Wild v Domestic
At common law, animals were divided into two categories. Domestic or tamed animals or wild animals. In this context, animal refers to living creatures generally. Domestic animals include all animals and birds that by training or habit, live with man. This would include farm animals and domestic pets, horses, goats, and sheep.
Wild animals include lions, tigers and other potentially savage animals, but also those not included as domestic, including deer, fox, hares, rabbits, pigeons, wild fowls, fish, reptiles, and insects.
Domestic animals can be owned in the same manner as other chattels and goods. An action for trespass may be maintained in respect of interference with a property right in them.
Property in Animals
There is no absolute property in the wild animals where they live. There may be so-called qualified property in them because of various circumstances.
This property right may be terminated and lost if, for example, the animal returns to the wilderness or wild state, goes at large or is abandoned. The right is in essence, the right to take the animals into possession and ownership.
Qualified property in wild animals may arise by lawfully taking or taming them. This is retained until they regain their freedom.
Animals such as swans, deer, and doves may be subject to this qualified property. It is lost when they revert to the wild without an intention to return.
Accordingly, an action for trespass will lie for wild animals which have been tamed, including animals which are possessed in an enclosure, park, ponds, warren or in waters marked as private.
Bees are not owned until hived, in which case they become the property of the person who has hived them. If the swarm leaves the hive, it continues for as long as it can be seen and pursued.
Deer, although wild animals, if they are reclaimed and kept in enclosed grounds, are subject to property rights.
The owner of land has qualified property rights in the young of birds and animals born on the land until they can fly away or run away. They are accordingly subjected to property rights and recovery by way of trespass.
The owner of land who is not disposed of his rights has an exclusive right to hunt, take and kill wild animals on his own land subject to the laws on wildlife protection. The right may be granted to another as a property right, such as a right to shooting or a sporting right. A sporting right is a right in the nature of an easement.
If animals are killed or die, there is property in the dead animal that vests in the owner or occupier of the land or the person with proprietary or licensee rights or shooting or sporting rights.
If wild animals are killed by a trespasser, the rights may vest in the owner or the occupier of the land. The trespasser obtains no rights to them. If a poacher takes wild animals on the land of another and sells them, the property right belongs to the landowner, and they may be recovered.
Where, however, a trespasser hunts wild an animal from one property to another and kills it there, the hunter may obtain the property in them without prejudice to his liability for trespass. The cases which so hold have been criticised.
At common law, domestic and tame animals and wild animals which are used for food and their young and eggs could be stolen and were the subject of larceny. At common law, dogs and cats were not subject to larceny. However, by the Larceny Acts and later replacement theft legislation, all animals which have a value may be the property of any person and may be the subject of larceny or theft.
Various statutory offences have been created in relation to interfering with various animals. In addition to legislation dealing with their theft, legislation deals with unlawful killing and maiming of animals. See generally the sections on the welfare and protection of animals and on wildlife.
The bodies of wild animals which have been killed may be the subject of larceny at common law. However, if the killing and taking were a single act, larceny was not committed at common law. Statutory rules provided that the carcass of a creature wild by nature and not reduced into possession while living was not capable of being stolen by the person who had killed the carcass, provided it remained continuously in his possession.
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