Pierson v. Post held that in order to obtain property rights to a wild animal, the animal must be brought under one’s control rather than merely being pursued.
Lodowick Post and his hunting party were pursuing a fox along a beach on Long Island, New York. According to a later source, the fox ran into an unused well and was spotted by Jesse Pierson. It is certain that Pierson killed the fox, claiming it as his own. Post, however, argued that by pursuing the fox, he had established a right to the property of the fox and its pelt. After a district court ruled in favor of Post, Pierson appealed to the Supreme Court of New York, which reversed the ruling.
Drawing on such works as Justinian’s Institutes, Hugo Grotius’s On the Law of War and Peace, and Samuel von Pufendorf’s On the Law of Nature and Nations, Justice Tomkins’s majority opinion delved into principles of property law found in continental European legal sources. In reaching its conclusion in Pierson’s favor, the court ruled that pursuit was not enough to establish property in a wild animal; the animal must be “occupied” or brought under one’s control. Justice Livingston, dissenting, scorned the majority’s reliance on older, foreign authorities and wrote that the question “should have been submitted to the arbitration of sportsmen,” whose local custom would have found that Post’s pursuit of the fox had vested him with the right to claim it as his property.
Photo Source: The Book of Duck Decoys, by Sir Ralph Payne-Gallwey, courtesy of HathiTrust.
Samuel Keeble, the plaintiff, had a pond on his property in which he placed decoys to attract ducks and nets and other equipment to capture them. Keeble also sold captured ducks for profit. His neighbor, defendant Edmund Hickeringill, while on his own property, twice fired guns to purposely scare away ducks Keeble wanted to capture. Keeble brought an action (action on the case) [2] against Hickeringill alleging that his shooting guns to scare the ducks interfered with his ability to gain a profit from his pond. Keeble was awarded £20 and Hickeringill appealed. Hickeringill argued that Keeble did not own the ducks and thus did not have a cause of action. Chief Justice Holt ruled that this was not an action to recover property and held that Keeble had the right to enjoy the benefits of his decoy pond, free from malicious interference. According to Justice Holt:
Where a violent or malicious act is done to a man's occupation, profession, or way of getting a livelihood, there an action lies in all cases. But if a man doth him damage by using the same employment; as if Mr. Hickeringill had set up another decoy on his own ground near the plaintiff's, and that had spoiled the custom of the plaintiff, no action would lie, because he had as much liberty to make and use a decoy as the plaintiff.
The court in Pierson v. Post distinguished the Keeble case:
The case cited from 11 Mod. 74--130. I think clearly distinguishable from the present; inasmuch as there the action was for maliciously hindering and disturbing the plaintiff in the exercise and enjoyment of a private franchise; and in the report of the same case, 3 Salk. 9. Holt, Ch. J. states, that the ducks were in the plaintiff's decoy pond, and so in his possession, from which it is obvious the court laid much stress in their opinion upon the plaintiff's possession of the ducks, ratione soli. [3]
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1) Keeble v. Hickeringill is reported several different ways in the English reports: Keeble v. Hickeringill, Cas. t. Holt 14, 17, 19, 90 Eng. Rep. 906, 907, 908; Keeble v. Hickeringill, 11 Mod. 74, 88 Eng. Rep. 898; 11 Mod. 131, 88 Eng. Rep. 945; Keeble v. Hickeringhall, 3 Salk. 9, 91 Eng. Rep. 659 (K.B. 1707). Return to text
2) According to Black's Law Dictionary it is also called “trespass on the case” and was “At common law, a lawsuit to recover damages that are not the immediate result of a wrongful act but rather a later consequence. The lawsuit was instituted by a writ of trespass on the case. It was the precursor to a variety of modern-day tort claims, including negligence, nuisance, and business torts.” Black's Law Dictionary (11th ed. 2019). Return to text
3) "property ratione soli" is "The common-law right to take wild animals found on one's own land." Black's Law Dictionary (11th ed. 2019); This source explains what the Pierson court meant by “possession”: “Lest the word ‘possession’ be misunderstood, Holt states that the plaintiff had a cause of action by showing merely that the ducks were ‘in the plaintiff's decoy pond, and so in his possession, which is sufficient without shewing that he had any property in them.’ 3 Salk. at 10, 91 Eng. Rep. at 659 (emphasis in original). Thus the court in Pierson could not have been distinguishing Keeble on the grounds that the plaintiff in Keeble already owned the ducks. It is reasonable to infer, therefore, that Pierson's reference to plaintiff's ‘private franchise’ was in recognition of a right to use a decoy to attract ducks, which suggests a right not to be interfered with maliciously in the pursuit of ducks on one's own land.” Benjamin L. Fine, An Analysis of the Formation of Property Rights Underlying Tortious Interference with Contracts and Other Economic Relations, 50 U. Chi. L. Rev. 1116, 1145 (1983). Return to text
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Pufendorf, De Jure Naturae et Gentium (On the Law of Nature and Nations) (1672)
Citation(s): Samuel Pufendorf, Of the Law of Nature and Nations (Oxford, 1753), bk. 4, ch. 4, sec. 5, n. 6
Samuel von Pufendorf (1632-94) was a noted continental European jurist and exponent of natural law theory. Post’s lawyer, Cadwallader Colden, cited the annotations of French scholar Jean Barbeyrac (1674-1744) to Pufendorf’s Law of Nature and Nations to argue that actual physical taking of an animal was not required to acquire ownership.
“The contrary idea requiring actual taking, proceeds, as Mr. Barbyrac observes, in Pufendorf, b. 4. c. 6. s. 10., on a ‘false notion of possession.’”
Barbeyrac posited that physical possession is only one means for a person to declare their intention to appropriate a wild animal for their own use.
Justice Tomkins found Barbeyrac persuasive, but his application of the text to the case was different from Colden’s:
“As far as Barbeyrac appears to me to go, his objections to Pufendorf’s definition of occupancy are reasonable and correct. That is to say, that actual bodily seizure is not indispensable to acquire right to, or possession of wild beasts.”
Colden made the point that Post could have established a right to the fox before actually catching it, but Tomkins noted Barbeyrac’s failure to define what type of acts, short of possession, would establish such a right. Tomkins interpreted Barbeyrac’s annotation to mean that one may claim ownership of an animal that has been mortally wounded or caught in a trap or a snare, but the mere pursuit of such an animal is not sufficient.
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Grotius, De Jure Belli ac Pacis (On the Law of War and Peace) (1625)
Citation(s): Hugo Grotius, On the Law of War and Peace (London, 1682), bk. 2, ch. 8, sec. 3
Hugo Grotius (1583-1645) was the most renowned Dutch jurist of the seventeenth century and the preeminent authority on natural law theory. Justice Tomkins had cited Barbeyrac on the point that mortally wounding or trapping an animal, instead of capturing it, may suffice to establish ownership. He found another discussion on wounding or trapping in Grotius’s principal treatise, On the Law of War and Peace. Based on classical sources, Grotius rejected the idea that wounding an animal sufficed to establish property in it. However, Grotius also held that catching and securing the animal in a trap could establish possession and thus property. Tomkins believed that this opinion brought Grotius in line with Barbeyrac’s view and his objection to Pufendorf.
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Bracton, De legibus et consuetudinibus Angliae (On the Laws and Customs of England) (13th c.)
Citation(s): Bracton, De legibus et consuetudinibus Angliae (1569), bk. 2, ch. 1
Pierson’s lawyers also cited the writings of thirteenth-century English jurist Henry de Bracton, who agreed with the law found in Justinian’s Institutes concerning the capture of wild animals.
“It is not pursuit alone that makes a thing mine, for though I have wounded a wild beast so severely that it may be captured, it nevertheless is not mine unless I capture it; rather it will belong to the one who next takes it, for much may happen to prevent my capture of it.”
The court posited that Bracton’s requirement of possession as a prerequisite to property rights would prevent property disputes such as the present case. If a person could bring an action for the taking of an animal that was not yet under that person’s control, “it would prove a fertile course for quarrels and litigation.”
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English Translation
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Justinian's Institutes (533 C.E.)
Citation(s): Justinian's Institutes, 2.1.12-13
Title page of Justinian's Institutes, with commentary by Vinnius.
Pierson’s lawyers cited Justinian’s Institutes (533 CE), a fundamental text of Roman law, which states that ownership of wild animals is dependent on their possession. If an animal escapes the control of a captor, ownership is lost.
“An animal thus caught by you is deemed your property so long as it is completely under your control; but so soon as it has escaped from your control, and recovered its natural liberty, it ceases to be yours, and belongs to the first person who subsequently catches it.”
Pierson’s lawyers also cited a subsequent chapter in the Institutes, which states that even seriously wounding an animal is not sufficient to establish ownership in the absence of physical control over the animal.
Justice Tomkins favorably referred to these citations of the Institutes in his majority opinion, noting that pursuit alone vested no property right in a wild animal.
