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Is the Law of Acquisition of Property by Find Going to the Dogs?

Eric W. Neilsen

15 T.M. Cooley L. Rev. 479 (1998)
Publish Date:
Place of Publication: Thomas M. Cooley Law School
Printable Version

Is the Law of Acquisition of Property by Find Going to the Dogs?



Eric W. Neilsen [FNa1]

Copyright © 1998 Thomas M. Cooley Law School; Eric W. Neilsen. Reprinted with Permission.

The best friend a man has may become his enemy. His son or daughter, reared with loving care, may prove ungrateful. Those nearest and dearest, whom we trust with our happiness and good name, may become traitors to their faith. The money a man has, he may lose. The people who fall on their knees to do us honor when success is with us may be the first to throw the stone of malice when failure settles its cloud upon our heads. The one absolutely unselfish friend that a man can have in this selfish world, the one that never deserts him and never proves ungrateful or treacherous, is his dog . . . . [FN1]

I. Introduction

Americans enjoy the companionship of 55 million dogs and 63 million cats, [FN2] and an estimated 52.5 million homes in America have at least one companion animal. [FN3] They command a central place in the home as Americans emotionally bond with their animals and, in some cases, they are treated as best friends, siblings, or children. [FN4] Each year, 2.2 million dogs are lost [FN5] and permanently [FN6] or temporarily *480 [ FN7] separated from their true owners. And "[d]espite all of the proof that companion animals are loved and valued, and despite the evidence that a unique and irreplaceable relationship exists between human and animal," [FN8] our statutes and common laws are moving away from recognizing the continued right to ownership in lost companion animals based on public policy reasons. [FN9]

For many centuries, the common law was that a finder had rights superior to everyone but the true owner, [FN10] and the property interest in a lost companion animal was always protected. But some states have enacted lost property and estray statutes which provide for the transfer of title to finders-while affording minimal procedural due process protection to the true owner. After many years of indecision as to whether these statutes apply to lost companion animals, some courts have relaxed the statutory requirements in order to facilitate the transfer of possession to finders to help ease the substantial problems that lost companion animals are causing to society at large. But in the face of this movement by some courts, other courts are reinvigorating the common-law right in property based on the animal's economic [FN11] or market value. [FN12] Further, these courts have identified the companion animal's special place in the heart of the family by including its intrinsic value in the valuation of tort claims. [FN13]

This Comment will attempt to resolve the considerable confusion in the law of acquisition by find of property as it relates to companion animals. [FN14] First, the development of the theories of the common law and legislative solutions to lost and estray property will be examined to provide a legal foundation for analysis of lost property and animals. Then, the focus will turn to the public policy arguments that *481 courts across the country are relying on in their decisions as new common law is made in judicial resolutions of the competing issues. Finally, the Author will provide a reasonable solution in light of legislative and judicial action.

II. Background

A. The Development of the Common Law

1. First Possession: Acquisition by Capture

Since all companion animals are domesticated wild animals, any discussion of property law relating to domesticated animals must necessarily begin with a discussion of the property rights that owners have in captured wild animals. Under the doctrine of ferae naturae, [FN15] if a wild animal is captured, it belongs to the captor. [FN16] For example, in the famous case of Pierson v. Post, [FN17] Lodowick Post was pursuing with his hounds a fox which Pierson, who was hiding in the bushes, intercepted, killed, and carried off. [FN18] Post brought suit to recover the fox. [FN19] The court held that pursuit of a wild animal is not "possession" under the law, and dismissed the suit. [FN20] Even though this rule was simple and easy to apply, the doctrine was limited to the application of killing and capturing of wild animals.

Over time, various exceptions to the doctrine developed. If an animal had been mortally wounded or trapped so that capture was virtually certain, the animal was treated as captured. [FN21] Also, in a few jurisdictions, an exception was made for industry custom. [FN22] In *482 some hunting trades, a custom, which is more effective in getting animals killed, may dictate a different result. [FN23] For example, in Ghen v. Rich, [FN24] among American whalers, the custom was to award the whale to the ship that killed the whale [FN25] -even though the whale sank and was discovered several days later. [FN26] The courts have recognized this custom when a group of people have defined proper conduct that they have worked out among themselves to solve a particular problem. [FN27]

The area of acquisition by capture that is most related to lost dogs is wild animals with animus revertendi. [FN28] Generally, these are captured wild animals that have a habit of returning to the wild, but they continue to belong to the captor even when they are roaming at large. [FN29] However, if a captured wild animal that has no animus revertendi escapes, [FN30] the captor loses possession, and the animal is again subject to capture by another. [FN31] The only exception to this rule is that if the animal is not native to the area, but unusual, then a subsequent captor is put on notice that the animal has escaped and some other person has prior possession. [FN32] Therefore, the hunter, or would-be possessor, cannot capture the animal for himself. [FN33]

In conclusion, under the doctrine of ferae naturae, the captor of wild animals, who either kills or tames the animals, is entitled to possession over all subsequent finders. [FN34] Stray or lost companion animals would be best classified under the common law as domesticated *483 wild animals with animus revertendi. [FN35] The common law protected the owner's interest in his animals because domesticated animals were valuable to society; thus, the captor's effort to tame wild animals was to be rewarded through the recognition of ownership. [FN36] However, after first recognizing the property interest in domesticated animals, the courts were left with the issue of whether that interest continued if the animal became separated or lost from its owner and came into the possession of another.

2. Subsequent Possession: Acquisition by Find

The goal of the common law is to reunite property with its true owner. [FN37] Thus, an owner of property does not lose title by losing property, and the owner's rights persist even though the article has been lost or mislaid. [FN38] In order to meet this goal, the common law categorizes found property based on many factors, such as the location of the property and the loser's intent at the time the property was lost. [FN39] Generally, courts have determined that an article is lost, mislaid, or abandoned when it is not in the possession of the true owner and is found by another in a public place. [FN40] And based on any of those classifications, the rights of the finder are determined under the common law. [FN41]

*484 The general rule under the common law is that a finder has rights superior to everyone but the true owner. [FN42] In order to reunite the property with the true owner, a classification system had to be established to encourage finders to disclose their finds and subject themselves to the risk that the true owner would claim the item. [FN43] Society encourages the finder to come forward by awarding him possession in recognition of his honesty in reporting lost property to the authorities. [FN44] Additionally, the courts have recognized that the prior possessor ("true-owner") has the superior right over a subsequent possessor ("finder"). [FN45] Therefore, under these common-law principles, courts attempt to reunite found property with its true owner, while at the same time recognizing the finder's interest, based on a factual analysis of the subjective intent of the true owner. [FN46]

For example, in Armory v. Delamirie, [FN47] a chimney sweeper's boy found a jewel and took it to a jeweler to have it appraised. [FN48] Figuring the boy had stolen it, probably did not own it, and would not make a claim for it, the jeweler refused to give the jewel back. [FN49] The court held that the boy was entitled to either the jewel or the full money value of the jewel. [FN50] It reasoned that as between the boy and the jeweler, the boy, as prior possessor, had a superior right as to the jeweler. [FN51] Thus, the jeweler was only the bailee, who must surrender the goods to a prior possessor. [FN52]

The first common-law classification of found property was "lost" property. The courts defined lost property as an article that was unintentionally, involuntarily, and casually separated from its owner. [FN53] An example of this would be a ring that slips through a *485 hole in the owner's pocket or a tenant finding a bag of money in the basement of his previously vacant apartment. [FN54] Also, the true "owner cannot have any knowledge of its location," whether the chattel is lost on public or private land. [FN55] Therefore, the finder is entitled to possession as to other subsequent possessors and/or the owner of the locus in quo, [FN56] but not as to the true owner. [FN57]

In Bridges v. Hawkesworth, [FN58] a patron found a parcel with notes on the floor of a shop, and gave it to the shop owner to hold in case the true owner came back to claim it. [FN59] Several years later, the finder came back to declare his right to the parcel, but the shopkeeper alleged it was his since he was the owner of the locus in quo where it was found. [FN60] First, the court determined that the parcel was lost property because it assumed that it was not intentionally placed on the floor. [FN61] Then, it held that the finder prevails over the shopkeeper, and the finder can take the wallet home to keep for the true owner as a bailee until the true owner shows up. [FN62] Therefore, the finder of lost property is entitled to the property only until the true owner claims it.

The second common-law classification of found property in public places is "mislaid" property. [FN63] Mislaid property is defined as property intentionally placed somewhere and then forgotten. [FN64] The general rule is that mislaid property does not go to the finder; rather, it goes to the owner of the locus in quo. [FN65] The rationale for classifying property as mislaid is to facilitate the return of the object to the true owner. And since it is assumed that the object was intentionally placed where it was found, it is likely that the true owner will remember where she placed it and will return to that location to claim it. [FN66] Therefore, the courts have recognized the continuing interests *486 of the true owner and expedite the process of reuniting the found property with its true owner by establishing an implied bailment with the owner of the locus in quo where the object was found. [FN67]

In McAvoy v. Medina, [FN68] a patron at a barbershop found a pocket-book, which had some money inside, lying upon a table. [FN69] The finder let the owner of the premises keep the purse until the true owner came to claim it-which never happened. [FN70] After three demands for the money, the finder-patron brought suit to recover the pocket-book. [FN71] The court found that the pocket-book was mislaid property because, from its position, it is assumed that the chattel was intentionally placed on the table and forgotten. [FN72] Then, it held that the pocket-book goes to the owner of the locus in quo to keep until the true owner claims it. [FN73] Therefore, as between the finder and the owner of the locus in quo, the finder had no rights in the pocket-book since it was mislaid property. [FN74]

The last classification of objects found in public places under the common law is "abandoned" property. [FN75] If a true owner of property intentionally and voluntarily relinquishes any claim to an ownership interest, the property is considered abandoned. [FN76] An example of abandoned property would be items left in a garbage can. [FN77] The rule here is simple: "courts grant absolute ownership of abandoned property to the next person to possess the property-the finder." [FN78] However, classifying property as abandoned does not further the goal of reuniting the true owner with the property because the classification "effectively deprives a true owner of the opportunity to assert any rights to the property. Therefore, courts usually are reluctant to classify property as abandoned because the classification completely divests the previous owner of her rights." [FN79]

*487 3. Application of the Common-Law Theories

Under early common law, most states recognized a limited property interest in companion animals like dogs such that an action would only lie for conversion or injury, [FN80] but owners were without protection under the criminal laws. [FN81] By the late nineteenth century, domestic pets were considered to be articles of personal property. [FN82] They were considered beasts like minks, cows, sheep, mules, or horses. [FN83] This protected the owner's interests in both civil and criminal litigation over rights and damages to his companion animals. [FN84] In the application of the common-law doctrine to estray *488 pets, the owner's intent must be ascertained from the facts and the animal must be properly classified as lost, mislaid, or abandoned. [FN85] Since there were no "bright-line" rules, the courts had a great deal of discretion in determining these issues of law. [FN86]

An example of the different common-law theories can be found in Conti v. ASPCA. [FN87] Chester was a show parrot, and the ASPCA would use him in various educational exhibitions presented to groups of children. [FN88] During one of the exhibitions, Chester "flew the coop and found refuge in the tallest tree he could find." [FN89] "For seven hours the [ASPCA] sought to retrieve Chester. Ladders proved to be too short. Offers of food were steadfastly ignored." [FN90] As nightfall approached, the search had to be discontinued. [FN91] When the ASPCA returned in the morning, Chester was gone. [FN92]

Conti found the parrot several days later in his backyard. [FN93] After feeding the parrot for two weeks, Conti was able to coax the parrot to enter Conti's home, where the parrot was placed in his new cage. [FN94] Conti then called the ASPCA and "requested advice as to the care of a parrot he had found." [FN95] The ASPCA sent two representatives to Conti's home. [FN96] "Upon examination, they claimed it was the missing parrot, Chester, and removed it from the plaintiff's home." [FN97] The ASPCA refused to return the bird, so Conti filed a suit to replevy the parrot. [FN98]

The court stated that the "law is well settled that the true owner of lost property is entitled to the return thereof as against any person *489 finding same." [FN99] It also determined that the "general rule is not applicable when the property lost is an animal." [FN100] Rather, a determination must be made "as to whether the animal was domesticated or ferae naturae (wild)." [FN101] The court then stated that "[w]here an animal is wild, its owner can only acquire a qualified right of property which is wholly lost when it escapes from its captor with no intention of returning." [FN102] However, if the wild animal is tamed, trained, and disciplined, the animal has been domesticated. [FN103] On the facts presented, the court found that "Chester was a domesticated animal, subject to training and discipline." [FN104] Therefore, it held that the "rule of ferae naturae does not prevail and the defendant as the true owner is entitled to regain possession." [FN105]

In conclusion, the common-law classifications do appear to be relatively simple to apply, but there are many problems with them. *490 As stated earlier, the court must initially determine the owner's intent at the time the property left the owner's possession. [FN106] It will analyze various factors like the place where the chattel was found [FN107] or the position the chattel was in when discovered. [FN108] Also, the court will begin "hypothesizing the state of the true owner when he lost, mislaid, or abandoned the chattel." [FN109] Ultimately, the court will determine the classification of the property based on these "judicial assumptions." [FN110] Therefore, "the court's only basis for determining the character of the found property using the common-law classifications is the intention of its loser, but because the owners who lost the property are never present, arriving at their intent involves nothing more than conjecture by the court." [FN111] Also, since the case proceeded in a non-adversarial fashion because there was no notice or opportunity to be heard from the true owner, it would appear that the process had a low degree of reliability to correctly determine title to the lost article. [FN112] In that forum, the court was free to craft a "judgment for either the loser or [finder] on a strictly ad hoc basis" in order to arrive at a particular outcome. [FN113] Further, the common-law systems failed "to advance consistently the policy goal of reuniting lost property with its true owner." [FN114] For all of these reasons, the legislatures in many states enacted statutes addressing these issues of lost property.

B. Legislative Solutions to the Common Law


1. Lost Article Statutes

In many states, [FN115] statutes have been enacted which have *491 abolished the distinctions developed by the courts in finder's cases. [FN116] All of the statutes have the same general format; they require a notice period, surrendering possession to authorities, and subsequent sale or possession is given to the finder in the absence of a claim by the owner. [FN117] The statutes address different types of property and may require the true owner to "compensate the finder for his cost and expense in caring for the property . . . while other statutes provide for a reward to the finder." [FN118] "These extensive and detailed procedures reflect the goals of encouraging the reporting of finds by awarding finder's fees and of reuniting true owners with their property by mandating extensive publication and notice requirements." [FN119]

For example, Michigan's lost property statute [FN120] was enacted in 1846. [FN121] It applies to all property "which is the subject of ownership and is corporeal, tangible, visible, or personal, or that has an exchange value." [FN122] It also provides that a "person who finds lost property shall report the finding or deliver the property to a law enforcement agency in the jurisdiction where the property is found." [FN123] Within 48 hours of a report or delivery, a general description of the property sufficient to aid the legal owner in determining her ownership must be posted in a public building open during business hours, and a detailed description of the property *492 should be given to the law enforcement agency. [FN124] If the legal owner is known, the law enforcement agency must send notice by first class mail, for certain types of property, to the last known address. [FN125] If the property is of minor value [FN126] it may be disposed of in any manner, by the law enforcement agency, if not claimed after three months. [FN127] But if the property is of major value and not claimed within six months after notice, the property is returned to the finder and/or the state. [FN128]

The Michigan statute was applied in Willsmore v. Township of Oceola. [FN129] A hunter discovered a suitcase containing $383,840 in cash, which was buried in a freshly dug hole on undeveloped land. [FN130] After surrendering his find to the state police, the finder did not comply with the notice and publication requirements of the statute because the police told him to keep quiet about the money since his life may be in danger, and they suggested he leave town for awhile. [FN131] The owner of the land where the money was found made a claim for the money, but at depositions and trial, he invoked his Fifth Amendment right to remain silent and failed to sufficiently state his claim as the true owner. [FN132] Therefore, the trial court, which was subsequently affirmed on appeal, directed the verdict for the finder-who was to divide the $383,840 equally with the township, as required by the lost property statute. [FN133]

The main question under the lost article statutes is whether dogs *493 would be considered property. The Michigan courts, for many years, have recognized a property interest in dogs, [FN134] but there is no direct case law addressing whether lost property includes lost companion animals. In other jurisdictions, some courts have interpreted the statutes such that pet dogs are property under a lost property statute, [FN135] while other courts completely ignore the statutes altogether. [FN136] Despite the confusion among the various courts, it would appear that these lost article statutes were not intended to address the issue of lost companion animals because the legislatures in various states enacted specific statutes addressing both "estray beast" [FN137] and "dog licensing and collaring." [FN138] Therefore, a detailed analysis of those statutes may lead to a determination of the applicability of lost article statutes to companion animals, particularly dogs.

2. Legislation Targeted at Lost Animals [FN139]

a. Estray and Running at Large Statutes

At common law, an estray was any beast, by nature or reclaimable, in which there was a valuable property, such as a sheep, ox, or horse, which was found "wandering at large, or lost, or whose owner was unknown." [FN140] In modern times, many state statutes prohibit animal owners from permitting or enabling their animals to run at *494 large. [FN141] These statutes provide the manner whereby estrays may be taken up and title declared forfeited, or when a sale of the animal permitted, to reimburse the finder for taking in the animal and incurring expenses in keeping it up. [FN142] Even though the true owner is permanently deprived of his property when the owner cannot be ascertained, the courts have generally upheld these estray statutes because compliance with the statutory procedures "is not . . . depriving the owner of his property, in a constitutional sense; it is a preservation of it for his benefit" until the statute of limitations runs out. [FN143]

Michigan's running at large [FN144] statute was first enacted in *495 1879, [FN145] almost thirty-five years after its lost property statute. The legislature made it a misdemeanor for an "owner to permit or enable his animal to run at large . . ., [or for someone] other than the owner to willfully and knowingly permit or enable an animal to run at large . . . ." [FN146] It allows anyone "who sustains any loss of, or damages to, property by an animal running at large [to] demand reasonable compensation from the [[[ animal's] owner . . . ." [FN147] Law enforcement officers and property owners "may seize and take into custody or possession any animal running at large in violation of" the statute. [FN148] After notice to the owner directly, if known, [FN149] or through a "newspaper of general circulation in the area that the animal is in . . . custody" if the owner is unknown, [FN150] the animals not claimed after fifteen days may be sold at auction, the proceeds of which go to the care-givers and/or the state. [FN151] Animals not sold may be destroyed by law enforcement. [FN152]

An estray statute was applied in the case of Sanders v. Mincey. [FN153] Sanders was approaching the home of Mincey at 6:00 a.m. when she observed three guinea hens on the highway. [FN154] Sanders applied her brakes at about the same time she struck the first hen with the grill of her car. [FN155] As the car started skidding, she "felt the impact of the second guinea hen and lost control of her vehicle." [FN156] Sanders' vehicle then "crossed the centerline and collided *496 with an on-coming vehicle." [FN157] Sanders brought suit for damages alleging that Mincey was negligent in allowing her hens to stray onto the highway. [FN158] Sanders appealed the trial court's setting aside the jury verdict of $35,000 in damages; [FN159] however, the Arkansas Supreme Court reinstated the verdict [FN160] because the violation of the statute prohibiting livestock from running at large was evidence of ordinary negligence. [FN161]

To determine whether an animal comes within the purview of the estray laws, the analysis is based on an interpretation of the terms in the statute. Most estray statutes describe the applicable animals using terms like "beast," [FN162] "livestock," [FN163] "farm animals," [FN164] or explicitly define or list the animals covered. [FN165] One court, in an attempt to resolve this issue, noted the following:

From its plain terms and judicial application over time it is evident that the statute[-]which dates from the late-eighteenth and early-nineteenth centuries[-]was designed for agricultural animals of substantial monetary value, not lost pets. Although no direct legislative history is extant, the legislature undoubtedly intended the phrase "stray beasts to include . . . animals that had very significant value" such as cows, oxen, horses, sheep, swine and other farm animals that formed the basis of a largely agricultural economy. [FN166]

*497 Further, the court noted that the purpose of the impounding statute [FN167] was "to provide a 'prompt and speedy' return or disposition of animals of considerable economic value." [FN168] The court then went on to state that a lost "pet dog generally has no substantial market value as such; it generally cannot be 'put to . . . labor' or sold at 'public auction' as contemplated by the statute." [FN169] It determined that the statute had never been applied to any other kind of beast, unless it had considerable economic value. [FN170] Further, it found that no "decision over the last two centuries" had applied the statute to disputes over domestic pets. [FN171] Finally, the court held that the "case law thus strongly supports the inference that the [estray] statute was not designed to govern" lost dogs. [FN172] Therefore, since the case law [FN173] and the estray statutes generally show that pet dogs are not "livestock"-farm animals raised for profit-the owner's property *498 rights in her lost dogs are not defined with the estray statutes.

b. Licensing and Trespassing Dog Statutes

Other legislation which may resolve some of the confusion with ownership rights in lost dogs are the various acts collectively known as "dog laws." [FN174] Many states [FN175] have enacted "dog laws" subsequent to the enactment of both the lost property and estray beast statutes. The "dog laws" directly address the problems associated with stray dogs, the authority of local animal control officers, and dog licensing requirements. [FN176] A typical state statute, like Michigan's "dog law of 1919," [FN177] can be analyzed based on its two separate components: trespassing dogs and identification of dogs.

Under the trespassing dog provisions, "[t]he concern of the statute is not the conduct of the owner but the potential for injury to persons and damage to their property presented by roaming dogs and the potential for injury to the animal involved." [FN178] Generally, an owner may be convicted of a misdemeanor if a dog over six months of age is running at large without a license and a collar, has destroyed property by trespass, shows vicious habits and molests passersby, or is running at large contrary to the provisions of the act. [FN179] The act outlines the procedures by which the local agencies issue licenses and *499 maintain records of dogs in their jurisdiction. [FN180] Also, the statute is clear that law enforcement and private individuals have the right to either kill or impound any dog in violation of these provisions. [FN181]

The statute also outlines the process for obtaining a permanent identification and registration number for any dog. [FN182] In Michigan, any person "may have any dog tattooed with a registration number, . . . through the ear of the animal and on . . . a rear leg." [FN183] The specific number of ownership assigned to such a dog constitutes having title to the dog, which may be assigned or transferred through the department of agriculture. [FN184] Further, the statute mandates that "[a]ny person finding a dog registered under the provisions of this act shall be entitled to the sum of twenty-five cents per day for boarding such dog, such board to be paid by the owner." [FN185] "[T]he commissioner of agriculture [will provide] . . . the name and address of the owner, upon request." [FN186]

As described above, the statutes only address the problem of eradicating trespassing dogs and licensing by local authorities, and not possessory interests in lost dogs. For example, Ohio's "dog law" statute provides that "[a]ny dog which has been registered [in compliance with the statute] . . . shall . . . have all the rights and privileges and be subject to like restraints as other livestock." [FN187] Other statutes state that dogs are deemed personal property. [FN188] But *500 it is not clear whether the licensing statutes should be used to resolve disputes over title to lost dogs because there are no reported cases which have ever applied these statutes to the rights of owners in their lost dogs. Therefore, it may be inferred that these trespassing and registration statutes do not apply to title actions for lost dogs.

C. Public Policy Arguments by the Court: The New Common Law

In the absence of direct guidance from constitutions or statutes, courts will look to underlying public policy issues in the controversy in order to find a basis for their holding-this is known as "judicial lawmaking." [FN189] In defining new common law based on a change in public policy, a court will look at "the set of values, assumptions, [aspirations], viewpoints and approaches currently holding sway in society as gathered by the judiciary through the legitimate channels of adjudication, precedent, judicial notice, and the wise use of legislative fact . . . ." [FN190] One court noted that "[t] he term 'public policy' cannot be comprehensively defined in specific terms but . . . has been characterized as that which conflicts with the morals of the time and contravenes any established interest of society." [FN191] Further, it stated that "[a]cts are said to be against public policy 'when the law refuses to enforce or recognize them, on the ground that they have a mischievous tendency, so as to be injurious to the interests of the state apart from illegality or immorality."' [FN192]

Generally, public policy may be found in federal and state constitutions, judicial decisions, and statutes. [FN193] However, "in a case of first impression where there are no guiding statutes, judicial decisions[,] or constitutional provisions, 'a judicial determination of the question becomes an expression of public policy provided it is so plainly right as to be supported by the general will."' [FN194] Therefore, *501 since this Comment has discussed the nature of the property rights in the ownership of domesticated dogs, an analysis of the competing public policy issues is necessary to provide a resolution to the apparent conflict and lack of guidance in this area of property law, as the discussion above has shown.

1. Property Rights in Dogs are of a "Qualified" Nature

A starting point for defining the public policies regarding ownership in dogs would be to determine the boundaries of the property rights recognized under state law. In Sentell v. New Orleans & Carrollton Railroad Co., [FN195] the United States Supreme Court established the framework for analyzing the property rights of owners in their dogs. First, the Court stated:

[P]roperty in dogs is of an imperfect or qualified nature, and that they stand, as it were, between animals ferae naturae in which, until killed or subdued, there is no property, and domestic animals, in which the right of property is perfect and complete. They are not considered as being upon the same plane with horses, cattle, sheep, and other domesticated animals, but rather in the category of . . . animals kept for pleasure, curiosity or caprice. [FN196]

Under this view, the states were free to strictly "interfere with the owner's rights to due process because dogs were not [even] considered property." [FN197] But the Supreme Court went on to declare that ownership in dogs is still "subject to the police power of the [s]tate, and might be destroyed or otherwise dealt with, as in the judgment of the legislature is necessary for the protection of its citizens." [FN198] Therefore, since pet dogs were subject to regulation under the state's police power, the Court held that it was "purely within the discretion of the [state] legislature[s] to say how far dogs shall be recognized as *502 property, and under what restrictions they shall be permitted to roam the streets." [FN199]

In reviewing the exercise of a state's police power, the court will look to see if the regulation is rationally related to the public welfare to determine whether procedural and substantive due process has been preserved. [FN200] In Sentell, the Supreme Court noted that the following regulations were within a state's police power: "license tax, and the identification of the dog by a collar and tag." [FN201] Current canine laws have been expanded and "cover numerous areas including licensing and registration, running at large, disease control, kennels and breeding, sanitation, summary destruction, ownership limitations, and fighting." [FN202] Therefore, with a basic understanding of the underlying constitutional foundations of ownership and regulation of dogs, the competing policy arguments regarding ownership to lost dogs can be analyzed.

2. The Conflicting Policy Issues

a. A Case or Controversy for Analysis

A recent example of the application of the common law, a lost article and estray statute, and public policy arguments to a lost pet dog can be found in Morgan v. Kroupa. [FN203] The owner "adopted a mixed-breed puppy . . . and trained it to be a hunting dog." [FN204] When it "was five years old, it broke free of its collar, ran away and became lost." [FN205] Two weeks later, the finder discovered the dog walking along the roadway and brought it home. [FN206] The finder called the area Humane Society and "gave a description of the dog; the Humane Society told her to keep the dog until she, or they, could find the owner." [FN207] The finder never heard back from them. [FN208] The finder "also posted notices in three [s]tate [p]arks and four *503 general stores in the area, and arranged to have a local radio station broadcast at least two announcements concerning the dog." [FN209]

Despite these efforts, the true owner did not come forward. [FN210] Thus, the finder took care of the dog and even considered the dog the household pet. Over a year later, a "friend of [the owner] . . . told him that he had seen . . . [ his lost] dog at a house . . . two miles down the road." [FN211] The owner drove to the house of the finder, and "the dog jumped in his truck and [the] defendant[-owner] left with the animal." [FN212] The finder brought an action in replevin to recover the dog. [FN213] The trial court applied Vermont's lost property statute. [FN214] However, it proposed that the case could be analyzed as a "child custody case, inquiring into what was in the 'best interests' of the dog . . . [or based] on the emotional 'attachment' of the contending parties." [FN215] The case was appealed to the Vermont Supreme Court. [FN216]

b. Public Policy Arguments of the State and Finder

The public policy issues for recognizing good title in the finder are based on minimizing the risk to the public generally from having stray or lost dogs running at large. The most expedient way to solve this problem is to provide for the prompt removal of these loose animals from the streets. The state can either authorize local agencies to be established to impound the stray dogs or the state can "encourage finders to take in and care for lost pets." [FN217] A finder may be more willing to shelter and care for a stray dog if she knew that, after *504 a period of time, there would be no question as to her right to companionship and possession of the animal. [FN218] A rule that would make "it difficult or impossible for a finder to keep an animal . . . would not be in the public interest," [FN219] and would only delay the action on the part of the true owner when they conscientiously begin searching for their dog. [FN220]

Also, there is support for the proposition that since ownership in dogs is of a qualified nature, perhaps the state legislatures have impliedly rejected a continuing ownership interest in lost dogs. For example, animals in the possession of animal control officers may be destroyed in any manner they see fit. [FN221] Unlicensed dogs running at large, damaging property or people may be killed on sight. [FN222] Dogs may be quarantined if exposed to rabies. [FN223] And a vicious or dangerous dog may be removed from its owner and destroyed. [FN224] Therefore, since the legislature has limited an owner's rights, "the public interest in encouraging finders to care for and shelter lost pets necessarily qualifies the owner's right to possession." [FN225]

In addition, encouraging finders to take in stray dogs would have a secondary effect on matters related to a state's police power. [FN226] This may reduce hazards to traffic, prevent the spread of contagious or infectious disease, prevent damage to property and persons from dangerous canines, and reduce the overpopulation problem among the stray-dog population. [FN227] As the United States Supreme Court in Sentell stated:

Acting upon the principle that there is but a qualified property in them, and that, while private interests require that the valuable ones shall be protected, public interests demand that the worthless shall be exterminated, they have, from time immemorial, been considered as holding their lives at the will of the legislature, and properly falling within the *505 police powers of the several States. [FN228]

Therefore, based on the breadth and magnitude of the potential problems that states face in dealing with stray dogs, public policy should recognize the rights of a finder of a lost dog who cares and shelters the animal after a period of time-ensuring protection of the true owner's procedural due process rights. [FN229]

Applying these public policy arguments to the facts in Morgan, the majority on the Vermont Supreme Court affirmed the trial court's decision that the finder "substantially [complied] with the [lost property statute] and was therefore entitled to possession." [FN230] After its discussion of the public policy argument stated above, the court noted that "practical and policy considerations" should be factored into the decision. [FN231] The court determined that this was simply a case where a finder takes in a stray which has no market value, puts up notices, cares for it, and after a period of time, the law, based on underlying public policies, should recognize that the finder is entitled to keep the lost dog. [FN232]

c. Public Policy Arguments of the True Owner

The foundation of the public policy arguments for recognizing a continued right of possession in the true owner is based on the trend of the enlargement of property in domesticated dogs. Early on, pet dogs were given protection from theft under criminal statutes. [FN233] Later, the courts recognized actions against tortfeasors who caused damages to companion animals. And the modern theories of property law recognize that dogs are personal property. [FN234] Therefore, either the lost property or estray statutes should apply to lost dogs because dogs now have value. [FN235]

Under early interpretations of the lost property and estray statutes, *506 pet dogs were excluded because they were not recognized as personal property with value. [FN236] Additionally, they were not beasts either by definition or by practical effect since they cannot readily be sold at auction. [FN237] However, dogs have been given legal status as personal property by statute and judicial decree. [FN238] And in those states, courts are recognizing the market value of dogs in actions to recover damages when a pet dog is killed, either intentionally or unintentionally. [FN239] For example, in Demeo v. Manville, [FN240] the court awarded $500 in damages for a dog that was negligently killed by the defendant's car. [FN241] The court considered the $200 the plaintiff paid for the animal and that the dog had won first place in four dog shows. [FN242] Therefore, since dogs have value as property, courts should apply either the lost property or estray statute to resolve the conflicts relating to lost dogs.

Further, some jurisdictions recognize a heightened "actual or intrinsic value" that a companion animal, such as a domesticated dog, has to its owner in the measure of damages. [FN243] In Corso v. Crawford Dog and Cat Hospital, Inc., [FN244] the court stated, "This court now overrules prior precedent and holds that a pet is not just a thing but occupies a special place somewhere in between a person and a piece of personal property." [FN245] In Levine v. Knowles, [FN246] the court, recognizing the anguish suffered from the loss of a dog, *507 determined that punitive damages could be awarded since "the affection of a master for his dog is a very real thing and . . . the malicious destruction of the pet provides an element of damage for which the owner should recover, irrespective of the value of the animal." [FN247] Therefore, since the evidence proves that dogs are valued because of their ongoing relationship they share with their owners, the law must recognize the important continuing property right an owner has in man's best friend.

Finally, applying these public policy arguments to the facts in Morgan, the dissenting opinion, citing authority from other jurisdictions, determined that the lost property and estray statute applied to lost dogs. [FN248] Because of the paramount ownership interest involved, Justice Gibson would have strictly applied the procedures of the statute to ensure that the true owners procedural due process rights were protected. [FN249] Therefore, Justice Gibson would hold that the rights to possession are with the true owner since the finder failed to meet the reasonable notice requirements of the statute so that the true owner and others could have identified the animal. [FN250]

*508 III. Analysis of the Problem

A. The Problem under Existing Laws

The common-law rules are relatively simple to apply, and they provide some "bright line" rules; however, there are many inherent problems in their application. [FN251] Since the legislatures in a majority of states have enacted laws addressing these issues, it is probable that the trend is to preempt the common-law system. [FN252] However, the lost article and estray statutes that have been enacted in many states have not been interpreted to cover property rights in lost dogs. Rather, the rights of owners in lost dogs are determined under the "dog laws" mandating licensing and identification of canines, [FN253] and an owner is barred from bringing an action under the lost article statutes.

On the one hand, the current "dog laws" facilitate the state's interest in protecting the public at large from injury, damage, disease, overpopulation, and traffic problems associated with stray dogs, [FN254] by encouraging finders to take in and care for stray animals. On the other hand, in interpreting these laws, the courts have recognized the important role that domesticated dogs play in the lives of man, which has lead tounpredictable holdings. Unlike chattels, where damages are assessed using a market-value method, courts have recognized the intrinsic value of pet dogs as a member of one's family. [FN255] Since the interests of the state are in opposition to those of the dog owner, a compromise must be found to provide a workable solution for our court system to reconcile these opposing interests.

B. Suggested Approach

Because domesticated dogs have long been recognized as "not just a thing but [[[[a thing which] occupies a special place somewhere in between a person and a piece of personal property," [FN256] a novel approach should be undertaken. The existing lost property statutes provide a basic framework for analysis, but certain provisions must *509 be changed to recognize the special property interest an owner has with her pet dog. Therefore, a reasonable approach would recognize a dog owner's property right under state law through registration or licensing and then protect that interest under the procedural safeguards of the lost article statute.

1. Protecting the Property Right through Identification

Existing systems often fail to return lost dogs to their rightful owners because the rightful owner cannot be identified. Currently, dog licenses are attached to collars that fall off the dog or are left behind if the dog breaks his collar and escapes. If all dogs could be identified through a governmental agency, similar to the use of motor vehicle driver's licenses as a form of personal identification, law enforcement agencies could reunite true owners with their lost pets. This would require owners to have their dogs tattooed with a registration number [FN257] or have a surgically implanted microchip [FN258] *510 under the skin. Registration information could be compiled by the various animal control agencies, and this data could be used to establish a nationwide system to link-up finders of lost dogs to their rightful owners.

Registration and identification have historically been the threshold requirements for recognition of the owner's "conditional" interest in his dog that states have established in "a bona fide exercise of [their] police power." [FN259] But, in order to receive a heightened protection of the ownership interest, an owner must place permanent identification on his dog that will put others on notice of his claim to title. This procedure would be in addition to existing licensing procedure now in effect, which generally ensures an owner's compliance with rabies vaccinations. [FN260] The recognition of title and a property interest in dogs are currently provided by statute in Delaware, Michigan, New Hampshire, and Ohio. [FN261]

Also, the United States Supreme Court agreed with this argument in Sentell when it said "[t]he statute really puts a premium upon valuable dogs, by giving them a recognized position, and by permitting the owner to put his own estimate upon them." [FN262] By establishing these identification procedures, [FN263] the legislature and the court *511 could institute a "bright line" rule as to the ownership in domestic dogs. And if a true owner does not follow this suggested approach, it is an express waiver of her permanent property right to ownership in the animal. In that case, an owner's only recourse would be through the application of the "dog laws" mandating licensing and identification of canines.

2. Ensuring Procedural Due Process

Since the property right in dogs is currently recognized as conditional or qualified in most states, [FN264] an owner must be afforded procedural due process protection, at a minimum, as required by the Due Process Clause of the Fourteenth Amendment. [FN265] For procedural due process rights to apply there must be state action, which is satisfied by the enforcement of a finder's title by a court of law. [FN266] Generally, the two main requirements of procedural due process are *512 notice and a hearing on the claim. [FN267] However, when a court is "determining what is due process of law [[[, it must] consider the nature of the property, the necessity for its sacrifice, and the extent to which it has . . . been regarded as within the [[[state's] police power." [FN268]

As the discussion above has shown, most courts apply "dog laws" for ensuring procedural due process protection of an owner's interest in his lost pet dog. [FN269] But these statutes are inadequate considering that "[e]ven the most soulful eyed canine has rights, privileges and protection . . . within his master's shadow . . . ." [FN270] For example, dogs may be summarily destroyed, without notice or a hearing, if found unlicensed, [FN271] molesting wildlife, [FN272] pursuing livestock or poultry, [FN273] or attacking persons. [FN274] Although the courts are split as to the constitutionality of these provisions, [FN275] it would be logical to infer that such provisions violate the owner's procedural due process rights because the statutes are devoid of any pre-or post-deprivation notice or hearing.

Further, when a lost or stray dog is taken in by animal control officers for a violation of the dog regulations, the ordinances "usually prescribe impoundment of the dog, notice to the owner, release of the dog upon payment of fines or destruction of the dog if it is not claimed." [FN276] For example, the Michigan statute provides that a dog pound "shall not sell or . . . dispose of a dog . . . within four days *513 after its acquisition." [FN277] But if the dog has a collar, license, or other evidence of ownership, then the dog may not be disposed of until seven days after written notification was sent to the owner. [FN278] The statutory procedures have been upheld because they require a holding "period after obtaining the dog before disposing of it." [FN279] Even though the procedures detailed above provide the owner with notice and an opportunity to be heard, they fail to provide for a heightened protection of a dog owner's interest when compared to the due process afforded owners of chattels under the lost property statutes.

Currently, many states have lost article statutes that protect the true owner's interest in his chattels by providing extensive, detailed notice and opportunity to be heard requirements, which must be satisfied before title vests in the finder. [FN280] For example, Vermont requires that notice of the find must be published in a local paper for three weeks; after twenty days, the finder must record a copy of the notice with the town clerk; and after ninety days, the property may be auctioned off or disposed of by state action. [FN281] In Michigan, the statute requires that a report must be made with authorities within forty-eight hours after the find, notice must be posted in a public building, notice of the find must be sent by law enforcement by mail if the owner is known, and, after three months for minor property or six months for major property, the property may be disposed of under the act. [FN282] Ultimately, courts have determined that the extensive notice and hearing requirements of lost property statutes satisfy the requirements of procedural due process. [FN283]

*514 Therefore, since a pet dog is "not just a thing but [a thing which] occupies a special place somewhere in between a person and a piece of personal property," [FN284] the enhanced procedural due process protection of the lost property statute should be applied to lost or stray dogs whose owners have complied with the identification procedures discussed above. This would coincide with the trend towards expanding the owner's property rights in his pet dog under statutes and case law. Also, a lost article statute was indirectly applied to a lost pet dog in Morgan. [FN285] Although the majority concluded that the lost article statute did not apply, it found that the finder had made reasonable efforts to give notice to the owner, although not in substantial compliance with the statute. [FN286] Moreover, the court held that a finder who cared for the dog over an extensive period was entitled to possession. [FN287] However, the Morgan court impliedly rejected the application of the "dog laws" for licensing in its analysis; therefore, the court recognized the need for additional procedural due process requirements in determining conflicts in titles to lost pet dogs. Thus, the courts, as well as owners and finders, could benefit from the constitutional protections afforded to litigants in actions under the lost property statutes.

IV. Conclusion

States have made progress in the law of acquisition of property by find in the area of lost companion animals. Most important has been the recognition, by statute, that owners have a conditional property right in their pets in a majority of states. [FN288] Also, this right has been protected by the courts in damage actions brought to recover either the market or intrinsic value of lost companion animals. [FN289] In addition, some courts are applying lost property statutes to analyze the rights of finders and true owners in lost domestic pets to ensure *515 some procedural due process protection of this property right. It is encouraging to see that some courts have adopted a progressive attitude toward the rights of owners in their trusted friends.

Nevertheless, there is much to be done before every dog owner whose pet is lost can find a state statute or court that will provide a forum to exercise their property right in their lost pets. Many states do not recognize modern methods of identification in their statutes and still rely on the traditional dog tag. [FN290] Nor do they have lost property statutes to replace the common-law classifications which provide no procedural due process protection for the true owner. [FN291] Clearly a uniform approach across all state lines is needed.

The solution proposed in this Comment requires two steps. First, the state legislatures must provide a method for the owner to create his property right in domesticated pets through identification. [FN292] Secondly, the legislatures should enact lost article statutes to ensure protection of the true owner's procedural due process rights [FN293]-something that is lacking in the ad hoc adjudication under the common-law classification scheme. Unless or until that protection is made available, the Americans who enjoy companionship with 55 million dogs and 63 million cats [FN294] should be prepared to accept the consequences of little or no protection of their continuing property rights in lost pets under existing laws. "The law must open its eyes to the reality of the awesome role that companion animals play in the lives of humans" [FN295] and protect that interest under the minimum procedural due process outlined above.

[FNa1]. This Comment is dedicated to my best friend, Princess Chelsea Ann III.

[FN1]. Debra Squires-Lee, Note, In Defense of Floyd: Appropriately Valuing Companion Animals In Tort, 70 N.Y.U. L. Rev. 1059, 1066 n.48 (1995) (citing William Childress, Paying Homage to the Faithful Hound, St. Louis Post-Dispatch, Feb. 1, 1992, at 3D). The quotation comes from "George Graham Vest, a lawyer in nineteenth-century Missouri, [who] brought suit on behalf of the guardian of Old Drum, a dog shot by a neighbor. Vest's closing argument to the jury, Old Drum's eulogy, is memorialized underneath the bronze statue of Old Drum on the lawn of the Johnson County Courthouse." Id.

[FN2]. See Elizabeth C. Hirschman, Consumers and Their Animal Companions, 20 J. Consumer Res. 616, 616 (1994) (citing 1991 statistics from Market Research Corporation of America).

[FN3]. See Squires-Lee, supra note 1, at 1064 (citing Paul Marcotte, More Than a Pet Project, A.B.A. J., Jan. 1989, at 35).

[FN4]. See id. at 1059.

[FN5]. See Norma Bennett Woolf, Are There Too Many Dogs And Cats? ( v i s i t e d F e b. 2 7, 1 9 9 8 )

[FN6]. See id. About 600,000 strays are reclaimed each year by their owner. See id.

[FN7]. See id. This leaves 1.6 million strays available for adoption each year. See id.

[FN8]. Squires-Lee, supra note 1, at 1060.

[FN9]. See, e.g., Morgan v. Kroupa, 702 A.2d 630, 636 (Vt. 1997) (Gibson, J., dissenting) (arguing that title passed to the finder of a lost dog who barely satisfied the lost article statute since possession of domestic pets often is limited by overriding public policy interest). See infra pp. 502 507 for a complete discussion of the case.

[FN10]. See generally Armory v. Delamirie, 93 Eng. Rep. 664 (K.B. 1722).

[FN11]. See Morgan, 702 A.2d at 633 (Gibson, J., dissenting).

[FN12]. See Peter Barton & Francis Hill, How Much Will You Receive In Damages From The Negligent Or Intentional Killing Of Your Pet Dog Or Cat?, 34 N.Y.L. Sch. L. Rev. 411, 411 (1989).

[FN13]. See Levine v. Knowles, 197 So. 2d 329, 331 (Fla. Dis. Ct. App. 1967) (recognizing that an owner in a malpractice action against his veterinarian has the right to compensatory damages including the intrinsic value of the animal as well as punitive damages).

[FN14]. See, e.g., Ginny K. Mikita, The Animal Law Section: An Advocate For Michigan's Animal Population, 77 Mich. B. J. 422, 423 (1997) (stating that "[t] he animal law field, as a whole, remains relatively uncharted territory").

[FN15]. See Black's Law Dictionary 558 (5th ed. 1979) (defining ferae naturae as "[o]f a wild nature or disposition. Animals which are by their nature wild are so designated, by way of distinction from such as are naturally tame, the latter being called 'domitae naturae"').

[FN16]. See James Schouler, The Law of Personal Property § 48, at 64 65 (5th ed. 1918) (noting that "one can have no absolute property right . . . while they are in the state of nature" and that "they belong to a person only while they are in his actual keeping and under his control"). Professor Schouler also noted that "[i]f at any time they regain their natural liberty [the possessor's] right instantly ceases." Id. at § 49, p. 67.

[FN17]. 3 Cai. Cas. 175 (N.Y. Sup. Ct. 1805).

[FN18]. See id.

[FN19]. See id.

[FN20]. See id. at 175 76.

[FN21]. See Young v. Hichens, 115 Eng. Rep. 228 (Q. B. 1844).

[FN22]. See Ghen v. Rich, 8 F. 159, 162 (D. Mass. 1881).

[FN23]. See id. at 161 62.

[FN24]. 8 F. 159 (D. Mass. 1881).

[FN25]. See id. at 162.

[FN26]. See id. at 159 60.

[FN27]. See id. at 161 62.

[FN28]. Animus revertendi is defined as the "intention of returning." Black's Law Dictionary 80 (5th ed. 1979).

[FN29]. Schouler, supra note 16, § 49, at 67 68. An example of this would be if a possessor captured a deer, then tamed it, and it returns home after grazing each day, then the rule is that the deer is not available for capture by another. The rationale behind the rule is that a continuing property interest should be recognized since society values efforts to tame wild animals. See D. Barlow Burke, Jr., Personal Property in a Nutshell 17 (1983).

[FN30]. The issue here is whether a domesticated dog, which is a descendant of a wolf, is considered a "wild animal" that has no animus revertendi.

[FN31]. See Schouler, supra note 16, § 49, at 67.

[FN32]. See, e.g., E.A. Stephens & Co. v. Albers, 256 P. 15, 18 (Colo. 1927) (holding the captor of a lost silver fox that was not native to the area liable for damages).

[FN33]. See Burke, supra note 29, at 18 (recognizing "that the first possessor of a previously unclaimed animal (or chattel) will be preferred").

[FN34]. See generally id. at 15 21.

[FN35]. See id. at 17.

[FN36]. See id.

[FN37]. See id. at 104.

[FN38]. See Ray Andrews Brown, The Law of Personal Property § 11, at 23 (2nd ed. 1955).

[FN39]. See Jennifer S. Moorman, Comment, Finders Weepers, Losers Weepers?: Benjamin v. Linder Aviation, Inc., 82 Iowa L. Rev. 717, 720 21 (1997); see also Burke, supra note 29, at 104 (noting that courts award possession by "hypothesizing the state of mind of the true owner when he lost, mislaid, or abandoned the chattel").

[FN40]. See Burke, supra note 29, at 103 04. Also, when personal property is concealed by a now-unknown owner, it is considered a "treasure trove." Id. at 111. Since this Comment only addresses property rights in lost animals, which were not concealed by their true owner, this classification of lost property will not be analyzed.

Additionally, the Author must point out that there are some issues that are beyond the scope of this Comment. They include articles found on the true owner's property. These issues relate to whether the (1) finder is a trespasser; (2) finder is an employee; (3) finder is on the property for a limited purpose; and (4) object is found in a private home. Since companion animals have been separated from their owners and are out among the public, those issues are all unrelated to determining the interests of owners against finders of lost companion animals. For a discussion of those issues, see generally id.

[FN41]. See id. at 108.

[FN42]. See, e.g., Armory v. Delamirie, 93 Eng. Rep. 664, 664 (K.B. 1722).

[FN43]. See Moorman, supra note 39, at 719 20.

[FN44]. See id. at 720.

[FN45]. See Brown, supra note 38, at 23. See, e.g., Conti v. ASPCA, 353 N.Y.S.2d 288, 291 (N.Y. Civ. Ct. 1974) (holding that the true owner was entitled to possession over the finder of a domesticated parrot).

[FN46]. See Burke, supra note 29, at 104.

[FN47]. 93 Eng. Rep. at 664 (K.B. 1722).

[FN48]. See id.

[FN49]. See id.

[FN50]. See id.

[FN51]. See id.

[FN52]. See id.

[FN53]. See Wanda Ellen Wakefield, Annotation, Validity, Construction, and Application of Lost or Abandoned Goods Statutes, 23 A.L.R. 4th 1025, 1030 (1981) (citing Eldridge v. Herman, 291 N.W.2d 319, 323 (Iowa 1980)).

[FN54]. See, e.g., Eldridge, 291 N.W.2d at 321.

[FN55]. Moorman, supra note 39, at 720.

[FN56]. Locus in quo is defined as the "place in which the cause of action arose." Black's Law Dictionary 848 (5th ed. 1979).

[FN57]. See Burke, supra note 29, at 100.

[FN58]. All E.R. 122 (Q.B. 1851).

[FN59]. See id. at 123.

[FN60]. See id.

[FN61]. See id. at 124.

[FN62]. See id.

[FN63]. See Burke, supra note 29, at 103 04.

[FN64]. See Brown, supra note 38, at 28.

[FN65]. See Moorman, supra note 39, at 721.

[FN66]. See id.

[FN67]. See Burke, supra note 29, at 102 03.

[FN68]. 93 Mass. (11 Allen) 548 (Mass. 1866).

[FN69]. See id. at 548.

[FN70]. See id.

[FN71]. See id.

[FN72]. See id. at 549.

[FN73]. See id.

[FN74]. See id.

[FN75]. See Burke, supra note 29, at 104.

[FN76]. See Moorman, supra note 39, at 721.

[FN77]. See United States v. Dzialak, 441 F.2d 212, 215 (2nd Cir. 1971) (finding that material placed in a trash can for collection was effectively abandoned by the owner).

[FN78]. Moorman, supra note 39, at 721.

[FN79]. Id. at 722 (citations omitted).

[FN80]. See Sentell v. New Orleans & Carrollton R.R. Co., 166 U.S. 698, 700 (1897) (citations omitted). The United States Supreme Court stated:

[Dogs] are not considered as being upon the same plane with horses, cattle, sheep, and other domesticated animals, but rather in the category of cats, monkeys, parrots, singing birds, and similar animals, kept for pleasure, curiosity, or caprice. They have no intrinsic value, by which we understand a value common to all dogs as such, and independent of the particular breed or individual. Unlike other domestic animals, they are useful neither as beasts of burden, for draught (except to a limited extent), nor for food.

Id. at 701.

[FN81]. See id. at 700 01 (citations omitted). The Supreme Court also noted that "in the absence of a statute, they are not regarded as the subjects of larceny." Id. (emphasis added) (citations omitted).

[FN82]. See Mungo v. Bennett, 119 S.E.2d 522, 523 (S.C. 1961) (grouping horses, mules, cattle, dogs, and cats, all of which are legally classified as personal property). See, e.g., Richardson v. Fairbanks North Star Borough, 705 P.2d 454, 456 (Alaska 1985) (holding that dogs have legal status as personal property); Thiele v. Denver, 312 P.2d 786, 789 (Colo. 1957) (en banc) (finding that dogs were given full property status by statute in that state); Helmy v. Swingert, 662 So. 2d 395, 397 (Fla. Dist. Ct. App. 1995) (determining that a dog is considered to be personal property); Levine v. Knowles, 197 So. 2d 329, 331 (Fla. Dist. Ct. App. 1967) (stating that an owner of a dead dog wrongfully destroyed had all the same rights as "he would have for any other property wrongfully destroyed"); Bugai v. Rickert, 242 N.W. 774, 775 (Mich. 1932) (stating that there is property in dogs); Rockwell v. Oakland Circuit Judge, 94 N.W. 378, 379 (Mich. 1903) (finding that property in dogs has been recognized by the legislatures).

[FN83]. See State v. M'Duffie, 34 N.H. 523, 526 (N.H. 1857) (finding dogs are as much the subject of property or ownership as horses, cattle, or sheep).

[FN84]. See, e.g., Harrington v. Hall, 63 A. 875, 875 (Del. Super. Ct. 1906) (stating that "an owner of a dog might maintain a civil action for the unlawful injury thereto or killing thereof"); Jeane v. Johnson, 154 So. 757, 758 (La. Ct. App. 1934) (finding an owner could protect his property interest in his dog from malicious killing if the owner complied with the licensing statute); Ten Hopen v. Walker, 55 N.W. 657, 658 (Mich. 1893) (finding that exemplary damages are recoverable for the malicious killing of a dog); McCallister v. Sappingfield, 144 P. 422, 423, 428 (Or. 1914) (allowing recovery of civil damages for the market value of a dog which was purposefully and maliciously shot by the defendant); Arrington v. Arrington, 613 S.W.2d 565, 569 (Tex. Civ. App. 1981) (determining that a dog was part of the property settlement in a divorce action).

[FN85]. See supra note 37 46 and accompanying text.

[FN86]. See supra note 38 and accompanying text.

[FN87]. 353 N.Y.S.2d 288 (N.Y. Civ. Ct. 1974).

[FN88]. See id. at 289.

[FN89]. Id.

[FN90]. Id.

[FN91]. See id.

[FN92]. See id.

[FN93]. See id.

[FN94]. See id.

[FN95]. Id.

[FN96]. See id.

[FN97]. Id.

[FN98]. See id.

[FN99]. Id. at 290 (citing In re Wright's Estate, 177 N.Y.S.2d 410 (N.Y. Sur. Ct. 1958); 36A C.J.S. Finding Lost Goods § 3 (1961)).

[FN100]. Conti, 353 N.Y.S.2d at 290.

[FN101]. Id.

[FN102]. Id. The court cited the case of Mullett v. Bradley, 53 N.Y.S. 781 (N.Y. App. Div. 1898), where:

[A]n untrained and undomesticated sea lion escaped after being shipped from the West to the East Coast. The sea lion escaped and was again captured in a fish pond off the New Jersey Coast. The original owner sued the finder for its return. The court held that the sea lion was a wild animal (ferae naturae), and when it returned to its wild state, the original owner's property rights were extinguished.

Conti, 353 N.Y.S.2d at 290 (citing Mullett, 53 N.Y.S. at 781).

[FN103]. See Conti, 353 N.Y.S.2d. at 291. The court noted the following two related cases:

In Amory v. Flyn [sic], 10 Johns. (N.Y.) 102, plaintiff sought to recover geese of the wild variety which had strayed from the owner. In granting judgment to the plaintiff, the court pointed out that the geese had been tamed by the plaintiff and therefore were unable to regain their natural liberty.

This important distinction was also demonstrated in Manning v. Mitcherson [sic], 69 Ga. 447, 450 451, 52 A.L.R. 1063, where the plaintiff sought the return of a pet canary. In holding for the plaintiff the court stated "To say that if one has a canary bird, mocking bird, parrot, or any other bird so kept, and it should accidentally escape from its cage to the street, or to a neighboring house, that the first person who caught it would be its owner is wholly at variance with all our views of right and justice."

Conti, 353 N.Y.S.2d at 290 91 (quoting Manning v. Mitcherson, 69 Ga. 447, 450 51 (Ga. 1882)).

[FN104]. Id. at 291.

[FN105]. Id. Although not addressed by the court in Conti, the State of New York has a lost property statute, N.Y. Pers. Prop. Law § 252 (McKinney 1998), which was enacted in 1957.

[FN106]. See supra note 39 and accompanying text.

[FN107]. See Burke, supra note 29, at 102.

[FN108]. See id. at 103.

[FN109]. Id. at 104.

[FN110]. See id.

[FN111]. Moorman, supra note 39, at 724 (emphasis added).

[FN112]. See Edward R. Cohen, The Finders Cases Revisited, 48 Tex. L. Rev. 1001, 1003 04 (1970).

[FN113]. Id. at 1003.

[FN114]. Moorman, supra note 39, at 724.

[FN115]. See, e.g., Ala. Code §§ 35-12-1 to-6 (1991 & Supp. 1996); Cal. Civ. Code §§ 2080. to 2080.9 (West 1985 & Supp. 1998); Conn. Gen. Stat. Ann. §§ 50-1 to-14 (West 1994 & Supp. 1998); D.C. Code Ann. §§ 4- 152 to - 162 (1994 & Supp. 1998); Fla. Stat. Ann. 705.101 .106 (West 1988 & Supp. 1998); 765 Ill. Comp. Stat. Ann. 1020/27 to /29 (West 1993); Iowa Code Ann. §§ 556F.1 .18 (West 1995 & Supp. 1998); Me. Rev. Stat. Ann. tit. 33, §§ 1051 1060 (West 1988 & Supp. 1997); Mass. Gen. Laws Ann. ch. 134, §§ 1 7 (West 1995); Mich. Comp. Laws Ann. §§ 434.22 .27 (West 1988 & Supp. 1998); Mo. Ann. Stat. §§ 447.010 .110 (West 1986 & Supp. 1998); Mont. Code Ann. §§ 70-5-101 to-107 (1997); N.H. Rev. Stat. Ann. §§ 471:1 :13 (1992); N.Y. Pers. Prop. Law §§ 251 258 (McKinney 1992); N.D. Cent. Code §§ 60-01-34 to-42 (1990); Okla. Stat. Ann. tit. 15, §§ 511 518 (West 1991); Or. Rev. Stat. §§ 98.005 .050 (1995); S.D. Codified Laws §§ 43-41-1 to-10 (Michie 1983 & Supp. 1998); Vt. Stat. Ann. tit. 27, §§ 1101 1110 (1989); Wash. Rev. Code Ann. §§ 63.21.010 .900 (West 1994 & Supp. 1998); Wis. Stat. Ann. §§ 170.07 . 11 (West 1994).

[FN116]. See Hurley v. City of Niagara Falls, 289 N.Y.S.2d 889, 892 93 (N.Y. App. Div. 1968) (holding that a contractor hired to do repairs in a basement was entitled to the money found there over the homeowner's common-law claim since the concept of mislaid property was swept away by the statutory reform).

[FN117]. See generally supra note 115.

[FN118]. Wakefield, supra note 53, at 1028.

[FN119]. Moorman, supra note 39, at 726.

[FN120]. See Mich. Comp. Laws Ann. §§ 434.22 .27 (West 1998).

[FN121]. See id.

[FN122]. Id. § 434.21(i).

[FN123]. Id. § 434.22(1).

[FN124]. See id. § 434.23. This provision only applies to items of "major value" and not "minor value." Id.

[FN125]. See id. § 434.25(1).

[FN126]. See id. § 434.21. The lost property statute defines the different values of property as follows:

(j) "Property of major value" means any property that is not collectible currency, contraband, currency, evidence, hazardous material, junk, perishable property, or property of minor value.

(k) "Property of minor value" means any property whose fair market value is less than the total cost of preparing a property report, plus the costs of storage and disposition, and which is not collectible currency, contraband, currency, evidence, hazardous material, junk, perishable property, or property of major value.


[FN127]. See id. § 434.24(8).

[FN128]. See id. § 434.26(1)(a).

[FN129]. 308 N.W.2d 796 (Mich. App. 1981).

[FN130]. See id. at 798.

[FN131]. See id.

[FN132]. See id. at 799.

[FN133]. See id. at 798 99.

[FN134]. See, e.g., Bugai v. Rickert, 242 N.W. 774, 775 (Mich. 1932) (stating that there "is property in dogs, but of an imperfect or qualified nature") (citing Ten Hopen v. Walker, 55 N.W. 657 (Mich. 1893); Finley v. Barker, 189 N.W. 197, 199 (Mich. 1922)).

[FN135]. See, e.g., Morgan v. Kroupa, 702 A.2d 630, 631 32 (Vt. 1997) (noting that the trial court had applied Vermont's lost property statute).

[FN136]. See id. at 632 (noting that the lost property or stray beast statutes did not apply to lost dogs). Compare Conti v. ASPCA, 353 N.Y.S.2d 288 (N.Y. Civ. Ct. 1974) (applying the common law even though the State of New York had enacted a lost article statute) with N.Y. Pers. Prop. Law §§ 251 258 (McKinney 1992).

[FN137]. See discussion infra Part II.B.2.a.

[FN138]. See discussion infra Part II.B.2.b.

[FN139]. This Comment will not discuss in detail the regulations promulgated by the United States Department of Agriculture, entitled "The Pet Theft Act," 7 U.S.C.A § 2158 (West Supp. 1998), addressing the requirements for shipment of animals by dealers in interstate commerce and the relating penalties for noncompliance. For additional information on that topic, see Nancy Goldberg Wilks, The Pet Theft Act: Congressional Intent Plowed Under By The United States Department of Agriculture, 1 Anml. L. 103 (1995).

[FN140]. See, e.g., Kinney v. Roe, 30 N.W. 776, 777 (Iowa 1886) (horse); Lyman v. Gipson, 35 Mass. 422 (Mass. 1836) (horse); Hardy v. Nye, 3 A. 631 (N.H. 1886) (sheep); Shepard v. Hawley, 4 Or. 206 (Or. 1871) (bull).

[FN141]. See, e.g., Ala. Code § 3-2-1 (Michie 1996); Alaska Stat. § 03.35.010 (Michie 1998); Ark. Code Ann. § 5-62-122 (Michie 1997); Cal. Food & Agric. Code § 17122 (West 1985 & Supp. 1997); Colo. Rev. Stat. Ann. §§ 35-43-125, 35-46-105, 35-47-101 (West 1997); Fla. Stat. Ch. Ann. § 588.16 (West 1987 & Supp. 1998); Ga. Code Ann § 4-3-3 (Harrison 1994); Idaho Code §§ 25-2803,-2805 (Michie 1990 & Supp. 1997); 510 Ill. Comp. Stat. 55/1 (West 1993); Ind. Code Ann. § 32-10-2-4 (West 1996); Kan. Stat. Ann. §§ 47-229 230 (1993); Ky. Rev. Stat. Ann. § 259.160 (Michie 1994) (horses); La. Rev. Stat. Ann. § 3:2532 (West 1987); Md. Ann. Code art. 24, § 11-510 (1957); Mass. Gen. Laws ch. 131, § 82 (West 1991 & Supp. 1998) (dogs); Mich. Comp. Laws Ann. § 433.12 (West 1995); Minn. Stat. Ann. §§ 346.16 to .20 (West 1990 & Supp. 1998); Miss. Code Ann. § 37-105- 7 (1996) (on campus); Mo. Ann. Stat. § 253.180 (1990) (state parks); Mont. Code Ann. § 81-4-201 (1997); Neb. Rev. Stat. Ann. § 54-401 (1993); Nev. Rev. Stat. Ann. § 269.195 (Michie 1995); N.J. Stat. Ann. § 4:21-1 (West 1998); N.M. Stat. Ann. § 3-18-3 (Michie 1995); N.C. Gen. Stat. § 68-42 (1995); N.D. Cent. Code §§ 60-01-34 to-42 (1987); Ohio Rev. Code Ann. § 951.01 (Anderson 1988 & Supp. 1997); Okla. Stat. Ann. tit. 4, § 98 (West 1993); Or. Rev. Stat. § 607.007 (1995); Pa. Stat. Ann. tit. 3, § 584 (West 1995); R.I. Gen. Laws §§ 4-16-1 to-2 (1987); S.C. Code Ann. §§ 47-7-10 to-130 (Law. Co-op. 1987 & Supp. 1997); S.D. Codified Laws § 40-28-1 (Michie 1991) (adult male animals); Tenn. Code Ann. § 44-8-401 (Michie 1993); Tex. Agric. Code Ann. §§ 142.001 .011 (West 1982 & Supp. 1998); Utah Code Ann. § 4-25-2 (1995); Vt. Stat. Ann. tit. 27, § 1101 (1989); Va. Code Ann. § 55-316 (Michie 1995); Wash. Rev. Code Ann. § 16.24.065 (West 1992 & Supp. 1998) (stock in restricted areas); W. Va. Code § 19-18-1 (1997); Wyo. Stat. Ann. §§ 11-24-208,-26-101 (1997) (fenced public highways; and swine, goat, and domestic elk).

[FN142]. See generally Mich. Comp. Laws Ann. § 433 (West 1995).

[FN143]. Stewart v. Hunter, 16 P. 876, 878 (Or. 1888).

[FN144]. An estray is "an animal that has escaped from its owner, and wanders or strays about; usually defined, at common law, as a wandering animal whose owner is unknown." Black's Law Dictionary 495 (5th ed. 1979). The term running at large is a term that "is applied to wandering or straying animals." Black's Law Dictionary 1197 (5th ed. 1979). Therefore, the terms estray and running at large may be considered synonymous.

[FN145]. See Mich. Comp. Laws Ann. § 433. The statute provides:

That it shall not be lawful for any cattle, horses, mules, sheep, swine, or goats to run at large in any public street, lane, alley, park, place, or highway, in any city or village within this state, having a population of 7,000 or more inhabitants; and it shall be the duty of every commissioner of highways, poundmaster, marshal, deputy marshal, policeman and constable of any such city or village, to seize and take into his possession as herein provided, and keep until disposed of according to law, any animal so found running at large, . . . .

Id. § 433.51(1).

[FN146]. Id. § 433.12.

[FN147]. Id. § 433.13.

[FN148]. Id. § 433.14(1) (2).

[FN149]. See id. § 433.15(a).

[FN150]. Id. § 433.15(b).

[FN151]. See id. § 433.16(1),(3).

[FN152]. See id. § 433.17.

[FN153]. 879 S.W.2d 398, 400 (Ark. 1994).

[FN154]. See id. at 398 99.

[FN155]. See id. at 399.

[FN156]. Id.

[FN157]. Id.

[FN158]. See id.

[FN159]. See id.

[FN160]. See id. at 401.

[FN161]. See id. at 400 01. The Arkansas statute provides in part:

(a) A person commits the offense of permitting livestock to run at large if, being the owner or person charged with the custody and care of livestock, he knowingly permits such livestock to run at large.

(b) For purposes of this section, livestock includes horses, mules, cattle, goats, sheep, swine, chickens, ducks, and similar animals and fowl commonly raised or used for farm purposes.

(c) Permitting livestock to run at large is a violation.

Ark. Code Ann. § 5-62-122 (Michie 1997).

[FN162]. See, e.g., Vt. Stat. Ann. tit. 27, § 1101 (1989) (stray beasts).

[FN163]. See, e.g., Ark. Code Ann. § 5-62-122 (Michie 1997) (livestock); 510 Ill. Comp. Stat. 55/1 (West 1993) (livestock).

[FN164]. See, e.g., Ark. Code Ann. § 5-62-122 (farm purposes).

[FN165]. See, e.g., Mich. Comp. Laws Ann. § 433.51(1) (West 1995) ("any cattle, horses, mules, sheep, swine, or goats").

[FN166]. Morgan v. Kroupa, 702 A.2d 630, 632 (Vt. 1997) (emphasis added).

[FN167]. See Vt. Stat. Ann. tit. 20, § 3411 (1987). The Vermont statute is a combined lost article and estray beast statute. See id.

[FN168]. Morgan, 702 A.2d at 632 (citation omitted). The court stated that "[t]he specific and exacting notice requirements, provision for public auction, and the allowance for 'put[ting] such beast[s] to reasonable labor' all presume, and seek to protect the owner's and finder's interest in, an animal of significant financial value." Id. (citation omitted).

[FN169]. Id. at 632 33 (citation omitted). The same conclusion was reached by the court in Bolsrad v. Pergeson, 806 S.W.2d 377 (Ark. 1991). It found that:

The circuit judge further was in error when he referred to the applicability of a Washington County ordinance dealing with livestock 'or any other animal' running at large and destroying crops. This ordinance is not in evidence, but, moreover, the application of a livestock ordinance to a domestic pet is tenuous at best.

Id. at 378.

[FN170]. See Morgan, 702 A.2d at 632.

[FN171]. Id.

[FN172]. Id. at 632.

[FN173]. See id. at 633. The Vermont Supreme Court cited the following cases as precedent relating to decisions involving disputes between neighbors over stray or impounded farm animals:

Dunbar v. Godbout, 105 Vt. 448, 168 A. 551 (1933) (cattle); Andrews v. Carl, 77 Vt. 172, 59 A. 167 (1904) (heifer calf); Howard v. Bartlett, 70 Vt. 314, 40 A. 825 (1898) (cattle); Mattison v. Turner, 70 Vt. 113, 39 A. 635 (1897) (cattle); Chaffee v. Harrington, 60 Vt. 718, 15 A. 350 (1888) (horse); Bowman v. Brown, 55 Vt. 184 (1882) (cow); Dudley v. McKenzie, 54 Vt. 394 (1882) (sheep); Porter v. Aldrich, 39 Vt. 326 (1866) (oxen); Keith v. Bradford, 39 Vt. 34 (1866) (cattle); Boothe v. Fitzpatrick, 36 Vt. 681 (1864) (bull); Harriman [v. Fifield], 36 Vt. 341 [(1863)] (cows); Riker v. Hooper, 35 Vt. 457 (1862) (horse); Edwards v. Osgood, 33 Vt. 224 (1860) (bull); Hooper v. Kittredge, 16 Vt. 677 (1844) (horses); Moore v. Robbins, 7 Vt. 363 (1835) (sheep).

Morgan, 702 A.2d at 632.

[FN174]. See, e.g., Mich. Comp. Laws Ann. § 287.261 (West 1996). The short title of Michigan's Chapter 287 of the Animal Industry code "shall be known and may be cited as the 'dog law of 1919."' Id.

[FN175]. See Alaska Stat. § 03.35.010 (Michie 1996); Cal. Food & Agric. Code § 30501 (West Supp. 1998); Del. Code Ann. tit. 7, § 1707 (1991); Haw. Rev. Stat. Ann. § 143-1 (Michie 1995); Idaho Code § 25-2801 (1990); Ind. Code Ann. § 15-5-9-1 (West 1998); Mass. Gen. Laws Ann. ch. 140, § 136A (West 1991); Mich. Comp. Laws Ann. § 287.261 (West 1996); Minn. Stat. Ann. § 347.01 (West 1990); N.H. Rev. Stat. Ann. § 466.1 (1997); N.J. Stat. Ann. § 4:19-1 (West 1998); N.M. Stat. Ann. § 77-1-1 (Michie 1998); N.Y. Agric. & Mkts. Law § 106 (McKinney 1991 & Supp. 1998); Ohio Rev. Code Ann. § 955.03 (Anderson 1988); Okla. Stat. Ann. tit. 4, § 41 (West Supp. 1998); Or. Rev. Stat. § 609.100 (1988); R.I. Gen. Laws § 4-13-1 (1987); S.C. Code Ann. § 47-3-10 (Law. Co-op. 1987); Vt. Stat. Ann. tit. 20, § 3581 (1987); Wash. Rev. Code Ann. § 16.10.010 (West 1992); W. Va. Code § 19-20-1 (1997); Wis. Stat. Ann. § 174.001 (West 1997).

[FN176]. See generally Mich. Comp. Laws Ann. § 287 (West 1996).

[FN177]. Id. § 287.261.

[FN178]. State v. Squires, 671 N.E.2d 627, 629 (Ohio Ct. App. 1996).

[FN179]. See Mich. Comp. Laws Ann. § 287.262 (providing that, "It shall be unlawful for any person to own any dog 6 months old or over . . . that does not at all times wear a collar with a tag approved by the director of agriculture . . . or any owner to allow any dog . . . to stray unless held properly in leash.") (emphasis added).

[FN180]. See generally id. §§ 287.265 .277.

[FN181]. See generally id. §§ 287.278 .290.

[FN182]. See generally id. §§ 287.301 .308.

[FN183]. Id. § 287.301. The statute provides that:

From and after the first day of January, 1940, any person may have any dog tattooed with a registration number, as hereinafter provided. The owner of any such dog shall apply to the . . . commissioner of agriculture, . . . for the registration of any such dog . . . . [T]he commissioner shall assign a specific number (which shall not permit duplication) of the ownership of such dog. The application for registration shall be accompanied by a fee of $1.00.


[FN184]. See id § 287.302.

[FN185]. Id. § 287.305; see also Ind. Code Ann. § 15-5-9-14 (West 1997) (stating that dogs may be reclaimed from the pound "upon payment of a reasonable fee not to exceed twenty-five cents ($.25) per day").

[FN186]. Mich. Comp. Laws Ann. § 287.305.

[FN187]. Ohio Rev. Code Ann. § 955.03 (Anderson 1988).

[FN188]. See, e.g., Del. Code Ann. tit. 7, § 1707 (Supp. 1997). The statute provides that: (a) All dogs shall be deemed personal property, and may be the subject of theft pursuant to Chapter 5 of Title 11. Any warrant of arrest, or other process, issued under or by virtue of the several laws in relation to the theft of such property, may be directed to and executed by any sheriff, police officer, constable or Dog Warden. Id.

[FN189]. Dan L. McNeal, Judicially Determined Public Policy: Is "The Unruly Horse" Loose In Michigan?, 13 T.M. Cooley L. Rev. 143, 144 (1996) (footnote omitted).

[FN190]. Id. at 146 (citing Jeffrey W. Stempel, Pitfalls of Public Policy: The Case of Arbitration Agreements, 22 St. Mary's L.J. 259, 336 37 (1990)).

[FN191]. Eyerman v. Mercantile Trust Co., 524 S.W.2d 210, 217 (Mo. Ct. App. 1975).

[FN192]. Id. (quoting Dille v. St. Luke's Hosp., 196 S.W.2d 615, 620 (Mo. 1946)).

[FN193]. See In re Rahn's Estate, 291 S.W. 120, 123 (Mo. 1927).

[FN194]. Eyerman, 524 S.W.2d at 217 (quoting In re Mohler's Estate, 22 A.2d 680, 683 (Pa. 1941)).

[FN195]. 166 U.S. 698, 704 (1897).

[FN196]. Id. at 701; see also Bugai v. Rickert, 242 N.W. 774, 775 (Mich. 1932) (stating that "[t]here is property in dogs, . . . but of an imperfect and qualified nature . . . .") (citation omitted).

[FN197]. Lynn Marner, Comment, The New Breed of Municipal Dog Control Laws: Are They Constitutional?, 53 U. Cin. L. Rev. 1067, 1070 (1984). Ms. Marner also noted that the modern trend has been to afford property status to dogs. See id.

[FN198]. Sentell, 166 U.S. at 704. The Court also found "[t]hat a [s] tate, in a bona fide exercise of its police power, may interfere with private property, and even order its destruction, is as well settled as any legislative power can be, which has for its objects the welfare and comfort of the citizen." Id.

[FN199]. Id. at 706.

[FN200]. See Nebbia v. New York, 291 U.S. 502, 537 (1934) (stating that the courts cannot override reasonable legislative polices to promote public welfare).

[FN201]. Sentell, 166 U.S. at 706.

[FN202]. Marner, supra note 197, at 1073 74 (footnotes omitted).

[FN203]. 702 A.2d 630, 631 34 (Vt. 1997).

[FN204]. Id. at 631.

[FN205]. Id.

[FN206]. See id. at 631.

[FN207]. Id.

[FN208]. See id. The dog was lost in a rural town with a population of 1,000. See id.

[FN209]. Id. The finder had only posted notices that stated'"lost dog' and listed a phone number . . . ." Id. at 636.

[FN210]. See id. at 631.

[FN211]. Id.

[FN212]. Id.

[FN213]. See id.

[FN214]. See id; see also Vt. Stat. Ann. tit. 27, § 1101 1110 (1989). Section 1101 provides that:

A person who finds money or goods, to the value of $3.00 or more, or takes up a stray beast, the owner of which is not known, shall, within six days thereafter, make two notices, describing such money, goods or beast, with the natural or artificial marks, with the time and place of finding or taking up the same, and post them in two public places in the town in which such property was found.

Id. tit. 27, § 1101.

[FN215]. Morgan, 702 A.2d at 631.

[FN216]. See id.

[FN217]. Id.

[FN218]. See id. at 633.

[FN219]. Id.

[FN220]. See id.

[FN221]. See, e.g., Vt. Stat. Ann. tit. 20, § 3909 (1987).

[FN222]. See, e.g., Mich. Comp. Laws Ann. § 287.277 (West 1996).

[FN223]. See, e.g., id. § 287.712; Vt. Stat. Ann. tit. 20, § 3806 (Supp. 1998).

[FN224]. See, e.g., Vt. Stat. Ann. tit. 20, § 3546(c) (1987). See also Sentell v. New Orleans & Carrollton R.R. Co., 166 U.S. 698, 702 (1897) (stating that "regardless of statute, a ferocious dog is looked upon as hostis humani generis, and as having no right to his life which man is bound to respect").

[FN225]. Morgan, 702 A.2d 634 (Vt. 1997).

[FN226]. See id. at 633.

[FN227]. See id.

[FN228]. Sentell, 166 U.S. at 701 02.

[FN229]. See Morgan, 702 A.2d at 634.

[FN230]. Id. at 632, 634.

[FN231]. Id. at 633.

[FN232]. See id.

[FN233]. See, e.g., Rockwell v. Oakland Circuit Judge, 94 N.W. 378, 379 (Mich. 1903) (finding dogs to be the subject of larceny); State v. Weekly, 65 N.E.2d 856, 857 (Ohio 1946) (holding that a registered hunting dog is a thing of value within the larceny statute).

[FN234]. See, e.g., Nicchia v. New York, 254 U.S. 228, 230 (1920); Sentell v. New Orleans & Carrollton R.R. Co., 166 U.S. 698, 701, 706 (1897); Thiele v. Denver, 312 P.2d 786, 789 (Colo. 1957) (en banc); Mayor of Hagerstown v. Witmer, 37 A. 965, 966 (Md. 1897).

[FN235]. See Squires-Lee, supra note 1, at 1060 n. 8.

[FN236]. See supra note 80 and accompanying text.

[FN237]. See supra note 169 and accompanying text.

[FN238]. See Mary Randolf, Dog Law, ch. 1, at 9 (1988); see also supra notes 82 83 and accompanying text.

[FN239]. See Barton & Hill, supra note 12, at 411.

[FN240]. 386 N.W.2d 917 (Ill. App. Ct. 1979).

[FN241]. See id. at 918 19.

[FN242]. See id.

[FN243]. Barton & Hill, supra note 12, at 416.

[FN244]. 415 N.Y.S.2d 182 (N.Y. Civ. Ct. 1979).

[FN245]. Id. at 183. The court went on to state as follows:

This decision is not to be construed to include an award for the loss of a family heirloom which would also cause great mental anguish. An heirloom while it might be the source of good feelings is merely an inanimate object and is not capable of returning love and affection. It does not respond to human stimulation; it has no brain capable of displaying emotion which in turn causes a human response. Losing the right to memorialize a pet rock, or a pet tree or losing a family picture album is not actionable. But a dog that is something else. To say it is a piece of personal property and no more is a repudiation of our humaneness. This I cannot accept.


[FN246]. 197 So. 2d 239 (Fla. Dist. Ct. App. 1967).

[FN247]. Id. at 332 (citing La Porte v. Associated Indep., Inc., 163 So. 2d 267, 269 (Fla. 1964)); see also, Tenhopen v. Walker, 55 N.W. 657, 658 (Mich. 1893) (finding that exemplary damages are recoverable for the malicious killing of a dog).

[FN248]. See Morgan v. Kroupa, 702 A.2d 630, 635 36 (Vt. 1997) (Gibson, J., dissenting).

[FN249]. See id. (Gibson, J., dissenting) (citing Chaffee v. Harrington, 15 A. 350, 351 (Vt. 1888) (stating that the requirements of the statute relating to rights and duties of finders of stray beast must be strictly complied with, and that the plain purpose of the statute in requiring that animals be described by natural or artificial marks is that the owner and others who see the ads may be able to recognize or identify the animal)).

[FN250]. See id. at 636 (Gibson, J., dissenting); see also supra note 209 and accompanying text. Justice Gibson also stated:

Despite the [c]ourt's professions to the contrary, I cannot agree that plaintiff made a "reasonable effort" or "diligently attempted" to locate the dog's owner. Although she posted notices, they simply read "lost dog" and listed a phone number, without describing the dog's breed, sex, approximate age (puppy or adult), color, markings or distinctive features, or whether the dog had a collar. While plaintiff also requested community-service radio ads, these ran for two days only, and there is no indication they were any more detailed than her posted notices. Thus, plaintiff failed to provide even the minimal notice necessary to qualify as "reasonable," much less comply with the lost-property statute.

Morgan, 702 A.2d at 636 (Gibson, J., dissenting) (citations omitted).

[FN251]. See supra notes 106 11 and accompanying text.

[FN252]. See supra note 115 and accompanying text.

[FN253]. See supra notes 174 88 and accompanying text.

[FN254]. See supra note 227 and accompanying text.

[FN255]. See supra note 243 46 and accompanying text.

[FN256]. Corso v. Crawford Dog and Cat Hosp., Inc., 415 N.Y.S.2d 182, 183 (N.Y. Civ. Ct. 1979); see also supra note 245 and accompanying text.

[FN257]. See generally supra note 183 and accompanying text.

[FN258]. See Norma Bennett Woolf, Grain-Sized Microchip Can Be Fido's Ticket Home (visited March 27, 1998) <>. Ms. Woolf states the following:

[T]he microchip [is] a tiny transponder the size of a grain of uncooked rice. This is a permanent identification system implanted under the dog's skin and read by a chip scanner. Implantation is done with an injector that places the chip under the loose skin at . . . the dog's shoulder. The advantages are obvious-the process is quick and no more painful than a vaccination, the chip can't get lost, the number is unique, the dog doesn't have to be wrestled to the ground and shaved to see if it's there, and the owners name and address is available on regional or national data bases [sic] so a dog can be returned quickly and safely.

. . . .

[Currently, there are three manufacturers of the scanning equipment and chips, and a]ll three chip companies . . . give scanners to animal shelters, so all area shelters could participate in a chipping program.

Cost of implantation varies with the veterinarian; cost of registering the number at the AKC is $12.50 unless there's a special promotion on.


Some states have already recognized this form of dog identification by statute. See, e.g., N.H. Rev. Stat. Ann. § 466.13-a (Supp. 1996) (providing that the following forms of identification may be used: tattoo, collar, surgically implanted microchip, or ear tag).

[FN259]. Sentell v. New Orleans & Carrollton R.R. Co., 166 U.S. 698, 704 (1897).

[FN260]. See, e.g., Mich. Comp. Laws Ann. § 287.266 (West 1996) (requiring that the application for a dog license be accompanied by proof of a rabies vaccination); Thiele v. Denver, 312 P.2d 786, 788 (Colo. 1957) (en banc) (stating that "the rabies tag required under this ordinance also serves as a license tag for dogs in the City of Denver").

[FN261]. See Del. Code Ann. tit. 7, § 1707(a) (Supp. 1996) (license); Mich. Comp. Laws Ann. § 287.261(c) (tattoo); N.H. Rev. Stat. Ann. 466:1 (microchip or ear tag); Ohio Rev. Code Ann. § 955.03 (Anderson 1988) (registering).

[FN262]. Sentell, 166 U.S. at 706.

[FN263]. Congress has recently recognized the identification problem and its impact on stolen companion animals when it enacted the Pet Theft Act of 1995, 7 U.S.C.A § 2158(b)(1) (West Supp. 1998). Although the purpose of this act was to discourage the theft and sale of pets and allow, where possible, stolen pets to be reunited with their owners, its critical feature is the certification or identification requirement. See id. It provides that "[a] dealer may not sell, provide, or make available to any individual or entity a random source dog or cat unless such dealer provides the recipient with a valid certification . . . ." Id. The act provides the following as a valid certification:

(2) Requirements

A valid certification shall contain-

(A) the name, address, and Department of Agriculture license or registration number (if such number exists) of the dealer;

(B) the name, address, Department of Agriculture license or registration number (if such number exists), and the signature of the recipient of the dog or cat;

(C) a description of the dog or cat being provided that shall include-

(i) the species and breed or type of such;

(ii) the sex of such;

(iii) the date of birth (if known) of such;

(iv) the color and any distinctive marking of such; and

(v) any other information that the Secretary by regulation shall determine to be appropriate;

Id. § 2158(b)(2).

Also, the act provides that "[c]ertification requirements may be modified to reflect technological advances in identification techniques, such as microchip technology, if the Secretary determines that adequate information such as described in this section, will be collected, transferred, and maintained through such technology." Id. § 2158(b)(5). Certification with the Department of Agriculture could be used to establish a centralized identification system for all domestic pets throughout the nation. This identification process conceivably could be coupled with the state's police power in the regulation of pets, which would facilitate the identification process prior to the true owner's action to enforce her property right in state court.

[FN264]. See Sentell, 166 U.S. at 701 02.

[FN265]. U.S. Const. amend. XIV, § 1; see also Helmy v. Swigert, 662 So. 2d 395, 397 (Fla. Dist. Ct. App. 1995) (holding that the plaintiffs may have "possibly been deprived of their property without due process" when the state seized their pet dog and refused to give it back because it was evidence in a criminal case).

[FN266]. See, e.g., Shelley v. Kraemer, 334 U.S. 1, 19 20 (1948) (finding that state action within the Fourteenth Amendment includes a court's enforcement of an order regarding restrictive covenants that have for their purpose the exclusion of persons of designated race or color from ownership of real property).

[FN267]. See Jerrome A. Barron & C. Thomas Dienes, Constitutional Law In A Nutshell Ch. 5, at 153 (1986).

[FN268]. Sentell, 166 U.S. at 705.

[FN269]. See supra notes 174 88 and accompanying text.

[FN270]. Thiele v. Denver, 312 P.2d 786, 789 (Colo. 1957) (en banc).

[FN271]. See, e.g., Mich. Comp. Laws Ann. § 287.277 (West 1996).

[FN272]. See, e.g., id. § 287.278.

[FN273]. See, e.g., id. § 287.279.

[FN274]. See id.

[FN275]. See, e.g., Thiele, 312 P.2d at 789 (finding the summary destruction of a dog running at large to be a valid exercise of the state's police power); State v. Tull, 8 A.2d 17, 21 (Del. 1939) (finding that the dog licensing ordinance was a valid exercise of the police power and not violative of due process). But see, Kasch v. Anders, 149 N.E. 275, 277 (Ill. 1925) (finding the statute that authorized the killing of unlicensed and trespassing dogs was not reasonable, but arbitrary, and deprived a person of his property without due process of law); Fucelli v. American Soc. For Prevention of Cruelty to Animals, 23 N.Y.S.2d 983, 987 (City Ct. of NY, Special Term 1940) (holding that the summary destruction of a pet dog for three bites without the opportunity to show provocation in each case violates the owner's due process rights).

[FN276]. Marner, supra note 197, at 1074 (citation omitted).

[FN277]. Mich. Comp. Laws Ann. § 287.388.

[FN278]. See id. Compare Ind. Code Ann. § 15-5-9-14 (West 1998) (providing that if dogs impounded under the statute are not "reclaimed within twenty (20) days, they shall be sold or destroyed as the impounding officials may decide"); with Conn. Gen. Stat. Ann. § 22-333 (West Supp. 1997) (providing that an owner of any "impounded dog who fails to redeem such dog within one hundred and twenty hours after receiving notification to do so shall have committed an infraction").

[FN279]. Youngblood v. County of Jackson, 184 N.W.2d 290, 291 92 (Mich. Ct. App. 1971).

[FN280]. See supra notes 115 119 and accompanying text.

[FN281]. See Vt. Stat. Ann. tit. 27, § 1101 09 (1989).

[FN282]. See Mich. Comp. Laws Ann. § 434.23 .25 (West 1995).

[FN283]. See, e.g., Fisher v. Klingenberger, 576 N.Y.S.2d 476, 479 (N.Y. Ct. Cl. 1991). The court stated:

The Legislative history of this Act demonstrates that Personal Property Law, Article 7 B, is a process to transfer title to "lost property" from its original owners, and to invest title to that "lost property" in new owners. Given the fact that this law deprives original owners of their property interests, it must meet rigid constitutional standards of due process for notice and opportunity to those original owners,-and it adequately does so. That is its chief focus.


[FN284]. Corso v. Crawford Dog & Cat Hosp., 415 N.Y.S.2d 182, 183 (N.Y. Civ. Ct. 1979) (noting that a dog is something other than a piece of personal property).

[FN285]. See Morgan v. Kroupa, 702 A.2d 630, 632 33 (Vt. 1997).

[FN286]. See id.

[FN287]. See id. at 633 34.

[FN288]. See supra note 82 and accompanying text.

[FN289]. See supra notes 238 47 and accompanying text.

[FN290]. See N.H. Rev. Stat. Ann. § 466.13-a (1996). Only New Hampshire recognizes the microchip form of identification by statute. See id.

[FN291]. See supra note 112 and accompanying text.

[FN292]. See supra notes 257 63 and accompanying text.

[FN293]. See supra notes 264 87 and accompanying text.

[FN294]. See Hirschman, supra note 2, at 616 (citation omitted).

[FN295]. Squires-Lee, supra note 1, at 1099.

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