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LAWCOMM 442 - Personal Property LN.docx
LAWCOMM_442_-_Personal_Property_LN.docx
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LAWCOMM 442 - Personal Property LN.docx-Don Lye 17...
LAWCOMM_442_-_Personal_Property_LN.docx-Don Lye 171346040 LAWPUBL 442: PERSONAL
LAWCOMM 442 - Personal Property LN....
LAWCOMM_442_-_Personal_Property_LN.docx-Don Lye 171346040 LAWPUBL 442: PERSONAL
Page 36
Don Lye
171346040
Auld LJ
“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, [1886-90] All ER Rep 559, 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.”
“Unfortunately, the two principles became entangled in
South Staffordshire Water Co v
Sharman
[1896]”.
“See also
Tamworth Industries Ltd v A-G
[1991] 3 NZLR616 at 619,621,624 in which
Eichelbaum CJ accepts as established law the clear distinction to be made between
articles found in and on land.”
“In my view, the authorities reveal a number of sound and practical reasons for the
distinction.”
o
“First, as Donaldson LJ said in Parker [1982] 1 All ER 834 at 837, [1982] QB 1004 at
1010, an object in land 'is to be treated as an integral part of the realty as against
all but the true owner' so that the finder in detaching the object would, in the
absence of licence to do so, become a trespasser.”
o
“Second, removal of an object in or attached to land would normally involve
interference with the land and may damage it.”
“In my view, the two main principles established by the authorities, and for good practical
reasons, are as stated by Donaldson LJ in Parker. 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.”
“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.”
o
“Moreover, the very fact that the activity is inherently invasive is against its 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.”
o
“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.”
4.1.3.3
Corporation of London v Appleyard
[1963] 2 All ER 834 (QB)
Cases concerning things found in a building.
Bank notes found by workers who were demolishing an old building in a safe in the cellar which
was embedded in the wall.
Held
The particular lease stated that any item found by lessee would belong to the lessor so
owner prevailed over party in possession but this was just on a contractual point.
McNair J
36
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