Let’s talk about the Captain’s Chair Barber Shop in downtown Lincoln, Nebraska.
Suppose that I go there for a haircut and, instead of dropping my Rolex watch on the floor of Defendant’s shop, I place it on a table in the waiting area of the shop and then leave forgetting it.
Denicola comes in later to get his little mustachios trimmed, and finds my Rolex. As between Denicola the “finder” and the Barber-Landowner, who has the better claim to first possession?
McAvoy should be an easy case with Armory and Bridges as the primary precedents stating the so-called general rule that the finder of lost property has a prior claim against the whole world except the True Owner.
So, easy victory for Professor Denicola over my Barber, right?
--Not so fast, this is law school
--and law is hard!
Is McAvoy distinguishable from Bridges?
The pocket book in McAvoy was found “lying upon a table” so it was not lost property, it was mislaid property.”
So, lost property is property which unintentionally leaves the physical possession of the True Owner—e.g., through a hole in a pocket.
Mislaid property is property intentionally placed somewhere by the True Owner, who then leaves forgetting to take the “mislaid” property with him.
But in both cases the True Owner intends to retain possession of the property, i.e., mislaid property intentionally leaves only the direct physical possession of the True Owner (like your backpacks resting on the floor under your seat, or like my casebook placed on the desk in the front of the room).
Should the law devise rules that depend upon facts that are not capable of proof at trial? How does a court determine that a particular item is mislaid as opposed to lost?
Should we have one rule for lost property and another rule for mislaid property? Who knows this critical fact? Should we just call him or her as a witness?
Or are these cases sufficiently similar so as to be best governed by the same rule?
What should that rule be?
