Therefore, we treat the money involed herein as no different from other personal property and will adjudicate the possession thereof in accordance with the rules governing personal property generally. We think the proper rule regarding treasure trove is that stated by the Oregon Supreme Court in 1948 in the case of Jackson v. Steinberg, 186 Or. 129, P.2d 376, 378, 205 P.2d 562, as follows: "With regard to plaintiff's contention that the bills constituted treasure trove, it has been held that the law of treasure trove has been merged with that of lost goods generally, at least so far as respects the rights of the finder.
The distinctions seem to be, if the personalty is found in a private place it is placed in the category of mislaid property as distinguished from that which is considered legally lost, and the ownership and possession of the real property upon which it is found is often the determining factor as to possession. Jackson v. Steinberg, 186 Or. 129, 200 P.2d 376, 205 P.2d 562; 34 Am Jur 632, Lost Property § 3. We will not attempt to again define the various categories above referred to as this was very ably done by the late Mr. Justice ARTHUR D. HAY in Jackson v. Steinberg, supra.
These common law concepts, applied to the facts of this case, would find that the $150,000 was "mislaid" and not "lost" or "abandoned." Schley v. Couch, 155 Tex. 195, 284 S.W.2d 333 (1955); Jackson v. Steinberg, 186 Or. 129, 200 P.2d 376 (1948), rehearing denied, 186 Or. 129, 205 P.2d 562 (1949): see also 1 Am.Jur.2d, Abandoned, Lost, Etc. Property §§ 4-5, 12, 15, 18-19, 21 (1962). On July 31, 1968, plaintiff was subject to Article 103 of the Uniform Code of Military Justice.
Kimbrough's testimony that he himself assumed that the groceries he saw in the cart had been purchased by a customer who would return to reclaim them is indicative of the fact that the evidence was sufficient to establish that the goods were mislaid property. Mickey v. Sears, Roebuck Co., 196 Md. 326, 330, 76 A.2d 350, 352 (1950); Rofrano v. Duffy, 291 F.2d 848, 850 (2d Cir. 1961); Goss v. Bisset, 411 S.W.2d 50, 53 (Ky. 1967); Schley v. Couch, 284 S.W.2d 333, 335-36 (Tex. 1955); Dolitsky v. Dollar Savings Bank, 118 N.Y.S.2d 65, 68 (N.Y.Mun.Ct. 1952); Jackson v. Steinberg, 200 P.2d 376, 377 (Ore. 1948). Larceny is a crime against possession. 2 Wharton's Criminal Law and Procedure, § 497, at 169-70 (1957), states:
" 8 Ark L Rev at 504. Although we have recognized the existence of gratuitous bailments, see Jackson v. Steinberg, 186 Or. 129, 138, 200 P.2d 376 (1949), we have not passed on the duty of care required of a gratuitous bailee. No cases have been cited to us and we can find none.
Abandonment of property is distinguishable from a loss or neglect of property by virtue of the intent required for abandonment: Abandoned property is that of which the owner has relinquished all right, title, claim, and possession, with the intention of not reclaiming it or resuming its ownership, possession or enjoyment. [Jackson v. Steinberg, 200 P.2d 376 (Ore. 1948); emphasis supplied.] Cf. s. 705.16(2)(b), and 1 C.J.S. Abandonment ss. 2, 3, and 9. In regard to what constitutes lost property, it has been stated: The rule as laid down by many authorities is: "Goods or chattels are lost in the legal sense of the word only when the possession has been casually or involuntarily been parted with, so that the mind has no impress of, and can have no recourse to, the event."
There was sufficient evidence from which the court could have found that the casing was abandoned property. Jackson v. Steinberg, 186 Or. 129, 200 P.2d 376, 205 P.2d 562 (1948). And there was probable cause for the officer to believe that defendant had committed the crime.
Although at common law the finder is entitled to keep abandoned property, the plaintiff has not taken the position that the money here was abandoned. Jackson v. Steinberg (1948), 186 Ore. 129, 200 P.2d 376, 377; 1 Am. Jr. 2d Abandoned, Lost, and Unclaimed Property §§ 1, 2 (1962). As is usual in cases involving a determination of whether property is lost or mislaid, this court is not here assisted by direct evidence, for, obviously, the true owner is not available to state what his intent was. Also, because all the evidence here has been presented by affidavit or stipulation, this court is in as advantageous a position as the trial judge to determine whether the money was lost or mislaid. Our conclusion is that the estray statute should be applied, and ownership of the money vested in the plaintiff finder.
Typically, if the property was found to be "lost" or "abandoned," the finder would prevail, whereas if the property was characterized as "mislaid," the owner or occupier of the land would prevail. Lost property has traditionally been defined as involving an involuntary parting, i.e., where there is no intent on the part of the loser to part with the ownership of the property Foster v. Fidelity Safe Deposit Co., 264 Mo. 89, 174 S.W. 376 (1915); Kuykendall v. Fisher, 61 W. Va. 87, 56 S.E. 48 (1906); 1 Am.Jur.2d 4, Abandoned, Lost, and Unclaimed Property 2; annot., 170 A.L.R. 706. Abandonment, in turn, has been defined as the voluntary relinquishment of ownership of property without reference to any particular person or purpose; Ellis v. Brown, 177 F.2d 677 (6th Cir. 1949); Jackson v. Steinberg, 186 Or. 129, 200 P.2d 376 (1948), rehearing denied, 186 Or. 129, 205 P.2d 562 (1949); annot., 170 A.L.R. 708; i.e., a "throwing away" of the property concerned; Foulke v. New York Consolidated R. Co., 228 N.Y. 269, 273, 127 N.E. 237 (1920); while mislaid property is defined as that which is intentionally placed by the owner where he can obtain custody of it, but afterwards forgotten. Foster v. Fidelity Safe Deposit Co., supra; Loucks v. Gallogly, 1 Misc. 22, 23 N.Y.S. 126 (1892); annot., 9 A.L.R. 1388, 1390.
Eldridge asked the court to find the money was not "lost property" within the meaning of chapter 644. Property is lost when the owner involuntarily and unintentionally parts with its possession and does not know where it is. Flood v. City National Bank, 218 Iowa 898, 902-05, 253 N.W. 503, 512-13 (1934); Paset v. Old Orchard Bank Trust Co., 62 Ill. App.3d 534, 537, 387 N.E.2d 1264, 1268, 19 Ill.Dec. 389, 393 (1978); Jackson v. Steinberg, 186 Or. 129, 133, 200 P.2d 376, 377 (1948), rehearing denied, 186 Or. 140, 205 P.2d 562 (1949); Schley v. Couch, 155 Tex. 195, 199, 284 S.W.2d 333, 335 (1955). In Flood, this court held that money which was stolen from a bank and found in a rubbish heap near a roadside less than three hours later met the definition of lost property.