Pierson v. Post Court of Appeals of New York, 1805. Facts: Post (P) was hunting foxes and in pursuit of one when Pierson (D) killed the fox before Post could get to it and took it for himself. Procedural History: P brought an action against D for trespass to chattels. The lower court found for P, D appealed. Issue: Is pursuit of a wild animal enough to establish occupancy for the purpose of establishing a property right over the animal? Holding: No, property in wild animals is acquired by occupancy, meaning at least mortally wounding or capturing from a distance (depriving the animal of its freedom by use of an instrument within your control), and at most physical possession. Pursuit alone is not enough. Judgment reversed. Reasoning: Mere pursuit of a wild animal does not vest property rights in the pursuer. To have property rights, a person must establish occupancy, but the steps required to do so is a question of first impression for this court. It is useful to consider the opinions of ancient legal philosophers. Justinian’s Institutes, Fleta, and Bracton all agree that pursuit alone, even if the party has mortally wounded the animal, is not enough to create property rights. Only actual possession will suffice. Similarly, Puffendorf and Bynkershoek generally agree with this proposition but would carve out an exception for cases in which the animal has been mortally wounded and the party is still in hot pursuit. In such cases, another party would be barred from intercepting the animal. On the other hand, Barbeyrac’s notes on Puffendorf suggest that “bodily seizure” is not required, though he does not spell out what acts would constitute possession. It seems that mortally wounding and pursuing an animal would be enough, as it would manifest the party’s intent to “appropriate the animal to his individual use,” curtail the animal’s freedom, and bring the animal within her control. Further, Barbeyrac also seems to approve of Grotius’s notion that trapping an animal in a manner that prevents escape establishes possession. In light of these principles, this court holds that mere pursuit of a wild animal, without mortally wounding or trapping the animal, is not enough to confer property rights. In this case, Post was merely pursuing the fox in question; there is no way he could guarantee that he was going to take possession of the fox. Once Pierson captured the fox and took possession, he became the rightful owner. Dissent: Property in wild animals is acquired when the pursuer is within reach or has a reasonable prospect of taking physical possession. An arbitration of sportsmen could have decided this case without resort to the opinions ancient philosophers, which are not binding on us today, hundreds of years later. The laws should change with the times. Foxes are nuisances, and killing them off serves the public good. Hunters will not invest the labor needed to hunt foxes if others can intercept them just before the kill. Since there is no statute to clarify the issue, Barbeyrac’s opinion should be adopted. Bodily seizure of a wild animal is not necessary to establish possession, so long as the hunter is “within reach” or has a “reasonable prospect” of taking the animal with intent to appropriate it for her personal use. Here, the fact that the fox was being pursued by large hounds means it was “within reach” for Post.