concurring.
[Filed Feb. 15, 1995]
A majority opinion written by Justice Onion was issued on December 30, 1994.
I agree with the majority “that white-tailed deer in their natural state of liberty cannot be the subject of theft.” As the majority observes, animals are either wild (ferae naturae) or domestic (domitae naturae). No one, not even the state, “owns” wild animals, at least in the proprietary sense, when they are in their natural habitat.
I also agree that we cannot assume, as the trial judge apparently did in this case, that “[t]he white-tailed deer named in the indictment is a ‘wild animal,’ ” or as the majority says, that the deer was “in its natural state of liberty.”
The majority observes that white-tailed deer in the possession of a scientific breeder or transporter may be the subject of theft or criminal mischief, or that “[t]here may be other examples” that allow such qualified rights of ownership or possession of white-tailed deer. If this is so, then I believe there are many white-tailed deer that are privately *47owned in Texas that could be the subject of a theft or criminal mischief indictment and in the future there will be many thousands.
If the majority is merely holding that it is possible for a white-tailed deer to become personal property and that, accordingly, it will be difficult for the State to prove the deer in this case was owned by the State, then I agree. Here, the State was alleged in very general terms to be the owner of a particular deer. As the majority correctly notes, this may be sufficient for purposes of an indictment, but how is it going to prove this deer was reduced to possession by the State? This, I believe, is the “bridge too far.” See CoRNElius RyaN, A Beidge Too Fas (1974).
Recognizing that this is not the case where ownership of white-tailed deer should be resolved, I want to follow on the majority’s surmise that there may be “other examples.”
While “wild” white-tailed deer meet the definition of “wildlife” found in the Texas Parks and Wildlife Code, see, e.g., TexParks & Wildlife Code AnN. § 61.005 (Vernon 1991), the ownership of any wild animal, as personal property, is easy enough to answer: no one owns wild animals.
Possibly the earliest case to address the issue of ownership of wild animals is Pierson v. Post, 3 Cai R. 175 (N.Y.Sup.Ct.1805) which held that “property in [wild] animals is acquired by occupancy only.” A century later, Justice Holmes agreed that occupancy, or possession, was a necessary prerequisite to obtaining a property interest in wild animals. He reaffirmed Pierson by stating that “[w]ild birds are not in the possession of anyone; and possession is the beginning of ownership.” Missouri v. Holland, 252 U.S. 416, 434, 40 S.Ct. 382, 384, 64 L.Ed. 641 (1920). The result is that “[a]s a general rule, wild fish, birds and animals are owned by no one. Property rights in them are obtained by reducing them to possession.” United States v. Long Cove Seafood, Inc., 582 F.2d 159, 163 (2d Cir.1978). Wild animals are not the property of the landowner, whether it be an individual, a neighborhood association or any other entity, but are common property whose control and regulation are to be exercised “as a trust for the benefit of the people.” Geer v. Connecticut, 161 U.S. 519, 528-29, 16 S.Ct. 600, 604, 40 L.Ed. 793 (1896). Federal and state authority over wildlife is not based on ownership, but upon the state’s police power to preserve and regulate an important resource. Toomer v. Witsell, 334 U.S. 385, 402, 68 S.Ct. 1156, 1165, 92 L.Ed. 1460 (1948). As the Supreme Court declared, “[I]t is pure fantasy to talk of ‘owning’ wild fish, birds, or animals. Neither the States nor the Federal Government ... has title to these creatures until they are reduced to possession by skillful capture.” Douglas v. Seacoast Products, Inc., 431 U.S. 265, 284, 97 S.Ct. 1740, 1751, 52 L.Ed.2d 304 (1977).
In 1909, the Court of Criminal Appeals of Texas was faced with a constitutional challenge by an individual who was arrested for trying to sell two ducks he killed. He contended “that the right to alienate property is a natural and necessary consequence to the ownership of property, and is a fundamental right and privilege guaranteed by the Constitutions of the United States and the State of Texas,.... ” The court recognized the police power of the state because “the absolute ownership of wild game is vested in the people of the state and that such is not the subject of private ownership.” The court went on to recognize that individuals can only acquire ownership of wild animals in a qualified way, and the legislature therefore had the right to restrict the sale of the wild ducks that had been killed. Ex parte Blardone, 55 Tex.Crim. 189, 115 S.W. 838, 840 (1909). Previously, it was common law that an individual acquired an absolute interest in game he killed. 4 Am.Jur.2d Animals § 16 at 263 (1962). If the state, through legislative enactment, has the police power to change the common law and subject individuals to restrictions and conditions on how they acquire wild animals, then if follows that it may control the acquisition of wild animals as they have with § 44.002 of the Parks and Wildlife Code, which prohibits the captivity or propagation of a game animal without a license. See Tex.Parks & Wildlife Code Ann. § 44.002 (Vernon 1991). However, it is the view of this writer that the state has not defined wild animals so as to absolutely exclude from ownership all white-tailed deer *48within the boundaries of the state. This would be unwise, impractical and would conflict with the purpose of the wildlife code. Just because the state heavily regulates personalty such as handguns or automobiles, it does not follow that individuals may not own them. Historically, the reason an individual acquired only a special, limited or qualified property in wild animals was that they may escape his control and revert to the wild after they are brought under his domain— not because the state defined all of a certain species forever wild and, therefore, subject to restrictions. Unless they are acquired unlawfully, wild animals confined by a landowner are no longer wild and may become property that could pass through executors, generate tort liability for their owners, or become the subject of conversion or theft under a similar indictment.
While we are across the bridge and beyond the record with our suppositions regarding how the state will satisfy their ownership under the indictment, I offer this example of deer as personalty.
Our state legislature has defined “wild” as any animal that “normally fives in a state of nature and is not ordinarily domesticated.” TexParks & Wildlife Code ANN. § 1.101 (Vernon 1991). Furthermore, the legislature declared that, a white-tailed deer is a game animal. See TexParks & Wildlife Code Ann. § 63.001(a) (Vernon Supp.1994). Any entity that acquires a white-tailed deer from a breeder and a permit from the state can confine that deer and the offspring, and reduce them to their care. TexParks & Wildlife Code Ann. § 43.352 (Vernon Supp.1995). The state, in an effort “that native species may be preserved,” extended their regulations over all white-tailed deer, even when confined under permit, but in doing so the legislature specifically allowed the most common method of reducing wild game to man’s domain — “high fences.” TexParks & Wildlife Code Ann. § 43.366 (Vernon Supp.1995). I am aware of no challenge that has ever been brought in Texas to the prohibition against the captivity of game animals or the prohibition against containing them in areas larger than 320 acres. TexParks & Wildlife Code Ann. § 43.360 (Vernon Supp.1995). Nor am I aware of anyone who has been required to remove game-proof fencing.. One would think that this provision prohibiting captivity would not apply to an area large enough to maintain a natural habitat. If there exists a high percentage of privately held lands in Texas with deer-proof fencing, many thousands of deer could become the property of landowners based on common law principles. In other words, if white-tailed deer are lawfully acquired by a licensed breeder from another state pursuant to the allowed exemption and sold to a permit-holding individual with a ranch with a deer-proof fence, and that deer remains so confined in this habitat (which is natural in all ways except that the animal and their increase cannot escape the landowner’s domain), is it not the landowner’s white-tailed deer? As the facts are developed in appropriate cases, we may find that an increasing number of white-tailed deer in Texas are privately owned and may be the subject of theft.
In given cases our courts could recognize the current reality in Texas that deer, and many other terrestrial game animals and fish, are held in private game-proof preserves, parks or lakes and ponds by landowners who have entirely reduced these creatures to their domain and have acquired ownership in them in a proprietary sense. While wildlife management has presented very difficult political issues for our legislature to balance it should be clear that once high .fences were allowed, much of the responsibility for preserving and increasing our wildlife has fallen to the owners of these fenced preserves. With that responsibility should also come the rights, duties and liabilities of ownership.
The legislature has not clearly stated that individuals may not own white-tailed deer lawfully acquired, nor am I aware of any case that so holds. Until a case is presented with a sufficient record allowing us to properly rule, the status of confined but lawfully acquired and maintained white-tailed deer in Texas will be unclear.