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Subject Area: Law
Topic: The American Revolution and Constitution

§ 175.: Laws regulating use and keeping of domestic animals.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 175.

Laws regulating use and keeping of domestic animals.—

The common law has always recognized a right of property in domestic and domesticated animals, the keeping of which serves some useful purpose, such as cows, sheep, fowls, horses, oxen, etc.; and now a certain right of property is recognized in every species of animal, which may be subjected to the control of man, whether they retain their wild nature in whole or in part, or whether it is completely subdued. The only difference between the right of property in a cow or other completely domesticated animal and in some wild or half-tamed beast, is the degree of care required in the keeping of them, in order to prevent injury to the public. For the common law required the owner of every kind of animal to so guard and keep him as that no injury should result to another; and gave to the one injured a right of action for damages against the owner of the animal, if he had not exercised that degree of care which in ordinary cases may be required to avert an injury to others.3 Thoroughly domesticated animals, such as cattle, sheep, swine, and the like, which may reasonably be presumed to exhibit no vicious propensity, are at common law permitted to go at large, and the owner is only responsible for damages when he permits the animal to go at large, when he knows of his vicious propensity. For without such knowledge he could not have anticipated any injury to others, and he was therefore guilty of no negligence.4 But all animals, whether tame or wild, are liable in quest of food to trespass upon the lands adjoining the highway; and the owner of an animal incurred at common law a liability for all trespasses made by animals which he allowed to go upon the highway unattended.1 But if one is driving cattle through the highway, as one has a right to do, independently of statute, and one of the animals should get away from the herd, and trespass upon the adjoining land; if he has exercised all the care that may be expected, under the circumstances, from a reasonably prudent man, the owner of the land cannot recover of him for the damage. It is a case of damnum absque injuria.2

Respect for public decency would require the owners of stallions and bulls to keep them carefully housed, and the law may very properly prohibit the keeping and exhibition of them in public places.3

This is a summary statement of the common-law rights of property in animals and their attendant duties. But of course they may be subjected to further statutory regulation, and they have been. In every State the keeping of live stock is under police regulation. In some communities the common-law rule still prevails, that the owners of stock are liable for all trespasses of their stock upon the lands of others, although there is no inclosure about the land, where they allow their stock to roam at large. In other communities the owners of lands are required to maintain inclosures that will be an effective barrier to all trespasses of stock, and a right of action is given for only those trespasses which occur in spite of the inclosure. The clash of interest between stock-raising and farming calls for the interference of the State by the institution of police regulations; and whether the regulations shall subordinate the stock-raising interest to that of farming or vice versa, in the case of an irreconcilable difference, as is the case with respect to the going-at-large of cattle, is a matter for the legislative discretion, and is not a judicial question. In the exercise of this general power of control over the keeping of live stock, the State or municipal corporation may prohibit altogether the running at large of such animals, and compel the owners to keep them within their own inclosures; and provide as a remedy for enforcing the law that the animals found astray shall be sold, after proper notice to the owner, and time allowed for redemption, paying over to the owner the proceeds of sale, after deducting what is due to the State in the shape of penalty.1

A city ordinance was sustained in California, which prohibited the keeping of more than two cows within certain limits of a city.2 But a law was declared to be unconstitutional, which required the owners of lands to exterminate at their own expense the ground squirrels which may be living thereon, and to suffer a penalty if it be not done within a stated time. This was declared to be neither a police, sanitary or kindred regulation.3 The chief objection to this regulation would seem to be its unreasonableness, somewhat akin to the requirement that owners of lowlands shall drain the same at their own expense; except that the damage to crops, instead of injury to health, is the occasion of the regulation.

[3]Cooley on Torts, 348-350.

[4]Cooley on Torts, pp. 341-348, and cases there cited.

[1]Cooley on Torts, and cases there cited.

[2]Cooley on Torts, 341.

[3]Nolin v. Franklin, 4 Yerg. 163.

[1]Jones v. Brim, 165 U. S. 180; Campen v. Laugley, 39 Mich. 45 1 (33 Am. Rep. 414); Wilcox v. Hemming, 58 Wis. 144 (46 Am. Rep. 625); Rockwell v. Nearing, 35 N. Y. 302; Campbell v. Evans, 45 N. Y. 356; Cook v. Gregg, 46 N. Y. 439; Varden v. Mount, 78 Ky. 86 (39 Am. Rep. 208); Roberts v. Ogle, 38 Ill. 459; Anderson v. Locke, 64 Miss. 283; Burdett v. Allen, 35 W. Va. 347; Coyle v. McNabb (Tex.), 18 S. W. 198; City of Paris v. Hale (Tex. Civ. App.), 35 S. W. 333; Armstrong v. Traylor, 87 Tex. 598; Sutton v. State, 96 Tenn. 696; Wilson v. Bayers, 5 Wash. St. 303; Stewart v. Hunter, 16 Oreg. 62 (16 P. 876*); Shehane v. Bailey, 110 Ala. 308.

[2]In re Linehan, 72 Cal. 114.

[3]Ex parte Hodges, 87 Cal. 162.