Other examples taken from cases: bees, rats, foxes bears and wild geese.
In Diversified Holdings, Justice Wallace wrote:
"In the beginning, Genesis said mankind should have dominion over the fish of the sea, and over the fowl of the air, and over the cattle, and over every creeping thing that creepeth upon the earth.
"However, as society became more sophisticated and man brought certain animals into a state of subjection, under English law at least it was considered appropriate to distinguish between those animals which under normal circumstances are usually found at liberty, animals ferae naturae, and those animals which are generally tame, living in association with man, animals mansuetae or domitae naturae.
"Domestic animals are the subject of absolute ownership, with all the rights, duties, privileges and obligations that legal relationship entails.
"Animals ferae naturae are not the subject of absolute ownership, although a qualified property in such animals might be acquired by taking or taming them or while they are on one's estate. An action for damage resulting from the trespass of animals existed only in the case of those animals in which a right of property could exist at common law. "
In common law, the owner of an animal ferae naturae is strictly liable for damages caused by his/her animal. This, contrary to animals mansuetae naturae (tame by nature) for which the owner is liable only if she/he had knowledge of the tame animal’s propensity for wild behaviour.
Osborn writes in his Concise Law Dictionary (1954):
“As regards animals ferae naturae (of a wild nature), the owner keeps them at his peril and is liable for any injury which they may do unless the person to whom the injuries done brings it on himself.”
Justice Clifford of the United States Supreme Court wrote in Spring Co.:
“Certain animals ferae naturae may doubtless be domesticated to such an extent as to be classed, in respect to the liability of the owner for injuries they commit, with the class known as tame or domestic animals.
"But inasmuch as they are liable to relapse into their wild habits and to become mischievous, the rule is that if they do so, and the owner becomes notified of their vicious habit, they are included in the same rule as if they had never been domesticated; the gist of the action in such a case, as in the case of untamed wild animals, being not merely the negligent keeping of the animal, but the keeping of the same with knowledge of the vicious and mischievous propensity of the animal.”
Many jurisdictions have done away with the ferae naturae/mansuetae naturae nomenclature. England, for example, by its Animals Act 1971 prefers the plain language terms of dangerous or nondangerous species.
Statute law has also intervened to prescribe unique liability law for the actions of dogs and trespassing livestock such as horses and cattle.
At common law and in civil law, it was also held that no person can claim a beast or bird ferae naturae as property except only for so long as the animal is confined, although in some cases, marking the animal may conserve property rights notwithstanding the abscondment from captivity.
William Blackstone wrote, in his Commentaries, and at page 393 of Book II, Chapter 25:
“In all these creatures, reclaimed from the wildness of their nature, the property is not absolute, but defeasible; a property that may be destroyed if they resume their ancient wildness and are found at large. For if the pheasants escape from the mew, or the fishes from the trunk, and are seen wandering at large in their proper element, they became ferae naturae again, and are free and open to the first occupant that hath ability to seize them.”
REFERENCES:
- Animals Act 1971 (England)
- Animals (Scotland) Act 1987
- Diversified Holdings v R 99 DLR 3d 652 (BCSC, 1982)
- Duhaime, Lloyd, Canine Ferae Naturae: The Statutory Elimination of Naturally Fierce Dogs
- Duhaime, Lloyd, Legal Definition of Animal
- Duhaime, Lloyd, Legal Definition of Domestic Animal
- Duhaime, Lloyd, Legal Definition of Mansuetae Naturae
- Duhaime, Lloyd, Legal Definition of Scienter
- Spring Co. V Edgar 99 US 645 (1870)
- Williams, Thomas, A Compendious and Comprehensive Law Dictionary Elucidating the Terms and General Principles of Law and Equity (London: Gale and Fenner, 1816)