Pierson v. Post 3 Cai. R. 175, 2 Am. Dec. 264 (1805)
Post was out fox hunting. While in pursuit of a fox, Pierson wandered by, caught the fleeing fox, killed it, and took off. o Pierson admitted that Post was in pursuit of the fox. o Neither Pierson nor Post owned the land that the fox was found on. Interestingly, it was Queens, NYC, which at that time was just wilderness. Post sued for replevin. o Replevin is where you sue to get something somebody stole from you returned. o Post argued that he had expended time and labor in chasing the fox, and that effort gave him title to the property. o In addition, Post argued that it was his efforts in tiring out the fox that allowed Pierson to catch it. o Pierson argued that Post was never in possession of the fox, so it was still up for grabs. The Trial Court found for Post. Pierson appealed. The Appellate Court reversed and found for Pierson. o The Appellate Court looked back to Roman and English law which said that pursuit alone vests no property interest. Occupancy, defined as actual physical possession of the animal is required to assert property rights. This rule gives certainty. It's an objective bright-line rule where you definitely know who owns the fox. They also posited that if you mortally wounded the fox, it would be yours also, but in this case, Post did not wound the fox. The majority opinion was that judges should only get laws from reading ancient texts. The common law was not well regarded and judges
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tried hard not to make new laws. The Appellate Court felt that even though Pierson was a jerk, he caused no injury to Post for which a legal remedy can be applied. In a dissent it was argued that Pierson obviously was in the wrong, so why should he get the spoils? The dissent suggests that once a pursuit begins, the object of the hunt is legally the possession of the pursuer. o But what happens if the pursuer fails to capture the prey? When do possessory rights terminate? o In addition, the dissent argued that custom of the time was to award the fox to the pursuer, so the Court should be submitted to the "arbitration of sportsmen." o This way of looking at how to decide a case was very forward leaning, since it involved making common law based on precedent and justice. It was also noted in a dissent that society as a whole would be better off by the "destruction of pernicious beasts" and the courts should make the decision that bests furthers public policy and results in more dead foxes. If the land had been owned by a third party, the fox would have belonged to the landowner. Btw, the Court costs for this case amounted to over $1k for each side, a considerable amount of money in 1805.
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