Bishop v. Ellsworth

234 N.E.2d 49 · Appellate Court of Illinois · 1968

Facts

Dwayne Bishop owned a salvage yard at 427 Mulberry Street in Canton. On July 21, 1965, three boys, Mark and Jeff Ellsworth and David Gibson, entered Bishop's premises without his permission. While on the property, they discovered $12,590 in United States currency in a bottle partially embedded in loose earth on a landfill. The boys delivered the money to the municipal chief of police, who then deposited it with the Canton State Bank. The boys also initiated preliminary notices as required by Illinois statute.

Procedural history

Plaintiff Dwayne Bishop filed a complaint. The minor defendants, through their attorney, filed a motion to dismiss, arguing no cause of action was stated. The trial court sustained this motion and denied the plaintiff leave to amend. Plaintiff appealed from the order dismissing his complaint and denying his request for leave to amend.

Issue

Does a complaint alleging that defendants, as trespassers, took money from the plaintiff's private grounds state a sufficient claim to the possession of the discovered property, considering the Illinois statute regarding lost goods?

Holding

The court reversed the trial court's dismissal, holding that the plaintiff's complaint does state a cause of action.

Rule

The Illinois statute concerning 'lost goods' provides a procedure for a finder to gain title to truly lost property but does not abrogate common law distinctions for mislaid or abandoned property, nor does it determine rights against parties other than the true owner. The term 'lost' in the statute is used in its generally accepted legal sense. The right to possession of discovered property depends on the relative rights of the discoverer and the owner of the locus in quo, and the distinctions between abandoned, mislaid, lost, or treasure trove property. There is a presumption that the owner or occupant of private land has custody of property found on it or actually embedded in the land, as such property is deemed to be in the constructive possession of the owner. If property is mislaid, the owner of the premises is entitled to possession against the discoverer. A trespasser cannot claim possession of such property, even if it might otherwise be considered lost.

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