Chapter 6 Property Law and the Meaning of Things

• Library: Pet Law & Custody: Establishing a Worthy & Equitable Jurisprudence for the Evolving Family (ABA) (2017 Ed.)

Chapter 6 Property Law and the Meaning of Things

"There are two means of refuge from the misery of life: music and cats."

—Albert Schweitzer

An interesting aspect of the development of property law as it pertains to animals is the absence or addition of emotional notes to these decisions. Some are devoid of empathy, some are insincere, and some are filled with emotional sentiment that serves as a springboard for new conceptualizations. They reveal that many believe that animals are property; others believe that animals are not property, while still there are others who believe that animals have mixed characteristics of property and not property.

Companion animals, as property, can be acquired in a variety of ways, including by purchase, gift, or inheritance; finding lost or abandoned property; trading property for property; or performing services for property. A seminal case regarding property rights in animals, discussed throughout this book, was Sentell v. New Orleans Carrollton Railroad Co.¹ In this decision, the court offered puzzling hierarchical property and quasi-property classifications. Sentell is where the concept of dogs as quasi-property emanated.

LOST AND FOUND ANIMALS

The plight of lost and found animals is a recurring theme in pet custody and ownership disputes. These cases fall primarily into two categories, one type involving third parties asserting ownership rights² and the other type, the more traditional lost and found.³ The latter concept used to be associated with missing agricultural animals gone "estray."

Title Passing through Operation of Law

When a companion animal is found and brought to an impound facility by operation of law, that entity has a duty to hold the animal for a specified time period as prescribed by ordinance or statute. The length of that hold time can vary; some are very short and unreasonable. Once the hold period is satisfied, a disposition can be made. If the original owner has not located his or her pet within the hold period, good title typically passes to a third party. Asserting the rights of the original owner in this context can be difficult and challenging.⁴

Title Not Passing through Operation of Law

In cases where title has not passed to a third party through operation of law, the dispute is typically between the original owner and the person asserting new ownership rights. Courts may use a balancing test to determine whether the loser or the finder should be awarded the pet. It may be outcome determinative, from an ownership perspective, how hard the owner looked for the pet and how diligently the finder looked for the pet's original owner. The court might be interested in the best interests of the animal, too.

Owners of Lost Animals

If the original owner, perhaps with a search team,⁵ goes door to door looking for his or her lost animal; circulates posters with a current photograph of the animal; makes pleas on local radio stations; contacts animal control and all local rescue groups, humane societies, and animal control facilities; and posts on social media sites specializing in lost and found animals, these efforts will help the original owner's position if there is a later dispute. It will also help the original owner's position if the lost animal is microchipped, has a license, and is wearing a collar displaying that license and a tag with contact information.

Owners of Found Animals

In contrast, if the finder of an animal posts the animal's name and photograph on Petfinder.com and similar national and local sites, calls the phone number on the animal's tag but finds it disconnected, locates a microchip through a scanner but finds it only reveals the name of a breeder who went out of business, and passes out leaflets about the animal in the vicinity where the animal was found, the finder will gain a credible position. Courts seem more likely to award the animal to the finder, and not the original owner, if the original owner's efforts to find the animal seem half-hearted and the finder was more diligent.

NOTTI LEGAL QUESTIONS

In the landmark decision of Graham v. Notti,⁶ emanating from pleadings in a summary judgment action crafted by animal law trailblazer attorney Adam Karp, the appellate court talked about a lost Pomeranian named Harlee. The dog's "story raises questions about the nature of the property interest he represents and the political authority of animal protection agencies to sell or dispose of lost animals and, necessarily, the quality of title to those animals these agencies can convey."⁷ The decision came down to jurisdiction—the pertinent question was whether Harlee was found in Spokane County or the city of Spokane. Jurisdiction alone was sufficient for the higher court to reverse the lower court's summary judgment in favor of Harlee's new owner and to remand the case for trial. Before doing so, the court laid out the following important questions that are worthy of your close attention:

• Did the new owner get valid legal title?
• Is an animal shelter under contract with a governmental entity limited to the same police powers that the governmental entity would have been able to exercise?
• Is a city's power to regulate limited by the city's general boundaries?
• How do a state's general laws impact a city's power to regulate?
• Does the UCC apply when there is no UCC transaction for purchase or entrustment?
• How do common law protections for bona fide purchasers impact the dispute?
• When a humane agency has voidable title to a pet, can that entity convey good title to a bona fide purchaser?
• Should the court's decision be impacted by whether the lost animal was unlicensed?
• Should an animal shelter's possessory interest be superior to a citizen's ownership interest?
• If a state gives an entity an imperfect or qualified interest in a pet, does this impact the animal shelter's possessory interest?
• What common law arguments apply to the determination of whether a bona fide purchaser must relinquish ownership or possession of the animal?
• What equitable principles, including the doctrine of equitable estoppel, apply to a determination?
• Can the bona fide purchaser doctrine cure an ultra vives sale of property?

Problem Solving

All of these questions are useful to lawyers involved in ownership disputes regarding lost and found animals, and some of the questions on this list may help you develop your legal theory in other types of custody disputes as well. The answers depend on applicable statutes, common laws, and advocacy to modify, extend, and advance the existing law. Lawyers should know that if the proper entity has held the animal for the minimum hold period, typically title to the animal passes to that entity for dispositional purposes. This means an entity could transfer the animal to a research facility in states where pound seizures are permitted, or could euthanize the animal. Your client should be aware that time is of the essence.

KEY RESEARCH TERMS

Courts may be divided about whether they think lost animal provisions apply to commercial or agricultural animals versus companion animals, and courts are not naive that their choice may be outcome determinative. Key words to include when researching this subject include estray, stray dog, or stray beast.

MICROCHIPS

The growing judicial expectation is that responsible animal owners will have their pets microchipped. The use of microchips will increase the likelihood that lost companion animals will be reunited with their owner because each chip has a unique number. A universal scanner that generates a radio signal can be used to read the number.⁸

CONCLUSION

Cases of particular importance in this chapter include Sentell v. New Orleans Carrollton Railroad Co.,⁹ where the court classified dogs as quasi-property, unless dead or "subdued," thereby impacting police powers over dogs thereafter, and Nahrstedt v. Lakeside Village Condominium Association, Inc.,¹⁰ where the court explored horizontal property rights and how they affect no-pets provisions. When looking for moving quotes about the benefits of pets to people of all ages, particularly the elderly and the young and those bedridden due to illness or injury, you will appreciate the poetic and persuasive dissent of Justice Arabian in Nahrstedt, a dissent that has in turn both influenced the progression of pet laws and caused the passage of a statute.

APPLICABLE CASE LAW

Sentell v. New Orleans Carrollton Railroad Co.¹¹

Year: 1897

Category: Property Law

Type of Action: Constitutional Law

Animal: Dog

Pet Custody Concept: Dogs are only quasi-property.

It is necessary to read this decision to fully appreciate how odd it is that courts keep citing it for its precedential value rather than overruling it. It is easier to understand this decision if you have awareness of the development of the English common law. According to a leading animal law professor, David Favre, animals were historically regarded as either useful or a representative of "ferae naturae," which meant they had a base nature.¹²

This 1897 U.S. Supreme Court decision was about the constitutionality of a state law that limited the value of a dog to the amount fixed on an assessment roll. In the lower court, it was held that the state law was "constitutional and valid as a police regulation to prevent the indiscriminate owning and breeding of worthless dogs." Determining that dog owners have only a conditional interest in this form of property, the supreme court upheld the Louisiana law and affirmed the judgment of the court of appeals. The court's rationale regarding police powers sounds like, and in fact is, out of the 19th century:

Property 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,

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