SCOVT affirms summary judgment that dog control ordinance validly transferred possessory interest in a lost dog to adoptive owners.

Lamare v. North Country Animal League, 170 Vt. 115 [Filed November 12, 1999]


MORSE, J. Plaintiffs Chasidy Lamare and Charles Arnold appeal a summary judgment of the Lamoille Superior Court in favor of defendants North Country Animal League, Darcie Fitzgerald, and John and Jane Doe. Plaintiffs raise numerous claims challenging the court's ruling that their possessory interest in a lost dog had been transferred to defendants under the Town of Wolcott's dog control ordinance. We affirm.

Plaintiffs were the co-owners of a five and one-half year old female German Shepard named Billy who was found at large by a couple who brought her to the Lamoille Kennel on June 3, 1997,which in turn gave her up for adoption on July 8, even though on July 7, plaintiffs arrived at the League and identified their dog.

This case, in contrast to Morgan, concerns the rights and responsibilities of a public entity vis a vis the owners of a lost dog and is controlled by state statutes and local ordinances.

In this case we are bound to conclude that the town's actions fully complied with its animal control ordinance and that its ordinance provided ample notice to plaintiffs consistent with state law and due process requirements.

We conclude that the provision of the ordinance authorizing the town to sell or otherwise dispose of the animal in a humane fashion constituted a necessary and essential power under the enabling statute, and therefore did not exceed the town's authority

We also conclude that the qualified right to possession of dogs and the strong public interest in assuring their permanent placement in a suitable environment, amply supports the town's decision to provide for the sale or transfer of impounded dogs if unclaimed after seven days.

Morgan recognized that a dog is an inherently social creature whose “value derives from the animal's relationship with its human companions.” Thus, while municipal shelters or pounds may provide temporary safety for the public and security for the animal, long term residence in such facilities is decidedly not in the public's or the animal's interest.

We note in this regard the several studies cited in the amicus curiae brief of The United States Humane Society which demonstrate that long term confinement is severely detrimental to the health of dogs and a considerable expense to the impounding agency.

The owner of a lost dog may be expected to make reasonable efforts to locate an animal by contacting humane societies and other agencies and checking other public locations where notices may be posted. Only in the limited circumstances where the owner of a lost dog has not complied with the license requirements, and has failed to take the reasonable steps of inquiring with the local pound or checking notices in the town office and other public places, is it possible that an owner will fail to receive notice within the seven-day notice period. The fact that plaintiffs in this case did not take these reasonable steps does not render the ordinance unconstitutional.

We conclude, in sum, that the town's posting of descriptive notices in the town clerk's office, post office, and village store—in conformity with the ordinance—did not deprive plaintiffs of their constitutional right to due process.

The actions of the League in this case was, to say the least, insensitive in its dealings with plaintiffs. Although plaintiffs' action for repossession of the dog and for damages based upon alleged constitutional violations lacks merit, this is not to say that a future case seeking recovery for the emotional distress or other damages resulting from the negligent handling of an impounded animal—a claim not alleged here—would be unsuccessful.

Beth Robinson of Langrock Sperry & Wool, for Amici Curiae the Humane Society of the United States.

How cited

SCOVT Note. The Court's suggestion that an action would lie for "the emotional distress or other damages resulting from the negligent handling of an impounded animal" was premature. See Scheele v. Dustin , 2010 VT 45 (affirming judgment denying recovery for emotional damages for the intentional killing of a pet dog); Goodby v. Vetpharm, 2009 VT 52 (denying recovery for lost companionship and emotional distress resulting form death of pets.)