PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION CLAIR PERRY SCOTT GREGORY

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1 Citation: Perry v. Gregory Date: PESCTD 73 Docket: S1-SC Registry: Charlottetown PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION BETWEEN: CLAIR PERRY AND: PLAINTIFF SCOTT GREGORY DEFENDANT BEFORE: The Honourable Chief Justice J. Armand DesRoches Philip Mullally, Q.C. Catherine Parkman Solicitor on behalf of the Plaintiff Solicitor on behalf of the Defendant Place and Date of Hearing Place and Date of Decision Charlottetown, Prince Edward Island September 5, 2003 Charlottetown, Prince Edward Island September 12, 2003

2 Citation: Perry v. Gregory 2003 PESCTD 73 No. S1-SC BETWEEN: CLAIR PERRY AND: PLAINTIFF SCOTT GREGORY DEFENDANT Prince Edward Island Supreme Court - Trial Division Before: DesRoches C.J. Date of Hearing: September 5, 2003 Date of Decision: September 12, 2003 [5 Pages] PERSONAL PROPERTY - Ownership - Finders Text Considered: Ziff, Principles of Property Law, 3 rd ed. Philip Mullally, Q.C., solicitor on behalf of the plaintiff Catherine Parkman, solicitor on behalf of the defendant

3 DesRoches C.J.: [1] Reduced to its simplest terms, this case involved a dispute between former friends over the ownership of a belt plate (buckle). [2] Both the plaintiff, Clair Perry, and the defendant, Scott Gregory, have been involved in the hobby of metal detecting since the early 1980's. For some period of time, in the early 1980's, the plaintiff and defendant would go on metal detecting expeditions together. They did not operate in partnership in that they did not share anything that was found. Essentially what was found by the plaintiff was kept by the plaintiff, and the defendant kept anything he found. This was simply a loose arrangement by which they shared the cost of doing research for their expeditions and also the cost of transportation with the plaintiff taking his vehicle at one time and the defendant taking his on another. After a period of operating this way, they stopped detecting together, however, about two years ago they got back together again. [3] This litigation arises from a metal detecting expedition the plaintiff and defendant took together in either late November or early December of [4] According to the plaintiff, they were together operating their metal detecting machines in a potato field with the permission of the owners. Near the end of the day, the plaintiff received a signal from his machine but because it was a new machine he wanted to have verification. He asked the defendant to verify the reading. The plaintiff testified this had happened on at least two to four occasions in the past. He stated he had begun to dig the hole at the site and he thought he had it either two-thirds to three-quarters dug. He stated the defendant came over and, using his own metal detecting machine, he also received a positive reading. He said the defendant then started to dig without asking the plaintiff whether he should. Apparently this too had happened in the past. However, on those other occasions anything dug by the defendant in this way, in a hole that had been indicated by the plaintiff, was always given to the plaintiff. [5] The plaintiff testified that in order to ensure his machine did not interfere with that of the defendant, he stepped back about 15 to 25 feet. He said he assumed the defendant was going to dig, so he simply allowed him to do so. He stated he continued to watch the defendant and when he saw the defendant take something out of the hole he went over to see what it was. The defendant held up a metal object which he told the plaintiff was a belt plate used by the PEI Regiment in the late 1700's. The plaintiff stated he reached for it and the defendant gave it to him, although he noted he did so somewhat reluctantly. [6] According to the plaintiff, when they were in the defendant s vehicle returning home, the defendant told him that he did not want any money out of the belt plate, but if the find was ever written up in metal detecting magazines he wanted his name

4 Page: 2 to be identified as a co-discoverer. The plaintiff said he agreed with this. The plaintiff indicated he always thought he was the owner of the belt plate since he had obtained the original signal and he had dug about three-quarters of the way down into the hole. [7] The next contact, according to the plaintiff, between he and the defendant happened in about the first week of January, 2002 when the defendant asked to have the belt plate so it could be photographed. The plaintiff gave it to him. The photographs were taken and, although the defendant had the belt plate for a couple of days, he brought it back to the plaintiff. [8] Some two to four weeks later the defendant asked to have the belt plate again so he could show it to some friends. The plaintiff duly gave it him and the defendant again brought it back. [9] The plaintiff testified that he and the defendant resumed detecting together in about March and continued up to about April 18. They went on four of five expeditions together. He said there was no talk about the belt plate or its ownership. Then in September, 2002 the defendant again wanted to borrow the belt plate. The plaintiff gave the belt plate to the defendant but this time it was not returned. The plaintiff called the defendant several times. Finally, he received a telephone call from the defendant who told him that, as far as he was concerned, the belt plate was his; he had consulted a lawyer and had been told it was his property. The plaintiff said he has not seen the item since. [10] During cross-examination the plaintiff acknowledged he had not informed the owners of the field of the find. He said it is usual that the owners generally do not ask about finds, and he does not make it a practice to inform them. He further testified that he and the defendant had found items together before and acknowledged that if he had received a signal and had abandoned the hole, the ownership of any item subsequently found would belong to the detector who happened along and found the same hole. He agreed that the crux of this case is whether or not he had walked away from the hole; in other words, whether he had abandoned it. He repeated that he did move away from the hole but he was watching the defendant dig and they were speaking to each other. He said he walked back to the hole just before the defendant pulled the item out it. [11] The plaintiff said he assumed the defendant agreed the belt plate was his because the defendant had given it to him. He stated he had no intention of giving it to the defendant because it was his signal and it was his hole. He said he did not ask the defendant to dig the hole.

5 Page: 3 [12] The plaintiff called Rick Barton to testify. He has been involved in metal detecting for some 30 years, and basically on a full time basis during the last 15 years. He says he now spends from 300 to 350 hours per year metal detecting. He has read many articles in the area and he has been written up in magazines and in the Eastern Graphic concerning some of the items he has found on metal detecting expeditions. He testified he receives one to two calls per month asking for assistance and he has found close to 27,000 coins, 500 of which he has recently donated to a museum. This witness did not testify as an expert but simply informed the court of his own experiences in the field of metal detecting. He stated there was never a question in his mind that it was always the first person to receive a signal who owns the item found. He said the only exception to this is if the first person to get a signal walks away from and abandons the hole and someone subsequently comes along and digs in the hole. Then any item found belongs to that second person. He stated it is common courtesy and common sense that the first person to get a signal is the owner of any item found. [13] The defendant testified he has a wide range of experience and knowledge in the field of metal detecting. He stated that on the day on which the belt plate was found, he and the plaintiff were using his vehicle. He stated they had obtained permission to enter the potato field and he and the plaintiff were proceeding separately with their metal detectors over the field. He said that during one period when they passed close to each other the plaintiff mentioned to him he had gotten a signal but had left the hole. He testified that three minutes later he went to the same hole, got a signal and dug up the belt plate. He showed it to the plaintiff who grabbed it from him. He said he told the plaintiff he had found it, that it was his. He told him this again in the car. [14] The defendant stated this has happened in the past where he has found items in holes which the plaintiff had abandoned. [15] The defendant did acknowledge that he had obtained the belt plate from the plaintiff once and he had been told by the plaintiff that he wanted it back so he did take it back to him. He said he was intimidated by the plaintiff. He stated, however, that at no time did he ever give up ownership of the item. He disagreed with the plaintiff that there were three occasions when he had borrowed the item. He said the only other time was in September of 2002 when he obtained the item and then finally told the plaintiff he was the true owner and he was keeping it. [16] During cross-examination, the defendant maintained the item is his. He did acknowledge that during a period of time in early 2002 he and the plaintiff had gone metal detecting on four or five occasions. They spent several hours together during these extended meetings and there were no discussions of the belt plate whatsoever.

6 Page: 4 [17] He stated that, contrary to the evidence of the plaintiff, when he obtained the item from the plaintiff in September, 2002 he did not tell him that his reason for doing so was to show it to a friend. He agreed that 10 months after the item was found he decided the item was his and he was going to keep it. He asserted, however, he has always claimed ownership but he agreed that when he picked up the item in September, 2002 he did not specifically say to the plaintiff that he wanted the item because it was his; he did not tell the plaintiff he intended to keep it. He acknowledged that the belt plate is now in his possession. [18] Neither party has had the belt plate s value assessed so its value is unknown. [19] Counsel for the parties have agreed there is no dispute here relating to the interpretation of the law of finding. In his text Principles of Property Law, 3 rd ed., Bruce Ziff states:... a more accurate general proposition is that a finder acquires good title against the world, except for those with a continuing antecedent claim. [p. 133]......A finder is placed in a position inferior to that of subsisting prior claims, but superior to those arising afterwards. Timing is central and the jurisprudence on this subject has been largely concerned with settling priority questions of this type.[p.134] [20] Ziff also points out in his text: In disputes over property, the law is concerned with ascertaining the relative rights of the parties to the contest. This means that a better claim residing in some third person is, generally speaking, immaterial. In the finders cases it is commonly assumed that there remains a true owner out there somewhere who could trump the claims of the litigants. In a dispute between other rival claimants this is not relevant. As far as the finder is concerned, mere possession is title as against a subsequent wrongful taker. [p. 138] [21] It is not the law that is in dispute in this action, but rather this case involves a question of fact: did the plaintiff abandon the hole in which the belt plate was found after receiving the signal? [22] As indicated earlier, the versions of events described by the plaintiff and by the defendant differ significantly. According to the plaintiff, he did not in fact abandon the hole, but simply allowed the defendant to continue to complete the dig as he had

7 Page: 5 done on previous occasions. The defendant maintains the plaintiff had walked away from the hole therefore abandoning it. [23] Having considered the whole of the evidence presented, I accept the plaintiff s version of events. He testified that similar incidents had happened before where he would ask the defendant to verify a signal for him and the defendant, once the signal was verified, would dig up the item and then give it to him. It is reasonable to conclude this is what happened in this case. Furthermore, while the defendant may have thought in his own mind that there was some question as to the ownership of the belt plate, I am not convinced he asserted a the claim of ownership before he had talked to a lawyer some time in September 2002, a period of some 10 months after the item had been found. It seems reasonable to conclude that if he had asserted ownership at the very beginning, the plaintiff would not have been so willing to loan the belt plate to the defendant as he did on at least two occasions; three occasions according to the plaintiff s testimony. [24] The evidence convinces me the plaintiff obtained the first signal from the belt plate, he did not abandon the hole and, according to the evidence of Rick Barton and according to common sense, as against the defendant the plaintiff is the owner of the belt plate. [25] An order will issue to that effect and requiring the defendant to deliver the belt plate to the plaintiff forthwith. Although I cannot order him to do so, I would strongly encourage the plaintiff, if he decides to donate the belt plate to a museum or if he prepares an article outlining the finding of the belt plate, to identify the defendant as the co-discoverer of the plate. [26] The plaintiff s claim is allowed accordingly. The plaintiff shall have his costs against the defendant which I fix at $350 plus $25 filing fee for a total of $375 plus applicable taxes. September 12, 2003 C.J.