State v. Shaw

67 Ohio St. 157, 65 N.E. 875 (1902)



To acquire a property right in animals ferae naturae, the pursuer must bring them into his power and control, and so maintain his control as to show that he does not intend to abandon them again to the world at large. When he has confined them within his own private enclosure where he may subject them to his own use at his pleasure, and maintains reasonable precautions to prevent escape, they are so impressed with his proprietorship that a felonious taking of them from his enclosure, whether trap, cage, park, net, or whatever it may be, will be larceny. For such cases, the law does not require absolute security against the possibility of escape.


The trial court took the view that the State did not prove that the fish were sufficiently "confined" or "reduced to possession" to be the subject of larceny because the fish had to have been confined so that they had no possibility of escape. The court held that the doctrine that the fish could have no possibility of escape was unnecessarily technical and erroneous. For the owners of the nets to establish their property rights in the fish, they only had to confine them with reasonable precautions to prevent escape. The law did not require absolute security against the possibility of escape. The fish that were taken were confined in nets, had not escaped, and probably would not have escaped under ordinary circumstances.


Did the owners of the nets, having captured the fish, acquire property over them?




In the present case the fish were not at large in Lake Erie. They were confined in nets, from which it was not absolutely impossible for them to escape, yet it was practically so impossible; for it seems that under ordinary circumstances few, if any, of the fish escape. The fish that were taken had not escaped, and it does not appear that they would have escaped, or even that they probably would have escaped. They were so safely secured that the owners of the nets could have taken them out of the water at will as readily as the defendants did. The possession of the owners of the nets was so complete and certain that the defendants went to the nets and raised them with absolute assurance that they could get the fish that were in them. We think, therefore, that the owners of the nets, having captured and confined the fish, had acquired such a property in them that the taking of them was larceny.

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