Pierson v. Post

Pierson v. Post
Court Supreme Court of New York
Decided 1805
Citation(s) 3 Cai. R. 175, 2 Am. Dec. 264
Case history
Prior action(s) Pierson v. Post, unreported case in the court of Queens County
Case opinions
Majority: Tompkins
Dissent: Livingston
Court membership
Judge(s) sitting Daniel Tompkins
Henry Brockholst Livingston

Pierson v. Post, 3 Cai. R. 175, 2 Am. Dec. 264 (N.Y. 1805), is a Supreme Court of New York case about a disagreement over a dead fox that serves as an important cornerstone in Common Law legal education.


Lodowick Post, a fox hunter, 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 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 found in favor of Post. On appeal after the trial, the issue put to the Supreme Court of Judicature of New York was whether one could obtain property rights to a wild animal (Ferae naturae), 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; 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 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.

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, 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, Fleta, Jean Barbeyrac, Samuel von Pufendorf, Hugo Grotius, and Justinian I.


The dissent was authored by future Supreme Court Justice Henry Brockholst Livingston.

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 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 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, 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[1] 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.

See also


Further reading


  1. 55 Duke L.J. 1089, 1130, 1133 (2006)
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