Pierson v. Post
1 of 1 DOCUMENT
PIERSON v. POST.
[NO NUMBER IN ORIGINAL]
SUPREME COURT OF JUDICATURE OF
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
TOMPKINS, J., LIVINGSTON, J.
[*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
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
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
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
The two parties, both having license, the one who takes possession first,
acquires the title.
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
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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