Jan. 17, 2024 – Here’s a situation: Frank’s daughter Emma wanted to dig for hidden treasure. Amazingly, she found it.
Emma was convinced that Lake Michigan sunken ship treasure hunters had come ashore at Klode and had buried the plunder up the bluff. Emma claimed they would find it below the southwestern support of the swing set in the playground.
One summer evening just after dusk, Frank and Emma started digging. Using a 4-inch bore, they hit paydirt 5 feet down. Up came a small canvas bag with 55 hundred-year-old gold coins.
“I knew it,” whispered Emma.
Does Emma get to keep the booty? Frank decided his first stop should be the Whitefish Bay police department.
But as a matter of law that was a relatively recent development.
Evolution of Lost Property Laws
Our forebears struggled with the law of lost property.
Douglas H. Frazer, Northwestern 1985, is a partner at
DeWittt LLP, Brookfield. His practice focuses on tax litigation and estate and trust litigation and administration.
Basic rules were set up in the bible’s Book of Deuteronomy: a finder was required to keep the object (back then lost objects were commonly ox, sheep, donkeys, garments, and coins) until the owner retrieves it.1
Later, the Babylonian Talmud elaborated this rule in the fifth-century tractate Bava Metzia . Generally, after a reasonable search for the true owner is exhausted, the finder could keep the lost property. However, a finder who improperly appropriated the property was considered a thief.
In the legal codes of ancient Rome, the principle of “finders keepers” derived from the work of second-century jurist Gaius, who suggested that abandoned property (whose ownership was unknown ( res nullius )) became “the property of the first taker.”
In the sixth century, the Codex Justinianus suggested that further refinement of this principle was needed: for instance, something that falls out of moving vehicle without the owner’s knowledge was not intentionally abandoned and would present a different case.
In English common law, the seminal case is Armory v. Delamirie (1722).2 Armory, a chimney sweep, found a jewel in the course of his work and delivered it to Delamirie for valuation, who offered compensation.
The sweep, not satisfied with the offer, sued in tort to recover the original jewel. The court found for the sweep and established the general rule that a finder holds title to the property against all other individuals except the true owner.
Again, the courts found further refinement of the subject was necessary. The common law, as it developed, drew distinctions between kinds of found property. Four categories emerged:
lost property (owner does not know, and cannot ascertain, where it is);
mislaid property (intentionally put in a certain place and later forgotten);
abandoned property (possession voluntarily forsaken, or lost or left without expectation of reacquisition); and
treasure trove (gold or silver or other items that are buried, concealed, or hidden for so long that the owner is probably dead or unknown).
Ownership Rights: Up for Debate
The rights of a finder of property depend on how the found property is classified. The character of the property is determined by evaluating all the facts and circumstances present in the particular case.3
In the case of lost property, abandoned property, or treasure trove, the finder has a superior right against everyone but the true owner.
However, a finder of mislaid property acquires no ownership rights in it. The right of possession against all but the true owner is the owner or occupant of premises where the property is discovered – who is impressed with a duty to use ordinary care to return it to the owner.
Courts may deviate from these rules based on moral considerations. For instance, the finder may gain possession during a trespass or theft. Wrongdoers, courts have concluded, should not be allowed to take advantage of their own wrongs.
Harder cases involve finders of lost, abandoned, or treasure trove property who are employees, contractors, or invitees. It is the same for property with significant archeological or cultural value. Should such finders have a superior claim to that of the property owner or the public?
Wisconsin: Finders Keepers? It Depends
Wisconsin’s statutory law on lost chattels4 dates to the establishment of the state in 1848. It appears to abrogate the common-law rules and ignore moral considerations. In its current form, the statute requires finders of lost money or goods who retain possession of the found items to give “a written notice of the found money or goods to the law enforcement agency of the city, village, or town in which the money or goods are found.”
The finder is also required to “cause a class 2 notice under ch. 985 of the found goods to be published in the county.” If the true owner does not step forward within two months after finding the goods, the finder must procure, have certified, and file an appraisal by and with the law enforcement agency of the city, village, or town. If the true owner does not appear within 90 days to make out a right to the property, the finder shall be the owner.
If the village, city, or town takes custody of the found property, it appears the municipality may enact by ordinance the rules governing the classification and disposition of the property.
Case Law in Wisconsin
The case law exploring the lost chattels statute is spare but rich.
In Zech v. Accola ,5 the Ladies Aid Society of the Prairie du Sac Presbyterian Church contracted with Zech to sew rags into rugs. The Society provided the rags. Zech found concealed in the center of a ball of rags $2,100 in bills neatly rolled, tied, and wrapped. Zech turned the money over to the Society and, to find the owner, published notice in two local newspapers. No one claimed to be the owner.
Eventually, Zech sued to recover the money from the Society. The Society counterclaimed on the basis that Zech had forfeited the money because she had not strictly followed the statute’s notice requirements.
The Wisconsin Supreme Court characterized the property as “treasure-trove” as opposed to “lost” property. The Court concluded that the statute was not written so broadly as to merge the common-law doctrine of treasure trove into the statutory provisions relating to lost property. Therefore, Zech could keep the money based on the common-law “finder’s keepers” principle.
The common-law category of abandoned property, it seems, also sits outside the statute. Smith v. Town of Lyons 6 involved the claims of several maids who discovered two flight bags containing $107,960 in cash in a room at the Playboy Club in Lake Geneva. The circumstances pointed to an unlawful scheme or ill-gotten gain, and not surprisingly no one stepped forward to claim the money.
The jury found the property “abandoned” as opposed to “lost” and awarded the cash to the maid who first found it. The trial court accepted that finding and ruled that Wis. Stat. section 170.07 applied to lost property but not abandoned property. Citing Zech v. Accola , the Court of Appeals agreed, holding the common-law principles adhering to abandoned property (“finders keepers”) still applied.
It is anyone’s guess whether “mislaid property” is within or outside the lost chattels statute – but Zech v. Accola and Smith v. Town of Lyons each suggest that the only common-law category the statute replaces is lost property.
Concerning presumptively abandoned unclaimed funds, Wisconsin enacted the Uniform Unclaimed Property Act.7 It is administered by the Department of Revenue and searchable on a public database. It is where to go to find unclaimed accounts, dividends, interest, checks, securities, bonds, refunds, insurance proceeds, or certain other uncollected benefits.
Wisconsin, unlike many states, will not claim ownership of this property after the passage of time. It holds on to it for the benefit of the owners (or heirs or beneficiaries) indefinitely. Like other states, it pays no interest on the funds it holds. For this reason, unclaimed property can be worth a lot of money.
A recent illustration is Delaware v. Pennsylvania .7 The question was which states have the power to escheat the proceeds of certain MoneyGram products. If federal common-law principles applied, Delaware, as the state of MoneyGram’s incorporation, was entitled to the proceeds.
If the Disposition of Abandoned Money Order and Traveler’s Checks Act applied, the proceeds were kept by the state where the product was purchased. For Delaware over a 15-year period, the “swing” was about $250 million.
Unfortunately for Delaware, the Court ruled against it 9-0.
Lost property is a big business.
Conclusion: Prudence Paid Off
Back to Emma.
Even though it was almost certainly a treasure-trove find, her father, Frank decided prudence was required. He made a written report to the Whitefish Bay police and made sure the notice and appraisal provisions of the statute were scrupulously followed.
No one made a claim. Emma got the coins.
Endnotes
1 Deut. 22:1-4.
2 Armory v. Delamirie , 1 Strange 505 (1722).
3 Terry v. Lock , 37 S.W.3d 202 (Ark. 2001); Benjamin v. Lindner Aviation, Inc. , 534 N.W.2d 400 (Iowa 1995).
4 Wis. Stat. §§ 170.01-170.12.
5 Zech v. Accola , 253 Wis. 80 (1948).
6 Smith v. Town of Lyons , 106 Wis. 2d 769 (Ct. App. 1982)(unpublished).
7 Wis. Stat. §§ 177.001-177.1505.
8 Delaware v. Pennsylvania , 598 U.S. 115 (2023).
