August 27, 2012
Hunting Law School: When Does a Fox, or a Deer, Become Yours?
By Phil Bourjaily
Today we have a law lesson, courtesy of my older son, who starts law school in a few days. While reading up on property law he came across and told me about Pierson v. Post. It's the case often used to introduce students to proprety law, and it’s about hunting.
Pierson v. Post concerns the ownership of a fox. Lodowick Post was pursuing a fox in New York state with his hounds around the beginning of the 19th century. David Pierson saw the fox, and, despite knowing Post was after it, killed it and took it home. (accounts vary, some say the fox hid in a well and was killed by Pierson’s son). Neither Post nor Pierson owned the vacant property on which the fox was killed.
What do you do when someone takes your fox? This is America, so even in 1805, you sue. Post sued, claiming the fox was his because, by giving chase to the fox, he established possession. The trial court ruled in favor of Post. Pierson appealed, and the case of the filched fox was heard by the New York Supreme Court which reversed the decision, saying that mere pursuit of a wild animal was not enough to establish ownership,* unless the animal had been “so wounded, circumvented or ensnared . . . so as to deprive them of their natural liberty, and subject them to the control of their pursuer.”
The Supreme Court ruled correctly. What Pierson did was, I think, unethical, but the fox was rightfully his. And, imagine if all you had to do to establish ownership of, say, a B&C buck was to “pursue it.” Chaos would reign in the deer woods.
There is, however, a gray area to debate. As stated above, the court ruled you have to wound the animal severely enough “to deprive it of its natural liberty.” Merely wounding it, the court decided, was insufficient to establish ownership, which reopens a can of worms. You shoot a deer. It runs off. Someone else shoots and kills it. Whose deer is it then?