North Carolina v. John B.

Re: Outer Banks (2020)/Lost and Abandoned Property, Treasure

What happens when lost or abandoned property is found?  Who owns that property?  Who can claim ownership of hidden treasure?

Sources:

Archaeological Resources Protection Act, North Carolina General Statutes, Ch. 70, Art. 2.

Unmarked Human Burial and Human Skeletal Remains Protection Act, N.C.G.S. Ch. 70, Art. 3.

Grande v. Jennings, 278 P.3d 1287 (Ariz. Ct. App. 2012).

Katy Steinmetz. "The Law of Finders-Keepers and What Happens When You Find Buried Treasure." Time Magazine. Feb. 26, 2014.

 https://time.com/10118/california-gold-coins-finders-keepers-john-mary/

Michael Scott Moore. "California's Novel Attempt at Land Reparations," The New Yorker.  May 27, 2021. 

https://www.newyorker.com/news/us-journal/californias-novel-attempt-at-land-reparations

Written, Researched, and Recorded by Céleste Young, 2023-2025.
Music: Out On My Skateboard - Mini Vandals

Waitisthatlegal@gmail.com

Transcript

  Hey there, this is part 2 of my episode on the Outer Banks.  Last time I discussed Exhibit A which was the legal issues surrounding the shipwreck of the Royal Merchant.  In this episode I will be discussing the treasure found on land.

Exhibit B – The Spanish Gold

            The question of who is the rightful owner of the gold can be approached using the common law personal property concepts of lost, mislaid, or abandoned property.  Common law refers to the system of laws created by English courts that over time resulted in commonly accepted legal concepts in English law.  These concepts form the basis of the United States’ legal system and in all of its States except Louisiana, which follows the French system.  Generally speaking, these are broad concepts of law that are usually further expanded upon by federal or state laws and by the American courts.  Here, we are using the basic common law principles dealing with personal property as a starting point for determining who has a claim to the Royal Merchant gold.

            Lost, mislaid, or abandoned property refers to personal property (as opposed to real property which is essentially land, personal property is usually moveable) that has left the possession of one owner but has not formally transferred into another owners possession.  With personal property the way that it leaves the possession of the original owner will determine if the finder of the property is now the legal owner.  The property can leave its owner’s possession by being lost, mislaid, or abandoned.

            Personal property is considered lost when it leaves the possession of its owner in a place that the owner does not know it has lost the item and likely did not intend to lose the item.  Under common law, the finder of lost property has a right to the property that is only superseded by the rights of the original owner.  In most places now finders of lost property are generally required to turn in the lost property to the appropriate authorities, like the police or a business’ lost and found, so that the true owner may be found, but if the original owner never shows up to claim it then the finder is usually given legal ownership of the lost item.

            Mislaid property refers to property that is placed somewhere by the owner intentionally and in a manner that shows they will likely return to retrieve it.  A finder of mislaid property does not have a legal right to the property.  If the true owner of a mislaid item never returns for the item, then the owner of the premises where it was mislaid will usually gain ownership over the property.

            Personal property is considered abandoned when it is left intentionally by the owner but it has become clear, either by the condition of the property or by time, that the owner does not intend to return to claim it.  A finder of abandoned property gains legal rights to the property simply through possessing it.  There is a special category of abandoned property called treasure trove, which is usually coins or currency that is deliberately hidden by the  original owner but is considered abandoned due to how long it has been there.  The original owner of the property is considered the true owner, but if they cannot be identified or found then most jurisdictions will recognize the owner of the property the trove is found on to be the new owner of the items.  In some places the person who finds the treasure trove can claim it, but not if they found it while trespassing or committing another crime.

            The difference between mislaid and abandoned property lies in the intent of the original owner, for property to be abandoned the owner must consciously give up all intentions of reclaiming the property.  In the legal sense, this basically comes down to whether the property ends up being claimed in a timely manner after it is discovered.  For example, an Arizona court found that the cash found in the walls of a house by the new owners actually belonged to the estate of the previous owner of the house.  The court classified the money as mislaid property because the deceased original owner had left a lot of money stashed in similar places showing that the money was intentionally placed.  The daughters of the deceased man had thoroughly searched the house before selling it, but had obviously missed the last few hiding places.  The estate did put in a claim on the money as soon as they learned it had been found, so as the heirs of the original owner they had a superior claim to the mislaid property over the new owners of the house.  This is in contrast to another case where a couple in California found $10 million in gold coins from the 1800s buried on their property and were awarded ownership over them.  The only real difference between the cases is time.  In the Arizona case the estate of the original owner had a strong claim to the mislaid property because such a short time had passed since the new owners had bought the house and found the money.  In the California case, the coins were from the 1800s, almost 200 years had passed between the original owner of the coins burying them and the new property owners finding them.  Basically, the longer it takes someone to make a claim on the property the weaker that claim becomes until the intent of the original owner cannot be known and the property is classified as abandoned.

            In the show the original owner of the gold seems to be Denmark Tanny.  He is the only survivor of the wreck of the Royal Merchant and we know he uses some of the gold to purchase a significant amount of the island for his estate of Tannyhill.  When he is facing execution he writes a letter to his children hinting at where he hid the rest of his gold.  John B and his friends are able to figure out where the gold is from the letter and the old plantation map, so it is likely that Tanny’s children would also have been able to recover the gold, if they had been able to.  So an argument could be made that Denmark Tanny left the gold in a specific location with the intent that his heirs would return to collect it which would classify the gold as mislaid property.  This means that regardless of what happened to Tannyhill after Denmark Tanny’s death, his heirs had a legal claim to the gold.

            Of course, Tanny’s children never had the chance to return to the property and over time they forgot about the letter.  The passage of time and the fact that the gold bars would have been currency at the time means it is more likely that the gold would be classified as an abandoned Treasure Trove.  Using this classification John B and his friends could have asserted a claim to the gold because they are the ones who first found and possessed it.  Unfortunately, this is a claim they would absolutely lose because they were trespassing when they found it.  Ward Cameron does the smart thing and buys the land the gold is on before he digs it up, as the owner of the real property where the gold is found he becomes the legal owner of the Treasure Trove.  This is if the old woman who owned the house before Ward bought it doesn’t assert a claim, because technically she was the owner of the property when the teens first found the gold.   However, she doesn’t even know about the gold because Ward digs it up and smuggles it to the Bahamas.  Even if she knew about the gold she likely wouldn’t try to claim it because the well under her house where the gold is also contains the bones of her husband who mysteriously disappeared.  Ward might actually have done her a favor by digging up the well and not telling anyone about the gold because if he had gone through the proper legal channels the bones would have been discovered and the old lady might have been charged with murder.

            I’m going to leave the issue of the gold for a moment to talk about the property where the gold is found.  Denmark Tanny was a free Black man who shipwrecked on the coast of North Carolina when slavery was still legal and practiced in the U.S.  Not only was Tanny free, he was incredibly wealthy because he ended up with the entirety of the Royal Merchant’s riches.  With the gold from the ship he buys Tannyhill, a plantation that encompasses a large part of the island the current Tannyhill is on.  We find out that the plantation included the current Tannyhill, the well and the land the old lady’s house is built on, and the abandoned church.  The reason Denmark Tanny’s land was partitioned off was because it was seized by the white islanders after he was arrested.  Aside from defying the cultural norms at the time of being a rich, Black landowner; Tanny was also a plantation owner with no slaves.  Tanny used some of the gold to buy the freedom of the slaves on the island which proved to be too much for the white folks of the Outer Banks.  Tanny was essentially lynched and his land was stolen under the pretense of Tanny having committed some crime.  His children would have been too afraid to challenge the land sales or to come back to get the gold because they might be lynched too.

            I think it is an important factor to consider that the property was subject to illegal seizure, especially since we learn in season 2 of the show that Pope is a direct descendant of Denmark Tanny.  Because of the history of the land, Pope’s family might have a legal claim to the gold as a form of reparations.  Tanny’s descendants are not alone, seizures of property owned by minorities have not been rare occurrences in the U.S., but recent events have brought discussions about reparations to the table.  There have even been efforts more recently to try to rectify these illegal land grabs, one such example was Bruce’s Beach in Manhattan Beach, CA.

            In 1912, a Black couple, Charles and Willa Bruce bought beachfront property in Manhattan Beach, CA.  They built a resort and community recreational area that was one of the very few beaches open to Black people in Southern California at the time.  The success of the resort and the rise in popularity and profitability of beachfront property led to a decision by the city of Manhattan Beach using eminent domain to make the Bruce’s and other Black family’s land into a public park.  In 1927, the Bruce’s land was purchased by the City for much less than it was probably worth, all the buildings were demolished, and the land sat vacant and unused for several decades.  The land was eventually made into a park and had several names before it was named Bruce’s Beach in 2020 as a way to honor the original owners of the land.  The land had actually changed ownership from the City of Manhattan Beach to the State of California in the 1980s, and to Los Angeles County in the 90s.  In 2021, the County and the State Legislature decided that due to the unique situation where the City had seized the land but not actually developed it, the County was in a position where they could just return the land to the descendants of the Bruce’s.  The final piece of the transfer was approved by Governor Gavin Newsom on September 30, 2021 and the 7,000 sqft. property, estimated to be worth $75 million, was returned to the descendants of Charles and Willa Bruce, who ultimately chose to sell the land back to the County at current market value.

            Bruce’s Beach is a unique situation where the City of Manhattan Beach took the property and then held onto it completely intact for almost a century.  In most cases, land that was illegally, or just unfairly, seized was sold to other people or used for legitimate government purposes, like highways.  The Rondo Neighborhood in my hometown of the Twin Cities is an example of a city unfairly choosing to build an Interstate highway through a Black neighbourhood because they knew it would be cheaper and would meet less resistance than trying to build it through a White neighbourhood.  

            In the Outer Banks, Tannyhill has been divided up and sold off as private property over many decades.  And, even though the original buyers did not have clean hands, the subsequent owners cannot be held criminally liable for buying, selling, or owning the land; this would pretty much make owning land in the U.S. impossible.  Because Tannyhill no longer exists in its original state it would be impossible for the government to just return the land to Tanny’s descendants, but unclaimed treasure found on that land that can be traced directly back to Denmark Tanny could be used as a form of reparations.  I believe a real argument could be made that if the ownership of the gold had been brought in front of a Judge, the Judge could have decided to just return the gold to the heirs of Tannyhill because they are both the descendants of the true owner of the gold and the land the gold was found on.  This would have been a great way for the local government of the Outer Banks to acknowledge the wrongs of the past and to offer some measure of reparations for the loss of Tannyhill to Tanny’s heirs without actually costing the government anything.

Exhibit C – The Cross of Santo Domingo

            In the second season of Outer Banks, John B and the gang learn that the Royal Merchant was carrying more than just gold.  They discover that the Royal Merchant had stopped a Spanish vessel carrying gold and a large gold cross set with countless jewels, the captain of the Royal Merchant took the treasure and then a hurricane hit which caused the ship to sink.  The Cross of Santo Domingo was meant to be a gift to the Spanish government and contained a religious relic, the garment of the savior, which for those of you out there that play Assassin’s Creed is basically the Shroud of Eden precursor artifact.  The Spanish gold was one thing, but the lunacy of a giant cross being part of the treasure, but not part of the legend is crazy. Especially since this random woman somehow knows about the Cross, the Shroud of Eden, and the Key that was passed down through Denmark Tanny’s family, it’s a bit much.  She is a descendant of the Royal Merchant’s captain, but he would not have had the ability to tell anyone about the treasure because the Royal Merchant sank right after they looted the Spanish ship.  Tanny was the only survivor so he is the only source for information, so I guess he wrote a nice letter to the Captain’s family about his final days and made sure to outline his plans for the Cross.  Plot holes and devices aside…

            Just looking at the law and the facts we can still try to determine who might have a claim of ownership over the Cross.  The fact that Denmark Tanny concealed the Cross inside the Church he built for the freed slaves and left a trail of clues for his heirs to follow starting with the Key shows that the Cross was clearly not lost and would have to be classified as mislaid or abandoned property.  So like the gold in that Tanny set up a series of clues for his children to follow, first to find their mother’s grave and then to the Cross at the church this would support a claim that the Cross should be considered mislaid property.  However, also like the gold, Tanny’s heirs never tried to find the Cross or lay a claim to Tanny’s property and the length of time that has passed would probably move the Cross into abandoned property.  Unlike the gold though, the Cross does not qualify as treasure trove because although it is ancient, it is not a form of currency.  The Cross would likely be considered abandoned property and would have several possible claimants. 

            The Cross is a distinct artifact whose original owner was the colony of New Spain who intended it as a gift to Spain.  The fact that the Cross was stolen in an act of piracy by the Royal Merchant is also significant because the original owners did not lose or abandon the property; it was unlawfully taken from them.  Denmark Tanny was never the legal owner of the Cross, so the original owners might still have a claim.  Except, of course, that New Spain no longer exists, nor is it just one country.  By the time the show says the Royal Merchant sank, New Spain encompassed an area that today is mostly Mexico, but also Central America as far as Costa Rica and most of the South Western United States and California.  New Spain was a colony of Spain at the time and the Cross was intended to be a gift to the Spanish Monarchs, so it would not be too much of a stretch for Spain to assert a claim for the Cross.  It is also not without legal precedent that any of the countries that made up New Spain could attempt a claim like Peru did in the Mercedes case discussed in the first part of this episode.

            When it comes to ownership of personal property, the saying goes that possession is nine tenths of the law, which means that the person in actual possession of the item often has a better chance of proving they own the item, except in a case of trespass or theft.  Basically, Spain may have a claim based on the original ownership, but the fact that Denmark Tanny ended up in possession of it makes his claim somewhat stronger.  It is problematic to his claim that the Cross was stolen, but as the Royal Merchant’s cook he was hardly in a position of any authority nor could he be considered culpable in the act of piracy.  He simply removed the gold and Cross from the shipwreck when he was the only one to survive it’s sinking.  The show does not make it clear, but we can assume that Tanny built the church on the land he owned which would mean that he maintained possession of the Cross.  Therefore, Denmark Tanny’s descendants would likely have a superior claim to the Cross over Spain.  

            The third potential claimant to the Cross could be the Church itself.  Denmark Tanny built the church for the community of slaves that he freed that lived on the island, it was aptly named Freedman’s Church.  He then built into the church a hiding place for the Cross.  The two potential claimants for mislaid property are the original owner and the owner of the place where the property is left.  So, even though Tanny left the Cross hidden in the Church, no one ever came forward to claim it, so over time the Church would probably be considered the owner of the Cross, a claim also made stronger by the actual possession of the artifact.  This depends on whether the Church community still exists and whether they maintained ownership of the building.  When Pope discovers the Cross the church appears to be abandoned, and there is no mention of who actually owned the building or the land, so the Church probably wouldn’t come forward to stake a claim.

            The final claimant of the Cross would be the State of North Carolina and the United States government who would argue that the Cross’s historical significance means it should be studied and displayed in a museum.  The Church seems to be entirely abandoned and the surrounding land is in just as much disrepair so it is possible the entire area is abandoned property.  If this is the case, then the property and the Church are probably on State land because abandoned property is generally given over to the government if no owner or successor in interest can be found.  Moreover if it is abandoned, no one is paying the property tax which gives even more credibility to the State’s claim on the land.  So assuming the land with the Church is owned by North Carolina then the Cross is subject to the State’s Archaeological Resources Protection Act, which prohibits the excavation of historical artifacts on State Lands without a permit.  The penalty for violating the Act ranges from forfeiture of the artifacts and a fine to criminal charges.

            If the Church is on private property then the Cross can be registered as a historical artifact by the owner of the land.  North Carolina maintains a voluntary register of archaeological resources found on private land.  But regardless of whether the Church is on State-owned or private land, the fact that the grave of Denmark Tanny’s wife was disturbed is a real problem for everyone involved.  Digging up human remains without authorization is illegal in most places, North Carolina included.  Failing to report finding human remains is its own violation, but completely excavating the remains without the permission of the local coroner’s office or the State Archaeologist is a violation of North Carolina’s Unmarked Human Burial and Human Skeletal Remains Protection Act.  The life lesson here is that if you find human remains, or even bones you can’t rule out as being human, you should always contact the authorities.  At the very worst you might have stumbled across evidence of a murder, at the very best you will find yourself at the center of an incredible archaeological discovery, but most likely you have found an unmarked grave and the remains deserve to be treated with respect.  As soon as they realized they were digging up a coffin and not the Cross, the excavation crew should have stopped and alerted the County Coroner’s office.  It’s actually a bit perplexing that they do not; Limbrey is a wealthy private citizen looking for a religious artifact to cure herself with it would not help her to be in prison.  The rest of them are criminals so I can see why they do not seem to care about the remains, but John B and his friends could have called the coroner in the aftermath to ensure Pope’s great-great-great-whatever grandmother’s remains could be properly reburied.  More importantly, her grave would then be recorded so it could be acknowledged and protected.

            The person who ends up in possession of the Cross by the end of Season 2 is Ward Cameron and his son Rafe.  They only have a claim to the Cross through their possession of it (possession is nine tenths the law, etc.), but it is not as good of a claim because they committed a whole lot of crimes in order to be in possession of the Cross.  In finding the Cross, Rafe desecrated a grave; arguably trespassed and stole the artifact from its rightful owner, or at the very least the person in lawful possession, which was Pope; Rafe also committed murder and attempted murder.  Even if Pope was not the true owner; Rafe stole a priceless historical artifact from the U.S. and North Carolina governments and/or the Spanish government.  Ward Cameron would still be guilty of the murder of Sheriff Peterkin that he confessed to then faked his own death and would be in serious trouble for both faking his death and fleeing prosecution.  His wife, Rose, would be guilty of abetting Ward’s escape, but could potentially be implicated with all the crimes committed by Ward and Rafe as a member of the conspiracy to cover up the murder of Sheriff Peterkin and escape justice.  None of the Cameron’s could lawfully claim ownership of the Cross because they only possess it through a vast web of criminal behavior.

            Again, John B and his friends should have told someone they potentially found the Cross, before they even tried to remove it from its hiding spot in the Church.  They could have even done it under the guise of just being about the grave.  If they had told someone, especially an adult with a significant interest in archaeology and preserving the history of the area, they would have had a much better chance at keeping the Cross safe.  I’m also unsure of what anyone even plans to do with this huge, heavy religious relic.  I know Limbrey only cared about the Shroud, so her interest in the Cross was done when it was not inside the Cross.  I get why Rafe would impulsively steal it, he’s an idiot who only saw the gold, jewels, and validation as the bestest and smartest child.  The reality of having the Cross seems like a more of a headache, which is probably why Denmark Tanny hid the Cross in the Church, because displaying it would have brought attention and danger to the congregation.  Even in the modern day, it’s not clear how one would even sell the Cross.  It would probably be worth the most intact and with the full history of where it came from, whom it was meant for, and what it claimed to have contained within.  This provenance is now impossible to show because it has been completely removed from the context that proves what it is, which is that it was hidden in the Church built by the only survivor of the Royal Merchant.  Once the Cross was removed from the Church and smuggled off the island only Pope and the other teens can verify its authenticity.  I guess that Rafe just plans to sell it as a giant chunk of gold and gemstones, which although they would be valuable, are much less valuable than the historical significance of the Cross and its possible connection to a Biblical artifact.  This is all made much worse for Rafe now that the entire crew of the boat has seen the Cross and both the teens and Limbrey are out there with the knowledge of its true importance.  The crew is the more immediate problem for Rafe and Ward.  They agreed to smuggle a fugitive out of the country, so we know they are not exactly model citizens, and now that they have seen the Cross they are definitely going to demand a cut.  The Camerons have essentially been outed as being worth a lot less than the goods they brought onto the boat, and as being more trouble than the crew probably anticipated them being.  Now the Camerons are in some deep water (pun intended) so we will have to see how that works out for them.

Conclusion

            So way back at the beginning of part 1 of this episode I asked the questions: what happens when treasure is found and who gets to keep it?  The concepts of lost, abandoned, and mislaid property are somewhat abstract, but rely on two key facts: where the property is found and what was the intent of the original owner.  The type of property and the time that has passed are also important factors for determining ownership.  In the Outer Banks, the gold is found on private property, under an old woman’s house.  The gold is in bars which makes them a form of currency.  The original owner of the gold is technically the Spanish but it ends up in Denmark Tanny’s exclusive possession.  Tanny buried the gold on his property for safe keeping and left instructions for his children on where to find it.  The gold has been buried for at least 200 years.  The fact that the gold is currency that was only found after 2 centuries had passed makes it likely to be classified as treasure trove which means that it belongs to the person who owns the property it is found on.  Here, that is Ward Cameron because he buys the house once he finds out where John B found the gold.  Even though John B found the gold first, he cannot claim it because he was trespassing when he found it.  Therefore, the gold likely belonged to Ward, I’m going to use the past tense here because Ward failed to disclose the existence of the gold and instead dug it up and took it to the Bahamas.  In all the cases and articles I read this is where people get into trouble.  If there are multiple claimants, but someone just up and leaves with the treasure before it can all be sorted out, that really pisses off the court.  By the end of season 2, Ward’s secreting away of the gold is the least of his worries.  He confessed to murder before faking his death, but since he is actually alive he is a fugitive wanted for killing Sheriff Peterkin.

            The other problem with the gold is that unlike most treasure troves, where the owner is usually never known, the show tells us that it is Denmark Tanny’s gold and there is documented evidence of his intent in burying the gold.  Tanny wanted his children to come back for the gold and told them where to find it.  It is entirely likely that had Tanny not been lynched by the white islanders, the gold would have remained in the Tanny Family and Pope, as a direct descendent of Denmark Tanny, would now be its owner.  And it is the criminal execution of Tanny and the illegal seizure of his land that is what breaks the chain of ownership, so I think that a Court could actually find that the gold belongs to Pope and his family outright or as reparations for the deeds of past administrators on the island.  

            As for the Cross, it is clearly a significant historical artifact and should never have been removed from the Church.  This is an example where North Carolina’s statutes override the common law classifications of property.  The State has made it very clear that they want to preserve items that have historical value.  The Cross is tied to Spanish colonialism and also to Biblical history; and that fact that it ended up hidden in the roof beams of a church built for freed slaves in the Outer Banks would make it extremely interesting and important to archaeologists in North Carolina.  If the Cross had been handled properly it would belong to the State of North Carolina.

            Despite the high drama and violence that often accompanies treasure hunting in movies and especially in Clive Cussler novels, real treasure hunts are a lot more tedious.  It takes a lot of time, research, and money to search the sea floor for shipwrecks.  It might be slightly less resource-heavy to search for buried treasure on land, but there are a lot more rules to navigate.  In both situations, the likelihood of the treasure ending up in the center of a legal dispute is high, even higher if the finders have tried to ignore the rules.  The reality is that treasure hunting is rarely super discreet and the law actually favours disclosure and openness.  It’s often less one university professor chasing down one artifact, and more like the Titanic.  Famously, the Titanic was found after the U.S. Navy used the expedition as a cover for finding sunken submarines without the U.S.S.R. knowing.

            Of course, not all treasure hunters are interested in just getting rich.  Most seem to enjoy the hunt and definitely enjoy the recognition of being the ones to find a long lost shipwreck.  Some, like Cussler’s NUMA are interested in finding wrecks with historical significance that have no financial gain, like the Hunley.  And even a few treasure hunters have managed to make not finding treasure a lucrative endeavor.  There are 10 seasons so far of The Curse of Oak Island on History Channel.  In general, it doesn’t seem like most treasure hunters ever really get rich, after all the investors, lawyers, crew, and equipment they are lucky to break even on the off chance they find anything at all.  But when they do find something, it’s often the artifacts they can’t sell that attract the most attention and the historical value of the find is what sells the tickets to the museums and cements the legacy of its discoverers.

            In the end, the Outer Banks is a great fictional account of searching for treasure.  The show would be pretty boring if John B’s dad and Ward Cameron had actually applied for a permit to salvage the Royal Merchant and then spent the rest of the series in Court fighting over the spoils.  And even more boring if it was about the archaeological survey and dig of the island in search of the gold and the cross based on the information brought to the State about where Denmark Tanny had told his children to look.  But if it had been done that way, there would be a lot less people dead and the public would benefit from actually getting to see the artifacts in a museum.  And Denmark Tanny would finally get to have his story told.

Thank you for listening.  This show is researched, written, and recorded by me, Céleste Young.  None of the legal advice or opinions expressed in this episode are intended as specific or individualized legal advice.  If you have questions or comments please e-mail them to Waitisthatlegal@gmail.com.

            Always find out where buried utilities are before you dig and make sure to report any human remains you find.