Pierson v. Post


                                1 of 1 DOCUMENT


                                PIERSON v. POST.


                            [NO NUMBER IN ORIGINAL]




                        3 Cai. R. 175; 1805 N.Y. LEXIS 311


                             August, 1805, Decided



  [**1]   THIS was an action of trespass on the case commenced in a justice's

 court, by the present defendant against the now plaintiff.


The declaration stated that Post, being in possession of certain dogs and hounds

 under his command, did, "upon a certain wild and uninhabited, unpossessed and

 waste land, called the beach, find and start one of those noxious beasts called

 a fox," and whilst there hunting, chasing and pursuing the same with his dogs

 and hounds, and when in view thereof, Pierson, well knowing the fox was so

 hunted and pursued, did, in the sight of Post, to prevent his catching the same,

 kill and carry it off. A verdict having been rendered for the plaintiff below,

 the defendant there sued out a certiorari, and now assigned for error, that the

 declaration and the matters therein contained were not sufficient in law to

 maintain an action.



 Judgment of reversal.




Animals Ferae Naturae-- What Gives Right of Property in-- Trespass.


Pursuit alone gives no right of property in animals feroe naturoe, therefore an

 action will not lie against a man for killing and taking one pursued by, and in

 the view of, the person who originally found, started, chased it, and was on the

 point of seizing it.


Occupancy in wild animals can be acquired only by possession, but such

 possession does not signify manucaption, though it must be of such a kind as by

 nets, snares or other means, as to so circumvent the creature that he cannot



Citations--Just. Inst., lib. 2, tit. 1, sec. 13; Fleta, lib. 3, ch. 2, p. 175;

 Bracton, lib. 2, ch. 1, p. 8; Puffendorf, lib. 4, ch. 6, sec. 2, 10; Grotius,

 lib. 2, ch. 8, sec. 3, p. 309; 11 Mod., 74-130; 3 Salk., 9.



 Mr. Sanford, for the now plaintiff. It is firmly settled that animals, feroe

 naturoe, belong not to anyone. If, then, Post had not acquired any property in

 the fox, when it was killed by Pierson, he had no right in it which could be the

 subject of injury. As, however, a property may be gained in such an animal,

 [**2]  it will be necessary to advert to the facts set forth, to see whether

 they are such as could give a legal interest in the creature, that was the cause

 of the suit below. Finding, hunting, and pursuit, are all that the plaint

 enumerates. To create a title to an animal feroe naturor, occupancy is

 indispensable. It is the only mode recognized by our system. 2 Black. Com. 403.

 The reason of the thing shows it to be so. For whatever is not appropriated by

 positive institutions, can be exclusively possessed by natural law alone.

 Occupancy is the sole method this code acknowledges. Authorities are not wanting

 to this effect. Just. lib. 2, tit. 1, sec. 12. "Feroe igitur bestioe, simul

 atque ab aliiquo captoe fuerint jure gentium statim illius esse incipiunt."

 There must be a taking; and even that is not in all cases sufficient, for in the

 same section he observes, "Quicquid autem corum ceperis, eo usque tuum esse

 intelligitur, donec tua custodia coercetur; cum vero tuam evaserit custodiam, et

 in libertatem naturalem sese receperit, tuam esse desinit, et rursus occumpantis

 fit." It is added also that this natural liberty may be regained even if in

 sight of the pursuer, "ita sit, ut difficilis [**3]  sit ejus persecutio." In

 section 13, it is laid down, that even wounding will not give a right of

 property in an animal that is unreclaimed. For, notwithstanding the wound,

 "multa accidere soleant ut eam non capias," and "non aliter tuam esse quam si

 eam ceperis." Fleta (b. 3, p. 175) and Bracton (b. 2, ch. 1, p. 86) are in

 unison with the Roman law-giver. It is manifest, then, from the record, that

 there was no title in Post, and the action, therefore, not maintainable.


Mr. Colden, contra. I admit, with Fleta, that pursuit alone does not give a

 right of property in animals feroe naturoe, and I admit also that occupancy is

 to give a title to them. But, then, what kind of occupancy? And here I shall

 contend it is not such as is derived from manucaption alone. In Puffendorf's Law

 of Nature and of Nations (b. 4, ch. 4, sec. 5, n. 6, by Barbeyrac), notice is

 taken of this principle of taking possession. It is there combatted, nay,

 disproved; and in b. 4, ch. 6, sec. 2, n. 2. lbid. sec. 7, n. 2, demonstrated

 that manucaption is only one of many means to declare the intention of

 exclusively appropriating that which was before in a state of nature. Any

 continued act which does this,  [**4]  is equivalent to occupancy. Pursuit,

 therefore, by a person who starts a wild animal, gives an exclusive right whilst

 it is followed. It is all the possession the nature of the subject admits; it

 declares the intention of acquiring dominion, and is as much to be respected as

 manucaption itself. The contrary idea, requiring actual taking, proceeds, as Mr.

 Barbeyrac observes, in Puffendorf (b. 4, ch. 6, sec. 10), on a "false notion of



Mr. Sanford, in reply. The only authority relied on is that of an annotator. On

 the question now before the court, we have taken our principles from the civil

 code, and nothing as been urged to impeach those quoted from the authors

 referred to.










    [*177]  TOMPKINS, J., delivered the opinion of the court:


   This cause comes before us on a return to a certiorari directed to one of the

 justices of Queens County.


   The question submitted by the counsel in this cause for our determination is,

 whether Lodowick Post, by the pursuit with his hounds in the manner alleged in

 his declaration, acquired such a right to, or property in, the fox as will

 sustain an action against Pierson [**5]  for killing and taking him away?


   The cause was argued with much ability by the counsel on both sides, and

 presents for our decision a novel and nice question. It is admitted that a fox

 is an animal fertoe naturoe, and that property in such animals is acquired by

 occupancy only. These admissions narrow the discussion to the simple question of

 what acts amount to occupancy, applied to acquiring right to wild animals.


   If we have recourse to the ancient writers upon general principles of law,

 the judgment below is obviously erroneous. Justinian's Institutes (lib. 2, tit.

 1, sec. 13), and Fleta (lib. 3, ch. 2, p. 175), 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 Breton (lib. 2,

 ch. 1, p. 8).


   Puffendorf (lib. 4, ch. 6, sec. 2 and 10) defines occupancy of beasts feroe

 naturoe, to be the actual corporeal possession of them, and Bynkershock is cited

 as coinciding in this definition. It is indeed with hesitation that Puffendorf

 affirms that a wild beast mortally wounded or greatly [**6]  maimed, cannot be

 fairly intercepted by another, whilst the pursuit of  [*178]  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.


   It, therefore, only remains to inquire whether there are any contrary

 principles or authorities, to be found in other books, which ought to induce a

 different decision. Most of the cases which have occurred in England, relating

 to property in wild animals, have either been discussed and decided upon the

 principles of their positive statute regulations, or have arisen between the

 huntsman and the owner of the land upon which beasts feroe naturoe have been

 apprehended; the former claiming them by title of occupancy, and the latter

 ratione soli. Little satisfactory aid can, therefore, be derived from the

 English reporters.


   Barbeyrac, in his notes on Puffendorf, does not accede to the definition of

 occupancy by the latter, but, on the contrary, affirms that actual bodily

 seizure is not, in all cases, necessary to constitute possession of wild

 animals. He does not, however, describe [**7]  the acts which, according to his

 ideas, will amount to an appropriation of such animals to private use, so as to

 exclude the claims of all other persons, by title of occupancy, to the same

 animals; and he is far from averring that pursuit alone is sufficient for that

 purpose. To a certain extent, and as far as Barbeyrac appears to me to go, his

 objections to Puffendorf's definition of occupancy are reasonable and correct.

 That is to say, that actual bodily seizure is not indispensable to acquire right

 to, or possession of, wild beasts; but that, on the contrary, the mortal

 wounding of such beasts, by one not abandoning his pursuit, may, with the utmost

 propriety, be deemed possession of him; since thereby the pursuer manifests an

 unequivocal intention of appropriating the animal to his individual use, has

 deprived him of his natural liberty, and brought him within his certain control.

 So, also, encompassing and securing such animals with nets and toils, or

 otherwise intercepting them in such a manner as to deprive them of their natural

 liberty, and render escape impossible, may justly be deemed to give possession

 of them to those persons who, by their industry and labor, have used [**8]  such

 means of apprehending them. Barbeyrac seems to have adopted and had in view in

 his notes,  [*179]  the more accurate opinion of Grotius, with respect to

 occupancy. That celebrated author (lib. 2, ch. 8, sec. 3, p. 309), speaking of

 occupancy, proceeds thus: "Requiritur autem corporalis quoedam possessio ad

 dominium adipiscendum; atque ideo, vulnerasse non sufficit." But in the

 following section he explains and qualifies this definition of occupancy: "Sed

 possessio illa potest non solis manibus, sed instrumentis, ut decipulis,

 ratibus, laqueis dum duo adsint; primum ut ipsa instrumenta sint in nostra

 potestate, deinde ut fera, ita inclusa sit, ut exire inde nequeat." This

 qualification embraces the full extent of Barbeyrac's objection to Puffendorf's

 definition, and allows as great a latitude to acquiring property by occupancy,

 as can reasonably be inferred from the words or ideas expressed by Barbeyrac in

 his notes. The case now under consideration is one of mere pursuit, and presents

 no circumstances or acts which can bring it within the definition of occupancy

 by Puffendorf, or Grotius, or the ideas of Barbeyrac upon that subject.


   The case cited from 11 Mod. 74, 130, [**9]  I think clearly distinguishable

 from the present; inasmuch as there the action was for maliciously hindering and

 disturbing the plaintiff in the exercise and enjoyment of a private franchise;

 and in the report of the same case (3 Salk. 9), Holt, Ch. J., states, that the

 ducks were in the plaintiff's decoy pond, and so in his possession, from which

 it is obvious the court laid much stress in their opinion upon the plaintiff's

 possession of the ducks, ratione soli.


   We are the more readily inclined to confine possession or occupancy of beasts

 feroe naturoe, within the limits prescribed by the learned authors above cited,

 for the sake of certainty, and preserving peace and order in society. If the

 first seeing, starting or pursuing such animals, without having so wounded,

 circumvented or ensnared them, 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 source of quarrels and litigation.


   However uncourteous or unkind the conduct of Pierson towards Post, in this

 instance, may have been, yet this act was productive of no injury [**10]  or

 damage for which a legal remedy  [*180]  can be applied. We are of opinion the

 judgment below was erroneous, and ought to be reversed.


   LIVINGSTON, J. My opinion differs from that of the court. Of six exceptions,

 taken to the proceedings below, all are abandoned except the third, which

 reduces the controversy to a single question.


   Whether a person who, with his own hounds, starts and hunts a fox on waste

 and uninhabited ground, and is on the point of seizing his prey, acquires such

 an interest in the animal as to have a right of action against another, who in

 view of the huntsman and his dogs in full pursuit, and with knowledge of the

 chase, shall kill and carry him away.


   This is a knotty point, and should have been submitted to the arbitration of

 sportsmen, without poring over Justinian, Fleta, Bracton, Puffendorf, Locke,

 Barbeyrac, or Blackstone, all of whom have been cited: they would have had no

 difficulty in coming to a prompt and correct conclusion. In a court thus

 constituted, the skin and carcass of poor Reynard would have been properly

 disposed of, and a precedent set, interfering with no usage or custom which the

 experience of ages has sanctioned, and which must be [**11]  so well known to

 every votary of Diana. But the parties have referred the question to our

 judgment, and we must dispose of it as well as we can, from the partial lights

 we possess, leaving to a higher tribunal the correction of any mistake which we

 may be so unfortunate as to make. By the pleadings it is admitted that a fox is

 a "wild and noxious beast." Both parties have regarded him, as the law of

 nations does a pirate, "hostem humani generis," and although "de mortuis nil

 nisi bonum" be a maxim of our profession, the memory of the deceased has not

 been spared. His depredations on farmers and on barnyards, have not been

 forgotten; and to put him to death wherever found, is allowed to be meritorious,

 and of public benefit. Hence it follows, that our decision should have in view

 the greatest possible encouragement to the destruction of an animal, so cunning

 and ruthless in his career. But who would keep a pack of hounds; or what

 gentleman, at the sound of the horn, and at peep of day, would mount his steed,

 and for  [*181]  hours together, "sub jove frigido," or a vertical sun, pursue

 the windings of this wily quadruped, if, just as night came on, and his

 stratagems [**12]  and strength were nearly exhausted, a saucy intruder, who had

 not shared in the honors or labors of the chase, were permitted to come in at

 the death, and bear away in triumph the object of pursuit? Whatever Justinian

 may have thought of the matter, it must be recollected that his code was

 compiled many hundred years ago, and it would be very hard indeed, at the

 distance of so many centuries, not to have a right to establish a rule for

 ourselves. In his day, we read of no order of men who made it a business, in the

 language of the declaration in this cause, "with hounds and dogs to find, start,

 pursue, hunt, and chase," these animals, and that, too, without any other motive

 than the preservation of Roman poultry; if this diversion had been then in

 fashion, the lawyers who composed his institutes, would have taken care not to

 pass it by, without suitable encouragement. If anything, therefore, in the

 digests or pandects shall appear to militate against the defendant in error,

 who, on this occasion, was the fox hunter, we have only to say tempora mutantur;

 and if men themselves change with the times, why should not laws also undergo an



   It may be expected, however, by [**13]  the learned counsel, that more

 particular notice be taken of their authorities. I have examined them all, and

 feel great difficulty in determining, whether to acquire dominion over a thing,

 before in common, it be sufficient that we barely see it, or know where it is,

 or wish for it, or make a declaration of our will respecting it; or whether, in

 the case of wild beasts, setting a trap, or lying in wait, or starting, or

 pursuing, be enough; or if an actual wounding, or killing, or bodily tact and

 occupation be necessary. Writers on general law, who have favored us with their

 speculations on these points, differ on them all; but, great as is the diversity

 of sentiment among them, some conclusion must be adopted on the question

 immediately before us. After mature deliberation, I embrace that of Barbeyrac as

 the most rational and least liable to objection. If at liberty, we might imitate

 the courtesy of a certain emperor, who, to avoid giving  [*182]  offense to the

 advocates of any of these different doctrines, adopted a middle course, and by

 ingenious distinctions, rendered it difficult to say (as often happens after a

 fierce and angry contest) to whom the palm of victory belonged.  [**14]  He

 ordained, that if a beast be followed with large dogs and hounds, he shall

 belong to the hunter, not to the chance occupant; and in like manner, if he be

 killed or wounded with a lance or sword; but if chased with beagles only, then

 he passed to the captor, not to the first pursuer. If slain with a dart, a

 sling, or a bow, he fell to the hunter, if still in chase, and not to him who

 might afterwards find and seize him.


   Now, as we are without any municipal regulations of our own, and the pursuit

 here, for aught that appears on the case, being with dogs and hounds of imperial

 stature, we are at liberty to adopt one of the provisions just cited, which

 comports also with the learned conclusion of Barbeyrac, that property in animals

 feroe naturoe may be acquired without bodily touch or manucaption, provided the

 pursuer be within reach, or have a reasonable prospect (which certainly existed

 here) of taking what he has thus discovered an intention of converting to his

 own use.


   When we reflect also that the interest of our husbandmen, the most useful of

 men in any community, will be advanced by the destruction of a beast so

 pernicious and incorrigible, we cannot greatly err in saying [**15]  that a

 pursuit like the present, through waste and unoccupied lands, and which must

 inevitably and speedily have terminated in corporeal possession, or bodily

 seisin, confers such a right to the object of it, as to make any one a

 wrong-doer who shall interfere and shoulder the spoil. The justice's judgment

 ought, therefore, in my opinion, to be affirmed.


   Judgment of reversal. n1


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   n1 Wild bees in a bee-tree belong to the owner of the soil where the tree

 stands.  Ferguson v. Miller, 1 Cow. 243.


   Though another discover the bees, and obtain license from the owner to take

 them, and mark the tree with the initials of his own name, this does not confer

 the ownership upon him, until he has taken actual possession of the bees. ld.


   If he omit to take such possession, the owner of the soil may give the same

 license to another, who may take the bees without being liable to the first

 finder. Id.


   The two parties, both having license, the one who takes possession first,

 acquires the title. Id.


   Bees are animals feroe naturoe, but when hived and reclaimed, a qualified

 property may be acquired in them.  Gillett v. Mason, 7 Johns. 16.


   If a person find a tree, containing a hive of bees, on the land of another,

 and mark the tree, he does not thereby reclaim the bees, and vest a right of

 property in himself; and cannot maintain an action for carrying away the bees

 and honey. Id.


   Though property in animal feroe naturoe may be acquired by occupancy, or by

 wounding it, so as to bring it within the power or control of the pursuer; yet,

 if after wounding the animal and continuing the pursuit of it until evening,

 the hunter abandons the pursuit, though his dogs continue chase, he acquires no

 property in the animal. Buster v. Newkirk, 20 Johns. 75; N. Y. Dig., Vol. I., p.

 106, et seq.


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