74 P. 913 | Or. | 1904
delivered the opinion.
This is an action of trover to recover for the alleged conversion of money. The plaintiffs aver, in substance, that in March, 1894, while engaged at the request of the defendants in cleaning out and removing the loose dirt and débris from an old building situated on premises occupied by the defendants, they discovered a tin vessel, rusty, and worn with age, which contained the sum of $7,000 in gold coin of the United States; that the defendants wrongfully took and received the money from the plaintiffs, and have ever since wrongfully and unlawfully detained the same, to their damage in the sum of $7,000; that the building in which the money was found had stood on the premises for more than forty years, and during that time had been in the possession and control of many owners and tenants ; that the dirt and débris which the plaintiffs were engaged in cleaning out and removing at the time the money was discovered had been undisturbed for many years ; that the vessel which contained the money was so worn and destroyed by time and the elements that it was difficult to ascertain from an inspection of it what kind of a vessel it had been, and plaintiffs could hardly hold it together until it and its contents were taken by the defendants; that the owner of the vessel and the money contained therein “has long since died, and the said vessel and the said sum of $7,000 contained therein were prior to said time lost, and their whereabouts unknown to any person or persons whatever ”; that plaintiffs are the discoverers of the money, and are now, and ever since the-day of March, 1894, have been, the owners thereof, and entitled to its immediate possession ; that defendants wrongfully and unlaw
The evidence in the bill of exceptions tends to show that in 1894 the plaintiffs, who were then aged about eight and ten years, respectively, were employed by the defendants to clean out an old henhouse situated on premises then occupied by defendants, but which had previously been owned and in the possession of numerous other persons ; that while so engaged they dug up an old ruSt-eaten half-gallon tin can containing a number of musty and partially decayed tobacco sacks filled with gold coin, which they delivered to the defendants. W. 0. Danielson, the elder of the two boys, thus describes the finding of the money and its delivery to the defendants: “We hauled several loads from the front end of the building. I was in the back end of the building, spading through the trash, and the point of the shovel struck something hard. I shoveled the trash away, and got the can on my spade, and was going to throw it in the sled. It was too heavy, so I dragged it out toward me a foot or so, and told my brother the can must be full of rocks. So I tried to take the lid off with my fingers. It was rusty and old, and I could not get it off, so I took the pick and chopped through the lid, and when I pulled it out the lid came with it. * *
The motion for nonsuit was sustained on the ground, as we understand it, that the evidence for the plaintiffs i showed that the money in question had been intention-I ally deposited by some one where found, and therefore the plaintiffs could not invoke the rule that the finder of lost property is entitled to its possession against all the world except its true owner. Ever since the early
In this country the law relating to treasure trove has generally been merged into the law of the finder of lost property, and it is said that the question as to whether the English law of treasure trove obtains in any State has never been decided in America: 2 Kent, *357; 26 Am. & Eng. Ency. Law (1 ed.), 538. But at the present stage of the controversy it is immaterial whether the money dis-j covered by plaintiffs was technically lost property or treasi ure trove, or, if treasure trove, whether it belongs to the State or to the finder, or should be disposed of as lost prop! erty if no owner is discovered. In either event the plaintiffs are entitled to the possession of the money as against the defendants, unless the latter can show a better title. The reason of the rule giving the finder of lost property the right to retain it against all persons except the true owner applies with equal force and reason to money found hidden or secreted in the earth as to property found on the surface. It is thus stated in Armory v. Delamirie. 1 Smith’s