Pierson v. Post

Supreme Court of New York, 1805.

3 Cai. R. 175.

Johnson, pp. 17-20


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 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 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.


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