Daily Development for
Monday, November 27, 1995

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

Today's development is probably of more use to academics that day-to-day dirt lawyers. I thought, however, that the practitioners might get a kick out of revisiting those first days of law school when we talked about these issues, as a foundation for understanding property theory and as a "warm up" for case analysis.

I call it "next year's exam question" because there are already some student "lurkers." They are certainly welcome on the list, but, because of their presence, I would not recommend that any teacher cop this case for this semester's final.

Pat Randolph

The comment is by Northwestern Reporter Professor Daryl Wilson of Stetson University.

FINDERS; ABANDONED AND LOST PROPERTY: Although the legislature has adopted a statutory framework for disposing of issues involving lost property, that does not preclude the application of common law distinctions where the circumstances so warrant. Benjamin v. Lindner Aviation, Inc. 534 N.W.2d 400 (Iowa 1995).

Bank became the owner of a certain plane which it sent to Lindner Aviation for inspection. The plaintiff worked for Lindner Aviation as a plane inspector. During his inspection of this plane the plaintiff had cause to remove certain panels from the underside of the wings. One set of panels was secured by rusted screws which required use of a drill to remove. Upon removal of those panels, the plaintiff discovered inside the wing two packets wrapped in aluminum foil which held more than $18,000.

Plaintiff ultimately turned the money over to the police and filed the requisite notices for possible claimants. After the year statutory notice period expired the plaintiff sought to recover the funds. Plaintiff's employer and the plane owner also claimed a right to the money. The plaintiff noted that the finder's statute gave the finder ownership of lost property when the statutory procedures were followed and the owner did not step forward to claim the property.

The court pointed out, however, that it had recognized the common law distinctions between lost, mislaid and abandoned and treasure trove property both prior to and since the adoption of the finder's statute. Since the legislature had done nothing to respond to this judicial usage, the court concluded that it had acquiesced in the continued application of the common law. Thus, "lost property" was only that property that fit the classic common law definition of "lost or abandoned property," and did not include "mislaid property" or "treasure trove."

In applying those distinctions to these facts, the court determined that the money was not "lost" but "mislaid," as the money had been concealed deliberately as opposed to unintentionally left in the wing. Furthermore, the court cited a variety of jurisdictional support for the principle that money concealed in a certain way was inherently inconsistent with the conduct of abandonment. The court also held that the money could not be treasure trove since it had not been hidden so long that the owner was probably dead or undiscoverable. This was so despite the fact the dates on the currency indicated it to be approximately thirty-five years old.

Thus the plaintiff was not entitled to the money or a finder's fee. As mislaid property generally goes to the owner of the locus in quo a determination was still required between the airplane owner and the premises owner where the inspection took place. The court found the superior claimant to be the plane owner as this would best facilitate the possibility of the money being returned to its rightful owner.

There was a strong dissent which stressed the need for greater application of the common sense and logic that the majority had mentioned as being an integral part of its decision. The dissent emphasized the policy behind the common law distinctions - which basically are to respect the interest of the true owner, to aid in the return of the property to that individual, to honor the legitimate expectations of those involved in the finding and to reward honesty.

Reporter's Comment: The dissent properly notes the unlikelihood of a true owner making a claim with the plane owner, especially since no one responded to the fairly exhaustive notice proceedings which had already been undertaken by the plaintiff. Additionally it can be concluded objectively that the various parties involved here did not have their relative expectations fully evaluated or properly met. Finally, and worst of all, this case seems to undermine our society's belief in honesty being the best policy in favor of keeping one's mouth shut because what they don't know won't hurt them.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last five years, these Reports annually have been collated, updated, indexed and bound into the Annual Survey of Developments in Real Estate Law, volumes 1-5, published by the ABA Press. The Annual Survey volumes are available for sale to the public. Contact Shawn Kaminsky at the ABA. (312) 988 5260.

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