* Corpus Juris-Cyc References: Animals, 3CJ, p. 19, n. 53, 60; p. 20, n. 72; p. 21, n. 75; p. 23, n. 8. Evidence, 23CJ, p. 154, n. 37. Escape of wild animals as defeasance of property rights, see 1 R.C.L. 1066; 1 R.C.L. Supp. 321. This is a suit in replevin by the appellee to recover a fox hide of which the appellant is in possession and which the appellee claims.
At the close of the evidence, the appellant, the defendant in the court below, asked the court to direct the jury to return a verdict in his favor, whereupon the presiding judge announced that the question presented was *Page 308 one of law only, and was therefore a question for his and not the jury's decision; that he would take the case under advisement and render judgment in vacation. This action of the court was excepted to by the defendant, but is not here assigned for error. The case was decided by the trial judge in vacation, and a judgment was rendered by him for the appellee, the plaintiff in the court below. The right of the trial judge to render this judgment in vacation is not here challenged, the appellant's complaint being that the judgment rendered should have been for him and not for the appellee.
The evidence discloses that the appellee imported two silver gray foxes, a male and a female, from Canada, for breeding purposes, and kept them confined in a pen floored and inclosed by a plank wall five feet high; that, about six months after being placed in this pen, the male fox "gnawed out," escaped, and was not thereafter seen in that vicinity. Some days after he was killed by the appellant in a pine thicket twelve or fifteen miles away from the place where he had been confined by the appellee. The appellant skinned the fox, preserved his hide, and it was thereafter seen and (we will assume) identified by the appellee. After the fox escaped, the appellee set a number of traps for him near the place where he had been confined.
A fox is an animal "wild by nature," and in such an animal a qualified property right can be acquired by reducing it to possession and keeping it, if alive, in custody. If a captured wild animal is so tamed that it loses its wild nature to such an extent that it will recognize the home provided for it by its owner, and has, when absent from it animum revertendi, or the intention of returning thereto, a temporary departure by it from the immediate control of its owner does not terminate his property rights therein. 2 Blackstone, original, p. 392; Cooley's 4th Ed., vol. 1, p. 743; 1 R.C.L. 1066; 3 C.J. 20. *Page 309
The evidence here not only does not disclose that this fox had been so tamed as to recognize the home provided for him by the appellee and intended to return thereto, but, on the contrary, negatives the existence of such facts. It is true that the appellee testified that the fox "was tame," but his dealing with the fox shows to the contrary; and it is also true that he testified that:
"They are supposed to come back after they once get out; one of my neighbors had one to get out and he came back."
If he intended by this to say (which we doubt) that all fox have animum revertendi, the contrary is so well and universally known that the court will take judicial knowledge thereof.
The judgment of the court below will be reversed, and judgment here will be rendered for the appellant.
Reversed and judgment here.