Property Class Notes 1/22/04

This is probably the most famous case in property law! Every law student in American has probably read this case, or at least had it assigned.

It’s been described in all kinds of ways, but the facts are straightforward. Post has the horses and dogs and trumpets and stuff having a nice fox hunt. Pierson kills the fox at the last minute. Post sues him for trespass on the case. What does that mean in this case? Why do we use that form of action? It’s an action for damages, and the harm is indirect. There hasn’t been harm to the plaintiff’s person or property.

This is interesting: why doesn’t Post sue for trespass? Doesn’t he claim that he actually owned the fox? If the fox had become his personal property, then he should have used the trespass form of action.

So Post is chasing the fox on the beach. Is this barren, uninhabited land, owned by no one? We treat it as such, and thus there are no rights of any landowner at issue. If there was a landowner involved, that landowner might claim that the fox belongs to him simply by virtue of being on his property.

In the United States, however, all land is owned. There is no land that is owned by nobody. What about abandoning property? You can’t abandon real property.

Who does the majority find for? Pierson, the shooter, wins! How does the court go about its reasoning? What do they base their decision on? They find that there isn’t controlling American or British law.

Who is Puffendorf, and what did he have to say? He’s some famous old dude from a very old book.

The majority and the dissent reason in very different ways. The majority relies on precedent and reasons in a formal way, as opposed to an instrumental way. There are no cases and no statutes. Therefore, lacking law that compels a rule, the court looks to England for persuasive authority. There isn’t any of that either! So what the court finally has to do is go to a third source of law: what have commentators on the law said? There aren’t any really current commentators! The court uses what is available and tries to use them to resolve the basic issue in this case, which is: “What does it mean to say that you possess a fox?”

What underlies all this is “first in time, first in right”. The person who was first in possession of the fox is the person who is entitled to the pelt.

The majority answers the question in a structured, formalistic way. So what does it mean to be in possession of the fox? It means you kill it, mortally wound it, or capture it physically. What does mortal wounding and all that have to do with the facts of this case? Nothing really. This is dicta.

The holding of the case, which is the law as applied to these particular facts before the court is that one obtains possession of a wild animal by killing it. But then there’s dicta, which are things the court says but that aren’t necessary to come to a conclusion in the case.

What about Judge Livingston? How does he reason? This is instrumental reasoning. He wants Post to win. How does he get to that end? He talks about ancient writers, but that’s not the thrust of his opinion.

He says that people invest in resources for killing foxes, and you want to create public policy incentives to encourage more fox killing. People aren’t going to invest in killing foxes if people can come along and take the fox at the last minute.

Say we accept Livingston’s premise that foxes are bad, and we should kill them. Pierson was the one who killed the fox. Can’t he be an adequate instrument for killing foxes?

Say we accept this is a sport. Then there is a motive among the sportsmen to conserve foxes. Pierson, on the other hand, just wants to kill foxes.

What is Livingston encouraging people to do? Does he encourage people to kill foxes, or to invest in chasing foxes?

The law is being used as an instrumentality and Braunstein thinks that it turns out that the wrong instrument is chosen by Livingston. If Livingston’s opinion had been adopted, there would be more foxes than there are now.

The majority, on the other hand, is mostly but not entirely formalistic in its reasoning. It wants to promote the ends of “peace and order in society”. Is the majority opinion successful?

The majority opinion creates a direct competition to kill a fox. The one who kills it gets possession and thus ownership. Let us accept that this will lead to more certainty. But does it lead to peace and order? Maybe not, because we have a direct competition over a fox by people who are both armed. Braunstein suggests the possibility that this ruling will lead to exactly the opposite.

What about Livingston? What is he encouraging? Would his decision lead to peace and order? Braunstein thinks so: what Livingston wants is polite hunting. He wants to enforce the “rules of the sportsman”. If you see someone in pursuit, he would want you to back off and let them keep pursuing the fox.

There is a strong argument to be made for the majority in terms of certainty. Livingston involves a lot of factual questions.

Braunstein wants to persuade us that it’s not clear that the instrumental goals of either the majority or minority will be successful.

Texas American Energy Corporation v. Citizens Fidelity Bank & Trust Company

Is gas that’s been returned to an underground reservoir personal property or real property, and what does this have to do with Pierson? We can see how the law moves by analogy: “Oil and gas are like foxes, and thus we should apply the same law to oil and gas as foxes. Whoever captures oil and gas owns it.”

So what happens if you catch a fox, but then it escapes? Then it becomes unowned again. One element of capture is that you must maintain control (possession) in order to maintain ownership.

There was the earlier case of Hammonds. Everybody agreed that once you put gas back into the ground it became a “wild substance” again, like a fox on the loose. This court overrules Hammonds, or at least limits it. Gas is unlike a fox or a number of reasons. Moreover, there is an important public policy here. We want to get gas out of Texas and up to Kentucky in order to heat people’s homes in the winter. We want people to be able to do this without destroying their possessory rights.

You can continue the wild animal analogy and say that the gas hasn’t been released, but has been moved from one “cage” to another.

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