Pierson v. Post (1805) is the famous "fox case" that is often taught to law students in property law classes in law schools. In it, the New York Supreme Court of Judicature held that a person who hunts a wild animal and is at the point of capturing or killing it does not have a viable legal claim against another who, with full knowledge of the person's pursuit, actually captures and kills the wild animal.
Holding: To obtain private property rights in a wild animal, you must occupy it. Mere pursuit, even hot pursuit, is not enough.
Facts of the Case
Lodowick Post was a young man out hunting with his friends on a vacant lot. He spotted a fox and gave chase. Jesse Pierson, a young schoolteacher, was walking home when he saw the fox flee its pursuers and hide. Pierson killed the fox, slung it over his shoulder, and headed home.
Post confronted Pierson and demanded that Pierson give him the fox. Pierson refused.
Post sued Pierson, claiming that his hot pursuit of the fox gave Post legal rights to it. Pierson responded that by capturing and killing the fox, he, in fact, owned it. The trial court ruled in favor of Post, holding that hot pursuit, especially when Pierson knew Post was almost upon the fox, entitled Post to the fox. Pierson sought and obtained an order of certiorari from the Supreme Court of Judicature, which agreed to review the lower court's ruling.
The New York Supreme Court of Judicature
Pierson v. Post was decided by a distinguished bench of three judges:
- Daniel Tompkins (a future vice president)
- Henry Brockholst Livingston (a future Supreme Court justice)
- James Kent (a preeminent jurist)
Cadwallader David Colden, a future mayor of New York, represented Post. Nathan Sanford, a future chancellor of New York, represented Pierson.
In a 2-1 decision, the court reversed the Queens County ruling. Judge Tompkins wrote the majority opinion. Judge Livingston authored a dissenting opinion.
The case came down to what the court called a “novel and nice question": Did Post, by the pursuit of his hounds, acquire a right to a fox (a “noxious beast" )such that he could bring legal action against Pierson for killing it?
To answer the question, the court started with legal history. It relied on ancient writers and their learned treatises. According to Justinian's Institutes, Fleta, and Bracton, pursuit, even to the point of wounding, is not enough to vest property rights in a hunter. Similarly, Pufendorf and Bynkershoek define “occupancy" of an animal ferae naturae (wild animal) to require actual first possession.
However, the court was most convinced by Barbeyrac's view. While Barbeyrac believed that actual bodily seizure wasn't necessary in all cases to obtain ownership of a wild animal, he did not specify what was necessary and, in fact, seemed to agree with Grotius that if a hunter in hot pursuit mortally wounds a wild animal and does not abandon the pursuit, the hunter does “occupy" the animal. But in the case before it, Post hadn't mortally wounded the fox.
The court did point out that Pierson was kind of a jerk for killing the fox he knew Post was after. But being a jerk isn't actionable under the law. Under the law, Post had no claim against Pierson for killing the fox. The court reversed the Queens County judgment.
Judge Livingston disagreed. He rejected the majority's reliance on the common law and ancient writers like Justinian or Blackstone and believed that the question before the court could be better answered by an arbitrator familiar with the ethics of fox hunting. Judge Livingston criticized Pierson for his bad manners and said that the correct rule of law would instead encourage ethical behavior in sportsmen. He would not have rewarded Pierson for killing the fox Pierson knew Post was pursuing.