Meekins v. . Simpson

Hoke, J. The rules of the common law concerning the ownership of dogs are not as consistent and definite as in most other kinds of property. Owing, probably, to the very great variety of species, as well as the differences in their dispositions and habits, they were not considered as having such pecuniary value as to make them subjects of larceny, and for the same reason they were never classified or' dealt with as estrays within any recognized meaning of that term. 1 Blk., pp. 297-298. And it may be well to note that they are not now to be regarded as “stock” within the rules for impounding stock under our present statute applicable. Revisal, sec. 1681. The position as to larceny has been changed by statute in reference to listed, tax-paid dogs. Revisal, sec. 3501. And it has been very generally understood and held, both in old and in later cases, that dogs are so far the subjects of property that the ordinary civil remedies are available to the owner for their protection, and in this respect the trend of the modern decisions is to regard dogs as tame domestic animals having value. Dodson v. Mock, 20 N. C., 282; Graham v. Smith, 100 Ga., 434; Tar Hopen v. Walker, 96 Mich., 236. The action is therefore well brought, so far as the form is concerned, and on perusal of the record we find no reason for disturbing the verdict and judgment by which the rights of the owner have been established. Assuming in the present instance that the dog was really lost and is subject to the principles that usually prevail in reference to lost property, it is the recognized position that the finder, as a bailee without compensation, holds for the benefit of the owner when ascertained, and that no statute of limitations will inure for his protection unless and *133 until tbe possession of tbe finder bas become adverse to tbat of tbe owner, and tbis must be established by a demand and refusal of tbe owner or by tbe exercise of some unequivocal act of ownership inconsistent with tbe true owner’s right. Until tbat occurs, no cause of action bas accrued to tbe owner and, by express provision, tbe statute of limitations does not begin to run. Revisal, sec. 360; Smith v. Durham, 127 N. C., 417; Earp v. Richardson, 81 N. C., 5; Carroway v. Burbank, 12 N. C., 306; 17 R. C. L., title, Lost Property, sec. 7, p. 1205. Not only is there no evidence of such an act in tbe present instance, but defendant, a witness iñ bis own behalf, testified tbat be was bolding tbe dog for tbe true owner. In Blount v. Parker, 78 N. C., 128, a case of lost bonds and very much relied on by defendant, there bad been a sale and disposition of tbe bonds by tbe finder nearly ten years before action brought, and tbe case was decided for defendant on that ground. Tbe case is chiefly an authority for tbe position tbat when there bad been such an exercise of ownership by tbe finder, amounting to an undoubted conversion, the fact tbat tbe true owner was ignorant of it would not prevent tbe bar of tbe statute in a purely legal action, and is rather in illustration of tbe principle we apply to tbe present case. It may be well to note tbat tbe beadnote in Blount v. Parker is calculated to give tbe impression tbat tbe sale and conversion of tbe bonds took place a short time before action brought. An examination of tbe record, however, shows tbe facts to be as stated. And in University v. Bank, 96 N. C., 280, there bad been a demand and refusal by the rightful claimant more than three years before action brought. Nor is there any error in excluding tbe evidence offered as to tbe amount due for tbe keep and maintenance of tbe dog while in defendant’s possession. While it is recognized tbat a finder of lost property may sustain a demand in assumpsit or by way of counterclaim for tbe reasonable cost and expenses necessary to tbe preservation and return of tbe property to the true owner, it is very generally held, universally so far as examined, tbat there is no lien for any such claim, therefore this proposed testimony was not relevant to an issue as to title or right of possession. Such lien seems to be allowed in case of a reward offered, but not, as stated, for expense of preservation and maintenance. Weeks v. Hackett, 104 Me., 264, reported also in 129 Amer. St., 390; Wood v. Parson, 45 Mich., 313; Amory v. Flyn, 10 Johnson, 102; Chase v. Corcoran, 106 Mass., 286; S. v. Hayes, 98 Iowa, 619, reported in 37 L. R. A., 116, and Bunstead v. Buck, 2 Black, W. 1117; 96 English Reprints, 660. An examination of these authorities and others of like kind will disclose that tbe right of recovery will arise to tbe finder under tbe general equitable principles of indebitatus assumpsit and under circumstances *134 where a request for the expenditures claimed may be reasonably inferred. Chase v. Corcoran, supra. This being the principle, a demand of tbis kind should not be readily allowed in case of a lost dog, and unless he gave very clear evidence of being spent by hunger or fatigue, and assuredly no such claim could for a moment be sustained on the facts of this record, where the dog was first “found” within a few miles of the owner’s home and with no proper or adequate effort afterwards made to ascertain who the owner was. There is no error and judgment for plaintiff is Affirmed.