will restore it, she is entitled to have it back and hold it till the owner
comes. A rule of law ought to apply to all alike. Persons employed
in inns will be encouraged to fidelity by protecting them in equality of
rights with others. The learned judge was right in his instructions to
the jury.
Judgment affirmed.

MERCUR, J., dissents.

County

Court

appealed

X

SOUTH STAFFORDSHIRE WATER CO. v. SHARMAN.
QUEEN'S BENCH DIVISION, 1896.

[Reported L. R. 2 Q. B. D. 44.]

APPEAL from the decision of the county court of Staffordshire holden at Lichfield.

Under a conveyance dated January 6, 1872, from the mayor, aldermen, and citizens of the city of Lichfield, the plaintiffs were the owners in fee simple in possession of the land covered by the Minster Pool in that city.

In August, 1895, the plaintiffs employed the defendant, together with a number of other workmen, to clean out the pool. During the operation several articles of interest were found, and the defendant, while so employed, found in the mud at the bottom of the pool two gold rings. The plaintiffs demanded the rings, but he refused to deliver them up, and placed them in the hands of the police authorities, who, by advertisement and otherwise, endeavored to find the owner of the rings. Ultimately, being unsuccessful in finding the real owner, the police authorities returned the rings to the defendant.

The plaintiffs then sued the defendant in detinue for the recovery of the rings.

It was proved at the trial that there was no special contract between the plaintiffs and the defendant as to giving up any articles that might be found.

The county court judge gave judgment for the defendant, holding, on the authority of Armory v. Delamirie, 1 Str. 505, and Bridges v. Hawkesworth, 21 L. J. (Q. B.) 75, that the defendant had a good title against all the world except the real owner.

The plaintiffs appealed.

William Wills, for the plaintiffs. The county court judge was wrong. Armory v. Delamirie, 1 Str. 505, is no authority in this case. The decision there was only that the finder of an article may maintain an action of trover for conversion of the article by a wrongdoer. Bridges v. Hawkesworth, 21 L. J. (Q. B.) 75, turned on very special facts: there the articles were found in the public part of a shop, 1 See Tatum v. Sharpless, accord., 6 Phil. 18 (1865); Ellery v. Cunningham, 1 Met.

112.

bompared with Bridges
is mong unless they
an the

& Hawkesworth, this case

are decided differently here ground that the rings being under the

SOUTH STAFFORDSHIRE WATER CO. v. ́SHARMAN. 305

soil were

a natural accretion to it, or unless the taborers and it was held that they were not the property of the shopkeeper, but were hired of the finder, because they never were within the protection of the with the

house. But where an article is found on private property it is in the
possession of the owner of that property, although he may be unaware
of its existence: Templeman v. Case, 10 Mod. 24; Reg. v. Rowe, Bell

under

slanding

C. C. 93; 28 L. J. (M. C.) 128; Elwes v. Brigg Gas Co., 33 Ch. D. 562. that day

[He was stopped.]
Disturnal, for the defendant. The county court judge was right.
The onus is on the plaintiffs to establish their title to the rings. Of
course, if they can prove a de facto possession they are entitled to
them. Blackstone says that if a man scatter his treasure into the sea

thing

found should go

or upon the surface of the earth there is such a dereliction of it that the com

it is the property of the first finder. The mere ownership of land does
not create presumptive possession in respect of all chattels found on
the land. [He cited Reg. v. Clinton, Ir. Rep. 4 C. L. 6; Brew v.
Haren, Ir. Rep. 11 C. L. 198.]

LORD RUSSELL OF KILLOWEN, C. J. In my opinion, the county
court judge was wrong, and his decision must be reversed and judg-

реану.

Dicta of
ment entered for the plaintiffs. The case raises an interesting question. Russell not

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 of the rings, but he denied the plaintiffs' title to re-
cover 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 show 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, 21 L. J. (Q. B.) 75, 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
is not aware of the thing's existence. ... It is free to any one who
requires a specific intention as part of a de fucto 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."

That is the ground on which I prefer to base my judgment. There
is a broad distinction between this case and those cited from Black-
stone. 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 in-
tent to exclude unauthorized interference.

The case of Bridges v. Hawkesworth, 21 L. J. (Q. B.) 75, 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."
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 per-
son has possession of house or land, with a manifest intention to exer-
cise 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.

WILLS, J. I entirely agree; and I will only add that a contrary de-
cision would, as I think, be a great and most unwise encouragement to
dishonesty.
Appeal allowed; judgment for plaintiffs.1

1 See Regina v. Rowe, Bell, C. C. 93; Ferguson v. Ray, 44 O. P. 557.

NOTE. The rights and duties of finders of property are sometimes defined by statute. E. g., Mass. P. S. cc. 94, 95; 2 Ill. An. Sts., Starr & Curtis, c. 50, §§ 27-29.

X

Appical allowed holding that the water les, had better right to the rings than the laborer who found them.

BOOK III.

INTRODUCTION TO THE LAW OF REAL PROPERTY.

CHAPTER I.

TENURE.

SECTION I.

TENURE IN GENERAL.

Co. LIT. 65 a. For the better understanding of that which shall be said hereafter, it is to be knowne, that first, there is no land in England in the hands of any subject (as it hath been said) but it is holden of some lord by some kind of service, as partly hath been touched before.1

2 BL. COм. 59, 60. Thus all the land in the kingdom is supposed to be holden, mediately or immediately, of the king, who is styled the lord paramount, or above all. Such tenants as held under the king immediately, when they granted out portions of their lands to inferior persons, became also lords with respect to those inferior persons, as they were still tenants with respect to the king; and, thus partaking of a middle nature, were called mesne, or middle, lords. So that if the king granted a manor to A., and he granted a portion of the land to B., now B. was said to hold of A., and A. of the king; or, in other words, B. held his lands immediately of A., but mediately of the king. The king therefore was styled lord paramount; A. was both tenant and lord, or was a mesne lord: and B. was called tenant paravail, or the lowest tenant; being he who was supposed to make avail, or profit of the land. 1 Inst. 296.

1 "According to this position, of which the truth is undeniable, all the lands in England, except those in the king's hands, are feudal. This universality of tenures, if not quite peculiar to England, certainly doth not prevail in several countries on the continent of Europe, where the feudal system has been established; and it seems there are some few portions of allodial land in the northern part of our own island." Hargrave's note ad loc.

See Digby, Law Real Prop. c. 1, sect. 2, § 1.

All tenures being thus derived, or supposed to be derived, from the king, those that held immediately under him, in right of his crown and dignity, were called his tenants in capite, or in chief; which was the most honorable species of tenure, but at the same time subjected the tenants to greater and more burthensome services, than inferior tenures did.

ST. 18 EDW. I. c. 1; ST. OF WESTM. III. ; ST. QUIA EMPTORES (1290). Forasmuch as purchasers of lands and tenements of the fees of great men and other lords have many times heretofore entered into their fees, to the prejudice of the lords, to whom the freeholders of such great men have sold their lands and tenements to be holden in fee of their feoffors and not of the chief lords of the fees, whereby the same chief lords have many times lost their escheats, marriages, and wardships of lands and tenements belonging to their fees, which thing seems very hard and extreme unto those lords and other great men, and moreover in this case manifest disheritance, our lord the king in his parliament at Westminster after Easter the eighteenth year of his reign, that is to wit in the quinzine of Saint John Baptist, at the instance of the great men of the realm granted, provided, and ordained, that from henceforth it should be lawful to every freeman to sell at his own pleasure his lands and tenements or part of them, so that the feoffee shall hold the same lands or tenements of the chief lord of the same fee, by such service and customs as his feoffor held before.

c. 2. And if he sell any part of such lands or tenements to any, the feoffee shall immediately hold it of the chief lord, and shall be forthwith charged with the services for so much as pertaineth or ought to pertain to the said chief lord, for the same parcel, according to the quantity of the land or tenement so sold; and so in this case the same part of the service shall remain to the lord, to be taken by the hands of the feoffee, for the which he ought to be attendant and answerable to the same chief lord according to the quantity of the land or tenement sold for the parcel of the service so due.

c. 3. And it is to be understood that by the said sales or purchases of lands or tenements, or any parcel of them, such lands or tenements shall in no wise come into mortmain, either in part or in whole, neither by policy ne craft, contrary to the form of the statute made thereupon of late. And it is to wit that this statute extendeth but only to lands holden in fee simple, and that it extendeth to the time coming. And it shall begin to take effect at the Feast of Saint Andrew the Apostle next coming.1

1 This statute did not exempt the tenants of the crown in capite from the necessity of procuring the king's license to alienate, because the king's rights, he not being specially named, are not affected by the statute. (Co. Lit. 43 b.) Therefore, (1) if the tenant in capite aliened without license, the crown could distrain for a fine upon the land (Fitzh. N. B. 175 A); and, (2) upon such unlicensed alienation, the services were not apportioned, but the crown could distrain upon any of the tenants for the