Pierson v. Post
3 Cai. R. 175, 2 Am. Dec. 264 (1805)
Post was out fox hunting. He chased a fox until it got tired, but before he could catch it,
Pierson wandered by and caught the fox, killed it, and kept it.
Pierson admitted that Post was in pursuit of the fox.
Neither Pierson nor Post owned the land that the fox was
Interestingly, it was Queens, NYC, which at that time
was just wilderness.
Post sued for replevin.
Replevin is where you sue to get something somebody
stole from you returned.
Post argued that he had expended time and labor in
chasing the fox, and that effort gave him title to the property.
In addition, Post argued that it was his efforts in
tiring out the fox that allowed Pierson to catch it.
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.
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 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
In a dissent it was argued that Pierson obviously was in
the wrong, so why should he get the spoils? The dissent suggested that
once a pursuit begins, the object of the hunt is legally the possession of
But what happens if the pursuer fails to capture the
prey? When do possessory rights terminate?
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."
This way of looking at how to decide a case was very
forward leaning, since it involved making common law based on precedent
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.