Drolet v. Armstrong , 141 Wash. 654 ( 1927 )

While I concur in the conclusion reached by Judge Mitchell, I do so for a somewhat different reason than he has given.

Dogs, as I understand their legal aspect with respect to the right of property their owners have in them, are not animals either ferae naturae or domitae naturae, but occupy a place somewhat intermediate between the two. In other words, while a property right is recognized in dogs, it is a property right of a base and inferior kind, not that absolute and superior right of property an owner has in animals necessary to the subsistence of man, such as horses, cattle, sheep, and the like. Being animals of this inferior sort, they are subject to the police power of the state, and it is within the constitutional power of the legislature to prescribe the terms and conditions under which they may be kept by their owners, and under what circumstances they may be impounded or destroyed by persons other than their owners.

Our legislature has enacted a law upon the subject. It has provided (Rem. Comp. Stat., § 3107) [P.C. § 1986c]:

"It shall be lawful for any person who shall see any dog chasing, biting, injuring or killing any sheep, swine or other domestic animal outside of the enclosure of the owner or keeper of such dog . . . to kill such dog, . . ."

Domestic fowls are "animals" within the meaning of such a statute. Holcomb v. Van Zylen, 174 Mich. 274, 140 N.W. 521;McPherson v. James, 69 Ill. App. 337; State v. Bruner,111 Ind. 98, 12 N.E. 103; People v. Klock, 48 Hun 275; Huber v.Mohn, 37 N.J. Eq. 432.

In this instance, the evidence discloses that the dogs were killed while outside of the inclosure of the owner and while in the act of killing the chickens of the respondent on the respondent's premises. It was lawful, therefore, because of the statute, for the respondent to kill the dogs, and, it being so lawful, he is not liable to answer in damages for the value of the dogs.

In the absence of a statute authorizing it, I am doubtful whether it is always lawful to kill a dog merely because it is found trespassing on the property of another person than its owner, even though the trespass may cause some actual damage. There is a sense of proportion in things, recognized by law, and it will hardly do to say that a valuable dog may be killed for an inconsequential injury, or for an injury greatly less, measured by a money value, than the value of the dog, unless the killing is specially authorized by statute. No one can rightfully contend that it is lawful to kill a horse, a cow, or a band of sheep merely because it may be found trespassing upon and destroying the property of persons other than its owner. In my opinion, notwithstanding the limited right of property the owner has in a dog, a dog stands on the same plane as the animals named with respect to the right to kill it, and can be killed, in the absence of statutory authorization, when found trespassing, only under circumstances which would justify the killing of any domestic animal. For these reasons, I do not think the judgment in this cause can rest on any general rule of law, but I feel that it can safely rest on the statute cited.

BRIDGES, J., concurs with FULLERTON, J.