The Law of Lost Treasure and Treasure Hunting

As a young boy, I had a great-uncle who told me of a local bandit in Central Pennsylvania who he called “Robber Lewis”. According to my uncle, Robber Lewis was a Robin Hood-type character who stole from the rich and gave to the poor. Lewis supposedly lived in the early years of the 19th century and led a life as a “highway man”. In those days, when the mountainous regions of Pennsylvania were still frontier, some men would adopt a life of crime, robbing honest people of their hard-earned money. Robber Lewis was but one of these many criminals. He died, I was told, from wounds after being shot by lawmen in the Borough of Carlisle. What set Lewis apart from others of his kind was the fact that he left behind a hoard of treasure that has never been recovered.

My uncle told me that relatives of his had been in Robber Lewis’ gang and that the lost treasure was hidden in a cave along the Yellow Breeches Creek, which for much of its length, forms the border between Cumberland and York County’s in Pennsylvania. Armed with this knowledge, I spent many a day as a boy searching the banks of the Yellow Breeches for a lost cave. As time passed, however, I could not find the hidden cave, and for years, my efforts to locate this “Robber Lewis” came to nothing.

Decades later, however, I was able to find evidence of a real “robber” named Lewis, who was active in Pennsylvania. In an internet archive, I was able to locate a manuscript entitled: The Life and Adventures of David Lewis, the Robber and Counterfeiter, apparently copyrighted in 1890. Much of the 33,000-word manuscript, however, is an alleged “confession” by David Lewis signed the day before he died on July 13th, 1820. It details his life as an outlaw, beginning with his birth in Carlisle, Pennsylvania, and continuing until his death. It roughly matches the story my uncle told me, except that his cave was allegedly located on the Conodoguinet Creek, a different tributary to the Susquehanna River. David Lewis was indeed shot by lawmen and subsequently died of his wounds in Belmont, Pennsylvania, but the “confession” should not be taken as the truth. For starters, it does not seem reasonable that a man, dying of infection, would be able to write or dictate a document that now consists of 50 pages of typed text. What is important, however, is the fact that the document does point to the possibility of significant amounts of hidden treasure.

The question is: if this treasure were to be located, who would have title to it?

Lost, Misplaced, and Abandoned Property versus “treasure trove”

The world is filled with treasure of all types scattered throughout the mountain ranges, plains, and rivers and streams of the planet. The oceans of the world also contain vast amounts of undiscovered treasure. This includes gold and silver and precious and semi-precious stones waiting to be discovered. It includes fossils, relics of the past, shipwrecked cargo, and many other types of treasure. This article, however, concerns treasure discovered on land (or which has been buried under the ground) and who owns the treasure. If a treasure hunter is fortunate enough to find a cache of gold or silver coins worth millions of dollars, who owns it?

Historically, the discovery of property that was lost, misplaced, or abandoned was subject to the common law “Rule of finds”. This rule is encapsulated in the third-grade rhyme “finders keepers, losers weepers”. Basically, the rule was: whoever found lost, misplaced, or abandoned property was able to keep it. There were, however, two major exceptions that swallow the rule. First, when discovered in the soil, it belongs to the owner of the property. In addition, since the owner of land has “constructive possession” of anything found on his or her property, the property that has been discovered was never actually lost.

David G. Bercaw, Requiem for Indiana Jones: Federal Law, Native Americans, and the Treasure Hunters, 30 Tulsa L. J. 213 (2013).

By contrast, The United Kingdom has a “Treasure Trove Law” that defines treasure as being either gold or silver of a certain age and vests ownership of that treasure in the Crown (source). Unlike lost, misplaced, or abandoned, property that is subject to treasure trove law is “treasure”—specifically gold or silver—that was hidden by its owner with an intent to later recover the property (source). David Lewis’ hidden cache of silver and gold coins would most likely be considered a treasure trove. He hid it to prevent it from being discovered by government officials and other criminals. He intended to retrieve it but was prevented from doing so by his death.

The states of the United States have largely merged lost, misplaced, or abandoned property with the concept of “treasure trove” so that there is now one rule with respect to discovered property. Not really, but if only it were that simple. Most states have enacted their own statutes which either modify or keep the common law rule. In Tennessee for example, any treasure discovered is owned by the person who owned the land where the treasure was located. In Vermont, by Statute, lost or abandoned property is to be held for a period of time and then sold at auction with the proceeds going to the town where the property was discovered (source). In still other states, lost property that has been discovered must be surrendered to a government official where it is to be retained for a certain period of time. If no one claims it, the finder becomes the owner. In Alaska, for example, a private individual finding property must deposit the property with a law enforcement agency for one year. If no one claims it after a year, it becomes the property of the finder (source).

Morgan v. Weisner, 711 S.W.2d 220 (Tenn. App. 1985)

In the case of David Lewis’ treasure, if it is located, it will be located in the Commonwealth of Pennsylvania on either private or state ground. If the treasure were to be located on private land, the Pennsylvania Supreme Court has held that the finder of the lost property has a valid claim against “all the world, except the true owner.” Applying this rule to David Lewis’ treasure, since Lewis’ ownership of the treasure was premised upon theft, his descendants, if there are any, would not have a claim to the treasure. There would be a possibility that his victims could claim the property, but it is exceedingly unlikely that any of them would file a claim. Even if they did, there would be a strong argument that they abandoned their interest long ago.

But what if the property were discovered on state land? In Pennsylvania, in many instances the State Department of Conservation and Natural Resources does allow “reasonable” metal detecting on state land. This is generally limited to the use of a screwdriver or ice pick to locate objects, and not all state lands are available for exploration.
There is a recent treasure hunt in Pennsylvania that has garnered significant media coverage. For years, Dennis and Kem Parada operated a treasure-hunting company called “Finders Keepers” that searched for lost gold in Elk County, Pennsylvania. The story goes that during the Civil War, a wagon train carrying gold from Pittsburg to Harrisburg went missing in a remote area of mountainous Northern Pennsylvania. By the 2010s, the Paradas thought they had located the lost gold on state land. This would have set up a battle between the state and the Paradas, but in 2018, the F.B.I., armed with a search warrant, excavated the site where the gold was thought to be located. Ultimately, the F.B.I. reported that no gold was discovered, leaving ownership of the gold in question. The Paradas have filed suit against the F.B.I., and litigation continues (source).

While we do not know for certain, had gold been discovered, the federal government would likely have claimed it was the real owner of the gold which may have granted it a superior claim over the finder, under Pennsylvania law, as well as the state, whose ownership interest would have been based upon the ownership of the property.

Treasure Discovered by Trespasser

In order for a finder of property to have a valid claim of ownership over the lost property he or she found, the finder must be lawfully on the property where the lost property is located. Trespassing on private property is a crime in all fifty states. In one case, a man was charged with trespassing, theft, and presenting false identification after he recovered three pennies, two quarters and four dimes from private property (source). In another case, three individuals were charged with criminal trespass while searching the New York City Sewer System for treasure (source). The article did not say if they had found anything of value.

Of course, it should go without saying that one should not trespass on other people’s property, but there are nuances that an innocent treasure hunter might want to consider. First, property that may seem open to the public may be off limits. In Pennsylvania, one is only guilty of trespass if the property is posted against trespassing. Pennsylvania’s “Purple Paint Law”, for example, allows a landowner to “post” his or her property merely by painting some purple lines on a tree. If a person does not see the purple paint, that person is trespassing. There are other circumstances that can lead to an accusation of trespassing such as when a property line is not obvious or the person who granted permission is not the landowner.

18 Pa.C.S. 3503.

It is also not beyond the realm of possibility that a landowner could deny, after the fact, that a treasure hunter had permission to search for treasure on his or her property, especially after a valuable item has been discovered. The scenario could lead to a legal battle centered upon witness credibility, not a situation anyone would want to be in.

The best way to ensure there is no ambiguity is for the treasure hunter to have written permission to search for treasure with a clear understanding as to the ownership of any treasure discovered. The written agreement can alter the traditional ownership rules of a state and allow for a partition of the treasure in any manner agreed to by the parties. A contract of this type would generally be enforceable.

Federal Land

In many instances, the land where the treasure is located will be owned by the federal government. Overall, the federal government owns about 29% of all land in the United States. In the Western United States, up to 90% of all land is owned by the federal government. It is difficult to say what untold treasures may be located in these vast tracts of land. The government, however, has absolute ownership over everything on or under its property. If the treasure one seeks is gold, silver, minerals, or gems in their natural form, the government generally allows prospecting for these natural resources. However, other forms of treasures generally cannot be removed without a government permit.

Klein v. Unidentified, Wrecked and Abandoned Sailing Vessel, 568 F. Supp. 1562, 1567 (S.D. Fla. 1983), aff’d, 758 F.2d 1511 (11th Cir. 1985) and General Mining Law of 1872, 30 U.S.C. 22 et. seq.

There are two statutes concerning exploration on federal lands that are of special interest because they criminalize the collection and possession of some forms of treasure. These are the Antiquities Act of 1906 and the Archaeological Resources Protection Act of 1979 (ARPA). The Antiquities Act sought to criminalize the collection of “objects of antiquity”; however, in 1974, the Ninth Circuit Court of Appeals found the statute to be constitutionally vague. Thereafter, Congress enacted ARPA which criminalized the collection of “archeological resources”. An archeological resource is defined as:

United States v. Diaz, 499 F.2d 113 (9th Cir. 1974).

Any material remains of past human life or activities which are of archaeological interest as determined under uniform regulations promulgated pursuant to this chapter. Such regulations containing such determinations shall include but not be limited to: pottery, basketry, bottles, weapons, weapon projectiles, structures of portions of structures, pit houses, rock paintings, stone carvings, intaglios, graves, human skeletal material or any portion or piece of any of the foregoing items.

There are only a couple limitations to the definition. First, the discovered object must be more than 100 years old. In addition, arrowheads are exempt from the statute. Other than that, virtually anything that would constitute a treasure is potentially protected under the Act.

It is also noteworthy that although ARPA would, by its own terms, only apply to federal or tribal property, some courts have extended the statute to discovery of artifacts on private property. The only conclusion to be drawn is that treasure hunting for artifacts on federal land is extremely risky.

David G. Bercaw, Requiem for Indiana Jones: Federal Law, Native Americans, and the Treasure Hunters, 30 Tulsa L. J. 213 (2013).

This attempt to legislatively protect items of “archaeological value” is likely counterproductive. Vast amounts of treasure exist in federal lands, but in many if not most areas, there are simply insufficient law enforcement resources available to police and protect these items. The result is that untold items of “archeological value” are likely simply looted and sold on the black market. A statute like the U.K. Treasure Act of 1996 would allow treasure hunters to benefit legally from their finds while, at the same time, protecting valuable archeological finds.

Conclusion

A treasure trove of gold and silver coins may lie buried or hidden in a cave in the mountains of Central Pennsylvania, stashed there more than 200 years ago by David Lewis. The directions to the treasure are vague, and if anyone is to find it, substantial research and planning would be required. But what would the reward be for locating this find. Would it be wealth, fame, and fortune, or would it be an indictment and a prison cell? The answer is “it depends”. It depends upon where the treasure is located and who owns the property where it is located. Assuming that the “finders keepers” rule applies could cost a treasure hunter not only the discovered treasure but also his or her freedom.

Understanding the law is at least as important as locating the treasure.