Does a hunter who pursues a wild fox with hounds on unowned land, without wounding, capturing, or otherwise physically taking control of it, acquire a property right in the animal sufficient to sustain an action against another person who kills and takes it?

Lodowick Post, a hunter, was pursuing a fox with his hounds on waste and uninhabited land in Queen's County, New York, that was not owned by either party. Post and his dogs were in full pursuit of the fox. Pierson, who knew the fox was being hunted by Post, encountered the fox in the course of the chase, killed it, and carried it away. Post had neither wounded, trapped, nor captured the fox before Pierson intervened. Post sued Pierson to recover damages for the loss of the fox. The parties agreed that a fox is a wild animal (ferae naturae) and that property in such animals is acquired by occupancy.

Post brought an action against Pierson before a justice of the peace in Queen's County, New York, and the justice of the peace entered judgment in Post's favor. Pierson sought review through a writ of certiorari to the New York Supreme Court of Judicature. Of six exceptions taken to the proceedings below, all but one were abandoned, leaving a single question for determination. The New York Supreme Court reversed the judgment of the justice of the peace.

(Tompkins, J.)

No. Mere pursuit of a wild animal does not vest the pursuer with a property right in it. Because a fox is ferae naturae, property in it is acquired only by occupancy, and occupancy generally requires actual possession of the animal, though bodily seizure is not always indispensable.

The ancient authorities establish this rule. Justinian's Institutes, Fleta, and Bracton all hold that pursuit alone, and even pursuit accompanied by wounding, confers no right unless the animal is actually taken. Pufendorf defines occupancy of wild beasts as actual corporal possession.

Barbeyrac's critique and Grotius's qualification do not help Post. Actual bodily seizure is not always indispensable: mortally wounding an animal while continuing the pursuit, or encompassing it with nets, toils, or snares so as to deprive it of natural liberty and bring it within the pursuer's certain control, may amount to possession. Post's conduct meets none of these tests. He had not wounded, trapped, or secured the fox, and it remained at liberty when Pierson killed it.

The English cases cited by Post are distinguishable. They turned on statutory regulation or on the rights of landowners (ratione soli), as in the decoy pond case where the ducks were already in the plaintiff's possession.

Policy supports a clear rule. Allowing mere pursuit to create ownership would produce uncertainty and be a fertile source of quarrels and litigation, whereas a bright-line occupancy rule preserves peace and order. Pierson's conduct may have been discourteous, but it caused no legally remediable injury. The judgment for Post is reversed.

Dissent (Livingston, J.) A hunter who starts and hunts a fox with his own hounds on waste and uninhabited ground, and is on the point of seizing it, acquires a protectable interest in the animal. Pursuit within reach of the quarry with a reasonable prospect of taking it manifests an intention to convert the animal to the hunter's own use, and bodily touch is unnecessary. The fox is a wild and noxious beast whose destruction benefits farmers, so the law should encourage those who maintain hounds and spend hours hunting it rather than allow an intruder who shared none of the labor to seize the prize at the moment of capture. Disputes of this kind are better resolved by the customs of sportsmen than by ancient Roman authorities written in an era when fox hunting was not a recognized pursuit. Adopting Barbeyrac's view, any person who interferes with such a pursuit and shoulders the spoil is a wrongdoer, and the justice's judgment should be affirmed.