Property Case Brief Book American Property Law (6th ed.

) Sheldon Kurtz

Case Brief
Pierson v. Post

Pierson v. Post, 3 Cai. R. 175, 2 Am. Dec. 264[1] (N.Y. 1805), is a property case that examines
the ownership of wild animals pursued for hunt.

Identity of Case
Pierson (π) v. Post (∆)
Supreme Court of New York (1805)
Pg. 8, Ch. 1

Summary of Facts
 One man chased and pursued a fox, but another man killed it and carried it away. A
dispute as to who had possession of the fox arose.
 Facts. Post and his dogs hunted, chased and pursued a fox along the beach. Pierson was
aware of the chase, and he killed the fox and carried it off. Post claimed a legal right to
possession of the animal, and the lower court agreed with him

 This case was an action of trespass on the case commenced in a justice’s court, by the
present defendant (post) against the now plaintiff (Pierson).

 Plaintiff Post was chasing a fox during a hunting trip with his hounds. Defendant Pierson,
though aware of Post's pursuit, killed and captured the fox. The land on which this
occurred was not owned by either parties.
 Plaintiff brought an action for trespass.
 Plaintiff claimed that the had effectually had title to the fox when he began to pursue it
in hunt. Defendant argued that a property interest is not created by the mere pursuit of
an animal for the purposes of hunting.
 The trial court held in favor of defendant Pierson. Plaintiff Post appealed.



Procedural History
 Verdict rendered for the plaintiff, the defendant than sued out a certiorari, and now
assigned for error, that the declaration and the matters therein contained were not
sufficient in law to maintain an action.

Issue
 Does a person obtain possession of a wild animal by chasing it?
Property Case Brief Book American Property Law (6th ed.) Sheldon Kurtz


 Whether Lodowick Post, by the pursuit with his hounds in the manner alleged in his
declaration, acquired such a right to, or property in, the fox as will sustain an action
against Pierson for killing and taking him away?

 The primary issue in the case was whether pursuit of a wild animal creates a property
right for the person pursuing it.


Holding(s)/Rule of Law
 Mere pursuit of an animal does not give one a legal right to it.

 The court held that a property right is not created for an individual pursuing a wild
animal in hunt.
 The court found that the rule that applies for pursuit of wild animals is "first to kill and
capture".
 The case was reversed, finding in favor of plaintiff Post.



Decision

Reasons for Decision

Law

Pierson v. Post
Supreme Court of New York, 1805.
3 Cai. R. 175.

Facts: Post was chasing a fox when all of the sudden Pierson popped out of
nowhere and killed the fox and took it away. Post sued Pierson, claiming that he
should rightly own the fox because he was the one chasing it. The trial court ruled
Property Case Brief Book American Property Law (6th ed.) Sheldon Kurtz

in Post’s favor, and Pierson appealed, saying that Post failed to state a cause of
action upon which relief could be granted.

Issue: Did Post acquire the right to possess the fox by pursuit such that he has a
cause of action against Pierson?

Rule: NEW RULE! Mere pursuit of a wild animal does not constitute possession
of that animal. (“Actual bodily seizure”, killing, or “mortal wounding” seem to be
sufficient to establish possession.)

Analysis: The majority cites “the authorities”. They vary slightly, but none of
them allow for possession by pursuit. The majority is willing to go along with
such authorities because they want to announce a simple rule that is easy and
inexpensive to police. They don’t want to generate tons of vexing
litigation. Finally, they state that not everything that is impolite—or even
immoral—shall necessarily be declared illegal.

The dissent thinks the authorities aren’t so important and that the court can and
should announce its own rule since there is no case law or statutory authority to
constrain it. Livingston argues that possession by pursuit is a better rule because it
provides betters incentives for hunters to pursue foxes, which are considered a
nuisance by society. Livingston says that if a hunter thinks he might chase a fox
all day just to have it cherry-picked by some jerk (the “saucy intruder”) then he
won’t be as inclined to go hunt for foxes in the first place. On the other hand, this
guy might be just exceedingly sarcastic about how dangerous and abhorrent foxes
are.

Conclusion: The trial court is reversed and Pierson gets to keep the fox.

Notes and Questions

1. I think the majority builds at least the appearance of a foundation of

authority for the position they were going to take anyway. The
majority appears to find support in the very old authorities they consult for
this rule. The court was concerned with policy, too: they wanted sort of a
“bright line” rule that was easy and cheap to enforce. The discussion of
“mortal wounding” is mere dicta and doesn’t have an effect on the outcome
of this case.
2. I think a key question of fact in this case is whether the whale ended up on
the beach dead, and if so, whether its death was caused by Ahab’s
Property Case Brief Book American Property Law (6th ed.) Sheldon Kurtz

harpoon. If Ahab “mortally wounded” the whale, then he can argue that he
took possession of it. Furthermore, Olive did not kill, capture, or mortally
wound the whale, but just sat around and let it come to her.

However, Olive could argue that Ahab let the whale escape and abandoned
his pursuit, which suggests according to the case that he gave up
possession. I believe the engravings have no impact on the outcome of the
case.