|South Staffordshire Water Company v. Sharman
Divisional Court DC
Lord Russell of Killowen C.J. and Wills J.
1896 May 12
LORD RUSSELL of KILLOWEN C.J.
In my opinion, the county court judge was wrong, and his decision must be reversed and judgment entered for the plaintiffs. The case raises an interesting question. The action was brought in detinue to recover the possession of two gold rings from the defendant. The defendant did not deny that he had possession *46 of the rings, but he denied the plaintiffs' title to recover them from him. Under those circumstances the burden of proof is cast upon the plaintiffs to make out that they have, as against the defendant, the right to the possession of the rings.
Now, the plaintiffs, under a conveyance from the corporation of Lichfield, are the owners in fee simple of some land on which is situate a pool known as the Minster Pool. For purposes of their own the plaintiffs employed the defendant, among others, to clean out that pool. In the course of that operation several articles of interest were found, and amongst others the two gold rings in question were found by the defendant in the mud at the bottom of the pool.
The plaintiffs are the freeholders of the locus in quo, and as such they have the right to forbid anybody coming on their land or in any way interfering with it. They had the right to say that their pool should be cleaned out in any way that they thought fit, and to direct what should be done with anything found in the pool in the course of such cleaning out. It is no doubt right, as the counsel for the defendant contended, to say that the plaintiffs must shew that they had actual control over the locus in quo and the things in it; but under the circumstances, can it be said that the Minster Pool and whatever might be in that pool were not under the control of the plaintiffs? In my opinion, they were. The case is like the case, of which several illustrations were put in the course of the argument, where an article is found on private property, although the owners of that property are ignorant that it is there. The principle on which this case must be decided, and the distinction which must be drawn between this case and that of Bridges v. Hawkesworth [FN10], is to be found in a passage in Pollock and Wright's Essay on Possession in the Common Law, p. 41:
"The possession of land carries with it in general, by our law, possession of everything which is attached to or under that land, and, in the absence of a better title elsewhere, the right to possess it also. And it makes no difference that the possessor *47 is not aware of the thing's existence. ... It is free to any one who requires a specific intention as part of a de facto possession to treat this as a positive rule of law. But it seems preferable to say that the legal possession rests on a real de facto possession constituted by the occupier's general power and intent to exclude unauthorized interference."
FN10 21 L. J. (Q.B.) 75.
That is the ground on which I prefer to base my judgment. There is a broad distinction between this case and those cited from Blackstone. Those were cases in which a thing was cast into a public place or into the sea--into a place, in fact, of which it could not be said that any one had a real de facto possession, or a general power and intent to exclude unauthorized interference.
The case of Bridges v. Hawkesworth [FN11]stands by itself, and on special grounds; and on those grounds it seems to me that the decision in that case was right. Some one had accidentally dropped a bundle of bank-notes in a public shop. The shopkeeper did not know they had been dropped, and did not in any sense exercise control over them. The shop was open to the public, and they were invited to come there. A customer picked up the notes and gave them to the shopkeeper in order that he might advertise them. The owner of the notes was not found, and the finder then sought to recover them from the shopkeeper. It was held that he was entitled to do so, the ground of the decision being, as was pointed out by Patteson J., that the notes, being dropped in the public part of the shop, were never in the custody of the shopkeeper, or "within the protection of his house."
FN11 21 L. J. (Q.B.) 75.
It is somewhat strange that there is no more direct authority on the question; but the general principle seems to me to be that where a person has possession of house or land, with a manifest intention to exercise control over it and the things which may be upon or in it, then, if something is found on that land, whether by an employee of the owner or by a stranger, the presumption is that the possession of that thing is in the owner of the locus in quo. *48
I entirely agree; and I will only add that a contrary decision would, as I think, be a great and most unwise encouragement to dishonesty.
Appeal allowed; judgment for plaintiffs