), 3 B. & S. 566, 122 E.R. 213 [Buckley].
[8] Lawrence v. Hedger, (1810), 3 Taunt. 14, 128 E.R. 6.
[9] Hilbert v. McKierman, [1948] 2 K.B. 142, [1948] 1 All E.R. 860, Lord Goddard CJ.
[10] Buckley, supra note 7.