Request By:
Hon. Richard A. Hughes
Asst. Commonwealth's Attorney
32nd Judicial District
P.O. Box 491
Catlettsburg, Kentucky 41129
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of February 14 in which you, on behalf of the police department of the City of Ashland, request an opinion to clarify the term "claimant" or "lawful claimant" as used in KRS 95.435 dealing with the custody and disposition of property taken by the police department. The question boils down to whether property otherwise unclaimed should be auctioned off, or whether the finder of the property could be considered as a person qualifying as a claimant or lawful claimant, and if so, should such person be required to go through the same formality of filling out a claim application as any other claimant.
KRS 95.435 declares in effect under subsection (2) that all property coming within the custody of the police department shall be registered with the names of all persons making claims thereto, which shall be advertised pursuant to Ch. 424 KRS. Subsection 4 provides that all property that remains in the custody of the police department for three months without any lawful claimant may be sold at public auction after due advertisement.
We find no cases in point and as a consequence the question would be one for the courts to finally determine. However, we believe that the finder of the property could be considered a claimant and lawful claimant since it was originally found by him and therefore in his possession. He may not, however, be the lawful claimant if one exists and can prove the property is actually his. The term "lawful" implies that it is authorized, sanctioned, or at any rate not forbidden by law.
State v. Reeves, 261 N.W.2d 110, 199 Neb. 725. The term "claimant" is defined to be one claiming ownership or at least a possessory interest.
U.S. v. $15,000 of U.S. Currency, 550 F.2d 1359. The term "possessory" is defined in Bouvier's Law Dictionary as relating to possession or a claim of possession and as a general rule the possessor of personal chattel is presumed to be the owner. Also, in 73 C.J.S., Property, Section 28, the possession of property is deemed to follow ownership and is an element of legal title but does not in itself imply title. However, it is further stated that although possession is the lowest type of title, it is good against anyone not having a better title.
Under the circumstances, and assuming the finder of the property has filed a claim within the three-month period and provided no other claim or a better claim is filed for the property within said period of time, we believe that the finder of the property would be considered a lawful claimant within the meaning of KRS 95.435.