Lost and Found

A common trope in comic books and other literature is the hero (or villain) who accidentally stumbles across a magical artifact or other source of power.  One famous example is Tolkien’s The One Ring, but examples abound in comics as well.  Alan Scott found his namesake Green Lantern in the remains of a train wreck.  Dara Brighton, protagonist of The Sword, finds the namesake weapon in a hidden basement.  Cain Marko, aka The Juggernaut, finds the ruby that gives him his power in a temple in Korea.

In the comics it is taken for granted that these characters are the rightful possessors of the artifacts.  “Finders keepers,” right?  And in the case of the Green Lantern and the Juggernaut’s ruby there also seems to be an implicit invitation to take the artifact.  But what are the legal principles at work here?

Over the centuries the common law evolved a nuanced set of rules for handling found property.  Broadly speaking, the law distinguishes between four different kinds of found property: abandoned property, lost property, mislaid property, and treasure troves.  We’ll consider each one in turn.

I. Abandoned Property

“Abandoned property is that to which the owner has voluntarily relinquished all right, title, claim and possession, with the intention of terminating his ownership, but without vesting it in any other person and with the intention of not reclaiming future possession or resuming its ownership, possession or enjoyment.”  Riverside Drainage Dist. of Sedgwick County v. Hunt, 33 Kan.App.2d 225, 228 (Ct. App. Kan. 2004).  In short, the property must be purposefully left alone for good.

Proving this can be difficult, however, as the claimant must show that the original owner took actions that demonstrated the intent to actually abandon the property and did not simply lose or mislay it.  But if the claimant can prove that the property was abandoned, then it is rightly theirs for the taking because “[a]bandonment is a virtual throwing away without regard as to who may take over or carry on.” Long v. Noah’s Lost Ark, Inc., 814 N.E.2d 555, 565 (Ct. App. Ohio 2004).  So generally speaking superheroes and supervillains would prefer that their power sources be considered abandoned property free for the taking.

Note that some states have enacted laws that cause ownership of certain kinds of abandoned property to revert to the state, but as far as I know these laws don’t cover ancient artifacts or supernatural power sources.

Juggernaut’s ruby was found in Korea, so likely Korean law would actually apply, but under the common law it would be considered abandoned property since the temple it was found in was itself abandoned. The gem’s inscription provides further evidence for the abandonment, since it indicates an intention to give up ownership to whoever touches the gem and reads the words but does not refer to any particular person.

II. Lost Property

Intent is what separates abandoned property from lost property.  Lost property is “that which the owner has involuntarily parted with through neglect, carelessness or inadvertence and the whereabouts of which is unknown to the owner.”  Campbell v. Cochran, 416 A.2d 211, 221 (Del. Super. Ct. 1980).

Someone who finds lost property has superior title to anyone except the true owner.  Smith v. Purvis, 474 So.2d 1131 (Ct. Civ. App. Ala. 1985).  For a lot of superheroes or supervillains this may not be a problem because if the true owner never steps forward, then their possession is uncontested.  For example, consider the case where the original owner is deceased, and so the true owner may be an heir who doesn’t even realize that he or she is the rightful owner.

The Green Lantern seems to be lost property as it was lost involuntarily in the bridge explosion and subsequent train wreck.

III. Mislaid Property

Intent is again what distinguishes lost property from mislaid property, but the distinction here is subtle.  Mislaid property is “that which the owner has intentionally laid down in a place where he can again resort to it, and then forgets where he put it.”  Campbell, 416 A.2d at 221.

Mislaid property is a problem for a superhero or supervillain because the finder doesn’t actually acquire any ownership rights, although they may possess the property until the true owner is found.  In fact, if the property is found on another person’s land, then the finder must turn it over to the property owner, presumably on the assumption that if the true owner comes looking he or she will return to that place.

Thor’s hammer Mjolnir is occasionally found by others, some of whom are even worthy of lifting it.  Mjolnir is likely mislaid property because Thor has the power to summon the hammer and thus virtually anywhere it is placed may be considered “a place where [Thor] can again resort to it.”  As such, the finders have no ownership rights to it and would, appropriately, have to return it to Thor.

As a practical matter, much of what distinguishes these first three kinds of property is the state and place in which the property is found, since it’s rare that someone goes to a public place and announces to witnesses “I am intentionally abandoning this object.”  So an item found in a corner of a basement is likely to be considered mislaid.  The same item found on the street or in an alley is likely to be considered lost.  And the same item found in the middle of a trash heap is likely to be considered abandoned.

IV. Treasure Troves

The distinctions here are kind, place, and time.  First, treasure troves need to be, well, treasure: inherently valuable stuff like precious metals and money.  Second, it needs to be hidden, either buried or inside something else.  Third, it must have been hidden for a long time, long enough to presume that the true owner and his or her heirs are dead or unknown.  Id.  As with lost property, the finder of a treasure trove has rights to it against all but the true owner, but since the true owner of a treasure trove is, by definition, either dead or unknown, it essentially amounts to ownership outright.

It’s debatable whether superpower-granting artifacts would fall under the definition of a treasure trove.  Certainly if the artifact were buried along with more traditional kinds of treasure then it would be part of the trove.  If it were buried alone, however, I think it would only count if it were itself also treasure, which is unlikely.  More likely is that it would be considered “property embedded in the earth,” and such items belong to the owner of the land in which they are found.  Corliss v. Wenner, 34 P.3d 1100, 1104 (Ct. App. Idaho 2001).  That’s a problem for a superhero or supervillain unless they happen to own the land on which the artifact is found.  A savvy hero or villain might try to buy the land from the owner before digging up the artifact.

Of special interest to superheroes and supervillains, the doctrine of property embedded in the earth has been specifically held to apply to meteorites.  Goddard v. Winchell, 52 N.W. 1124 (Iowa 1892).

V. Conclusion

Superheroes and supervillains should stick to abandoned property if possible.  Lost property is a fair second choice if the true owner is unaware of his or her rights or can’t be found.  In the right circumstances an artifact found in a treasure trove can work too.  But relying on mislaid property or property embedded in the earth is asking for trouble.

27 responses to “Lost and Found

  1. Couldn’t the Ruby of Cyttorak also be considered a historical item? Could Marko be prosecuted as someone who looted a historical treasure, similar to people who took materials from Egyptian pyramids or Mayan ruins?

    • Yeah, that’s why I mentioned that Korean law would actually govern the situation. I have no idea what the law was like in Korea at the time, though.

    • Additionally wouldn’t the inscription on the ruby itself be a form of covenant, assigning the rights of use and possession of the gem and its powers to the reader of the inscription?

      • This kind of leads to a question that I’m pondering. Thor’s hammer also has an invitation on it that whomever it deems worthy may posess the power of Thor, and presumably ownership of Mjonlr, as well.

        If I happen to find Thor’s hammer one day, while on my way to work and give it a hoist for poops and snickers, and lo– it turns out I’m worthy, I get the power of Thor, and his cool boots, too. What happens, then, if Thor himself comes a-knocking at my door and askign for the hammer back. Can I deny him his hammer based on the fact that Mjolnr has given itself to me?

      • The fact that it is called “The power of Thor” implies to me that while Mjolnir is granting the use of the powers, they remain Thor’s. That said, if it does not specify which powers it is giving to the wielder one could attempt to use Mjolnir as a power of attorney, committing Thor to contracts and transactions. Using that power, one could then assign ownership to oneself or another.

        Clearly there are some conflicts of interest here, but perhaps immunity to those is another power of Thor’s.

  2. So U.S. law is essentially limited to enforcing the law of the other country (subject to treaty, I assume)? There’s not any U.S. law that says “Hey, it’s a crime if U.S. citizens go to another country and steal historical artifacts (or, I guess, steal anything)”? I’m probably not saying that clearly. The other country must consider it a crime before it “becomes” one here?

  3. Does this cover artifacts that are in some way sentient and choose their owner? GL Rings are like that (post-Alan Scott at least, his ring is less clear on this matter), as is the Witchblade. (And Dr. Fate’s helmet, IIRC.) Let alone the One Ring…
    While they are “found” items, they arranged matters so they were found.

    • I think it does cover sentient artifacts. Pretty much the only reason the courts wouldn’t consider such artifacts to be property in the usual sense is if they were considered people protected by the 13th Amendment’s prohibition against slavery and involuntary servitude and thus incapable of being owned.

      Relatedly, if the original owner knew that an artifact can move under its own power then that would affect whether a court considered it to be abandoned or lost. If you put down an artifact that can run away on its own and leave it alone long enough to do so, then that suggests abandonment (i.e. at some point it’s not setting it down so much as setting it free). But if you didn’t know it could move on its own, then that suggests that it was merely lost.

    • It’s not clear if the Ring chose Bilbo as its owner, or just left Gollum in order to get back to Sauron. It could be argued that Isildur legitimately acquired the ring (weregild was a legal principle in Germanic law, and is mentioned elsewhere in LOtR so it was part of common law in Middle Earth.), When Frodo learned that Aragorn was the heir of Isildur he concluded that the Ring was his, but Aragorn replied that it didn’t belong to either of them, so presumably, Sauron retained title.

      • I think it’s simply the case that Aragorn was not concerned with the legal status of the Ring. It’s difficult to fault him either, given the relatively lawless environment of Middle Earth in general and Eriador in particular. If we want to talk about who properly owned the Ring by the laws of Gondor and Arnor, it’s clear that Isildur intended it to become part of his legacy, so Frodo was legally correct.

  4. Presumably then Jesus’ suggestion of the proper course of action upon finding treasure buried in a field (re-burying it and then selling all you have to buy the field) is correct and legal. Are there problems with this course of action?

    • It depends on the details of the transaction. In certain circumstances (and jurisdictions), nondisclosure of a material fact can be considered fraud. Here’s what the Restatement (Second) of Torts says:

      “One who fails to disclose to another a fact that he knows may justifiably induce the other to act or refrain from acting in a business transaction is subject to the same liability to the other as though he had represented the nonexistence of the matter that he has failed to disclose, if, but only if, he is under a duty to the other to exercise reasonable care to disclose the matter in question.”

      So when does one have such a duty to disclose? The Restatement goes on to say:

      “One party to a business transaction is under a duty to exercise reasonable care to disclose to the other before the transaction is consummated,
      (a) matters known to him that the other is entitled to know because of a fiduciary or other similar relation of trust and confidence between them; and
      (b) matters known to him that he knows to be necessary to prevent his partial or ambiguous statement of the facts from being misleading; and
      (c) subsequently acquired information that he knows will make untrue or misleading a previous representation that when made was true or believed to be so; and
      (d) the falsity of a representation not made with the expectation that it would be acted upon, if he subsequently learns that the other is about to act in reliance upon it in a transaction with him; and
      (e) facts basic to the transaction, if he knows that the other is about to enter into it under a mistake as to them, and that the other, because of the relationship between them, the customs of the trade or other objective circumstances, would reasonably expect a disclosure of those facts.”

      So as you can see it all depends on the particular circumstances and the course of the negotiation. If our hypothetical buyer keeps the offer dead simple (“I will pay you $X for your land”) and has no particular fiduciary, business, or personal relationship to the seller, then he or she is probably not under a duty to disclose what he or she knows about any magic artifacts on the property. Things get dicier if the negotiations become much more complex than that because the parties start asking questions and making statements and representations.

      Even if the negotiation wasn’t fraudulent, the seller might still be able to avoid enforcement of the contract on the grounds of unconscionability.

      • TimothyAWiseman

        Unconscionability tends to be a high bar to meet, and (depending on the jurisdiction) frequently requires at least some form of procedural defect in the negotiations in addition to the substantive issues with the claim.

        The seller might also be able to form an excuse for non-performance based on the doctrine of mistake. But this is also a high bar to meet, especially in the case of a unilateral mistake.

      • As you say, it depends on the jurisdiction. Some places are more comfortable with rescission than others. I’m going to quote myself here from an earlier mailbag:

        “See, e.g., Donovan v. RRL Corp., 27 P.3d 702 (Cal. Sup. Ct. 2001) (“gross disparity in the values exchanged may be an important factor in a determination that a contract is unconscionable…In ascertaining whether rescission is warranted for a unilateral mistake of fact, substantive unconscionability often will constitute the determinative factor”). In that case a contract was held unconscionable when it only involved a 32% disparity from fair market value.”

        Given the power of most superheroes and supervillains, I’d say that the disparity between the value of the land alone and the value of the land plus the artifact is likely to rise to the level of unconscionability. Although I suppose if the artifact were on some multi-million dollar estate or large farm then perhaps the artifact’s value would be a relative drop in the bucket.

  5. An important note about treasure troves is that many jurisdictions have laws regarding the discovery of archaeological artifacts, (which is what an older treasure trove will contain). Often this means that the state has either the right to purchase the items, or that the artifacts automatically belong to the state, (generally with a finder’s fee paid to the discoverer).

    Other jurisdictions require a royalty be paid on any treasure troves which are found, or on particular treasure troves which are believed to exist.

  6. Then there’s Maritime Law, which is whole ‘nother kettle of worms when it comes to ‘lost and found’…

  7. Out of left-field, can anything useful be said about edge cases in intent? It was technically a cartoon rather than a comic book, but I recall an episode of the Super-Friends where Aquaman, stranded in the distant past, buries his communicator so that one of the heroes might stumble on it and send help.

    If I happen to dig this up, is there any usable guideline? In a sense, it seems to be only mislaid: Aquaman put it there on purpose, with the intent that one of a small set of people would claim it. But leaving it through all of human history while you go off to die if your rescue doesn’t come seems so irresponsible as to be clearly abandoned. He knows such people will exist, but otherwise, it’s no different than my burying an iPod in the park for some imagined human-descendant a million years from now.

    Do we split the difference and call it lost, giving it up only if Aquaman is rescued from the past anyway despite my screwing up his message?

    Also, in Thor’s case…given that he can always summon the hammer, wouldn’t that make any alleged loss or mislaying a clear abandonment? Or does the law presume that the only way you can find something is by essentially checking under the couch cushions?

    • Let’s consider two possibilities: 1) you finding the communicator creates an alternative time line in which Aquaman didn’t survive and 2) it would be impossible for you to find the communicator because Aquaman WAS rescued which means that his friends DID (WILL?) find it. So it’s yours if and only if you actually find it. Does that make sense?

      • Well, there are also possibilities in which Clark Kent interviews me about my “weird old junk” collection (slow news day) and takes care of business or someone just stumbles across Aquaman for no particularly good narrative reason during a different trip to the past.

      • You know, there’s a bit of a paradox here: if you find the communicator and this causes Aquaman to not survive then your present action has changed a past event. Logically when you find the communicator Aquaman has either survived or he hasn’t so logically it should be inevitable that the Justice League should find it whether you come across it yourself or not.

  8. A better question regarding the communicator would crop up while we still don’t know if Aquaman survived to be rescued or not. If you find the communicator, are you under any obligation to return it to the Super Friends on the principle that, if you do, Aquaman will be saved, but if you don’t, he will not be?

    A less time-travel based one would be: are you required to turn an iPod obviously belonging to a noble (or otherwise famous) family to said noble family if you find it lying about, and does the presence of some sort of message on the iPod that will help the family find the lost member to whom the iPod specifically belongs (belonged…you know what I mean, legality aside) make you legally liable for the missing family member being further harmed if you do not return it so they can be found/rescued?

    • By “obligation” do we mean the laws of physics, the laws of man or just plain moral obligation? I would say the answer is “probably”, “probably not” and “definitely”, respectively. 🙂

      • Legally, in this case, is what I meant.

        From a “laws of physics” standpoint, it entirely depends on your version of time travel.

      • I suppose you could argue that there are time lines in which Aquaman survived and time lines in which he didn’t and that there are time lines in which you find the communicator and time lines in which you don’t but whether you find the communicator or not wouldn’t changed what already happened in your time line. In that case you’d be under no strict obligation to hand over the communicator to the Justice League.

        This, of course, brings us full circle. We can go back to the very first post in this blog. Never mind the communicator. Suppose in one time line you murder Aquaman and in another time line you don’t. Obviously in one time line you should be convicted of that crime. In the other, you are innocent. So the original assumption that all the Lex Luthors in the multiverse are all guilty of the same crimes is wrong. I just thought I’d throw that out there while we are on the subject.

        Personally I prefer a single time line: the creation of a new universe at every single event in history violates energy conservation in the worst way. And, besides, quantum mechanics would appear to exclude the possibility of alternative time lines: if the universe is already a super position of all possible universes then there’s no room for any other possibilities. As my undergraduate physics professor once put it “Just because the universe is uncertain does not mean it is not determinate.”

        Of course, in fiction, anything goes: you can have alternative time lines. In real life however we aren’t free to pick and choose what theories to believe. 🙂

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