COMMON LAWS

Common Laws is a general legal information column written by two local attorneys, Lyn and David Batty. A prior version of this column originally appeared on DavidsonNews.net.

We were fascinated by the story of a local girl and her family who adopted a lost fancy homing pigeon and named him Crash. The story of the family’s care and concern for this bird started us thinking about the nature of pets, and what defines a pet in terms of the law.

Ownership of animals is a property right with a rich history in common law. One of the first cases every law student studies is Pierson v. Post, a 200- year-old case to determine the ownership of a wild fox. Post, a hunter, was chasing a fox when Pierson seized the fox and killed it. Post’s ownership claim was based on his close pursuit of the fox. Pierson’s claim was based on his capture of the fox. The parties litigated the matter all the way up to the New York Supreme Court. That court had to articulate the best rule for determining what actions are necessary to convert un-owned property into owned property. Physical possession and control were the key factors considered by the court, and subsequent courts have continued to hold that possession and control are prerequisites for establishing ownership of an animal, wild or tame.

Crafting laws to regulate the ownership of an animal is a delicate act, balancing the owner’s autonomy to enjoy his or her property against action or inaction by the owner that cause distress or danger to the animal or to other members of the community. Local ordinances almost universally concern the care and control of the animal, which are the signals of ownership. If the owner is clearly in control of the animal, and is caring for the animal in a way that is beneficial to the animal, the law stays out of the relationship. When either care or control begins to break down, the law steps in to protect the animal or the community. In Davidson and Cornelius, dangerous, un-owned, or at-risk animals are subject to immediate impoundment by the police or animal control.

Ownership of birds is a tricky issue, because of the difficulty in determining if a person has sufficient control over a bird to constitute ownership. Placing the bird in a cage will clearly suffice, but what about a situation where the bird voluntarily returns to the same roost repeatedly because it is getting fed? While Crash, the wayward homing pigeon clearly seems to have set up domicile with his new family, few would think of the cardinals that frequent their backyard bird feeder as pets. When it comes to pigeons, drafting animal ordinances that correctly balance ownership rights with community interests can be particularly difficult. Pigeons tend to invite their friends and family over for meals and pigeons are not particularly afraid of people, so they place a greater burden on the community than a parakeet, for example. But fancy pigeons, as the name implies, are not ordinary pigeons – they have been bred for special traits like endurance and speed. In fact, the very purpose of fancy homing pigeons is to release them to see how quickly they return to their owner. Shouldn’t a well-crafted animal ordinance take that into account when balancing interests? Maybe, but then local governments might end up spending all their time drafting ordinances as varied as the animals of the world.

In 2012 Davidson adopted a comprehensive new animal ordinance. The ordinance illustrates how much effort goes into crafting a law to address all the nuances of a particular issue. As a general rule, it is unlawful to own an animal in Davidson “unless such animal is under sufficient physical restraint” to ensure community safety. In certain circumstances, such as in public parks, Davidson requires dogs to be on a leash. However, a leash is not required in your own front yard if a responsible adult is close by and the dog “is obedient to that person’s commands.” But you are not allowed to simply tie up your dog when you leave for work under Davidson’s new tethering ordinance. Under Davidson law, “[d]ogs may not be tethered to a stationary object UNLESS a responsible adult is in the immediate presence of the dog.” This prohibition includes tying your dog up during a short trip into a store or the Post Office. Violations of the law are punished through a series of escalating fines from $30 for the first offense up to $500 and potential seizure of the dog for the fifth offense.

Another illustration of the effort that goes into balancing property rights with concern for animal well-being relates to the safe transportation of animals. For example, Troutman’s animal ordinance prohibits leaving an animal in “vehicles where it must stand, sit, or lie on extremely hot or cold surfaces including but not limited to truck beds.” Before rescuing a dog left alone in a locked car on a hot day, Davidson requires the police or animal control officer to make a reasonable effort to find the owner of the car. If the owner cannot be found, the rescuer must seek to minimize the damage to the car when freeing the trapped pet. The animal ordinance also requires the police or animal control officer to leave information in a prominent place on the car about where the impounded animal may be reclaimed.

What isn’t a pet and why

Some animals, typically referred to as “wild” or “exotic” animals, are so dangerous or problematic that the law prohibits keeping those animals as pets. One of the stated purposes of Cornelius’ animal ordinance is to protect residents from exotic animals, defined as “[a]nimals other than domestic animals, farm animals, and wild animals that are not native to North Carolina.” Davidson prohibits “venomous reptiles, non-indigenous species, and any animal likely to cause a reasonable person to be afraid of serious bodily harm” under its restriction of exotic animals. Troutman has one of the most comprehensive regulations of wild and exotic animals, deeming all such animals to be “inherently dangerous.” The animal ordinance prohibits bears, bear hybrids, poisonous reptiles, constricting reptiles more than 10 feet in length, and nonhuman primates weighing greater than 25 pounds. Members of the crocodile family are similarly banned, as are members of the feline family, other than domestic cats. Notably, although wolves, coyotes, and wolf-coyote hybrids are illegal, wolf-dog cross-breeds are specifically permitted in Troutman.

Those who wonder if the dangers posed by non-indigenous animal species are as serious as those posed by a venomous snake or a wolf-coyote hybrid should consider the exotic and ravenous Asian carp. To prevent the non-indigenous Asian carp from entering Lake Michigan and devouring the food supply needed to support native fish, regional governmental authorities are working with the U.S. Army Corps of Engineers to build an electric barrier between Lake Michigan and the Illinois River where the troublesome fish have been found.

Licensing

One of the responsibilities of pet ownership is compliance with the pet licensing ordinances in your town. Although Cornelius decided to eliminate its pet licensing requirements in March of 2012, Davidson has a typical license requirement. We recently licensed our dog, Maggie, at Davidson Town Hall. The process was simple and quick. The town gave her a pretty little tag for her collar, shaped like a fire hydrant. Now the town has a record for her in their system, including our contact information, in case she gets lost.

If you have a legal question of general interest, please send us an email ([email protected]) and we might use your question in an upcoming column.

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David and Lyn Batty live in Davidson and as lawyers, they also want you to read this disclaimer: We write this Common Laws column for informational purposes only. This column is not legal advice and it should not be relied on for making any decisions that may affect your rights. If you need legal advice regarding a specific situation you should consult a lawyer. No attorney-client relationship is created with any of our readers. Although we try to ensure that the information we provide is accurate, we disclaim any liability for inaccurate, incomplete, or out-of-date information appearing in this column