Pierson v. Post
Pierson v. Post, 3 Cai. R. 175, 2 Am. Dec. 264
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...

(N.Y. 1805), is a Supreme Court of New York case about a disagreement over a dead fox
Fox is a common name for many species of omnivorous mammals belonging to the Canidae family. Foxes are small to medium-sized canids , characterized by possessing a long narrow snout, and a bushy tail .Members of about 37 species are referred to as foxes, of which only 12 species actually belong to...

 that serves as an important cornerstone in American
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...

 legal education.


Lodowick Post, a fox hunter
Fox hunting
Fox hunting is an activity involving the tracking, chase, and sometimes killing of a fox, traditionally a red fox, by trained foxhounds or other scent hounds, and a group of followers led by a master of foxhounds, who follow the hounds on foot or on horseback.Fox hunting originated in its current...

, was chasing a fox through a vacant lot when Pierson came across the fox and, knowing it was being chased by another, killed the fox and took it away. Post sued Pierson on an action for trespass on the case
Trespass on the case
The Writs of Trespass and Trespass on the Case are the two catchall torts from English Common Law, the former involving trespass against person, the latter involving trespass against anything else which may be actionable...

 for damages against his possession of the fox. Post argued that he had ownership of the fox as giving chase to an animal in the course of hunting it was sufficient to establish possession. The trial court
Trial court
A trial court or court of first instance is a court in which trials take place. Such courts are said to have original jurisdiction.- In the United States :...

 found in favor of Post. On appeal after the trial, the issue put to the Supreme Court of Judicature of New York
New York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...

 was whether one could obtain property rights to a wild animal (Ferae naturae
Ferae naturae
Unowned property refers to tangible, physical things which are capable of being reduced to being property owned by an individual, but are not owned by anyone. Nearly every piece of land on the Earth is property and has an owner...

), in this case the fox, by pursuit.

Majority opinion

The majority opinion was written by future Vice President of the United States Daniel Tompkins. The Court cited ancient precedent in deciding the case:

If we have recourse to the ancient writers upon general principles of law, the judgment below is obviously erroneous. Justinian's Institutes, and Fleta, adopt the principle, that pursuit alone vests no property or right in the huntsman
Hunting is the practice of pursuing any living thing, usually wildlife, for food, recreation, or trade. In present-day use, the term refers to lawful hunting, as distinguished from poaching, which is the killing, trapping or capture of the hunted species contrary to applicable law...

; and that even pursuit, accompanied with wounding, is equally ineffectual for that purpose, unless the animal be actually taken. The same principle is recognized by Bracton.

Puffendorf defines occupancy of beasts
Animals are a major group of multicellular, eukaryotic organisms of the kingdom Animalia or Metazoa. Their body plan eventually becomes fixed as they develop, although some undergo a process of metamorphosis later on in their life. Most animals are motile, meaning they can move spontaneously and...

 feræ naturæ, to be the actual corporeal possession of them, and Bynkershoeck is cited as coinciding in this definition. It is indeed with hesitation that Puffendorf affirms that a wild beast mortally wounded, or greatly maimed, cannot be fairly intercepted by another, whilst the pursuit of the person inflicting the wound continues. The foregoing authorities are decisive to show that mere pursuit gave Post no legal right to the fox, but that he became the property of Pierson, who intercepted and killed him.[Citations omitted]

The court reasoned that given the common law requirement to have control over one's possessions, merely giving chase was not sufficient. Something more was needed, otherwise law would create a slippery slope
Slippery slope
In debate or rhetoric, a slippery slope is a classic form of argument, arguably an informal fallacy...


If the first seeing, starting, or pursuing such animals, without having so wounded, circumvented or ensnared the animal, so as to deprive them of their natural liberty
Liberty is a moral and political principle, or Right, that identifies the condition in which human beings are able to govern themselves, to behave according to their own free will, and take responsibility for their actions...

, 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 course of quarrels and litigation.

The majority opinion found that though it may have been rude for Pierson to have killed the fox, there was no reason to object as only the person to mortally wound or seize the animal can acquire possession of it.

Among the authorities cited by the court in its opinion were the works of William Blackstone
William Blackstone
Sir William Blackstone KC SL was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the Commentaries on the Laws of England. Born into a middle class family in London, Blackstone was educated at Charterhouse School before matriculating at Pembroke...

, Fleta
Fleta is a treatise, written in Latin, with the sub-title seu Commentarius juris Anglicani, on the common law of England. The anonymous author of the book is sometimes referred to as "Fleta", although this is not in fact a person's name...

, Jean Barbeyrac
Jean Barbeyrac
-Life:Born at Béziers in Lower Languedoc, the nephew of Charles Barbeyrac, a distinguished physician of Montpellier. He moved with his family into Switzerland after the revocation of the Edict of Nantes. After spending some time at Geneva and Frankfurt am Main, he became professor of belles-lettres...

, Samuel von Pufendorf
Samuel von Pufendorf
Baron Samuel von Pufendorf was a German jurist, political philosopher, economist, statesman, and historian. His name was just Samuel Pufendorf until he was ennobled in 1684; he was made a Freiherr a few months before his death in 1694...

, Hugo Grotius
Hugo Grotius
Hugo Grotius , also known as Huig de Groot, Hugo Grocio or Hugo de Groot, was a jurist in the Dutch Republic. With Francisco de Vitoria and Alberico Gentili he laid the foundations for international law, based on natural law...

, and Justinian I
Justinian I
Justinian I ; , ; 483– 13 or 14 November 565), commonly known as Justinian the Great, was Byzantine Emperor from 527 to 565. During his reign, Justinian sought to revive the Empire's greatness and reconquer the lost western half of the classical Roman Empire.One of the most important figures of...



The dissent was authored by future Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

Associate Justice of the Supreme Court of the United States
Associate Justices of the Supreme Court of the United States are the members of the Supreme Court of the United States other than the Chief Justice of the United States...

 Henry Brockholst Livingston
Henry Brockholst Livingston
Henry Brockholst Livingston was an American Revolutionary War officer, a justice of the Supreme Court of New York and eventually an Associate Justice of the Supreme Court of the United States....


The dissent was not satisfied by the authorities used. Instead it was argued that pursuit should be considered sufficient, as it serves a useful purpose of encouraging hunters to rid the countryside of that "wild and noxious beast" known as the fox. The dissent further acknowledged that possession can be seen in relative terms where the continued chase may merely be a formality of the pre-existing control already exerted by the hunter.


The trial court was reversed so Pierson did not have to pay any damages. As one commenter wrote:

Jesse Pierson, son of Capt. David, coming from Amagansett, saw
a fox run and hide down an unused well

Water well
A water well is an excavation or structure created in the ground by digging, driving, boring or drilling to access groundwater in underground aquifers. The well water is drawn by an electric submersible pump, a trash pump, a vertical turbine pump, a handpump or a mechanical pump...

 near Peters
Pond and killed and took the fox. Lodowick Post
and a company with him were in pursuit and chasing the fox and saw Jesse with it and claimed it as
theirs, while Jesse persisted in his claim. Capt. Pierson said his son Jesse should have the fox and Capt.
Post said the same of his son Lodowick and hence the
law suit contested and appealed to the highest court
in the State
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...

 which decided that Post had not got the
possession of the fox when Pierson killed it and that
he had no property in it as against Pierson until he
had reduced it into his own possession. This became
the leading case often cited because it established;
and I think, for the first time, by the court of last
resort in the State
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...

, that to give an individual right
in wild animals, the claimant must capture them. To
the public the decision was worth its cost. To the
parties who each expended over a thousand pounds,
the fox cost very dear.

-James T. Adams, Memorials of Old Bridgehampton 166 (1916, 1962)

On the other hand, Bethany R. Berger notes in It's Not About the Fox: The Untold Story of Pierson v. Post that the dispute may have really been about use of the land on which the fox was caught, part of the commons in which Pierson's family, like other descendants of the original settlers of Bridgehampton, had special rights.

Further reading

External links

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