Articles

Legal Rights and Duties in Lost Pet Disputes

  • Christopher A. Berry
  • Animal Legal and Historical Center
  • Publish Date: 2010
  • Place of Publication: Michigan State University College of Law

I. INTRODUCTION

A majority of households in America have pets.[FN1] People form strong bonds with their pets and often consider them part of the family.[FN2] Unfortunately, large numbers of these pets wander from home or are otherwise lost by their owner.[FN3] Some are taken off the streets by compassionate citizens and others end up in animal shelters where they may be adopted or euthanized.[FN4] Many owners never learn the fate of their lost pet.[FN5] This article focuses on those that do.

The discovery of a lost pet’s fate raises a host of legal issues. Who owns the lost pet when someone takes it off the street and cares for it over a period of time? What damages is the original owner entitled to when a private party or government agent sterilizes, euthanizes, or otherwise harms a lost pet? How should the law balance property rights on the one hand with the public policy need to effectively manage and care for the burgeoning pet population?

The following article contains an overview of the legal rights and duties of parties in a lost pet dispute. Three important considerations regarding lost pet disputes are: the relief sought, the types of parties involved, and the differences between jurisdictions. A plaintiff in a lost pet dispute may seek an injunction to recover the pet, damages for harm done to the pet, or declaratory judgment of ownership. The causes of action and relief will depend largely on whether the plaintiff or defendant is the original owner, an ordinary finder, a government agency, or a veterinarian.

Because pets are property and property law is a state issue, the legal rights and duties will vary somewhat depending on the law of the applicable jurisdiction. Accordingly, laws and cases that point to common schemes as well as deviations are included in the discussion. Anyone considering legal action is advised to thoroughly investigate the laws in his or her jurisdiction.

II. OVERVIEW OF LAW AFFECTING RIGHTS OF LOST PET OWNERS

Legal actions between parties in a lost pet dispute may take a variety of forms depending on the parties, jurisdiction, and relief sought. Generally speaking, there are three popular legal schemes to keep in mind. The first is a simple action based on common law claims. Under common law, pets are property and a party claiming to own the property can bring an action to recover damages and possession. The true owner has a right to recover possession of the pet under common law if she can prove ownership in fact. However, this right is limited when the defendant can show that the statute of limitations, equitable considerations, or superseding statutes apply.

Statutory provisions often apply in lost pet disputes and give rise to the other two popular schemes. All states have impoundment statutes that govern the capture, detention, and disposal of stray animals. Pets impounded pursuant to these laws are typically held for a few days while the shelter makes an effort to locate the owner. If the owner does not claim the pet within the prescribed holding period, the animal shelter is authorized to dispose of the animal by sale, adoption, or euthanasia. In addition to justifying a shelter’s disposal, the impoundment statutes may modify the liability of the shelter or its employees for treatment of the pet as well as give the pet’s adopter immediate ownership rights.

Lost pet disputes may also be affected by lost property statutes. These statutes abrogate the common law rule that the true owner of property has an absolute right over the property by extinguishing the original owner’s rights after a few months as long as the finder reports the property as lost. Lost property statutes appear to assume that the property in question is commercially valuable and therefore may not apply to pets. These statutes usually apply only when there is a dispute between private parties because the legal rights of state agencies and animal shelters are governed by more specific impoundment statutes.

 

A. Common Law Rights of the True Owner

A basic legal dispute between the owner of a lost dog and its finder unfolds like this:

Appellant brought suit in replevin in the court of a justice of the peace on October 31, 1927, to recover possession of a certain dog. Judgment was rendered in his favor by the justice of the peace, but, at the trial on the appeal in the circuit court before a jury, a verdict was directed against him on the ground that his cause of action was barred at the time the suit was brought.
Appellant testified that he owned the dog in question, and that he lost it in the summer of 1924 or the early fall of that year. He heard that appellee had the dog, and asked appellee about it, telling him that a Mr. Green had said he might have the dog. Appellee stated that Green was mistaken and that he did not have the dog. Appellant later found the dog in appellee’s possession, and, when demand was made, appellee claimed he had bought the dog, and refused to surrender it.

Free v. Jordan, 10 S.W.2d 19, 19-20 (Ark. 1928).

There are several issues that arise in a common law lost pet dispute. Is the pet merely lost or did the owner intend to abandon it? What actions are available to recover damages for damage to the pet or lost income? What actions are available to recover possession of the pet? What defenses are available to a party protesting a request for damages or recovery? As demonstrated by the following discussion, the common law rules strongly protects the original "true" owner's property right interest in the lost pet.

 

1. Designations of Found Property As Abandoned, Mislaid or Lost

Common law rules control the outcome of legal disputes between original owners and finders unless abrogated by statute. Under common law, property is designated abandoned, mislaid or lost. The original owner loses all property rights in abandoned property. Whether property is abandoned depends on the original owner’s intent at the time he or she lost control over the property.[FN6]

When the property is simply mislaid or lost, the original owner retains superior title. There is only a subtle distinction between mislaid and lost property.  When property is mislaid, the owner unintentionally leaves it at some place and forgets to retrieve it. Whoever owns that place has superior property rights against everyone except the true owner of the mislaid property. By contrast, property is lost when the owner never had the intention of leaving the property in any place.  When property is lost, the finder has superior property rights over it against everyone except the true owner.[FN7]

The focus of this article is on the rights and liabilities for pets designated as “lost" property. An owner that abandons a pet loses all property rights and his property or possessory right over the animal is not in question. Additionally, pets are mobile, large and loud and are far more likely to run away and become lost than they are remain mislaid. The rights of the owner of the place of mislaid property will be the same as the rights of the finder of lost property anyway. In any event it is important to keep in mind that these alternative designations may apply.

 

2. Bailment Created Upon Taking Lost Pet 

When a person finds and takes lost property, an implied bailment is created under common law.[FN8] A bailment is a contractual agreement between the owner of the pet and its finder that the finder owes a duty to take reasonable care of the pet and return it to its true owner.[FN9] In turn, the owner of the lost pet must pay the finder compensation for caring for the pet before she has a right to recover possession of the pet.[FN10] As a general rule, a finder who takes care of lost property is a “gratuitous bailee” liable for breach of bailment only by committing an intentional tort or an act of gross negligence.[FN11]

 

3. Actions to Recover Damages for Harm to Lost Pet

An original owner can recover damages from the finder of a lost pet by resorting to traditional tort actions such as trespass and conversion.[FN12] As long as the original owner can prove the necessary elements under the particular cause of action, she may recover damages. Depending on the nature of the harm, damages may include the replacement value of the animal, lost income, or veterinarian bills. In rare cases, punitive, exemplary and emotional damages may be available.[FN13]

One illustrative example of a common law action for damages is Lincecum v. Smith, 287 S.2d 625, 626-627 (La.App. 1974). In that case, a puppy with an eye infection wandered away from home and was picked up by a neighbor who brought the lost puppy to a veterinarian. Id. The veterinarian told the finder that treatment would cost $300 and the dog would likely suffer from impaired vision. Id. The finder dramatically authorized the veterinarian to euthanize the puppy. Id. The original owner discovered what happened and sued the finder and veterinarian for conversion seeking damages for the value of the puppy, embarrassment, and mental anguish. Id. at 627. The court found that “when [the finder] authorized the veterinarian to ‘put this dog to sleep’, he asserted both dominion and a right to ownership which he did not legally possess.” Id. at 628.

In another conversion case, the owner of a cat sued her neighbors for conversion when she found out they trapped her cat and surrendered it to an animal shelter where it was later euthanized. Alvarez v. Clasen, 946 So.2d 181 (La.App. 2006). The issue on appeal was whether to uphold a judgment dismissing the owner’s conversion claim against the neighbors on the grounds that taking a stray cat is not “wrongful.” Id. at 182-183. The appellate court upheld the dismissal finding that “[because the] ordinances clearly allow the Parish Animal Shelter to impound the cat trapped in defendants' yard [and defendants] simply turned the trapped animal over to proper governmental authority […] the [defendants’] ‘act of dominion’ over the cat was not ‘unlawful,’” Id. at 184. In the same decision, the appellate court upheld the dismissal of the plaintiff’s intentional infliction of emotional distress  (IIED) claim because the defendants’ trapping of the cat and subsequent coverup was not “so outrageous” as to could constitute liability for IIED. Id.

Other parties may be liable to pay damages as well. Although animal shelters are more difficult to sue because animal impoundment laws often justify the detainment and disposal of animals, a shelter’s failure to comply with an impoundment law will expose it to liability.[FN14]

 

4. Actions to Recover Possession of Lost Pet

In addition to damages, the original owner of a lost pet may want to recover possession of the pet if it is still alive. The common law rule affords the true owner of property a very strong possessory right. A plaintiff will generally recover possession of the pet by merely showing (1) ownership of the pet and (2) its wrongful detention by the defendant.[FN15]

The most common way to exercise a right of possession is by means of a replevin action:[FN16

Replevin is a remedy stemming from the common law and it is a proceeding by which the owner or one who has an interest in a chattel taken or detained seeks to recover possession of the chattel. Despite its common law origin, in some jurisdictions replevin is strictly a matter of statutory law. In the federal system the courts' authority to award replevin is provided for by court rule…It is a remedy which is designed to restore possession of property to a party entitled to possession. In other words, in a replevin action the remedy sought is the return of detained property plus incidental damages.

66 Am. Jur. 2d Replevin § 1.

In some jurisdictions, plaintiffs may also bring a detinue action:

Detinue is a common-law action for the recovery of specific personal property unlawfully detained, or its value, and for damages for its detention. In this respect it is similar to replevin. However, the peculiar and distinguishing characteristic of [replevin] is that it takes the property in controversy… in the hands of the plaintiff [at the beginning of legal action in the form of a bond]… while in detinue the possession is not changed until after judgment... Although once distinguishable, in some jurisdictions the common-law actions of detinue and replevin have been statutorily joined so as to provide a statutory method for the recovery of personal property.

66 Am. Jur. 2d Replevin § 4.  Note that both actions allow the plaintiff to request damages in addition to the request to recover possession of the pet.

Additionally, the original owner may ask for repossession of the pet as an equitable remedy pendent to an action in negligence, trespass, conversion, and the like. The ultimate question for a judge determining whether to grant this equitable relief is whether awarding repossession of the pet is more adequate than damages:

The relative adequacy of a remedy, other than an injunction, for the recovery of the possession of a piece of chattel depends on:
(a)the probability that actual possession of the chattel can beobtained by means of the remedy, and
(b)the relative adequacy of the remedy for damages as substitutefor recovery of possession if the recovery is not available.

Restatement (Second) of Torts § 946.

Because pets are unique property and their value is derived from the emotional bonds they share with their owner, judges should generally grant a true owner’s request for repossession.[FN17]

 

5. Proof of Ownership of Lost Pet

As noted in the previous sections, a plaintiff must prove his or her original ownership of the lost pet as a matter of fact before claiming a right to damages or possession. Proof of ownership may be difficult to establish because animals belonging to the same breed or displaying the same coat pattern may look virtually identical. Evidence of ownership may include a description of the pet’s behavior,[FN18] appearance,[FN19] identifying marks or scars,[FN20] permanent identification,[FN21] whether the pet responds to its original name,[FN22] corroborating DNA tests from the hair on a brush,[FN23] and proof of a party’s possession of the animal for an extended period of time.[FN24] Some forms of evidence may entitle a party to a presumption of ownership.[FN25]

 

6. No Ownership of Wild Animals 

According to the common law rule of ferae naturae (wild animals): “[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.” Conti v. ASPCA, 353 N.Y.S.2d 288, 290 (N.Y. Civ. Ct. 1974). In that case, Chester the parrot flew away from home and was allegedly recovered by the finder-plaintiff who earned its trust by feeding it for two weeks. Id. at 289. The finder-plaintiff reached out to the ASPCA for help taking care of the bird, the ASPCA seized it to return it to its original owner, and the finder-plaintiff brought a replevin action to recover it. Id. After finding that Chester was in fact the same parrot as the one recovered from the plaintiff, the court had to decide whether Chester reverted to his wild state after he flew away from home. Id. at 290. Although the original owner was unable to persuade Chester to come back before flying away and Chester otherwise appeared skeptical of human control, id. at 289, the court found that he was domesticated the entire time due to his prior training, discipline, and captivity. Id. at 291.

 

7. Defenses 

If the original owner can meet the burdens supporting his cause of action, the finder may only keep the pet or avoid damages by establishing an affirmative defense. The use of affirmative defenses is especially important for a finder who wants to keep possession of the pet because the true owner’s right to possession is otherwise absolute under common law.

 

a. Right to Possession Barred by Statutes of Limitation

Statutes of limitation will often be the finder’s best defense to extinguish the original owner’s right to possession of a lost pet.[FN26] There is a large variance in limitation periods for the recovery of lost property depending on the jurisdiction ranging from three years to as much as six or even ten years.[FN27]

However, the limitations period may be tolled if the finder conceals his or her possession of the pet. For example, the plaintiff in one case lost his dog and found it in his neighbor’s possession after the expiration of the three year statute of limitations. Free v. Jordan, 10 S.W.2d at 19. Although the passage of more than three years would normally extinguish the plaintiff’s claim of ownership, the appellate court remanded the case because there was a question of fact whether the limitations period was tolled due to the defendant’s fraudulent concealment of his possession of the dog. Id.

 

b. Equitable Estoppel

An original owner’s action may be completely barred by equitable estoppel if the owner’s wrongful conduct caused the tortious conduct.[FN28] A court may even decline to order a surrender of property where the original owner has unclean hands[FN29] or there was an undue delay (laches) in bringing the action.[FN30] Laches and unclean hands are especially salient equitable considerations in a lost pet dispute where the finder forms a strong, rapid emotional bond with the pet and would be exceptionally harmed by loss of possession.

 

8. Criminal Liability for Stealing Pet

A final issue to keep in mind is that a person who takes a lost pet may incur criminal liability under certain circumstances.[FN31] Generally speaking whether a person who finds a pet is taking it legally as a bailee or illegally as a thief will hinge on the person’s intent at the time. If the person knows the identity of the pet’s owner but does not return it or notify the owner he could be guilty of theft. For example, California’s penal code provides that:

One who finds lost property under circumstances which give him knowledge of or means of inquiry as to the true owner, and who appropriates such property to his own use, or to the use of another person not entitled thereto without first making reasonable and just efforts to find the owner, and to restore the property to him, is guilty of theft.

California Penal Code § 485.

Some states even have specific dog stealing crimes. South Carolina provides that:

It shall be unlawful for any person to steal a dog in which any other person has a right of property.

Code of Laws of South Carolina 1976§ 16-13-60. Similarly, Connecticut law states that:

Any person who steals a dog may be prosecuted under section 22-351 or under sections 53a-118 to 53a-129, inclusive.

Connecticut General Statutes § 22-327.

While criminal actions rest solely within the domain of the state, a true owner wronged by a finder may file a police report and ask the state to pursue a criminal action.

 

B. Statutory Abrogation of Common Law and Justification of Conduct

Statutes may abrogate, modify, or preempt the previously described common law rules and justify otherwise tortious conduct. There are two popular statutory schemes that are relevant in lost pet dispute: (1) stray animal impoundment laws and (2) lost property statutes. It is very important under both statutory schemes to determine whether the statute applies at all, and if so, whether the parties sufficiently complied with it. If a statute does not apply, then the resolution of the legal dispute reverts to the common law rules.[FN32]

 

1. Animal Impoundment Statutes and Ordinances

Stray animal impoundment laws are very common. Impoundment statutes typically authorize local governments or private organizations to collect and dispose of stray animals, impose basic duties on animal shelters, and privilege some types of conduct.[FN33] Furthermore, these statutes abrogate more general common law lost property rules by extinguishing the original owner’s property rights after the passage of a prescribed holding period as short as two days in some jurisdictions. After the holding period expires, the animal may be euthanized, sold for medical research, sterilized, or adopted without subjecting the animal shelter or adopter to legal liability. Despite the appearance of straightforwardness, impoundment statutes give rise to a host of ambiguities that call into question the justification of the shelter’s conduct and the validity of the title it passes to third party adopters.

 

a. Legality of Acquisition

Impoundment statutes that authorize an animal’s detention, disposal, and transfer to third parties may not apply if the animal was illegitimately acquired. Most statutes, for example, only permit the acquisition of animals that are abused, abandoned, stray, or running-at-large. Generally speaking, an animal is stray or running at large if it is not under the immediate control of its owner:

’Running at large,’ within the meaning of a statute means the strolling, without restraint or confinement, as wandering, roving and rambling at will without restraint... In some instances moral means are sufficient for the purpose, such as the proximity of the animals, the human voice, gestures, and the like.

4 Am. Jur. 2d Animals § 42.

The status of a cat as either stray or stolen was an issue in Feger v. Warwick Animal Shelter, 29 A.D.3d 515 (N.Y. App 2006). In that case, the plaintiff claimed that her purebred cat was stolen from her home, accepted by an animal shelter with knowledge of the theft, and subsequently adopted by a third party. Id. at 515-516. Plaintiff sued the shelter for damages and repossession of the cat but the lower court dismissed the claim by finding that the shelter was authorized to place the cat for adoption. Id. Under New York law, animal shelters are permitted to collect and dispose of cats only if they are “abandoned, [neglected], lost, strayed, homeless, or unwanted”[FN34] when acquired. Id. at 516. Accordingly, the shelter would be liable if it accepted the cat with knowledge that it was stolen. The appellate court remanded the case to determine whether the cat was in fact stolen and accepted with knowledge of the theft. Id.

A different result was reached in a similar Louisiana case. Alvarez v. Clasen, 946 So.2d 181 (La.App. 2006). The original owner of a cat sued her neighbors for conversion when they trapped it while it was roaming outside, brought it to an animal shelter, and concealed their knowledge of its whereabouts. Id. at 182. The cat was subsequently euthanized at the shelter before the original owner could locate it. Id. The court held that the neighbors were not liable for conversion because they did not wrongfully exert dominion over the cat. Id. at 183-184. The local impoundment ordinance stated that “the animal shelter department may impound any cat […] found to be at large.Id. Since the cat was “at large” when the neighbors trapped it, the neighbors’ actions were justified by the ordinance. Id. Essentially, the court held that the neighbors had the right to acquire the stray cat as an agent for the pound.

Although the result in Alvarez appears to contradict the result in Feger, the two cases may be reconciled. The cat in Feger was allegedly stolen from the plaintiff’s home whereas the cat in Alvarez was at-large when it was “stolen.” Despite this reconciliation, the result in Alvarez may be criticized because it justified the defendants’ taking the law into their own hands without clear statutory authority to do so.

The jurisdiction where an animal is acquired also bears on the legitimacy of the acquisition. Two cases illustrate this potential conflict. In Graham v. Notti, a resident found a stray dog and took it to a Spokane city animal shelter. 196 P.3d 1070, 1071 (Wash.App. 2008). The dog was subsequently adopted and the original owner sued to replevy the dog. The original owner challenged the validity of the adoption because the shelter was only authorized to impound animals “from the city” and there was an issue of fact whether the dog was seized within city limits. The court held that the shelter only had the authority to impound or dispose of pets that were found in the city and remanded the case to determine where the dog was originally found.  Id. at 1073.

A case well-suited for a jurisdiction exam presented a similar conflict. The plaintiffs were the original owners of a lost dog suing its adopters for damages and recovery of its possession. Webb v. Amtower, 2008 WL 713728 (Kan.App. 2008) (not reported). The dog started its journey at an emergency animal shelter during Hurricane Katrina, was transferred to an animal shelter in Alabama, and subsequently adopted by a family in Kansas. Id. at *1. The Kansas court applied its forum's traditional lex loci conflict of laws rule and made several findings. Id. at *2. Because the plaintiff’s injury occurred when the dog’s adoption papers were signed in Kansas, it applied Kansas law for liability of the tort injuries. Id. However, it characterized the replevin action for repossession of the dog as a property law issue and remanded the case to the lower court to determine and apply the local law of the jurisdiction where the dog was found.[FN35] Id. at *2-3.

 

b. Identification and Reasonable Efforts to Locate

Many impoundment statutes afford extra protection to pets whose owners are reasonably identifiable. Forms of identification for lost pets typically include tattoos, collars, and microchips. Registering a pet or obtaining a license with the local government is often conducive to identification efforts.

Some laws require shelters to hold animals for a longer period if they are identifiable. Under Colorado law, pets with identification such as a microchip or collar must be held in the shelter for five days whereas unidentifiable pets must be held for three days. Colorado Revised Statutes Annotated § 35-80-106.3. Rhode Island has a similar protection although specifies that the dog must be specifically collared and not merely generally identifiable. Rhode Island General Laws 1956 § 4-13-15.

Additionally, shelters are often required to make reasonable efforts to look for identification. New Hampshire imposes a duty on shelters to use a microchip scanner and look for other forms of identification to locate the owner. New Hampshire Revised Statutes § 437:10. Failure to discharge these duties will bring into question the validity of adoptions and may expose the shelter or its employees to civil liability.

Scanning for microchips is becoming very common and is even required in some jurisdictions.[FN36] While collars or tags may be sufficient to identify a lost pet, oftentimes animals slip out of their collar or owners neglect to put the collar on in the first place. Microchipping a pet can drastically increase the chance of reunification if it becomes lost. According to the American Veterinary Medical Association (AMVA):

A study of more than 7,700 stray animals at animal shelters showed that dogs without microchips were returned to their owners 21.9% of the time, whereas microchipped dogs were returned to their owners 52.2% of the time. Cats without microchips were reunited with their owners only 1.8% of the time, whereas microchipped cats went back home 38.5% of the time. (Lord, et al.JAVMA, July 15, 2009) For microchipped animals that weren't returned to their owners, most of the time it was due to incorrect owner information (or no owner information) in the microchip registry database…[FN37]

On the other hand, some people have raised health concerns that the microchips might increase the pet’s risk of cancer. These concerns appear to be mostly speculative and outweighed by the risk of losing the pet. The AVMA weighs in on this point as well:

...based on our review of the studies, the risk that your animal will develop cancer due to its microchip is very, very low, and is far outweighed by the improved likelihood that you will get your animal back if it becomes lost.[FN38]

 

c. Holding Period

A shelter may be subject to liability if it disposes of an animal before the passage of the prescribed holding period. Any transfer of ownership to a third party adopter is probably invalid as well. The holding period should be easily discernable by consulting state law, local ordinances, and contractual provisions between the shelter and the local government. Rhode Island, for example, only provides a two day holding period for the adoption, sale or disposal of dogs and cats without identification. Rhode Island General Laws 1956 §§ 4-22-5 and 4-13-15. Connecticut is one of the more lenient states and permits the euthanasia or adoption of dogs found roaming-at-large only if unclaimed after seven days. Connecticut General Statutes § 22-332.

 

d. Timing and Extent of Ownership Transfer

One issue that has split at least some courts is whether an original owner’s property rights to an animal are completely extinguished when the holding period expires.  As noted previously, statutes authorize animal shelters to sterilize, euthanize, sell, or place for adoption pets that have not been reclaimed within the holding period.  While the statutes authorize disposal of the pet after the holding period, they do not explicitly state that the original owner’s rights are completely extinguished. Two cases highlight opposing views on the issue.

One view among courts is that the expiration of the holding period completely extinguishes the original owner’s property rights over the pet.  This view is illustrated by Wheatley v. Towers, 358 N.E.2d 971 (Ill.App. 1977).  The plaintiff’s dog was running-at-large and taken to the local shelter by animal control.  Id. at 971-972. Before the expiration of the seven day holding period, the plaintiff contacted the shelter, expressed his desire to reclaim the animal, but  could not reclaim it because he refused to pay the $25 running-at-large penalty. Id. While the plaintiff waited to protest the penalty in front of a judge, the dog remained in the shelter, the holding period expired, and a shelter employee euthanized the dog. Id. The plaintiff sued the employee but the appellate court upheld a verdict for the defendant: “from the facts of the case, we can not say the defendant had a duty to maintain the plaintiff’s dog for an indefinite period of time." Id. at 973.

A similar decision was reached in Lamare v. North County Animal League, 743 A.2d 598 (Vt. 1999). In that case, the local animal control agency picked up a stray dog and transferred it to the North County Animal League (NCAL) after the seven day holding period expired so the dog could be adopted. Id. at 599. The statute authorizing the transfer to NCAL stated that:

unless the owner or person entitled to possession of the dog shall claim the same and pay all charges set forth below within seven (7) days after posting of such notice, the dog office shall sell the dog, give the dog away or dispose of it in a humane way.

Town of Wolcott Dog Control Ordinance § 7(C). The plaintiffs eventually found the dog at the NCAL shelter and asked for its return. Id. The NCAL denied the plaintiff’s application for adoption and placed the dog with other owners instead. Id. at 600. The court held that the plaintiff’s possessory right to the dog was extinguished after the seven day holding period and subsequent placement with the NCAL. Id. at 602. It noted that the need to efficiently dispose of pets after the holding period was a “necessary and essential power under the [impoundment] statute.” Id.

A contrary decision was reached in Birmingham Humane Society v. Dickson where the court found that an owner's property rights continue after the holding period expires if the pet has not yet been disposed. 661 So.2d 759 (Ala.App. 1994). The plaintiff’s dog ran away from home, was taken by animal control, and subsequently transferred to an animal shelter for adoption after the three day holding period. Id. at 760. The plaintiff located the dog at the shelter weeks after the holding period expired and requested its return.  Id. Pursuant to the shelter’s policy and city code,[FN39] the shelter informed the plaintiff it would sterilize the dog and the plaintiff would have to file for adoption. Id. at 761. Despite the plaintiff’s objections, the shelter in fact sterilized the dog before returning it. Id. The appellate court upheld the jury’s finding of negligence: “[o]nce Dickson claimed to be the true owner of the dog and requested that the dog, which had not been neutered at that time, not be altered, Humane could have simply refrained from taking any action until the controversy was resolved.” Id.

While the court’s holding in Birmingham Humane Society contradicts the two previously discussed decisions as well as the plain language of the city code, the policy rationale of the decision is strong. No third party adopted the dog and both the original owner’s interest in retrieving his dog intact as well as the shelter’s interest in efficient management would have been served by returning the dog to the original owner without sterilization. Although there is at least some public interest in sterilizing pets in order to control the pet population, that interest appears relatively weak compared to the property interest involved.

 

e. Disposition of Lost Pet Upon Passage of Holding Period

Pets in animal shelters may generally be disposed after the holding period by euthanasia, sale, or adoption. However, the methods of disposal must accord with federal, state, and local law. Failure to comply with such requirements may expose the shelter to liability for conversion as well as invalidate any transfer of ownership.

The most important federal law to keep in mind is the Animal Welfare Act.  The AWA was enacted because of the concern about dog theft and research. It affords some minimal protection to pets destined for sale to research labs by requiring that the shelter:

hold and care for such [impounded] dog or cat for a period of not less than five days to enable such dog or cat to be recovered by its original owner or adopted by other individuals before such entity sells such dog or cat to a dealer.
7 U.S.C. § 2135.

State and local statutes may impose additional disposal conditions to reflect the policy concerns of the jurisdiction. Washington D.C.’s impoundment ordinance is a model for animal welfare by requiring that all animals be placed for adoption or disposed of according to its “best interest” if adoption is not possible. District of Columbia Official Code 2001 Edition § 8-1831.01.

Oklahoma actually gives people surrendering their pets the right to forbid it from ending up in a research lab:

Any owner of an animal who voluntarily delivers the possession of it to a public pound shall have a right to specify that it shall not be used for scientific research, and if an owner so specifies, it shall be the duty of the pound superintendent to tag such animal properly and to make certain that such animal is not delivered to an institution for scientific purposes…

4 Oklahoma Statutes § 394(A)(2).

 

f. Standards of Care for Handling Pets at Shelter

Some impoundment statutes provide specific standards of care to follow to give medical treatment to animals or euthanize them. Generally speaking, animal shelters have a duty to care for animals so they do not suffer unnecessarily and must comply with any explicit statutory requirements. Statutory provisions that impose a specific duty or defense abrogate more general common law rules.

As an example, New York law states that animal shelters and law enforcement officers:

may lawfully and humanely destroy… any animal found [abandoned, neglected, homeless, or unwanted] [before the expiration of the holding period], if upon examination a licensed veterinarian shall certify in writing, or if two reputable citizens [find] that the animal is so maimed, diseased, [etc.] so as to be unfit for any purpose.

New York Agriculture and Markets Law § 374(1).

In Illinois:

(a) Any municipality or political subdivision allowing […] trap, sterilize, and return programs to help control cat overpopulation shall be immune from criminal liability and shall not be civilly liable, except for willful and wanton misconduct […].
 
(b) Any veterinarian or animal shelter who in good faith contacts the registered owner of a microchipped animal shall be immune from criminal liability and shall not, as a result of his or her acts or omissions, except for willful and wanton misconduct, be liable for civil damages.
 
(c) Any veterinarian who sterilizes feral cats and any feral cat caretaker who traps cats for a trap, sterilize, and return program shall be immune from criminal liability and shall not, as a result of his or her acts or omissions, except for willful and wanton misconduct, be liable for civil damages.
 
(d) Any animal shelter worker who microchips an animal shall be immune from criminal liability and shall not, as a result of his or her acts or omissions, except for willful and wanton misconduct, be liable for civil damages.

Illinois Codified Statutes 510 § 5/35. Illinois interpreted this provision in Wheatley v. Towers, 358 N.E.2d 971, 972 (Ill.App. 1977). In that case, a dog owner sued an animal shelter employee for euthanizing his dog even though he expressed interest in recovering the dog. Id. The court upheld the judgment at trial that the employee's conduct was not “willful and wanton misconduct” according to ILCS 510 section 5/35(d) because the dog was euthanized after the holding period expired. Id. at 972-973.

Animal impoundment statutes may impose other duties and immunize shelters from liability by implication. Connecticut law requires that shelters sterilize dogs and cats before adoption unless it jeopardizes the life of the animal, it is transferred to another facility, or it is given back to the original owner. Connecticut Revised Statutes Annotated § 35-80-106.4. Oregon law requires that shelters implant dogs with microchips if they are relocated or adopted. Oregon Revised Statutes § 609.168.  While these statutes don’t always explicitly shield animal shelters from liability for compliance, it seems very unlikely that a court would impose liability solely for discharging such a duty absent indication that the duty was executed in an negligent manner. 

 

2. Lost Property Statutes

a. General Scheme

Lost property statutes might apply to lost pets and abrogate common law property rights. Lost property statutes exist in a handful of states.[FN40] Generally speaking, they require that the finder of lost property report the found property to the local government and publish notice. The original owner then has a certain amount of time to reclaim the property and compensate the finder for looking after it. The amount of time the original owner has to reclaim it is generally limited to a few months. If it is not reclaimed, title transfers to either the finder or the local government.[FN41]

 

b. Applicability of Lost Property Statutes to Pets

Lost property statutes are of questionable applicability to lost pets. The ultimate issue is whether the scope of “lost property” extends to animals. The plain language of the statute, historical context, as well as practical considerations should determine whether a particular jurisdiction’s lost property statute applies.  

One issue with lost property statutes is whether lost pets fall within the statute’s definition of property. Michigan, for example, defines property very broadly as:

anything which is the subject of ownership and is corporeal, tangible, visible, or personal, or that has an exchange value. (emphasis added)

Michigan Compiled Laws 434.21(i). Michigan has not confronted the issue in a reported opinion whether its lost property statute controls lost pet disputes. However,  the inclusive definition suggests that it would control.

Some states specifically include “stray beasts” in their definition of lost property. Illinois is such a state but its definition of “stray beasts” is explicitly limited to to agricultural species:

Any horses, mules, asses, cattle, swine, sheep or goats found straying, the owner thereof being unknown, may be taken up as estrays in the same manner as provided for lost goods.

Illinois Codified Statutes 765 § 1020/1.

Vermont includes “stray beast” as a type of lost property but does not specify the definition of a “stray beast”:

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.

Vermont Statutes 27 § 1101.

The impracticality of using a lost property statute to determine the rights and liabilities of parties in a lost pet dispute is also an important consideration. For example, if neither the finder nor original owner of lost property claims the property, Connecticut’s lost property statute requires that:

[t]he police commissioners of such municipality shall sell at public auction any articles which it acquires as provided herein after the expiration of time for the owner or finder to demand the same…

Connecticut General Statutes § 50-14. Except for exotic animals or purebreds, lost pets would probably bring little or no proceeds from auction. Furthermore, auctioning a pet to the highest bidder is considerably less humane than placing it for adoption with a qualified home.

The negative impact of auctioning lost pets pursuant to these statutes may be mitigated in states that set minimum value limits for auctionable property. In Iowa, only property worth more than $20 is auctioned. Iowa Statutes § 556F.3. When property is worth less than $20:

…if no person shall appear to claim and prove [property worth less than $20] within six months of the time of taking up, it shall vest in the finder.

Iowa Statutes § 556F.4. Note that placing a value limit may only eliminate mutts from auction. Purebred pets or even mutts worth more than the limit must be auctioned if the lost property statute controls the legal rights of the parties. 

The Vermont Supreme Court confronted all of these problems in Morgan v. Kroupa and declined to apply the state’s lost property statute to pets. 702 A.2d 630 (Vt. 1997). Citing the historic nineteenth century context of the statute, case law applying the statute exclusively to agricultural animals, the provision for auctioning the beasts, and a provision permitting the finder to “put such beast to reasonable labor,” the court held that the lost goods statute did not apply to an ownership dispute over a pet dog. Id. at 631. Recognizing that there was no preexisting legal scheme that justly provided for the transfer of title from the original owner to a finder, the court fashioned a judicial rule and equitably held that “[h]aving found that plaintiff diligently attempted to locate the dog's owner and responsibly sheltered and cared for the animal for over a year, the trial court was clearly within its discretion in awarding possession to plaintiff.” Id. at 632.

Morgan is a commonly cited case for its discussion on the unique value of pets but other courts have not had the opportunity to accept or reject its holding regarding the applicability of the lost goods statute.[FN42] Accordingly, the persuasiveness of the Morgan holding is unclear. Ultimately, the issue of whether such a statute controls in lost pet situations is probably a function of the broadness of the statute’s language, the practicability of applying the statute to a lost pet, and the availability of a more specific alternative. 

 

C. Policy Considerations and Alternatives to Modern Rules

There is a wide disparity between the lengths of time necessary to extinguish an original owner’s right to possession of a lost pet under a statutory scheme compared to the common law scheme. Pursuant to a local impoundment statute, private parties can acquire a legal right to possession of a lost pet via adoption in as little as a few days. If a lost property statute applies, the private party can acquire legal ownership in a few months.  However, if the private party takes the pet off the street instead, then she may only acquire a common law right to possession after the passage of several years. A finder could bypass the relatively long waiting period under common law or lost property statutes by simply bringing the stray pet to a shelter and adopting it as soon as the holding period expires.

None of these popular schemes appears to optimally balance the interest of the public, the owner, the finder, and the pet in a lost pet dispute. The common law rule permitting a true owner to recover his property within the many-year statute of limitations is clearly meant to protect the owner’s property rights whatever the consequence to the finder, the animal, or public policy. Impoundment statutes that permit the disposal of lost pets after a very short holding period protects the interest of the government in efficiently managing the cumbersome pet population at the expense of the owner’s property rights. Lost property statutes at least balance the interests of the owner and finder but are mechanically impractical when applied to pets and may downright exclude pets entirely.

At least one state bridges the disparity between adopting a stray pet off the street and adopting one from a shelter by permitting shelters to “appoint the [person who has found and captured the animal]… to be the agent of the shelter” and “transfer the animal [to the finder] by adoption” at the end of the prescribed three-day holding period. North Carolina General Statutes § 130A-192(c)(i).  While the holding period and difficulty of tracking a pet to the right shelter within that period may not optimally respect pet owner’s rights, North Carolina appears to be the only state to provide a clear legal path for adopting an animal off the street.

 

III. ISSUES ARISING BETWEEN SPECIFIC PARTIES

The previous section analyzed general legal schemes and issues pendent to the resolution of lost pet disputes. This section deals with issues that arise only when specific parties are involved. Parties in lost pet disputes will generally fall into one of five categories: (1) the original owner of the pet, (2) a private party who finds, interferes with, or adopts the pet, (3) a state agency or animal shelter, (4) a veterinarian who treats, sterilizes, or euthanizes a lost pet without consent of the original owner, and (5) a third party who damages or is damaged by a pet in the possession of a private party finder.

A. Disputes Between the Original Owner and Private Party

Disputes between the original owner of a lost pet and private parties are fairly straightforward and closely track the legal schemes described in the previous section.[FN43] An original owner might seek damages against a neighbor who traps a pet cat[FN44]] or authorizes the euthanasia of a lost puppy.[FN45] She might also seek to replevin the pet from someone who took it off the street or adopted it illegitimately from an animal shelter.[FN46]

One interesting issue is whether a private party that adopts an animal from a shelter has a right to keep their identity private from an original owner seeking its repossession. The issue arises, for example, when the original owner of a lost pet tracks it to a shelter but finds out it has already been adopted. The original owner will try to compel the shelter to reveal the adopter’s identity. Whether the shelter must reveal the adopter’s identity hinges on whether the identity is relevant.

In Lamare v. North Country Animal League, the plaintiff’s puppy broke free from its tether and ended up in a local animal shelter. 170 Vt. 115, 116-117 (Vt. 1999).[FN47] Although the plaintiff tracked the puppy to the shelter and asked for it back, the statutory holding period had expired and a private party adopted the puppy. Id. The plaintiff sued the animal shelter for deprivation of constitutional due process and moved to compel the shelter to disclose the identity of the puppy’s adopters. Id. The court rejected the plaintiff’s motion because the identity of the adopters was irrelevant to the constitutional claim and noted that it could subject the adopters to harassment. Id. at 604.

By contrast, the court in Woods v. KittyKind, Inc. reached the opposite result in a similar situation. 2005 WL 1404712, *1 (N.Y.Sup. 2005) (not reported). There, the plaintiff lost her cat which was taken by an animal shelter and subsequently adopted. Id. The plaintiff alleged that the adoption was invalid and joined the adopter, “Jane Doe,” as a party. Id.  Because the animal shelter could not prove as a matter of law that the adoption was valid, the identity of the adopter was relevant and the court ordered disclosure thereof. Id. at *2.

As discussed extensively above,[FN48] the original owner of a lost pet has a host of legal remedies to recover damages or possession of the pet. The same discussion generally applies to actions by the finder against the original owner. Such a dispute might arise, for example, if the original owner resorted to self-help or inducement to recover possession of the pet and the finder wanted it back. Alternatively, the finder might ask for declaratory judgment to affirm her ownership rights if she still had possession of the pet.[FN49]

Even if the owner successfully establishes a right of possession of the lost pet, the finder can request compensation for taking care of it. The compensation would include reasonable costs such as veterinarian services and food. The finder’s request for compensation may be based on the implied bailment contract[FN50] or a lost goods statute if one applies.[FN51]

B. Disputes by Original Owner Against Animal Shelter

1. Generally

Disputes between the original owner of a lost pet and a state agency, legally authorized animal shelter, or employees thereof will generally track the legal schemes set forth above[FN52] with a few caveats. While common law tort actions for repossession or damages will generally be available, the rights and duties of animal shelters or their employees will be largely modified by the impoundment statutes.[FN53] When impoundment statutes govern, lost property statutes will clearly be inapplicable.

One legal aspect unique to disputes between an original owner and an animal shelter operating under the color of law is the availability of constitutional claims to the original owner’s legal arsenal. The owner may claim that a statute, ordinance, policy or action violated his constitutional right to due process or freedom from search seizures. State agents are protected from paying damages if they can establish a qualified immunity defense that the constitutional right was not “clearly established” when it was violated. The following sub-sections elaborate on these constitutional aspects.

 

2. Section 1983 Claims and Qualified Immunity

Lost pet disputes may give rise to constitutional issues where animal shelters are involved. Section 1983 of the Civil Rights Act of 1871 affords relief for constitutional violations:

[E]very person who under cover of [law] subjects […] any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights […] secured by the Constitution and laws, shall be liable to the party injured in an action at law, Suit in equity, or other proper proceeding for redress…

42 U.S.C. § 1983.

Section 1983 applies to both government agencies as well as private organizations operating under the “color of law.” Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978). There is an issue whether privately run animal shelters are operating under the “color of law.” In Snead v. SPCA of Pennsylvania, the court noted that Section 1983 liability encompasses "superficially private actions which have a sufficiently close nexus with the State" and  held that a private animal shelter acted under the “color of law” when it euthanized a cat. 929 A.2d 1169, 1180 n.12 (2007).

There are three constitutional provisions that a litigant in a lost pet dispute should keep in mind. The Fourth Amendment prohibits “unreasonable searches and seizures.” Both the Fifth and Fourteenth Amendment prohibit taking “property” without “due process of law.” If the court finds that the state’s laws or actions violated the original owner’s constitutional rights, it may declare the practice unconstitutional, order an injunction, and award damages.

The same issue arises whether privately run animal shelters are entitled to qualified immunity defenses.[FN54] The qualified immunity defense prohibits an award of damages unless a reasonable person would have known their action violated a “clearly established” constitutional right. The purpose of this defense is to protect state agents from monetary liability for exercising reasonable discretion in a constitutionally ambiguous situation.[FN55]

C. Rights and Duties of Veterinarians Treating Lost Pets

Veterinarians are sometimes asked to treat on lost pets and are deprived of the owner’s input. Such treatments may include diagnosis of sickness, sterilization, implantation of microchips, and euthanasia. These treatments may give rise to special rights and duties. Sometimes statutes will explicitly modify a veterinarian’s duty to animals when the owner is not present. Other times, the context of treating the lost pet may affect circumstantial liability standards like reasonableness.

When initiating legal action against a veterinarian, the original owner of the lost pet may select any number of tort causes of action. These are discussed in more detail earlier in this article and include actions such as conversion, trespass, negligence, and infliction of emotional distress depending on the nature of the injury.[FN56]  Veterinarians may also be subject to Section 1983 claims if they treated the lost pet in their capacity as a state agent.[FN57]

At least one court has entertained but rejected the argument that veterinarians are liable for breach of contract as a bailee of the lost pet.[FN58] In Sexton v. Brown, a sick puppy wandered away from its owner, was found on a country road by two private parties, and brought to a veterinarian for treatment.  2008 WL 4616705, *1-2 (Wash.App. 2008). The veterinarian ultimately recommended euthanasia and the finders assented. Id. at *2. The original owners sued the veterinarian under various causes of action including breach of bailment.  Id. at *3. The court first found that there could be no breach of bailment between the finders and the veterinarian because they authorized the dog’s euthanasia so there was no “contract to redeliver.” Id. at *4. The court went on to note that the veterinarian was not a bailee as the “finder.” Id. Lastly, it rejected plaintiff’s claim that the veterinarian was a sub-bailee because that argument was only made for the first time on appeal.  Id. The court noted anyway that it would have probably rejected the plaintiff’s sub-bailee argument because sub-bailments exist only “[w]here the bailment contract contemplates that the bailee, as the bailor's agent, may accomplish purposes of the bailment through sub-bailees....” Id. at *4 n.5, quoting 8A Am. Jur. 2d Bailments § 168.

Some laws provide a defense for veterinarians faced with liability for botched treatments, sterilization and euthanasia of a lost pet. Veterinarians working as state agents for animal shelters may be afforded explicit statutory protection.[FN59] For example, Colorado specifically permits veterinarians or supervisors at animal shelters to euthanize animals to prevent “extreme pain or suffering” if reasonable efforts to find the owner have been exhausted. Colorado Revised Statutes § 35-80-106.3.[FN60]

 Illinois provides that:

(a) Any municipality or political subdivision allowing […] trap, sterilize, and return programs to help control cat overpopulation shall be immune from criminal liability and shall not be civilly liable, except for willful and wanton misconduct […].
 
(b) Any veterinarian or animal shelter who in good faith contacts the registered owner of a microchipped animal shall be immune from criminal liability and shall not, as a result of his or her acts or omissions, except for willful and wanton misconduct, be liable for civil damages.
 
(c) Any veterinarian who sterilizes feral cats and any feral cat caretaker who traps cats for a trap, sterilize, and return program shall be immune from criminal liability and shall not, as a result of his or her acts or omissions, except for willful and wanton misconduct, be liable for civil damages.
 
(d) Any animal shelter worker who microchips an animal shall be immune from criminal liability and shall not, as a result of his or her acts or omissions, except for willful and wanton misconduct, be liable for civil damages.

Illinois Codified Statutes 510 § 5/35.

Other statutes might offer standards for the treatment of animals when the owner is not present to offer consent. Generally speaking, veterinarians can provide emergency treatment if it is necessary and will be liable only for gross negligence. Also under Illinois law:

[a] veterinarian who, on his own initiative or other than at the request of the owner, gives emergency treatment to a sick or injured animal shall not be liable for damages in the absence of gross negligence.

Illinois Codified Statutes 225 § 115/18.[FN61]

Washington authorizes veterinarians to care for pets without the owner’s consent and even imposes a duty that:

[t]he veterinarian shall endeavor to provide at least minimal treatment to alleviate the suffering of an animal presented in the absence of the owner or the owner's agent.

Revised Code of Washington § 246-933-050.

More information about the legal rights and duties of veterinarians can be found at the Veterinary Issues topic page.[FN62]

D. Rights and Duties Between Lost Pet Finder and Third Parties

As noted at the onset of this article, the finder of lost property has superior title to all other parties except the true owner.[FN63] Peloquin v. Calcasieu Parish Police Jury illustrates this principle by upholding a finder’s right to sue a third party for trapping the family cat. 367 So.2d 1246, 1249 (La.App. 1979). In that case, the Peloquin family found a stray kitten and cared for it over seven years. Id. at 1249. Their neighbor trapped the cat and brought it to the local animal control agency where it was subsequently euthanized.  Id. at 1248. The family sued for damages. Although the finder of lost property only became an owner after the passage of ten years in Louisiana, id. at 1249 n.1, the court held anyway “that even as possessor the plaintiffs have the right to maintain their action against any but the true owner (if there is one) of the cat.” Id. at 1250.

The corollary to the finder’s property rights over a lost pet is the finder’s liability for damages caused by the pet. Louisiana law holds dog owners strictly liable for damage caused by a dog if the owner was able to prevent the damage and the dog was not provoked. Louisiana Civil Code Art. 2321. In Terral v. Louisiana Farm Bureau Cas. Ins. Co., a Louisiana appellate court confronted the issue whether someone caring for a stray dog was an owner. 892 So.2d 732, 734-735 (La.App. 2005). The defendant left food on his porch for his dogs with knowledge that a stray dog was eating the food as well. Id. at 737. The defendant continued to harbor the dog for two years although he claimed that he never let it stay in his house, never walked it, and never brought it to a veterinarian. Id. One day, a motorcyclist hit the dog one a road and sued the defendant for damages as the dog’s owner. Id. at 735. Noting that ownership was an issue of fact, the court of appeals held that the trial court had sufficient evidence to conclude that the defendant owned the dog. Id. at 737-738.

A New Hampshire court reached the opposite conclusion where the finder of a stray dog held it in a barn and immediately contacted the owner to pick the dog up. Raymond v. Bujold, 199 A. 91, 92 (N.H. 1938). Before the owner arrived, the dog broke loose and injured several cattle on the finder’s farm. Id. The finder sued the owner of the dog under New Hampshire imposed strict liability on anyone who “owns or keeps the dog” responsible for property damage. Id. Noting that a keeper “undertakes to manage, control, or care for it as dog owners in general are accustomed to do,” the court found that the plaintiff was not the keeper of the dog and could maintain his action against the dog’s true owner. Id.

Ultimately, anybody who takes care of a lost pet should take reasonable steps to ensure it does not cause harm to others. This is especially true with dogs or other inherently dangerous animals since strict liability is often imposed on the “owner” or “keeper” of such animals. As the previous cases show, the circumstances will determine whether somebody has become an “owner” or “keeper” of the animal. The length of time, level of support, and intent of the finder are important factors to consider.

IV. CONCLUDING THOUGHTS ABOUT POLICY AND PRACTICE

The just resolution of a lost pet dispute requires a proper accommodation of the interests of the owner, finder, pet and public. The law provides pet owners with some relief by protecting their property interest in the pet for a period of time and imposing duties on third parties to respect that interest. However, an owner’s property interest in a pet is not absolute. The owner’s claims may be extinguished by time, equity, the public interest in managing the pet population, and immunity granted to agents of the state as well as gratuitous private parties.

The ultimate policy challenge in this area of law is to consider and optimally balance the interests of all these parties as well as the pets themselves. The common law scheme gives owners a strong right to possession that may last several years but does not value the best interest of the pet or the rapid emotional bond that develops between the pet and finder. At the other end of the spectrum, animal shelters are legally permitted to euthanize lost pets in as little as a few days. Lost property statutes lie in the middle of these two extremes typically exclude pets or impractically require their sale at auction.

There are important practical considerations in this area of law as well. Persons interested in maximizing their rights over a pet should diligently follow the law set forth in this article. Prophylactic steps such as microchipping and licensing a pet can increase the probability of unity if the pet becomes lost. When an owner loses a pet, he should place notice of the loss and rigorously check in with regional police stations, animal control agencies, animal shelters, and veterinarians to locate the pet pursuant to applicable lost goods and impoundment statutes.

A person who finds a stray animal and wants to adopt it should likewise make a reasonable effort to locate the owner and comply with applicable lost property and impoundment laws. The most efficient approach for a person wishing to adopt a stray animal is probably to surrender it to an animal shelter and immediately apply for adoption after the holding period expires.

Veterinarians and animal shelters should be aware of tort liability generally as well as any specific statutory provisions modifying that liability. Often times, statutes will impose formal requirements on parties such as requiring a certification in writing of the need for euthanasia. Statutes will also oftentimes grant leniency to veterinarians and animal shelters that provide treatment to animals in good faith.

Perhaps the best advice for navigating a lost pet dispute is simply to act reasonably. Acts of openness, diligence and consideration will generally lead to more positive outcomes than concealment, laziness, and retaliation. Ideally the involvement of the legal system will be avoided entirely by taking careful steps to avoid a dispute in the first place.


Footnotes

[FN1]  ASPCA, Pet Statistics, available at http://www.aspca.org/about-us/faq/pet-statistics.html (last accessed August 15, 2010).

[FN2] Id.

[FN3] Id.

[FN4] Id.

[FN5] Id.

[FN6] See David Favre, Animal Law: Welfare, Interests, and Rights, 42 (2008); Robert M. Ey, Cause of Action by Finder to Establish Right to Lost Personal Property, 20 COA 761 § 2 (1989); 1 Am. Jur. 2d Abandoned, Lost, and Unclaimed Property §§ 3-18.

[FN7] Id.

[FN8] See David Favre, Animal Law: Welfare, Interests, and Rights, 73 (2008); 19 Williston on Contracts §§ 53 et seq. (4th ed.).

[FN9] Id.; see also Sexton v. Brown, 2008 WL 4616705, *4 (Wash.App. 2008) (not reported) (noting that a breach of bailment claim is appropriate against the finder of a lost puppy who authorized it’s euthanasia).

[FN10] Sexton, 2008 WL 4616705 at *4.

[FN11] Sexton, 2008 WL 461705 at *4 (stating that “as a general rule, a gratuitous bailee is liable only for gross negligence.”); see also Todd v. Dow, 19 Cal.App.4th 253, 260-261 (Cal.App. 1994) (gratuitous bailee only has responsibility to use “slight care” instead of ordinary care with respect to lost property); Kierce’s Adm’r v. Farmers’ Bank, 191 S.W. 644, 646 (Ky. App. 1917) (“Where the bailment is one which is for the sole benefit of the bailor, it is uniformly held that the bailee is obligated only to the exercise of slight care, and is answerable only for gross neglect or bad faith.”); 19 Williston on Contracts § 53:8 (4th ed.) (“A bailee who undertakes the care of goods without reward is liable for damage caused only by his or her gross negligence.”).

[FN12] See generally Restatement (Second) of Torts §§ 46 (intentional infliction of emotional distress); 216-222 (trespass to chattels); 222A-242 (conversion of chattels); 497-499 (negligent invasions of interests in physical condition of chattels). Sometimes conversion goes by its traditional name, “trover.” The exact definition and availability of these claims will depend on the jurisdiction.

[FN13] Fore a more detailed discussion about damages in companion animal cases, see Animal Legal & Historical Center, Damages in Pet (Companion Animal) Cases, available at http://animallaw.info/topics/tabbed topic page/spuspetdamages.htm (last accessed August 15, 2010); see also Karp, Adam P., Causes of Action in Intentional Tort for Loss of or Injury to Animal by Human, 44 COA2d 211 (June 2010).

[FN14] See section II.B.1, infra, for a detailed discussion of animal shelter compliance with impoundment statutes. Veterinarians may also be liable for euthanizing, sterilizing, or otherwise treating a pet without the owners consent. See section III.C, infra.

[FN15] See, e.g., 66 Am. Jur. 2d Replevin § 1 et seq,.; Kansas Statutes § 60-1005.

[FN16]  See Morgan v. Kroupa, 702 A.2d 630, 632-633 (Vt. 1997) (replevin action to recover lost dog from its finder); Webb v. Amtower, 178 P.3d 80, 2008 WL 713788, *2 (Kan.Ct.App. 2008) (not reported) (replevin and conversion action to recover lost dog).

[FN17]  See Arguello v. Behmke, 2006 WL 205097, *3 (N.J. Super. Ch. 2006) (not reported) (granting equitable relief for recovery of lost pet by noting that “…very few possessions, if any, have more sentimental and therefore peculiar artificial value than a pet, which also serves as a companion to its owner.”); Morgan, 702 A.2d at 632-633 (observing that the value of a pet is not “primarily financial” but rather that “its value derives from the animal’s relationship with its human companions.”).

[FN18]  Conti v. ASPCA, 353 N.Y.S.2d 288, 290 (N.Y. Civ. Ct. 1974) (finding that the description of a lost parrot’s appearance and behavior established defendant’s original ownership in-fact).

[FN19] Id.

[FN20] Arguello,2006 WL 205097 at *6-7 (not reported) (holding that original owner proved ownership by describing scars on a dog’s legs even though it did not respond to its purportedly original name).

[FN21]  Id. Permanent identification may be prima facie evidence of ownership. See, e.g., 3 Pennsylvania Codified Statutes Annotated § 2314.

[FN22]  Id.

[FN23]  Augillard v. Madura, 257 S.W.3d 494 (Tex. App. 2008) (holding that a DNA test on dog hair taken from plaintiff’s dog brush was highly persuasive evidence and sufficient to prove that original ownership of the lost dog).

[FN24]  Placey v. Placey, 2010 WL 2342397, *4 (Ala. Civ. App. 2010) (holding that mother who possessed and took care of a “high maintenance” dog was its owner), citing 4 Am. Jur. 2d Animals § 5 (2007).

[FN25] See 4 Am. Jur. 2d Animals § 5 (2007) (noting that certificate of registration and possession of pet creates a rebuttable presumption of ownership in some jurisdictions); 3 Pennsylvania Codified Statutes § 2314 (permanent identification, such as a tattoo, is prima facie evidence of ownership).

[FN26] See generally Restatement (Second) of Torts § 899 (“A cause of action for a tort may be barred through lapse of time because of the provisions of a statute of limitations.")

[FN27] See Free, 10 S.W.2d at 19 (noting the three year statute of limitations to recovery lost dog by replevin action in Arkansas); Arguello, 2006 WL 205097 at *3 (referencing New Jersey’s six year statute of limitations for replevy of lost dog); Peloquin v. Calcasieu Parish Policy Jury, 367 So.2d 1246, 1249 n.1 (La.App. 1979) (finder of lost kitten does not become the true owner for ten years).

[FN28] See generally Restatement (Second) of Torts § 894:

(1) If one person makes a definite misrepresentation of fact to another person having reason to believe that the other will rely upon it and the other in reasonable reliance upon it does an act that would not constitute a tort if the misrepresentation were true, the first person is not entitled

(a) to maintain an action of tort against the other for the act, or

(b) to regain property or its value that the other acquired by the act, if the other in reliance upon the misrepresentation and before discovery of the truth has so changed his position that it would be unjust to deprive him of that which he thus acquired.

(2) If one realizes that another because of his mistaken belief of fact is about to do an act that would not be tortious if the facts were as the other believes them to be, he is not entitled to maintain an action of tort for the act if he could easily inform the other of his mistake but makes no effort to do so.

[FN29] Id. at § 940: “Any related misconduct on the part of the plaintiff is one of the factors to be considered in determining the appropriateness of injunction against tort.”

[FN30] Id. at § 939. “Any unreasonable delay by the plaintiff in bringing suit is one of the factors to be considered in determining the appropriateness of injunction against tort.”

[FN31] Although traditionally companion animals were legally worthless and therefore not the subject of crimes like larceny, that rule has been abolished in modern times. See State v. Weekly, 65 N.E.2d 856, 857 (Ohio 1946).

[FN32] See section II.A, infra.

[FN33] For more information about impoundment laws, see Rebecca F. Wisch, An Examination of State Dog Impoundment Laws, available at http://animallaw.info/articles/ddusdogimpound.htm (published 2003). While many of the same issues are covered there, this section focuses on legal issues surrounding lost pets specifically.

[FN34] New York Agriculture and Markets Law § 374(3).

[FN35] Under the traditional lex loci conflict of laws rule, the jurisdiction where personal property is found governs property right disputes such as the right to possession. See Restatement (First) of Conflict of Laws § 255 (“Capacity to make a valid conveyance of an interest in a chattel is determined by the law of the state where the chattel is at the time of the conveyance.”) It is important to note that not all states follow the lex loci conflict of laws rule. The Restatement (Second) of Conflict of Laws section 244, for example, would apply “the local law of the state which, with respect to the particular issue, has the most significant relationship to the parties, the chattel and the conveyance…”.

[FN36] See, e.g.New Hampshire Revised Statutes § 437:10 (requiring that "[a]ll animal shelter facilities shall have on premises a microchip scanner and shall maintain a file of recognized pet retrieval agencies including but not limited to national tattoo or microchip registries."). Dog owners in unincorporated Los Angeles County are required to microchip all dogs older than four months. See http://animalcare.lacounty.gov/cms1_045463.asp.  

[FN37] AMVA, Microchipping of animals FAQ, available at http://www.avma.org/issues/microchipping/microchipping_faq.asp (last updated February 1, 2010).

[FN38] Id.

[FN39] Birmingham City Code section 6-1-18 (permitting animal control to “transfer the title to and ownership of any dog held [to the animal shelter][after the three day holding period]”).

[FN40] For additional information about lost property statutes, see Rebecca F. Wisch, Summary of State Lost Property Statutes, available at http://animallaw.info/articles/ovuslostdogpropertystatutes.htm (published 2006).

[FN41] Id.

[FN42] Although other courts have not addressed the applicability of lost property statutes to lost pets, the issue is raised on occasion. See Webb v. Amtower, 2008 WL 713728 (lost property statute raised in lost pet dispute but case decided on other grounds); Sexton v. Brown, 2005 WL 1404712 (lost property statute raised in lost pet dispute but case decided on other grounds). Lost property statutes may indirectly influence decisions as well. See Lincecum v. Smith, 287 So.2d 625 (finding that defendant’s failure to look for a sick puppy’s true owner before authorizing its euthanasia made him liable for conversion because a statute required making reasonable efforts to find true owner of lost property).

[FN43] See section II, infra.

[FN44] See Alvarez, 946 So.2d 181 (La. App. 2006), discussed in more detail in section II.B.1, infra.

[FN45] See Lincecum, 287 S.2d 625 (La.App. 1974), discussed in more detail in section II.A.3, supra.

[FN46] See Lamare, 743 A.2d 598 (Vt. 1999), discussed in more detail in section II.B.1.d, supra.

[FN47] Id.

[FN48] See section II, supra.

[FN49] See e.g., Paset v. Old Orchard Bank & Trust Co., 378 NE.2d 1264 (1978) (finder sought declaratory judgment to affirm ownership of money and applicability of a lost goods statute).

[FN50] See section II.A.2, supra.

[FN51] See section II.B.2, supra.

[FN52] See section II, supra.

[FN53] See section II.B.1, supra.

[FN54] See Schinder v. French, 2007 WL 1120337, *1 (2nd Cir. 2007) (holding that facts were sufficient to show that employees of private animal shelter were state agents liable under Section 1983 and entitled to qualified immunity defense); Stevens v. Stearns, 2000 WL 710495, *1 (treating employees at a private animal shelter as state agents for purposes of Section 1983 liability and qualified immunity).

[FN55] For more information about Section 1983 and qualified immunity, see Rebecca F. Wisch, An Examination of State Dog Impound Laws, available at http://animallaw.info/articles/ddusdogimpound.htm (published 2003); Adam P. Karp, Causes of Action in Intentional Tort for Loss of or Injury to Animal by Human, 44 COA2d 211 § 3 (2010).

[FN56] See section II.A.3, supra.

[FN57] See section III.B, supra.

[FN58] Bailees owe a duty of reasonable care for chattel in their possession. See section II.A.2supra; 9 Williston on Contracts § 53:5. Gratuitous bailees who take care of lost property with no assurance of compensation may only be liable for gross negligence in some jurisdictions. See Sexton, 2008 WL 4616705 at *4; 9 Williston on Contracts § 53:8.

[FN59] The protection afforded to veterinarians acting for an animal shelter pursuant to statutory authority is substantially coextensive with the protections afforded to other government agents at the animal shelter. See sections II.B.1.f and III.B, supra.

[FN60] See also Alaska Statutes § 03.55.100-190 (permitting the euthanasia of stray animals seized by animal control if it is “probable the animal cannot recover” and prohibiting damages unless “destruction was not reasonable under the facts as known to the veterinarian.”); Rhode Island General Laws 1956 § 4-22-5 (authorizing euthanasia of animals under state control if veterinarian confirms euthanasia promotes a “humanitarian purpose”); Wisconsin Statutes § 173.25 (granting immunity to veterinarians for damages resulting from euthanasia if there are “reasonable grounds to believe” that euthanasia was warranted by statute or court order).

[FN61] See Loman v. Freeman, 890 NE.2d 446 (Ill. 2008) (veterinarian owed ordinary duty of care to horse treated without owner’s consent in non-emergency situation); Hoffa v. Bimes, 954 A.2d 1241, 1243 (Pa.Super 2008), citing 42 Pennsylvania Codified Statutes Annotated § 8331.1 (veterinarian only liable for gross negligence if treating animal without owner’s consent in an emergency situation).

[FN62] See Animal Law & Historical Center, Veterinary Client Issues, available at http://animallaw.info/topics/spusveterinaryclient.htm (last accessed August 15, 2010).

[FN63] See section II.A.4, supra.

 

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