Pierson v. Post (1803) (fox hunting)

a.       Tompkins, J.

                                                              i.      Facts- While P was hunting a fox, D killed the fox and carried it away. P claims that he had ownership of the fox because he was initially pursuing it.

                                                            ii.      Procedural History- P won, D challenged, decision to plaintiff reversed by appeals.

                                                          iii.      Issue- Whether pursuit of a fox constitutes possession of same

                                                          iv.      Holding- No, mere pursuit, alone, does not constitute possession over fox

                                                            v.      Rule- Pursuit alone does not constitute ownership

                                                          vi.      Notes:

                                                        vii.      Justinian and Fleta- “Pursuit alone vests no property or right in the huntsman; and that pursuit, accompanied with wounding is equally ineffectual for that purpose, unless the animal be actually taken”

                                                      viii.      Puffendorf- “Occupancy of beasts ferae narutae is the actual corporal possession of them. An animal that is mortally wounded cannot be taken by another, while the wound-inflictor is still pursuing”

                                                          ix.      Barbeyrac- Actual bodily seizure is not, in all cases, necessary to constitute possession of wild animals.

1.      While he does not describe the acts of which amount to possession, he does NOT say that pursuit alone is sufficient for ownership.

a.       Depriving the natural liberty of the animal is sufficient for ownership

2.      “First to kill (or mortally injure) is the owner”

                                                            x.      If we allow people to sue each other over “ownership by pursuit”, then we would have a lot of trouble.

                                                          xi.      Test for ownership: Labor, Intention, Depriving animal of natural liberty, Bringing it in control

                                                        xii.      You want a rule that’s fair most of the time, but willing to put up with some unfairness for the sake of clarity

                                                      xiii.      HE WANTS CERTAINTY

b.      Livingston, J.

                                                              i.      Proponent of USAGE!!

                                                            ii.      Negative POLICY argument: If we DON’T give ownership to the first pursuer, then it would discourage people from hunting and people can abuse this rule by killing and carrying off others’ foxes while another is pursuing same

1.      Ex. A is pursuing a fox. B comes and shoots fox. A would be discouraged to hunt again, and B will wrongly benefit from A’s work in the pursuit

                                                          iii.      “Does pursuit constitute possession?” We should let “sportsmen” answer this question.

                                                          iv.      POLICY: We should encourage the killing/capture of any “noxious beast” because it is a public service.

                                                            v.      Justinian and Fleta’s accounts are too old; nowadays, people make a living by hunting animals. We need to update our laws.

                                                          vi.      Agreed with Barbeyrac: “touch is not necessary for ownership”. Emperor ordained that “if a beast be followed with w/ large dogs and hounds, he shall belong to the hunter, not the chance occupant”.

                                                        vii.      “If chased with beagles only, then it belong to the killer”

                                                      viii.      Ownership if: pursuer be within reach, have reasonable prospect of taking what he has thus discovered with an intention of converting to his own use.

                                                          ix.      We will discourage the effort of hunting foxes if we do not establish property rights on the animal.

c.       Come as close to actual physical capture as you can

d.      Questions:

                                                              i.      3. “First in time” was the governing principle for, I believe, for Livingston, J. But it was not the governing principle for Tompkins, J. You need “certainty” when dealing w/ property because if you do not, it will leave room open for ambiguity; and in turn, more lawsuits. Livingston’s rule is not as effective as Tompkin’s rule because it seems to assume that the killer/pursuer/hunter does not want ownership of the fox.

                                                            ii.      4. The majority should not have abided by the custom because customs may vary from place to place. Sportsmen have no legal training.