Morgan v. Kroupa

Annotate this Case

Morgan v. Kroupa (95-594); 167 Vt. 99; 702 A.2d 630

[Filed 5-Sep-1997]

NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.

No. 95-594

Mary Morgan Supreme Court

On Appeal from
v. Addison Superior Court

Zane Kroupa January Term, 1997

Matthew I. Katz, J.

Beth Robinson of Langrock Sperry & Wool, Middlebury, for plaintiff-appellee

Christena M. Obregon, Burlington, for defendant-appellant

PRESENT: Gibson, Dooley, Morse and Johnson, JJ., and Allen, C.J.
(Ret.), Specially Assigned

MORSE, J. Defendant Zane Kroupa appeals from a judgment awarding
possession of a dog named Boy (a/k/a Max) to plaintiff Mary Morgan. We
affirm.

Defendant adopted a mixed-breed puppy when it was six to eight weeks
old and trained it to be a hunting dog. In July 1994, when the dog was
five years old, it broke free of its collar, ran away and became lost.
Defendant immediately informed his friends and local businesses, and
notified the Addison County Humane Society of the dog's escape.

About two weeks later, plaintiff found the dog walking down Route 17
in the Town of Addison and brought it home. She called the Addison County
Humane Society and gave a description of the dog; the Humane Society told
her to keep the dog until she, or they, could find the owner. She
apparently never heard back from them. Plaintiff also posted notices in
three State Parks and four general stores in the area, and arranged to have
a local radio station broadcast at least two announcements concerning the
dog. Although defendant resided in Addison, a rural town of approximately
1,000 residents, he allegedly did not locate the dog for

more than one year after it became lost.

Plaintiff took care of the dog and fed and sheltered it. She
considered it the household pet. In September 1995, a friend of
defendant's told him that he had seen the dog at a house only two miles
down the road. Defendant drove to the house, which belonged to plaintiff's
boyfriend, and sought unsuccessfully to have the dog returned. As
defendant prepared to leave, however, the dog jumped in his truck and
defendant left with the animal. Shortly thereafter, plaintiff brought this
action in replevin to recover the dog.

The trial court, sitting without a jury, ruled in favor of plaintiff
and returned Max to her. In so holding, the court noted that the case could
be analyzed under several different theories. The first was to treat the
matter as a simple property case, applying the Vermont "lost property"
statute, 27 V.S.A. §§ 1101-1110. The second was to analogize it to a child
custody case, inquiring into what was in the "best interests" of the dog.
The third was to base the judgment on the emotional "attachment" of the
contending parties. The trial court essentially chose the first approach,
ruling that plaintiff had "substantially compl[ied]" with the statute and
was therefore entitled to possession.

Vermont's lost property statute provides that a person who

finds money or goods, to the value of $3.00 or more, or takes up
a stray beast, the owner of which is not known, shall within six
days thereafter, make two notices, describing such money, goods
or beast, with the natural or artificial marks, with the time and
place of finding or taking up the same, and post them in two
public places in town in which such property was found.

27 V.S.A. § 1101. If the value of the property exceeds $10.00, the finder
must additionally "immediately cause a copy of the notice to be published
three weeks successively in some newspaper circulating in such town." 27
V.S.A. § 1103. If the owner does not appear and claim the property within
twenty days of the notice, the finder must additionally "cause a copy of
the notice to be recorded in the office of the clerk of such town." 27
V.S.A. § 1104. Should the owner not claim the property within ninety days,
other provisions of the statute allow the

finder to "sell it at public auction" and retain a portion of the proceeds
to defray the "expenses of keeping the property," the balance to be "paid
to the town treasurer," 27 V.S.A. § 1105, and to further "put such beast to
reasonable labor . . . allow[ing] the owner a reasonable compensation
therefor." 27 V.S.A. § 1109.

From its plain terms and judical application over time it is evident
that the statute -- which dates from the late-eighteenth and
early-nineteenth centuries -- was designed for agricultural animals of
substantial monetary value, not lost pets. Although no direct legislative
history is extant, the legislature undoubtedly intended the phrase "stray
beasts" to include, as the trial court here observed, "animals that had
very significant value" such as cows, oxen, horses, sheep, swine and other
farm animals that formed the basis of a largely agricultural economy. The
specific and exacting notice requirements, provision for public auction,
and the allowance for "put[ting] such beast[s] to reasonable labor" all
presume, and seek to protect the owner's and finder's interest in, an
animal of significant financial value. 27 V.S.A. § 1109.

Similar economic concerns inform 20 V.S.A. § 3411, which grants the
right to "impound a beast" found in one's "enclosure." The impounder must
give the owner prompt notice or post an advertisement if the owner is
unknown, and, if the owner does not appear, the impounder may sell the
beast at public auction. Id. §§ 3413, 3419, 3420, 3421. The purpose of
the statute is to provide a "prompt and speedy" return or disposition of
animals of considerable economic value. Harriman v. Fifield, 36 Vt. 341,
346 (1863).

This construction is amply supported by over 170 years of case law,
during which time numerous reported decisions have construed and applied 20
V.S.A. § 3411 and 27 V.S.A. § 1110. These decisions have generally
involved disputes between neighbors over stray or impounded farm animals.
See, e.g., Dunbar v. Godbout, 105 Vt. 448, 168 A. 551 (1933) (cattle);
Andrews v. Carl, 77 Vt. 172, 59 A. 167 (1904) (heifer calf); Howard v.
Bartlett, 70 Vt. 314, 40 A. 825 (1898) (cattle); Mattison v. Turner, 70 Vt.
113, 39 A. 635 (1897) (cattle); Chaffee v. Harrington, 60 Vt. 718, 15 A. 350 (1888) (horse); Bowman v. Brown, 55 Vt. 184

(1882) (cow); Dudley v. McKenzie, 54 Vt. 394 (1882) (sheep); Porter v.
Aldrich, 39 Vt. 326 (1866) (oxen); Keith v. Bradford, 39 Vt. 34 (1866)
(cattle); Boothe v. Fitzpatrick, 36 Vt. 681 (1864) (bull); Harriman, 36 Vt.
341 (cows); Riker v. Hooper, 35 Vt. 457 (1862) (horse); Edwards v. Osgood,
33 Vt. 224 (1860) (bull); Hooper v. Kittredge, 16 Vt. 677 (1844) (horses);
Moore v. Robbins, 7 Vt. 363 (1835) (sheep).

No decision has ever applied the lost-property or impounding statutes
to any kind of "beast" other than a farm animal of considerable value.
Since dogs have been mankind's companion throughout the ages, one could
safely assume that if the statute applied to disputes over domestic pets
some decision over the last two centuries would have said so. The case law
thus strongly supports the inference that the statute was not designed to
govern the present situation, involving a lost pet dog. A pet dog
generally has no substantial market value as such; it generally cannot be
"put . . . to . . . labor" or sold at "public auction" as contemplated by
the statute. 27 V.S.A. §§ 1105, 1109. Here, for example, we are dealing
with a mixed-breed dog that was given away as a puppy and was five or six
years old when it became lost. Like most pets, its worth is not primarily
financial, but emotional; its value derives from the animal's relationship
with its human companions. As the trial court here observed, "a dog like
Max may have a lot of emotional value but there's nothing in the record to
suggest that the dog has a fair market value of any significance."

Thus, modern courts have recognized that pets generally do not fit
neatly within traditional property law principles. "[A] pet is not just a
thing but occupies a special place somewhere in between a person and a
piece of personal property." Corso v. Crawford Dog & Cat Hosp., Inc., 415 N.Y.S.2d 182, 183 (N.Y. Civ. Ct. 1979). Ordinary common law or statutory
rules governing lost personal property therefore do not provide a useful
framework for resolving disputes over lost pets. Instead, courts must
fashion and apply rules that recognize their unique status, and protect the
interests of both owner and finder, as well as the public. In this regard,
the trial court was correct that family law provides an imperfect analogue.
However

strong the emotional attachments between pets and humans, courts simply
cannot evaluate the "best interests" of an animal. Recognizing, however,
the substantial value that society places on domestic animals, it is proper
that the law encourage finders to take in and care for lost pets. A stray
dog obviously requires care and shelter, and left unattended could pose
hazards to traffic, spread rabies, or exacerbate an animal overpopulation
problem if unneutered. A rule of decision that made it difficult or
impossible for the finder to keep the animal after many months or years of
care and companionship might deter these salutary efforts, and would not be
in the public interest.

The value of a pet to its human companions has already been noted.
Accordingly, apart from providing care and shelter, finders of stray pets
should also be encouraged to make every reasonable effort to find the
animal's owner. Although circumstances will vary, this might include
contacting the local humane society, veterinarians, or the police
department, posting notices near where the animal was found, and placing
newspaper or radio advertisements. Additionally, owners of lost pets should
be enjoined to undertake reasonable efforts to locate their animals by
contacting local humane societies and other appropriate agencies, printing
and placing notices, or taking out appropriate advertisements. Together
these requirements provide an incentive to finders to care for stray pets
and attempt to locate their owners, and place the onus on owners to
conscientiously search for their pet.

When confronted with a case of this nature, therefore, courts should
factor these practical and policy considerations into any decision.
Indeed, this was essentially the approach taken by the trial court here.
Although couched in terms of "substantial compliance" with the lost-
property statute, the court basically held that where the finder of a lost
pet makes a reasonable effort to locate its owner, and responsibly cares
for the animal over a reasonably extensive

period of time, the finder may acquire possession of the animal. As the
court explained, "The court's going to decide this case on the basis that
[plaintiff] found a stray dog, cared for it for a year, [and] did put up
notice when she found it . . . . [I]f you pick up a stray which does not
have a market value to speak of, if you have put up notices . . . . I think
that's what the law requires and after a passage of time you're entitled to
keep the dog."

Having found that plaintiff diligently attempted to locate the dog's
owner and responsibly sheltered and cared for the animal for over a year,
the trial court was clearly within its discretion in awarding possession to
plaintiff. We will not set aside findings made by a trial court unless
clearly erroneous, nor disturb its conclusions if they are supported by its
findings. Cameron v. Double A. Services, Inc., 156 Vt. 577, 581-82, 595 A.2d 259, 261-62 (1991).

Defendant raises two claims of error, neither of which is persuasive.
First, he contends the trial court erred in ruling that plaintiff had
substantially complied with the notice provisions of the lost-property
statute. Having concluded that the statute does not apply in these
circumstances, we find the argument to be wide of the mark.

Second, he claims a right to possession under the property law
principles of trover and conversion. See Economou v. Carpenter, 124 Vt.
451, 453-54, 207 A.2d 241, 243 (1965) ("`[I]n the sense of the law of
trover a conversion consists either in the appropriation of the property to
the party's own use and beneficial enjoyment, or in its destruction, or in
exercising dominion over it in exclusion or defiance of the owner's right,
or in withholding possession from the owner under a claim of title
inconsistent with his title.") (quoting C.H. Eddy & Co. v. Field, 85 Vt.
188, 189, 81 A. 249, 250 (1911)). As discussed earlier, however,
"property" in domestic pets is of a highly qualified nature, possession of
which may be subject to limitation and control. For example, 20 V.S.A. §
3511 provides that an animal shall be "deemed to be abandoned" if placed in
the custody of a veterinarian or kennel and not removed at the end of the
agreed time period. Animals in the possession of an incorporated humane
society may be disposed of by any method it deems appropriate. 20 V.S.A. §
3909. Domestic pets suspected

of having been exposed to rabies may be confined or impounded, 20 V.S.A. §
3806, and "vicious" domestic pets may be removed from the owner and
"disposed of in a humane way." 20 V.S.A. § 3546(c).

Thus, possession of domestic pets may be, and often is, limited by
overriding public interests. In this case, as explained above, the public
interest in encouraging finders to care for and shelter lost pets
necessarily qualifies the owner's right to possession. Where, as here, the
finder of a lost domestic animal diligently attempts to locate its owner
and provides care, shelter and companionship to the animal for over a year,
a trial court does not abuse its discretion in awarding possession to the
finder.

The dissent raises two concerns. First, it challenges the exclusion
of lost pets from the lost-property statute because of the supposed
difficulty in distinguishing "between animals kept for economic reasons and
those kept as pets." Post, at 3. The Court's opinion draws no such
distinction. As noted, the statute expressly applies to animals that can
be put to "labor" and sold at "auction," i.e., agricultural animals with
substantial economic value. The fact that a horse may also be considered
to be a pet does not remove it from this category. A pet dog, cat or
hamster generally does not fall within this class. There may be the rare
exception, such as a working sheep dog, which could fall within the
statute, but the exception only proves the rule.

The dissent's second concern is that the Court's opinion will somehow
encourage a black market in stolen pets. The requirements that a finder
make reasonable and diligent efforts to locate the owner -- in this case by
posting notices, placing newspaper advertisments, contacting the humane
society, and arranging for radio announcements -- precludes the
unscrupulous from asserting rights in a stolen pet. The dissent's argument
suggests that someone would conspire to: (1) steal a pet, (2) diligently
proceed to contact the police, the humane society, and local newspaper and
radio stations, all with the hope that the owner will somehow overlook
these efforts, and finally, (3) retain the pet for a year or more, all with
the ulterior purpose of ultimately selling the animal. Black marketeers do
not, however, publicize their stolen wares,

nor do they retain them for long periods. Nothing in the Court's opinion,
in short, will provide the slightest advantage to such scoundrels.

Affirmed.

FOR THE COURT:

_______________________________________
Associate Justice

------------------------------------------------------------------------------
Dissenting

No. 95-594

Mary Morgan Supreme Court

On Appeal from
v. Addison Superior Court

Zane Kroupa January Term, 1997

Matthew I. Katz, J.

Beth Robinson of Langrock Sperry & Wool, Middlebury, for plaintiff-appellee

Christena M. Obregon, Burlington, for defendant-appellant

PRESENT: Gibson, Dooley, Morse and Johnson, JJ., and Allen, C.J.
(Ret.), Specially Assigned

GIBSON, J., dissenting. Because I believe that Vermont's
lost-property statute, 27 V.S.A. §§ 1101-1110, rejected by the Court
herein, outlines the rights and responsibilities of both true owners and
finders of stray domesticated animals, including dogs, and that, under the
provisions of that statute, Boy (a/k/a Max) should be returned to
defendant, I respectfully dissent.

The Court does not appear to dispute the long-settled, common-law rule
that a finder of lost personal property has title that is superior to all
but the true owner, see Campbell v. Cochran, 416 A.2d 211, 221 (Del. Super.
Ct. 1980); that Vermont's lost-property statute reflects this common-law
principle; or that the statute governs ownership and compensation rights in
disputes over stray domesticated animals such as livestock. Instead, the
Court asserts that the statute's application to "stray beasts" does not
include pet dogs.

We have not previously needed to decide whether a dog is a "beast"
under our lost

property and impounding statutes.(FN1) See Vosburgh v. Kimball, 130 Vt. 27,
30, 285 A.2d 766, 768 (1971). There is no indication, however, that the
Legislature intended to exclude certain species of domesticated animals.
Nor is there any logical reason to separate dogs from other domesticated
animals, see Mungo v. Bennett, 119 S.E.2d 522, 523 (S.C. 1961) (grouping
horses, mules, cattle, dogs, and cats), all of which are legally classified
as personal property. See Richardson v. Fairbanks North Star Borough, 705 P.2d 454, 456 (Alaska 1985) (dogs have legal status as personal property);
State v. M'Duffie, 34 N.H. 523, 526 (1857) ("Dogs are . . . as much the
subject of property or ownership, as horses, cattle or sheep."); accord
Thiele v. City of Denver, 312 P.2d 786, 789 (Colo. 1957); Levine v.
Knowles, 197 So. 2d 329, 331 (Fla. Dist. Ct. App. 1967); Smith v. Costello,
290 P.2d 742, 743 (Idaho 1955); Jankoski v. Preiser Animal Hosp. Ltd., 510 N.E.2d 1084, 1086 (Ill. App. Ct. 1987); cf. Conti v. ASPCA, 353 N.Y.S.2d 288 (N.Y. Civ. Ct. 1974) (where finder of escaped pet parrot refused to
return bird to owner, court found parrot was domesticated and ordered
return to owner under common-law rule of lost property). Further, the
dictionary defines "beast" as "an animal as distinguished from a plant,"
and "a lower animal as distinguished from man," Webster's New Collegiate
Dictionary 96 (1981), making no distinction between dogs and other animals.

In this case, the Court follows neither the lost-property statute nor
the generally accepted common-law rule. Instead, without benefit of
citation to any supporting authority, the Court fashions its own solution
in a manner that will be difficult, if not impossible, to apply in a
consistent manner in future cases. The Court asserts that the statute
applies only to animals

having "significant value."(FN2) Ante, at 3, 4. Exclusion of dogs from the
lost-property statute based on lack of market value is indefensible,
however. The statute deals solely with rights of ownership and
compensation for expenses. The statute's notice provisions apply to any
stray animal regardless of value, while a finder of goods or money must
post notices only if the value is $3 or more, 27 V.S.A. § 1101; if the
value of found property exceeds $10, additional newspaper notice is
required. Id. § 1103. Thus the issue of value arises only in determining
the type of notice a finder must give.

To the extent that the financial value of pets, as opposed to
livestock, is relevant, other jurisdictions have acknowledged in different
settings that pet dogs do have value beyond that reflected by a pure
market-value analysis and have adopted means to measure that value. See
Levine, 197 So. 2d at 331-32 (owner of pet Chihuahua could recover
compensatory damages for intrinsic value and perhaps punitive damages);
Jankoski, 510 N.E.2d at 1087 (actual value of pet dog could include
sentimental value); Fredeen v. Stride, 525 P.2d 166, 168 (Or. 1974) (jury
could consider mental distress as element of damages for loss of pet dog
under certain circumstances); see generally P. Barton & F. Hill, How Much
Will You Receive in Damages From the Negligent or Intentional Killing of
Your Pet Dog or Cat?, 34 N.Y.L. Sch. L. Rev. 411 (1989). Thus, a pet dog
of even mixed breeding could have significant financial value, and the
Court's distinction on the basis of financial value is unjustified.

Further, a clear line cannot always be drawn between animals kept for
economic reasons and those kept as pets. Many people who keep livestock
become emotionally attached to individual animals. Conversely, dogs may be
owned primarily or solely for their economic

value as work dogs or breeding stock. And there are animals that fall
somewhere in between, such as pleasure horses -- livestock that are not
kept for their economic value, but are, in effect, large pets. To separate
some species of domesticated animals from others on an attempted
livestock-pet dichotomy is a purely arbitrary interpretation of the
statute.

Although the Court believes its holding will encourage finders of lost
animals to take them in and give them a home, I am concerned about the
consequences of removing pets from the animal-theft protections of the
lost-property statute. The lost-property statute was designed in part to
remove incentives for animal theft and make it difficult for the finder to
profit from selling a stray animal. See 27 V.S.A. § 1105 (if finder sells
unwanted stray animal, proceeds of sale go to town after reimbursing finder
for expenses). The Court, however, holds that any person who "finds" a dog
and makes a "reasonable" effort to locate the owner may claim title to the
animal superior to that of the true owner after an undefined "reasonable"
amount of time.

Despite the Court's professions to the contrary, I cannot agree that
plaintiff made a "reasonable effort" or "diligently attempted" to locate
the dog's owner. Ante, at 5, 6. Although she posted notices, they simply
read "lost dog" and listed a phone number, without describing the dog's
breed, sex, approximate age (puppy or adult), color, markings or
distinctive features, or whether the dog had a collar. While plaintiff
also requested community-service radio ads, these ran for two days only,
and there is no indication they were any more detailed than her posted
notices. Thus, plaintiff failed to provide even the minimal notice
necessary to qualify as "reasonable," much less comply with the
lost-property statute. See Chaffee v. Harrington, 60 Vt. 718, 720-21, 15 A. 350, 351 (1888) (requirements of statute relating to rights and duties
of finder of stray beast must be strictly complied with; plain purpose of
statute in requiring that animal be described by natural or artificial
marks is that owner and others who see ads may be able to recognize or
identify animal).

An unfortunate consequence of the Court's opinion will be to give
those who operate the nation's black market in stolen pets an easier means
to gain title and profit from pets that are

not their own. The history of attempts to curb the trade in stolen pets
demonstrates the seriousness of the problem. Due in large part to the
pervasiveness of pet theft, Congress enacted the Animal Welfare Act (AWA)
in 1966. 7 U.S.C. § 2131 (1988) (purpose includes "protect[ing] the owners
of animals from the theft of their animals"); R. Masonis, The Improved
Standards for Laboratory Animals Act and the Proposed Regulations: A
Glimmer of Hope in the Battle Against Abusive Animal Research, 16 B.C.
Envtl. Aff. L. Rev. 149, 153 (1988) (statute prompted by need to curb
illicit trade of stolen household pets). The law requires licensing and
record keeping for all dealers and research facilities using live dogs and
cats. 7 U.S.C. §§ 2133, 2134, 2136, 2140 (1988).

In 1987 the United States Department of Agriculture noted that there
was still evidence of "buying and selling obviously stolen animals and of a
few research facilities obtaining animals under questionable
circumstances," observing that the net effect of certain activities was to
"encourage animal theft for profit." 61 Fed. Reg. 10,298, 10,305, 10,307
(1987). Enforcement in the past was lax, with only three criminal
prosecutions and 122 administrative prosecutions against AWA violators from
1968 to 1980. Masonis, supra, at 156-57. In response, the statute was
amended in 1990, see 7 U.S.C. §§ 2158-2159 (Supp. 1990), to further
discourage the theft and sale of pets and allow, where possible, stolen
pets to be reunited with their owners. N. Wilks, The Pet Theft Act:
Congressional Intent Plowed Under by the United States Department of
Agriculture, 1 Animal L. 103, 103 (1995). Nonetheless, criticism for
failure to enforce the act continues. Id. at 122-24.

The Vermont Legislature acknowledged the problem of pet theft in 1968
when it also criminalized the theft of domesticated animals.(FN3) 1967, No.
365 (Adj. Sess.), § 7 (now codified,

as amended, at 13 V.S.A. § 361(a)). It is difficult, however, to prove
criminal intent when dogs in particular are known to be able to escape from
fenced yards or from tethers and willingly respond to offers of food or
attention from strangers. Thus, owners seeking to recover their lost pets
will often look to the civil law for a remedy. Today's decision largely
closes that avenue of relief.

Because the statute provides a clear, consistent, and just approach to
settling disputes between finders and owners of stray domesticated animals,
and because it includes safeguards to protect pet owners from theft, I
respectfully dissent. I am authorized to say that Chief Justice Allen
joins in this dissent.

_______________________________________
Associate Justice

-----------------------------------------------------------------------------
Footnotes

FN1. Vermont's impounding law also applies to "beasts" and allows a
person to impound any "beast" found on his land doing damage. 20 V.S.A. §
3411. Like the lost-property statute, where the true owner is unknown, the
impounder must post notice. Id. § 3420. The impounder may sell the animal
if the owner fails to appear within thirty days and claim it, but must
return it when the owner appears and compensates the impounder for the
damage and for the expense of keeping and advertising the animal. Id. §
3421.

FN2. The Court also supports its holding with the assertion that pet
dogs are not sold at auction. Ante, at 3, 4. In fact, however, it is not
uncommon for dogs and cats to be sold at auction to research facilities.
See 7 U.S.C. § 2137 ("It shall be unlawful for any research facility to
purchase any dog or cat from any person except an operator of an auction
sale subject to section 2142 of this title or a person holding a valid
license as a dealer or exhibitor . . . .") (emphasis added); see also 27
V.S.A. § 1105 (providing for sale of unclaimed property at public auction).

FN3. A person commits the crime of interference with domestic animals
if he "confines or secretes a domestic animal owned by another, with the
intention of concealing its identity or the identity of its owner" or if he
conceals "the fact that the animal is licensed by removing the collar,
harness or identification . . . from any . . . domestic animal owned by
another." 13 V.S.A. § 361(a) (original version at 13 V.S.A. § 482). The
crime is punishable by imprisonment for up to one year or a fine up to
$2,000, or both. Id. § 361(b).

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