Pierson v. Post is an 1805 decision of the New York Supreme Court of Judicature holding that a hunter acquires no property right in a wild animal merely by chasing it; ownership attaches only when the animal is actually captured, mortally wounded, or otherwise deprived of its natural liberty. The case grew out of a fox hunt on a Long Island beach and produced the “rule of capture” that American courts still apply to wild animals, oil, gas, and groundwater.1Justia. Pierson v. Post
The Fox Hunt Behind the Case
Lodowick Post was hunting a fox with his hounds on an uninhabited stretch of eastern Long Island. While Post and his dogs were in full pursuit, Jesse Pierson spotted the chase, intercepted the fox, killed it, and carried it off. Pierson knew Post was after the animal and took it anyway.2New York State Courts. Pierson v Post
Post sued in trespass on the case, arguing that his effort in the chase gave him a superior right to the fox. A local justice in Queens County ruled for Post and awarded damages. Pierson appealed to the state’s highest trial court, which took the case on a single question: did Post’s pursuit of the fox with his hounds give him a legally enforceable property right in the animal?1Justia. Pierson v. Post
What the Court Held
Justice Daniel Tompkins wrote for the majority and reversed the judgment below. With no American precedent squarely on point, he drew on Justinian, Bracton, Puffendorf, Grotius, Barbeyrac, and other European authorities to work out the answer.2New York State Courts. Pierson v Post
The court classified the fox as an animal ferae naturae, wild by nature and owned by no one until reduced to possession. From there it laid down what would come to be called the rule of capture: a property right in a wild animal attaches only when someone takes actual possession of it. Mortally wounding the animal while still in pursuit counts. Trapping it counts. So does anything that deprives the animal of its natural liberty and makes escape impossible. Chasing it, however hard and however long, does not.1Justia. Pierson v. Post
Tompkins had a practical reason for the bright line. If pursuit could create ownership, every hunting dispute would collapse into arguments about how close the hunter was, how likely capture had been, and when the chase had become serious enough to matter. The court called that prospect “a fertile source of quarrels and litigation.” A rule tied to actual capture avoided those judgment calls and gave hunters a standard they could apply themselves.2New York State Courts. Pierson v Post
Under the ferae naturae framework the court applied, wild animals belong to no one until captured, and ownership is lost if the animal escapes and regains its natural liberty. Domestic animals are treated differently: they remain their owner’s property even when they wander.
Livingston’s Dissent
Justice Henry Brockholst Livingston would have ruled for Post. He argued that the court should have deferred to the customs of hunters rather than ancient treatises, saying the question should have been submitted “to the arbitration of sportsmen,” who would readily have protected the hunter in active pursuit against an interloper who swooped in at the last moment.2New York State Courts. Pierson v Post
Livingston’s “hot pursuit” theory would have given a hunter actively chasing a wild animal with a reasonable prospect of capture a legally protected interest in it. He worried the majority’s rule would kill any incentive to hunt foxes, which he treated as destructive pests. Why ride out at dawn if a stranger could kill the exhausted animal at nightfall and walk away with it? He called people like Pierson “saucy intruders.”1Justia. Pierson v. Post His objection was moral as much as legal; he described Pierson’s conduct as unsportsmanlike and close to despicable.3Historical Society of the New York Courts. Pierson v. Post, 1805
The split between the two opinions has never fully resolved. The majority valued certainty and ease of administration. The dissent valued fairness and the customs of the people actually engaged in the work. That debate returns every time a court has to allocate ownership of something newly valuable.
The Rule of Capture Beyond Wildlife
The rule’s most consequential modern uses have nothing to do with animals. American courts extended the same principle to oil, gas, and groundwater, all of which migrate underground across property lines. Under the rule of capture as applied to those resources, a landowner who pumps oil or water from beneath their own land owns what they extract, even if it originally sat under a neighbor’s property. The neighbor’s remedy is to drill their own well.
That framework fit the early petroleum industry, when underground geology was poorly understood and courts needed a workable rule. Its harshness became clear soon enough. Landowners raced to drill as fast as possible, draining shared reservoirs and wasting enormous quantities of oil. Most producing states eventually layered regulation on top of the common-law rule, adding permits, well-spacing requirements, and pooling agreements that force neighbors to share reserves rather than race for them. The arc mirrors the debate inside Pierson v. Post: a clear rule that prevents litigation can also produce results people find deeply unfair, and legislatures often step in where courts chose simplicity.
How Later Courts Have Handled the Same Question
Livingston’s approach found a foothold in Ghen v. Rich, an 1881 federal case from Massachusetts involving the finback whaling industry. Whalers killed finback whales with bomb lances; the animals sank and typically washed ashore days later. The finder would identify the lance’s markings, notify the whaling company, and collect a finder’s fee. When one finder instead sold a whale at auction to a man named Rich, the court sided with the whaler. It ruled that when a hunter has done everything physically possible to secure an animal, that effort is enough to establish ownership, and it relied openly on longstanding industry custom. Where Pierson v. Post drew a firm line at physical capture, Ghen v. Rich recognized that some resources make immediate physical possession impossible and that custom can fill the gap.
The same tension surfaced in a San Francisco courtroom in 2002. When Barry Bonds hit his record-setting 73rd home run, a fan named Alex Popov caught the ball in the webbing of his glove. Before he could secure it, a crowd mobbed him and the ball came loose. Another fan, Patrick Hayashi, picked it up. Both claimed ownership. The California Superior Court found itself in the same position as the 1805 New York court and concluded that Popov had established a “pre-possessory interest” by nearly completing the catch, while Hayashi had come into legitimate possession after the ball was dislodged by the crowd’s unlawful actions. Unable to award the ball cleanly to either man, the judge ordered it sold and the proceeds split.
Why the Case Still Matters
Pierson v. Post survives in property law courses because it isolates a question that keeps coming back: how do you acquire ownership of something no one owns yet? Every new technology and every newly valuable resource pulls courts back to the tension the 1805 opinion set out. Reward the person who invests effort and gets close, or only the one who finishes the job? Draw clear rules that are easy to apply but sometimes unfair, or flexible standards that feel just but invite litigation?
The majority’s rule of capture won the case. Livingston’s dissent has won plenty of later battles. Modern property law uses both, drawing bright lines where certainty matters most and deferring to custom or equity where rigid rules would cause more trouble than they prevent. That ongoing negotiation between predictability and fairness is what keeps a two-century-old fox hunt worth reading.