Finding. The law of finding is, in some particulars, not quite settled. It is certain that nothing can be found that was not lost; hence, unless the owner of property has it no longer in his possession or within his reach, and is deprived of all power over it, either by accident or voluntarily, as when he casts it away, another man who happens upon it acquires none of the rights of a finder. Lost goods were defined by the old law as bona vacantia; and Savigny, in his Treatise of Possession," says, § 18: Vacua est, quam nemo detinet. The ancient law of treasure trove was said to apply to gold and silver only; and indeed only to that which had been purposely hidden in the earth, and of which the owner was unknown. Originally it belonged to the finder; but many centuries ago it was adjudged to belong, to a greater or less extent, to the sovereign, and Grotius says this rule had become in his time jus commune, quasi gentium. Black-stone (" Commentaries," vol. i., p. 296) makes a distinction between goods hidden by the owner, which the owner never reclaimed, being prevented by death, forgetting, or neglect, and goods voluntarily or accidentally cast abroad.
In the first case there was no intention to abandon them, and when they were not the owner's they became the king's, to whom the finder must give them. In the latter case they became the property of the finder. The law of treasure trove never had much force in this country; and although there were formerly some colonial regulations and there are now some statutory provisions in respect to finding, they do not appear to have much force, unless it be in relation to what may be termed wrecks. The law on this subject, so far as it can be gathered from the authorities, seems to be this: 1. The finder of lost property is owner of it against all the world excepting the original owner; but the owner may reclaim it from the finder at any time, although leaving it unclaimed in the finder's hands for a sufficient length of time after the owner knew where it was and could claim it (perhaps 20 years, the ordinary period of prescription, might be necessary), would be equivalent to a waiver or abandonment of his ownership.
The finder has therefore all the rights of action of an owner, either to recover possession of it, or damages for loss of it or injury to it. 2. The finder is always at liberty to leave what he finds untouched, and cannot be made accountable for any injury thereafter happening to it. But if he takes it into his possession, he acquires some rights and comes under some obligations which do not seem to be perfectly well defined. On the one hand, it is said by the old authorities, that if the thing found perish by his mere neglect, or without his active aid, he is not responsible. But the tendency of modern law is, that while he may abstain if he pleases from any interference whatever, if he chooses to take what he finds into his custody, he makes himself responsible not only for any wilful injury to it (which is quite certain), but for the consequences of his gross negligence. 3. As the correlative rule, or as the right which corresponds to this obligation, he may demand from the owner all his expenses necessarily incurred in keeping and preserving the property, and probably his reasonable expense in the way of advertising, or for similar charges for the benefit of the owner.
We should say that where a finder takes into his possession the thing found, it becomes a kind of bailment; and the owner, by reclaiming and receiving it from the finder, assents as it were to this bailment; and out of this constructive bailment grow the obligation and responsibility of the finder on the one hand, and his rights on the other. 4. It has been intimated by one high authority, at least, Judge Story ("Bailment," sections 35 et seq.), that the finder may also make a further charge against the owner for compensation for care and labor, and perhaps for reward. There are moral reasons for this, but no legal authority; and except when property is found at sea, and comes under the admiralty law of salvage, we know no law which authorizes the finder to claim more than his expenses. 5. For whatever the finder may lawfully demand of the owner in respect to the property found, he has, we think, as one of the consequences of the constructive bailment above spoken of, a lien on the property itself; that is, a right to hold it even against the owner until his demand is satisfied. 6. It seems now to be settled that the place where property is found has no effect upon the rights of the finder.
Thus if A finds money on the floor of B's store, and hands it to B for the owner, and B advertises, and does what else he should to discover the owner, and fails in this, the finder may demand it of B, tendering B's expenses in discharge of his lien. There was at one time some disposition to say that if A found goods buried in B's lands, they were the property of B; but this seems to have passed away, or rather never to have been settled law, and the rule above stated, that the place where found has no effect whatever on the right of the finder, is without qualification. 7. If a reward be offered, which is specific and certain, or can be made so by reference to a certain standard, the finder by bringing the thing found to the owner, or otherwise complying with the terms of the advertisement, becomes a party to a contract offered to all by the advertiser, and may sue for the compensation or reward promised. But if the advertisement is general only, as that the finder shall be liberally rewarded, the finder has no specific claim, and can have no action. 8. The rule that the finder is owner against all the world except the original owner has one important exception.
A finder of what the law calls a chose in action, or mere evidence of debt or claim, cannot demand payment of it; and if one should pay a note, a check, or a lottery ticket, to a holder known by the payer to have come into possession of it by finding, the payer would be bound to pay the amount to the owner who could prove his property. 9. A finder may incur punishment as for crime, by misconduct about the property he finds. Thus, if he knows the owner, or there are circumstances which, if he chose to profit by them, would lead him to the owner, a conversion of the property to his own use is larceny or theft. But it is not larceny unless the animus furandi existed at the time of the appropriation; for if the finder only discovered the owner after he had made the appropriation, and then concealed his finding, it would seem to be the law that he is answerable only in damages.