Pierson v. Post

CASE NAME	PIERSON v. POST
CITATION, DATE	3 Cai. R. 175; 1805 N.Y. LEXIS 311, August, 1805
COURT	SUPREME COURT OF JUDICATURE OF NEW YORK

PROCEDURAL HISTORY
TRIAL COURT:		APPEAL COURT (for appeal cases only):
PLAINTIFF	Post, fox chaser	APPELLANT	Pierson
DEFENDANT	Pierson, fox hunter	RESPONDENT	Post

PROCEDURAL HISTORY

DESCRIPTION OF EVENTS
"Post, being in possession of certain dogs and hounds under his command, did, "upon a certain wild and uninhabited, unpossessed and waste land, called the beach, find and start one of those noxious beasts called a fox," and whilst there hunting, chasing and pursuing the same with his dogs and hounds, and when in view thereof, Pierson, well knowing the fox was so hunted and pursued, did, in the sight of Post, to prevent his catching the same, kill and carry it off."

REMEDY SOUGHT	Post sought and received judgment for property taken by Pierson. Pierson sought reversal on appeal.

ARGUMENT FOR PLAINTIFF
"Pursuit ... by a person who starts a wild animal, gives an exclusive right whilst it is followed. It is all the possession the nature of the subject admits; it declares the intention of acquiring dominion, and is as much to be respected as manucaption itself. The contrary idea, requiring actual taking, proceeds, ... on a 'false notion of possession.'"

ARGUMENT FOR DEFENDANT
"It is firmly settled that animals, feroe naturoe, belong not to anyone. If, then, Post had not acquired any property in the fox, when it was killed by Pierson, he had no right in it which could be the subject of injury.... Finding, hunting, and pursuit, are all that the plaint enumerates. To create a title to an animal feroe naturor, occupancy is indispensable."

COURT OPINION
The discussion [narrows] to the simple question of what acts amount to occupancy, applied to acquiring right to wild animals. Majority opinion: "Pursuit alone gives no right of property in animals feroe naturoe, therefore an action will not lie against a man for killing and taking one pursued by, and in the view of, the person who originally found, started, chased it, and was on the point of seizing it. "Occupancy in wild animals can be acquired only by possession, but such possession does not signify manucaption [actual bodily possession], though it must be of such a kind as by nets, snares or other means, as to so circumvent the creature that he cannot escape."

DISPOSITION OF CASE
"However uncourteous or unkind the conduct of Pierson towards Post, in this instance, may have been, yet this act was productive of no injury or damage for which a legal remedy can be applied. We are of opinion the judgment below was erroneous, and ought to be reversed."

ECONOMIC ANALYSIS

    For the majority: "If the first seeing, starting or pursuing such animals, without having so wounded, circumvented or ensnared them, so as to deprive them of their natural liberty, and subject them to the control of their pursuer, should afford the basis of actions against others for intercepting and killing them, it would prove a fertile source of quarrels and litigation."
    For the dissent: This is a knotty point, and should have been submitted to the arbitration of sportsmen.... But the parties have referred the question to our judgment, and we must dispose of it as well as we can, from the partial lights we possess....     By the pleadings it is admitted that a fox is a "wild and noxious beast." Both parties have regarded him, as the law of nations does a pirate, "hostem humani generis," [hostile to humanity in general] and although "de mortuis nil nisi bonum" [don't speak ill of the dead] be a maxim of our profession, the memory of the deceased has not been spared. His depredations on farmers and on barnyards, have not been forgotten; and to put him to death wherever found, is allowed to be meritorious, and of public benefit. Hence it follows, that our decision should have in view the greatest possible encouragement to the destruction of an animal, so cunning and ruthless in his career. But who would keep a pack of hounds; or what gentleman, at the sound of the horn, and at peep of day, would mount his steed, and for hours together, "sub jove frigido," [under a cold sun] or a vertical sun, pursue the windings of this wily quadruped, if, just as night came on, and his stratagems and strength were nearly exhausted, a saucy intruder, who had not shared in the honors or labors of the chase, were permitted to come in at the death, and bear away in triumph the object of pursuit?
    "After mature deliberation, I embrace that of Barbeyrac as the most rational and least liable to objection.... He ordained, that if a beast be followed with large dogs and hounds, he shall belong to the hunter, not to the chance occupant; and in like manner, if he be killed or wounded with a lance or sword; but if chased with beagles only, then he passed to the captor, not to the first pursuer.

    Notes:
       "below" refers to lower court
        "plaintiff below" = Post, who is the "defendant now" (appellee)