Before I consign all those legal casebooks and hornbooks in my basement to the recycling bin, permit me to beguile you with another short visit to law school. In my last such post, “– And Wife,” we considered the concept of assault, an intentional tort.  Although that case — the earliest one recorded in Anglo-American law — made the intentional infliction of fear of bodily harm in another person an actionable offense, you may recall that despite the wife being the person who was put in fear of bodily harm, no one back there in 1205 questioned an underlying assumption in the case: that she was her husband’s property, which is why he had to bring the suit in his own name as the injured party.

Lest anyone harbor any lingering doubt that capitalist societies  have always rested on ownership — whether it be of land, livestock, means of production or intellectual property, although today perhaps no longer of wives — let me introduce the case of Pierson v. Post, otherwise affectionately known by its students as “Who Owns the Fox?”  [3 Cai. R. 175, 2 Am. Dec. 264 (N.Y. 1805), if you really need a citation so you can go look it up afterwards to prove to yourself I’m not fooling.]

Pierson is one of the first cases the first-year law student encounters in the Property Law casebook. Why that should be, I cannot tell you, except maybe because who owns what seems to remain of paramount importance to an awful lot of people — even if most of us don’t chase and shoot animals anymore.

These are the “facts” (otherwise known as the story):  Post was in pursuit of a fox while hunting with his hounds. (Here we learn at the outset that Post was a gentleman of property.) Pierson killed and captured the fox even though he knew Post had been pursuing it.  Neither party owned the land on which they had been hunting. Post brought suit in trespass, contending he had acquired title to the fox when he began to hunt it. Pierson asserted that Post did not yet have control over the fox and therefore had not acquired any property interest in it. The trial court entered judgment for Post (the guy with the hounds), and Pierson appealed.

The appeals court reversed the lower court. It stated the mere fact a person is pursuing a wild animal does not grant that person a right to the animal.  “First to kill and capture” is the superior rule of law.  Had Post mortally wounded the animal, that would have been sufficient to show possession, since it would have deprived the animal of its natural liberty.  But he was only able to show pursuit and therefore acquired no property interest in the animal. There was a dissent, seeking to reward the pursuer (Post) for his effort, but we don’t have to go there, as dissents don’t become law.

Notice the bit I italicized?  About neither party owning the land through which the poor fox ran?  If Post had been the owner, that would have changed the outcome for him. Conversely, if Pierson were the owner, there would have been no case. Alternatively, what if the person who really was the landowner had intervened as an interested party?  Suppose his counselor-at-law had whispered in his ear that he should get himself over to court and claim property damages from both those guys for running amok and killing an animal on his land?

[I seem to be getting carried away with the lucrative possibilities here. No wonder lawyers have prospered over the years.]

Okay, back to the point, if there is one. [Or if there isn’t, maybe that’s the point.]  Does Pierson v. Post  tell us anything we still need to know? Does it give a guy at a bar the right to slide over to a hottie two stools down as soon as another guy who’s been chatting her up needs a bathroom break?  Is “first to kill and capture” the superior rule of law here?  Suppose there’s a brawl over hanging-out rights (“I saw her first!”), the hottie bursts out laughing at both of them, “You guys kill me!” and walks off with someone else, thus entirely eluding capture, at least by either of the two fighting over her.

You think I’m putting you on about property law?  You’re lucky we’re not moving right along  to The Rule Against Perpetuities.  (Otherwise known as Let’s Hope It’s Not On the Exam.) Roughly (very roughly) speaking, that one prevents you from leaving property to any descendant who will not yet be alive — is “not yet in being” —  when you die and who doesn’t get born until more than twenty-one years after that. At least, I think that’s the usual construction of its meaning, and there may even be an arcane reason behind why twenty-one years, but most people leave such legal refinements to the Wills and Trusts lawyers, one of whom I never was, so we probably should too.

And now I will recklessly click “Publish.”   I have to roll the recycling barrels out to the curb before it gets dark.  They’re collecting tomorrow.

8 thoughts on “WHO OWNS THE FOX?

  1. “The Rule Against Perpetuities. (Otherwise known as Let’s Hope It’s Not On the Exam.)”

    That’s hilarious. All I learned from Trust and Estates is that I had better to hire someone to write my will… at least that’s what the professor said when he handed back my exam.

    Liked by 1 person

  2. I think protection of private property rights, especially real estate, is considered by many to be the foundation of commerce and capitalism. Maybe private property is even necessary for establishment of an agrarian society.

    I think Native Americans were caught totally by surprise by the European concept of owning land.

    Liked by 1 person

    • True, and true. I thought that’s what I was saying, underneath the giggle. Once we moved from a hunting society to an agrarian one, land became — if I may borrow Marxist terminology — the means of production. (Growing food, eating food, selling food, getting rich.) About Native Americans, however, I have nothing to add, knowing very little about N.A. society prior to 1492.


  3. I’m a complete novice in the legal world you have dwelt so happily in for many years but I find it very interesting. The only time I became aware of how diverse this world is was when my friend was taken to court because her husband had built a path 6 inches over a neighbour’s border line to allow them to wheel their pram along it, even though there was nothing to show where the path was originally. You must have a brain the size of Britain to know how to argue your cases.


    • Dear Margaret, I’m going to have to puncture quite a few balloons. “Dwelt happily?” No, no, no. Who can be happy working 50, 60, 70 hour weeks, including weekends? It was necessary. And now the source of a few blog posts! As for lawyer brain size, don’t be fooled. Once you’ve got an undergraduate degree, of any kind, it’s not hard to become a lawyer, at least not in the States. Law school is rather like glorified trade school: slog away at it and you learn a trade. And by the way, forget television; I argued very few cases. Civil litigation over here is 90-95% paper work. We’re (as you would understand it) mostly solicitors — and barristers only when all else (i.e. settlement) fails! I agree with you on one thing though: it is interesting — at a distance! 🙂


      • John Grisham, in his lawyer fiction, portrays life as an attorney in many different types of practice. In his most recent, Gray Mountain, he takes a lawyer character from a big-city 70-hour-a week firm, where it’s all about billable hours, to a small, free law clinic in a small coal-mining town. What a contrast!

        Liked by 1 person

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