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Conti v. ASPCA - 77 Misc. 2d 61, 353 N.Y.S.2d 288 (Civ. Ct. 1974)

Rule:

The true owner of lost property is entitled to the return thereof as against any person finding same. This general rule is not applicable when the property lost is an animal. In such cases the court must inquire as to whether the animal was domesticated or ferae naturae (wild). Where an animal is wild, its owner can only acquire a qualified right of property, which is wholly lost, when it escapes from its captor with no intention of returning.

Facts:

On June 28, 1973, during an exhibition in Kings Point, New York, Chester, a domesticated parrot, flew the coop and found refuge in the tallest tree he could find. For seven hours, defendant owner, the ASPCA, sought to retrieve Chester to no avail. A week later, plaintiff rescuer saw a parrot in his backyard and fed the same over a two-week period until the parrot entered the plaintiff rescuer’s home. Subsequently, plaintiff rescuer caged the parrot and called defendant ASPCA and requested advice as to the care of a parrot he had found. Thereafter, the ASPCA sent two representatives to the plaintiff’s home. Upon examination, they claimed that it was the missing parrot, Chester, and removed it from the plaintiff’s home. Upon refusal of the defendant ASPCA to return the bird, plaintiff brought an action In replevin. The trial court ruled in favor of the defendant ASPCA, to which the plaintiff appealed.

Issue:

Was the plaintiff rescuer entitled to the ownership of the parrot?

Answer:

No.

Conclusion:

The Court noted the general rule which stated that the owners of lost property was entitled to the return thereof as against any person finding the same. According to the Court, an exception to this general rule was when the property lost was an animal. In such cases, the court must inquire as to whether the animal was domesticated or ferae naturae (wild). If the animal found was wild, its owner can only acquire a qualified right of property that was wholly lost when it escaped from its captor with no intention of returning. However, here, the appellate court upheld the factual findings of the trial court, which had determined that the parrot was the same bird that the defendant had lost, and was therefore, a domesticated animal. According to the Court, since the bird was a domesticated animal, its escape did not extinguish the ownership rights of the defendant.

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