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Animal

am, rep, animals, property, st, wild, possession and game

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ANIMAL. Any animate being which is not human, endowed with the power of vol untary motion.

Domitw are those which have been tamed by man ; domestic.

Ferro natwro are those which still retain their wild nature.

A man may have an absolute property in animals of a domestic nature; 2 Mod. 319 ; 2 Bla. Corn. 390; but not so in animals term natures, which belong to him only while in his possession; Wallis v. Meese, 3 Binn. (Pa.) 546; Pierson v. Post, 3 Caines (N. Y.) 175, 2 Am. Dec. 264; Gillet v. Mason, 7 Johns. (N. Y.) 16; State v. Murphy, 8 Blackf. (Ind.) 498 ; 2 B. & C. 934. Yet animals which are sometimes ferw natara: may be tamed so as to become subjects of property; as an otter; State v. House, 65 N. C. 315, 6 Am. Rep. 744; pigeons which return to their house ; 2 Den. Or. Cas. 362; 4 C. & P. 131; Corn. v. Chace, 9 Pick. (Mass.) 15, 19 Am. Dec. 348 ; or pheasants hatched under a hen ; 1 Fost. & F. 350. And the flesh of animals faro ova. tun:; may be the subject of larceny; 3 Cox, Cr. Cas. 572; 1 Den. Cr. Cas. 501; 2 C. & K. 981; State v. House, 65 N. C. 315, 6 Am. Rep. 744.

Animals farm naturce were considered by the Roman law as belonging in common to all the citizens of the state ; Geer v. Con necticut, 161 U. S. 319, 16 Sup. Ct. 600, 40 L. Ed. 793; and by the common law the property in game was based on common own ership and subject to governmental author ity ; 2 Bla. Com. 14. One may have the privilege of hunting wild animals to the ex clusion of other persons; 7 Co. 18 a; but only by grant of the king or of his officers or by prescription; id. (the case of the swans). In the United States the ownership of such ani mals is vested in the state, not as proprietor, but in its sovereign capacity, as representing the people and for their benefit; Ex parte Maier, 103 Cal. 476, 37 Pac. 402, 42 Am. St. Rep. 129; State v. Repp, 104 Ia. 305, 73 N. W. 829, 40 L. R. A. 687, 65 Am. St. Rep. 463. It alone hits power to control the killing and ownership of wild game; Geer v. Con necticut, 161 U. S. 532, 16 Sup. Ct. 600, 40 L. Ed. 793. Animals wild by nature are sub jects of ownership while living only when on the land of the person claiming them; Cal. Civ. Code § 656. Under this provision it was held that one has a right in wild game birds within his game preserves, which en titles him to protect them against trespassers; Kellogg v. King, 114 Cal. 378, 46 Pac. 166, 55 Am. St. Rep. 66. Deer, when reclaimed and enclosed, are property, Dietrich v. Fargo, 194

N. Y. 359, 87 N. E. 518, 22 L. R. A. (N. S.) 696.

Bees are ferw naturce; Goff v. Kilts, 15 Wend. (N. Y.) 550 ; but when hived or re claimed one may have a qualified property in them; Goff v. Kilts, 15 Wend. (N. Y.) 550; Rexroth v. Coon, 15 R. I. 35, 23 Atl. 37, 2 Am. St. Rep. 863 ; because they "have a local habitation, more often in a tree than else where, and while there they may be said to be within control, because the tree may at any time be felled. But the right to cut it down is in the owner of the soil, and there fore such property as the bees are susceptible of is in him also"; Cooley on Torts 435; State v. Repp, 104 Ia. 305, 73 N. W. 829, 40 L. R. A. 687, 65 Am. St. Rep. 463. The mere finder of them on the land of another ac quires no title to the tree or the bees; State v. Repp, 104 Ia. 305, 73 N. W. 829, 40 L. R. A. 687, 65 Am. St. Rep. 463; Gillet v. Mason, 7 Johns. (N. Y.) 16; Merrils v. Good win, 1 Root (Conn.) 209. In a suit against the owner of bees for injuries caused by them to horses, it was held that however it might have been anciently, in modern days the bee has become almost as completely do mesticated as the oX or the caw; Earl v. Van Alstine, 8 Barb. (N. Y.) 630.

But the ancient rule that animals fere naturce can only be the subject of property while in actual possession, and that loss of possession without intention to return on the part of the animal carries with it the loss of property by the owner ; Mullett v. Bradley, 24 Misc. Rep. (N. Y.) 695, 53 N. Y. Supp. 781; seems inconsistent with the related law gov erning the responsibility of owners for inju ries done by such animald ; 12 Harv. L. Rev. 346; as where a bear slipped his collar and in his escape to the woods injured a man, the owner was held liable; Vredenburg v. Behan, 33 La. Ann. 627; but where a sea lion escaped from the possession of its owner and was abandoned by him and recaptured a year afterwards seventy miles from the place of its escape, the owner was held to have last his property, expressly on the ground of loss of possession ; Mullett v. Bradley, 24 Misc. 695, 53 N. Y. Supp. 781; 12 Harv. L. Rev. 346. In Manning v. Mitcherson, 69 Ga. 447, 47 Am. Rep. 764, it was said that to hold that wild animals of a menagerie, should they es cape from their owner's immediate posses sion, would belong to the first person who should subject them to his dominion, would be an injustice.

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