¶1dissenting: This question is presented for decision: Can the defendant be held liable for the trespasses of wild geese, which are ferae naturae, which he did not own and which have not been reduced to possession, but exist in a state of nature? My brethren say Yes: I do not agree.
¶2The general rule is there is no individual property in wild animals, geese or fish so long as they remain wild, unconfined, and in a state of nature. 2 Am. Jur., Animals, p. 696.
¶3The doctrine of liability attaching to one who owns or keeps insecurely confined on his premises wild animals causing injury has no application to the facts here. As to that see: Anno. 69 A.L.R. 500; 3 C.J.S., Animals, Section 143.
¶4Sickman v. U. S., 184 F. 2d 616, certiorari denied 341 U.S. 939, 95 L. Ed. 1366, rehearing denied 342 U.S. 843, 96 L. Ed. 637, motion for leave to file a second petition for rehearing denied, 342 U.S. 874, 96 L. Ed. 657, is a case with strikingly similar facts, and was brought under the Federal Tort Claims Act, 28 U.S.C.A., Sections 1346 (b) and 2671-2680, to recover $26,500.00 alleged damages to crops of corn and soybeans claimed to have been destroyed in 1946 and 1947 by migratory waterfowl, principally Canada geese. The Court said: “. . . a private person could not be held liable for the trespasses of animals which are ferae naturae, and which have not been reduced to possession, but which exist in a state of nature. The United States, considered as a private person, did not have any ownership, control or possession of these wild geese which imposed liability for their trespasses.”
¶5I vote to affirm.