That does not mean that the state must prove the identity of any specific owner; its evidence, however, must be sufficient to allow the jury to find that the property at issue is not abandoned. That is because "[a]bandoned 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 , 186 Or. 129, 134, 200 P.2d 376 (1948), reh'g. den. , 186 Or. 129, 205 P.2d 562 (1949).
Applying that principle to the facts here, we conclude that it was not objectively reasonable under the circumstances for Oller to have concluded that defendant's bag was lost property. โLost property is defined as that with the possession of which the owner has involuntarily parted, through neglect, carelessness, or inadvertence. It is property which the owner has unwittingly suffered to pass out of his possession, and of the whereabouts of which he has no knowledge.โ Jackson v. Steinberg, 186 Or. 129, 133, 200 P.2d 376 (1948) (citation omitted). See commission commentary at 134 (citing to the above definition of โlost propertyโ from Jackson as the definition relevant to the civil and criminal statutes pertaining to the rights, duties, and theft of lost property).
The Supreme Court of Iowa has explained that "under the common law, there are four categories of found property: (1) abandoned property, (2) lost property, (3) mislaid property, and (4) treasure trove." Benjamin v. Linder Aviation, Inc., 534 N.W.2d 400 (Iowa 1995); see also Jackson v.Steinberg, 186 Or. 129, 200 P.2d 376 (1948). "The rights of a finder of property depend on how the found property is classified."
The fuel was not a "treasure trove" โ and hence the property of the finder โ because it was not "[m]oney or coin, gold, silver, plate, or bullion found hidden in the earth or other private place, the owner thereof being unknown." Jackson v. Steinberg, 186 Or 129, 134, 200 P2d 376 (1948), reh'g den, 186 Or 129, 205 P2d 562 (1949) (internal quotation marks omitted). Kasper had not abandoned the property, for there was no evidence that he intended to relinquish ownership of the fuel.
However, in Terry the money was found to be mislaid because it had been intentionally placed above the ceiling tiles of a hotel room, a place where it could be expected to remain undiscovered until the owner could return and retrieve it. This element of secreting the property in a way that suggests the owner anticipated returning to retrieve it is found not only in Terry but also in the cases upon which Terry relies. See Benjamin v. Lindner Aviation, Inc., 534 N.W.2d 400 (Iowa 1995) (packets of currency recovered after removing the screws from a panel of an airplane wing); Jackson v. Steinberg, 200 P.2d 376 (Or. 1948) (currency removed from beneath the paper lining of a hotel room dresser drawer). However, this element is completely lacking in the present case, where there was no effort to conceal the money beyond placing it in a drawer.
The Supreme Court of Iowa has explained that "under the common law, there are four categories of found property: (1) abandoned property, (2) lost property, (3) mislaid property, and (4) treasure trove." Benjamin v. Linder Aviation, Inc., 534 N.W.2d 400 (Iowa 1995); see also Jackson v. Steinberg, 186 Or. 129, 200 P.2d 376 (1948). "The rights of a finder of property depend on how the found property is classified."
Missouri has not specifically addressed this question, but other jurisdictions have held that possession by the agent is in fact possession by the principal. South Staffordshire Water Co. v. Sharman, 2 L.R.Q.B. Div. 44 (1886); Goodhart, Three Cases on Possession, 3 CAMB. L.J. 195, 205-06 (1928); Jackson v. Steinberg, 186 Or. 129, 200 P.2d 376, 378 (1948). In Ray v. Flower Hosp., 1 Ohio App.3d 127, 439 N.E.2d 942, 945 (1981) the Ohio Court of Appeals stated: "In a long line of cases where hotel chambermaids, bank janitors, bank tellers, grocery store bagboys and other employees have found property while in their employ, virtually every case has charged the employee with the duty to turn the found property over to the employer for safekeeping."
This inference supports the conclusion that the money was mislaid. Jackson v. Steinberg, 186 Or. 129, 200 P.2d 376, 378 (1948) (fact that $800 in currency was found concealed beneath the paper lining of a dresser indicates that money was intentionally concealed with intention of reclaiming it; therefore, property was mislaid, not lost); Schley v. Couch, 155 Tex. 195, 284 S.W.2d 333, 336 (1955) (holding that money found buried under garage floor was mislaid property as a matter of law because circumstances showed that money was placed there deliberately and court presumed that owner had either forgotten where he hid the money or had died before retrieving it). The same facts that support the trial court's conclusion that the money was mislaid prevent us from ruling as a matter of law that the property was lost.
[2] Property is "lost" when the owner has involuntarily parted with it and does not know its location. 1 Am.Jur.2d Abandoned, Lost, Etc., Property ยง 2, at 4 (2d ed. 1962) (citing Jackson v. Steinberg, 186 Or. 129, 133, 200 P.2d 376, 377 (1948), and other citations). From the manner in which the currency was placed in the locked luggage and the circumstances comprising probable cause to believe the money was drug related, it must be presumed the concealment was deliberate. The currency, therefore, cannot be characterized as "lost".
" Foulke, 228 N.Y. at 274, 127 N.E. at 238-39. Cf. McAvoy v. Medina, 93 Mass. (11 Allen) 548, 549, 87 Am.Dec. 733, 734 (1866); Kincaid v. Eaton, 98 Mass. 139, 141, 93 Am.Dec. 142, 143 (1867); Foster v. Fidelity Safe Deposit Co., 264 Mo. 89, 102-03, 174 S.W. 376, 379 (1915); Flax v. Monticello Realty Co., 185 Va. 474, 478, 39 S.E.2d 308, 311 (1946); Jackson v.Steinberg, 186 Or. 129, 135, 200 P.2d 376, 378 (1948). However, we must still determine when the camera bag was mislaid in order to determine the time at which the salesman relinquished close personal custody over the camera bag. Was the camera bag mislaid at the moment when Saritejdiam's salesman (a) walked away from the chair or (b) was no longer within arm's reach of the chair or (c) walked out of the diner door? The first two options are unsatisfactory because we cannot conclude unequivocally at what point Danilin was far enough away from the chair while still within the diner so as to have mislaid the property.