Who has not, at some point of their life, usually young but sometimes old, picked something out of the trash and kept it for themselves?
A book or a magazine? A broken graphite hockey stick which someone has discarded in the bin behind the local arena; it could even be a broken wooden chair that someone has discarded presumably because they were not able to fix it. On every garbage collection day, there is a regular stream of people rooting through looking for empty pop or beer cans to redeem.
Not all trash diggers quasi-homeless people. Identity thieves and private detectives rely heavily on trash bins to collect data on their targets. The actions and legal cases against these activities has sprung a new interest in trash can law.
Someday, too, a newcomer to space exploration is bound to cart back an abandoned satellite belonging to another country. The dust will come off trash can law when that happens.
What about someone's DNA that is retrieved from, say, hair shavings in the hairdresser's garbage?
Will you care about trash can law when, in 20 years from now, a mini-me rings your doorbell just to say hello?
God bless the Romans.
They did not always master the art of easy-to-understand law, but on so many occasions, they were able to simplify law, a now mostly elusive skill.
In Roman law, the grand-daddy of civil law and a huge influencing force behind modern common law, once property was abandoned intentionally by an owner, the next person to take possession of that abandoned property became the new owner. Title was perfected. The Romans had a word for an abandoned thing: res derelicta.
As would become a common theme in trash can law, lost items differ from abandoned items, the former not implying an abandonment of title to property unless the search had been given up.
Ahh, the English
Edward Coke, always the spoil-sport, made a relevant preposterous suggestion that soiled English law forever. In Haynes Case, Coke wrote:
"A man cannot relinquish the property he hath to his goods, unless they be vested in another."
Unfortunately, that case dealt with creepy facts: a nut who dug up four corpses and was charged with theft!
But the "can't get rid of it" approach Coke left out there carried on until the gradual tide of maritime law and especially the law governing wrecks, salvage and derelicts, prompted William Blackstone to suggest that even in British soil, where a person shows by some act or omission, that he or she abandons an item of property, that item becomes title-virgin (our words, not Sir William's) and can be plucked up by anybody, who then has title.
But then, law took another trashy turn when Justice Goddard of the English Court of Appeal released garbage reasons in Williams v Phillips:
"If I put refuse in my dustbin outside my house, I am not abandoning it in the sense that I am leaving it for anybody to take it away. I am putting it out so that it may be collected and taken away by the local (garbage collection) authority, and until it has been taken away by the local authority it is my property. It is my property and I can take it back and prevent anybody else from taking it away. It is simply put there for the Corporation or the local authority, as the case may be, to come and clear it away. Once the Corporation came and clear it away, it seems to me that because I intended it to pass from myself to them, it becomes their property."
The strict English approach has been adopted by the Australians.1
The Fresh Air of the Atlantic
On the other side of the Atlantic, a different view of trash can law has developed.
Keep it simple stupid was the mantra for Justice Mattingly of the Court of Appeals of Indiana, in the 1999 case of Long v Dilling:
"There is a widely held and long-standing doctrine that personalty discarded as waste is considered abandoned. Abandoned property is property the owner has thrown away. The abandonment of property is the relinquishment of all title, possession or claim to or of it - a virtual intentional throwing away of it. Property is said to be abandoned when it is thrown away."
In Ananda Church of Self-Realization (love that name!), Justice Callahan of the California Court of Appeal wrote:
"Documents which have been placed in an outdoor trash barrel no longer retain their character as the personal property of the one who has discarded it. By placing them into the garbage, the owner renounces the key incidents of ownership—title, possession, and the right to control."
In Stewart v Gustafson, Justice Klebuc of the Court of Queen's Bench for Saskatchewan opined:
"Owners frequently give up possession of their chattels without specifically passing title thereto to another party. For example, older motor vehicles are often left on parking lots, road allowances or land adjacent to highways and personal items are left by departing tenants or vendors of land, all without any expressed intention of giving up legal title thereto....
"An owner relinquishing title to a chattel it ceases to be owned by anyone until it is appropriated by someone with the intent of acquiring ownership thereof....
"If the subject Chattel is of little value, such as the used price tags in Army and Navy, bottles, magazines, or old worn-out furniture, an inference may be drawn that the owner intended to abandon the same. Non- functioning, dilapidated motor vehicles left along a roadside or in a parking lot may fall into the same category if it can be demonstrated that the cost of making the same road-worthy far exceeded its market value. As the practical or monetary value of a chattel increases, so in my view does the difficulty of inferring abandonment, i.e., an owner normally would not abandon an expensive item."
Who's On First?
And there we stand, law in hand, pining over the trash bins of our neighbours or perhaps taking the children on a camping trip next to the local dump.
Rules to trash-collect by:
- Items even though placed in trash bags or receptacles or which can be observed or reached from a public area, but on private property, may not be sufficiently abandoned to be owner-free and in any event, requires the scavenger to trespass to gain access;
- Items in garbage placed at the curbside are open season: finders' keeper;2
- Items in the dump yard, as long as there are no trespass issues, are open season: finders keepers.3
Free Legal Advice: keep your trash cans far from the curb and buy a shredder.
- Ananda Church of Self-Realization v. Massachusetts Bay Insurance Company, 116 Cal. Rptr. 2d 370 (2002)
- Canada (Attorney General) v. Brock, 59 BCLR (2d) 261 (BCCA, 1991)
- Hayne's Case, 77 ER 1389 (1614)
- Long v. Dilling Mechanical Contractors, Inc., 705 NE 2d 1022
- NOTE 1: Aitken, Lee, The Abandonment and Recaption of Chattels, 68 A.L.J. 263 (1994 - "The cases make it clear, in Australia at least, that an express intention to abandon coupled with an occupation by a newcomer is required before abandonment is complete. Proof of this intention will be difficult."
- NOTE 2: Saw, Cheng Lim, The Law of Abandonment and the Passing of Property in Trash, 23 SAcLF 145 (2011) at page 150
- NOTE 3: Munday v Australian Capital Territory, 146 FLR 17 (1998)
- Stewart v. Gustafson,  4 WWR 695
- Williams v Phillips, 41 Cr App Rep 5 (1957)