Jack A. SCHLEY, Sr., Petitioner, v. A. M. COUCH, Respondent, 284 S.W.2d 333

GRIFFIN, Justice. July 7, 1952 petitioner was the owner of a tract of land near Hamilton, Texas, up on which was situated a dwelling house with an attached garage and storeroom.' The petitioner had acquired these premises from a Mr. Adams about June 15, 1952. ■ At the-time petitioner moved upon the premises there was a concrete floor covering only the • front half of the garage, and the remaining half was a dirt floor. A few days prior to July 7, 1952, petitioner employed a Mr. Tomlinson and his crew of workmen— among whom was respondent — to put a concrete floor in the rear half of the garage.

Petitioner’s son was removing the soil from that portion of the garage floor which was being covered with concrete with a tractor having a blade attached thereto. The garage faced east and the dwelling was immediately south of and adjoining the garage. The storeroom was immediately west of and adjoined the garage, and to enter the storeroom one had to come through the garage. Due to the construction of the tractor and the walls of the garage it was impossible to remove the soil adjacent to the west wall, (and being the east wall of the storeroom) with the blade attached to the tractor.

Respondent’s employer directed respondent to take a pick and loosen up this hardpacked soil which the blade could not reach. While digging in this soil, respondent’s pick struck a hard object and respondent found the-$1,000 sued for buried in the ground. The money was in currency. Included in this currency were two Hawaiian bills issued during World War II. All bills were fresh, and well preserved and of the-size of present currency. A glass-jar top and some glass from a jar were found nearby and evidencing that the money had been buried in a glass jar. The erection of the garage had been begun by a Mr.

Allen, a predecessor in title, who had sold the property in April or May of 1948 at which time the garage was in the process of being built but had not been completed. Only one of the prior owners of this land asserted that he had buried the money in the garage. After two trials before a jury wherein this claimant was unable to secure favorable findings, he took a nonsuit and urged no further claim to the money. The owner of the money is unknown. After some preliminary happenings which do not affect the case, respondent sued petitioner-for the money and certain damages.

The trial court submitted the case to the jury upon two special issues. One inquired if the money were “lost” property, and the other inquired if the money were “mislaid” property. The jury answered the money was “mislaid” property, and upon that verdict the trial court rendered judgment in favor of the defendant as bailee for the true owner. Upon appeal the Court of Civil Appeals reversed the trial court’s judgment and rendered judgment for the respondent against the defendant for the money.

The Court of Civil Appeals held that the money constituted neither “lost” nor “mislaid” property, but fell into yet a third category known in some jurisdictions as “treasure trove.” It accordingly held the right of possession to he in the finder. 272 S.W.2d 171. Neither party claims to be.the true owner of the money, but each claims the right to have possession of the money for the benefit of the true owner, should he ever appear and establish his claim. Title to the money is not involved, but only the right of possession thereof. This is a case of first impression in Texas.

If the money constitutes treasure trove the decision of the Court of Civil Appeals is correct and in accordance with the decided cases from other jurisdictions. However, we have decided not to recognize the “treasure trove” doctrine as the law in Texas, but that this case should be governed by the rules of law applicable to lost and mislaid property. There is no statutory law in Texas regarding the disposition of such property, or provisions defining the respective rights of various claimants.

The rule of treasure trove is of ancient origin and arose by virtue of the concealment in the ground and other hiding places óf coin, bullion, and plate of the Roman conquerors when they were driven from the British Isles. These Romans expected to return at a later date and reclaim their buried and hidden treasures. For a time laws were in effect which gave all this treasure trove which might be discovered to the sovereign, but it was later held to belong to the finder, and this regardless of whether he was in •ownership or possession of the land where the treasure was found.

The doctrine only applied to “money or coin, gold, silver, plate, or bullion found hidden in the earth or other private places, the owner thereof being unknown.” Black, Law Dictionary. Such doctrine has never been officially recognized in ' Texas, although it has been recognized and applied under the common law in many states of the American Union. We can see no good reason at the present time and under present conditions in our nation, to adopt such a doctrine.

Therefore, we treat the money involved herein as no ■different from other personal property and will adjudicate the possession' thereof in accordance with the rules governing personal property generally. We think the proper rule regarding treasure trove is that stated by the Oregon Supreme Court in 1948 in the case of Jackson v.

Steinberg, 186 Or. 129, 200 P.2d 376, 378, 205 P.2d 562, as follows: “With regard to'plaintiff’s contention that the bills constituted treasure trove, it has been held that the law of treasure trove has been merged with that of lost goods generally, at'leást so far as respects the rights of the finder. Danielson v. Roberts, 44 Or. 108, 74 P. 913, 65 L.R.A. 526, 102 Am.St.Rep. 627; Weeks v. Hackett, 104 Me. 264, 71 A. 858, 19 L.R.A.,N.S., 1201, 129 Am.St.Rep. 390, 15 Ann.Cas. 1156; Vickery v. Hardin, 77 Ind.App. 558, 133 N.E. 922; 36 C.J.S., Finding Lost Goods, § 5; 34 Am.Jur,, Lost Property,

section 4t * * • In other words, under modern concepts, the finder of buried money, if allowed to retain it, is so allowed because the circumstances of the particular case determine the property to be “lost” property and not because it falls into a separate category called “treasure trove.” Lost property is defined as “that which the owner has involuntarily parted with through neglect, carelessness or inadvertence.” Note 170 A.L.R. 706; 34 Am.Jur; 631-2; Danielson v. Roberts, 44 Or. 108, 74 P. 913, 65 L.R.A. 526, 102 Am.St.Rep. 627; Jackson v. Steinberg, supra; Paulus, “Finder vs.

Locus in Quo-An Outline”, Vol. 6, Hastings Law Journal, Feb. 1955 pp. 180, 190. Lost property may be retained by the finder as against the owner or possessor of the premises where it is found. On the other hand, “mislaid property is to be distinguished from lost property in that the former is property which the owner intentionally places where he can again resort to it, «and then forgets.

Mislaid property is presumed to be left in the custody of the owner or occupier of the premises upon which it is found, and it is generally held that the right of possession to mislaid property as against all except the 'owner is in the owner or occupant of such premises.” 170 A.L.R. 707; 34 Am. Jur. 632, Secs. 3 and 6; Jackson v. Steinberg, supra, (2) and (6); Hastings Law Journal, supra; Baylor Law Review, Vol. 7, p. 331.

The facts of this case show that the bills were carefully placed in the jar and then buried in the ground and further show that the owner did not part with them inadvertently, involuntarily, carelessly or through neglect. Rather it shows a deliberate, conscious and voluntary act of the own(er desiring to hide his money in a place ^here he thought' it was safe and secure, and with the intention of returning to claim it at some future date. All the evidence indicates that the money must have been buried in the garage after the garage had been built.

That was only a scant four years prior to the finding of the money. In the case of Heddle v. Bank of Hamilton, 17 B.C. 306, 6 B.R.C. 256, 5 D.L.R. 11, a lapse of four years was not sufficient to establish that the property had been lost beyond possibility of restitution to the true owner. See also 34 Am.Jur. 635. The character of the property is to be determined from all the facts and circumstances present in the particular case involving property found. The facts in this case show, as a matter of law, that the property is not to be classed in the category of lost property.

Conceivably, there may be cases in which the issue as to whether the property is lost or mislaid property would be for determination by a jury under appropriate instructions by the court. The trial judge submitted the matter to a jury in the present case. There were no objections raised by either party to the

definitions of “lost” and “mislaid” property as contained in the charge. The jury upon consideration of all the facts found that the property was mislaid rather than lost property. Property which is found embedded in the soil under circumstances repelling the idea that it has been lost is held to have the characteristics of mislaid property. The finder acquires no rights thereto, for the presumption is that possession of the

article found is in the owner of the locus in quo, and, accordingly it is held that the right to possession of such property is in the landowner. Ferguson v. Ray, 1904, 44 Or. 557, 77 P. 600, 1 L.R.A.,N.S. 477, 102 Am.St.Rep. 648, 1 Ann.Cas. 1; Burdick v. Chesebrough, 1904, 94 App.Div. 532, 88 N.Y.S. 13, and Groover v. Tippins, 1935, 51 Ga.App. 47, 179 S.E. 634. No proof having been made in the present case as to who is the true owner of money found, we will indulge the presumption that he has forgotten where he secreted it, or has died since he secreted the property.

Respondent relies strongly upon the case of Danielson v. Roberts, supra, to sustain his right to recover the money from petitioner. In that case the money was found in an old rusty half gallon tin can containing a number of musty and partially deteriorated tobacco sacks.

This demonstrated the money had been buried for some considerable period of time, and the court said [44 Or. 108, 74 P. 914] : “The circumstances under which it was discovered, the condition of the vessel in which it was contained, and the place of deposit [in an old hen house] * * * all tend * * * to indicate that it had been buried for some considerable time, and that the owner was probably dead or unknown.” In all the other cases relied upon by respondent the property was held to be either lost property or treasure trove, and belonged to the finder.

That is recognized as the correct rule of law in such cases, but we have held, under the facts of this case, the property herein not to be lost property, but to be mislaid property, and the well recognized rules of law award the possession to the owner of the premises upon which the property is found. This being mislaid property, the right to possession thereof is in the owner of the premises where it was found. The judgment of the Court of Civil Appeals is reversed and the judgment of the trial court is affirmed.