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The Slow Death of Treasure Trove February 7, 2000
by Richard B. Cunningham


A cache of gold coins found on Rolling Stone magazine owner Jann Wenner's property has sparked a treasure trove claim against the publisher. (Reuters/Corbis-Bettmann)

The Idaho Supreme Court will soon hear a dispute pitting media mogul Jann Wenner, the owner of Rolling Stone magazine, against Gregory Corliss, a construction worker who discovered a cache of gold coins buried on Wenner's land near the Sun Valley resort area. Corliss made his claim based on the ancient common law rule of treasure trove, which awards title of an artifact to the finder, be he looter or archaeologist. Last January an Idaho trial court rejected Corliss' claim, thus joining the other late-twentieth-century courts that have declined to apply the rule. In some American states, however, the law is still recognized. Why should modern American courts continue to be haunted by an outdated and misunderstood law that Great Britain abolished in 1996? The answer involves some arcane but important aspects of archaeological jurisprudence.

Cases involving finders of hidden property are seldom simple; there are usually numerous parties and interests involved. Corliss and his employer, Larry Anderson, were excavating soil while under contract to construct a driveway on Wenner's land. Corliss was the first to notice the freshly exposed coins, and further digging by both men revealed a broken jar that had contained a stash of 96 American gold coins dating between 1857 and 1914. By agreement between the two men, Anderson retained the coins, but eventually thought better of their actions and turned the gold over to Wenner, who promptly took the coins to his home in New York. Corliss then demanded their return, asserting his title to the coins under treasure trove theory. The image of simple workmen arrayed against a wealthy landowner is unflattering; Wenner wisely offered the men a reward, which both declined, and Corliss then pressed his claim against both his employer and Wenner. As with most accidentally discovered artifacts, the history and original ownership of the coins is obscure, and necessarily speculative. They clearly were buried sometime after the 1914 date on the latest coin, probably by some occupant of Broadford, a mining town once situated on Wenner's land. Throughout the intervening years, none of the previous owners of the land appeared to have been aware of the deposit, and none came forward to assert a claim.

The uncertainty of the facts in finder's cases is compounded by the complexity of the law. Any discussion of finders' law forces courts to confront not only the rules of treasure trove, but also a variety of other judicial doctrines relating to articles that have been not deliberately buried, but either abandoned, lost, mislaid, or embedded on private land. Classic treasure trove law in Britain applied only to items of gold or silver. The rule thus has no bearing on the organic, lithic, or ceramic artifacts that prevail in American archaeology. But old gold coins, as in the Corliss-Wenner dispute, unquestionably satisfy the rule and for most people represent the very essence of a treasure. The classic rule also required the treasure to have been intentionally concealed; here again, because the coins were discovered in paper wrappers and buried in a glass jar, there was clear evidence of their deliberate deposit with an intent eventually to retrieve them. A cache discovered under these circumstances could not be categorized as casually lost nor purposefully abandoned. Superficially, then, the Idaho facts appear to present a clear opportunity to apply the rule of treasure trove.

Are American states bound to honor the ancient rule of treasure trove? In 1863 the legislature of Idaho, like many western states, decided to employ "the common law of the rule of decision in all courts of this state." Statutes of that kind, known as reception statutes, reflect that citizens received the common law of England as part of their collective heritage, either at the time of American independence, the moment of statehood, or some other operative event. The English common law from the 1760s until the 1880s was unequivocal: Treasure trove went to the Crown. For most states, the question thus became whether simply to reject the received English royal prerogative as inconsistent with their legal systems, or instead to consider adoption of the adulterated form of the rule that rewarded finders as it developed in a minority of American courts between 1904 and 1948.

The treasure trove rule received its first serious consideration by Oregon's Supreme Court in 1904 in a case involving boys who discovered thousands of dollars in gold coins hidden in metal cans while cleaning out a henhouse. Unwilling to identify coins in such circumstances as lost and seizing on the image of gold as treasure, the court awarded the coins to the boys. The landowners, who had been less than generous with the boys, received nothing. Of course, the British law on which the U.S. version was based would have handed the coins over to the king. Dating to early twelfth-century England, treasure trove was one of many royal prerogatives. In those feudal times, the king's claim to discovered articles of precious metal was absolute and preempted any claim by the article's finder or the owner of the land on which it was discovered. The Oregon court simply misunderstood the rule, wrongly believing that it operated in the same fashion as the early rules that awarded possession (and thus the effective equivalent of title) to the innocent finders of lost and ownerless items. In awarding ownership of the coins to the boys, the Oregon court unwittingly became the first to imply that buried valuables should be awarded categorically to a finder, thus disregarding entirely any legitimate claims made by the landowner.

Four years later, Maine's Supreme Court completed the process of confusing the application of treasure trove law. The facts are eerily similar to the recent Idaho case: three workers jointly found gold coins while excavating on their employer's land. Although a series of English and American cases had already established a landowner's claim to buried valuables, the court awarded the coins to the finders, and for the next three decades the American rules remained in considerable confusion. During that period only a few courts opted for the treasure trove formulation; at one time or another the courts of Georgia, Indiana, Iowa, Ohio, and Wisconsin employed the rule, most recently in 1948. Since then, all the American courts to consider the problem, the Idaho trial court among them, have declined to adopt treasure trove rationales, finding instead that other rules are better suited to a resolution of modern controveries. Unfortunately, the rule of treasure trove persists, still described in contemporary legal texts as a recognized, if not controlling, rule of decision. At best, however, it is a minority rule of dubious heritage that was misunderstood and misapplied in a few states between 1904 and 1948.

The majority of U.S. courts now follow a mislaid rule for buried objects, which posits that items purposely deposited should be protected until the original depositor can return. The preferable way to protect them is to allow the items to remain in the custody of the landowner on whose property they were discovered. It's a convenient rationale, arguably well designed to assure the best chance to reunite owners with their recently "misplaced" goods. In the context of old artifacts, however, it effectively delivers title to the landowner. The "mislaid" rationale presumes the existence of a living owner, or the vigilance of the depositor's descendants; only occasionally can it be helpful for older artifacts, such as those in Idaho, as the likelihood of the original depositor's return diminishes with each passing year. For artifacts of prehistoric age, the mislaid rule makes no sense, and is thus of little assistance in the vast majority of archaeological applications.

What rule should be employed by modern courts when faced with conflicting finder-landowner claims to ancient artifacts that are discovered buried on private land? The Idaho trial court, in rejecting the treasure trove rule, wisely aligned itself with all the other American courts that have faced the problem in the last two decades. By rejecting treasure trove and similar finder's rationales, those courts have fostered legal policies that discourage waton trespass to real property, and give protection to a landowner's possessory claims to any artifacts that have been so embedded in the land as to become part of it. Rejection of the rules that reward finders at the expense of landowners also strengthens anti-looting provisions, and discourages casual, but potentially destructive unplanned searches. Indeed, removal of artifacts from the soil is now recognized in the majority of states either as illegal severance of chattels, trespass, or theft. Modern law has recognized and resolved the problem, leaving no room for royal prerogatives. The old rule of treasure trove may make good theater, but it's poor law, and its death can come none too soon.

Richard B. Cunningham is a professor of law at the University of California, Hastings College of the Law, in San Francisco.

© 2000 by the Archaeological Institute of America