Treasure
Ownership could be acquired by a finder of treasure. This will only be conÂsidered briefly, as the Roman rules were not received in Scots law. This can be explained by the fact that, in Scots law, abandoned property falls to the Crown rather than becoming ownerless.
Accordingly, even where buried valuables have been left so long that they can be deemed abandoned, in Scots law they are still owned and so cannot be appropriated by the finder.[1369] Scots law therefore has no need of special rules for treasure, because the only person for whom there is any purpose in disputing whether the item is abandoned or not is the person who buried the item (or someone deriving right from that person).[1370] Matters were different in Roman law, in which in principle abandoned property was open to acquisition by a finder. It was therefore necessary to have special rules to deal with the situation where valuable items were found, which might or might not have been abandoned, but at any rate for which an owner could not be traced. In the absence of special rules to deal with this, there would be uncertainty as to whether the finder had any right in the items. We are concerned here with the law of treasure trove.Paul tells us that treasure is ‘an ancient deposit of money, of which memory does not survive, so that it no longer has an owner'.[1371] Although Paul mentions only money, other valuables were certainly included. Something dropped by accident does not appear to have been considered treasure, and nor was money left behind by mistake when a house was sold.[1372] As Paul's words suggest, if the deposited items had a traceable owner, they did not count as treasure for the purposes of acquisition.
Earlier doubts about ownership of treasure were resolved by the Emperor Hadrian (reigned AD 117-38).[1373] According to the rules laid down by Hadrian, a finder on his or her own land, or on sacred or religious land,[1374] got the whole of the treasure. Otherwise, as long as the treasure was found by chance rather than by a deliberate search, half went to the finder and half to the owner of the land. In the case of imperial land, this meant the emperor; on public land, half went to the finder and half to the exchequer or the local authorities.
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