3 Cai. R. 175 (N.Y. 1805)
Lodowick Post was in possession of dogs and hounds under his command.12 Upon wild and uninhabited waste land called the beach, he found and started one of those noxious beasts called a fox.3 Post then hunted, chased, and pursued the fox with his dogs and hounds while the animal remained in view.4
Pierson, well knowing that the fox was so hunted and pursued, killed and carried it off in the sight of Post to prevent his catching the same.5 Post commenced an action of trespass on the case against Pierson in a justice's court.6 The declaration set forth these facts, and a verdict was rendered for Post as the plaintiff below.7
Pierson sued out a certiorari directed to one of the justices of Queens county.8 The cause came before the court on the return to the certiorari.9 The proceedings presented the question of whether Post had acquired a property right in the fox sufficient to maintain the action against Pierson for killing and taking it away.10
Whether the declaration and the matters therein contained were sufficient in law to maintain an action?11
An action of trespass on the case for killing and taking a wild animal requires the plaintiff to plead facts showing that he acquired a property right through occupancy.12 Occupancy demands actual corporal possession or equivalent acts such as mortal wounding with continued pursuit.13 It also includes enclosing the animal with nets or other means so that escape is impossible.14 Pursuit alone vests no property or right in the huntsman.15
No. The declaration alleged only that Post found and started the fox upon wild and uninhabited waste land called the beach and that while hunting, chasing and pursuing the same with his dogs and hounds, and when in view thereof, Pierson killed and carried it off.16 These pleaded facts establish nothing beyond mere pursuit without any wounding, ensnaring or circumvention that would deprive the fox of its natural liberty.17
Applying the rule to the established facts shows the allegations fall short of the required occupancy.18 Post was in possession of dogs and hounds under his command. He found and started a fox upon wild and uninhabited waste land called the beach.19 Post hunted, chased and pursued the fox with his dogs and hounds while the animal remained in view.20 Pierson killed and carried off the fox in the sight of Post.21 The certiorari proceeding confirmed that the cause came before the court on the return to the certiorari directed to one of the justices of Queens county after a verdict for Post as plaintiff below.22 Yet the matters stated remain legally insufficient.23
The declaration and the matters therein contained were not sufficient in law to maintain an action.24
Whether Post, by the pursuit with his hounds in the manner alleged in his declaration, acquired such a right to, or property in, the fox, as will sustain an action against Pierson for killing and taking him away?25
Property in animals ferae naturae is acquired by occupancy only.26 Occupancy requires actual corporal possession or equivalent acts such as mortal wounding with continued pursuit.27 It also includes encompassing with nets and toils so as to deprive the creature of its natural liberty and render escape impossible.28 Pursuit alone gives no right of property in animals ferae naturae.29
No. Applying the rule to the established facts shows these circumstances amount only to pursuit without the fox having been wounded, circumvented or enclosed by Post.30 Lodowick Post was in possession of dogs and hounds under his command. He found and started a fox upon wild and uninhabited waste land called the beach. Post hunted, chased and pursued the fox with his dogs and hounds while the animal remained in view. Pierson killed and carried off the fox in the sight of Post with knowledge of the chase.31 The certiorari was directed to one of the justices of Queens county and the cause came before the court on the return to the certiorari after a verdict for Post as plaintiff below.32 But the facts pleaded and proved show no occupancy.33
The authorities establish that even pursuit accompanied by wounding is ineffectual unless the animal is actually taken.34 The present facts present no circumstances that bring the case within any qualified definition of possession.35 For the sake of certainty and preserving peace and order in society, possession or occupancy of beasts ferae naturae must be confined to the limits prescribed by the learned authors.36 Mere starting or pursuing without depriving the animal of its natural liberty affords no basis for an action.37
Post did not, by the pursuit with his hounds in the manner alleged in his declaration, acquire such a right to or property in the fox as will sustain an action against Pierson for killing and taking him away.38
Related opinions on this issue
Justice Livingston dissented and would have affirmed the judgment below.39 He viewed the question as one better submitted to the arbitration of sportsmen rather than resolved solely by ancient writers.40 The pleadings admitted that a fox is a wild and noxious beast whose destruction is meritorious and of public benefit.41
In his opinion, a person who with his own hounds starts and hunts a fox on waste and uninhabited ground and is on the point of seizing his prey acquires such an interest in the animal.42 He has a right of action against another who in view of the huntsman and his dogs in full pursuit kills and carries him away.43 Property in animals ferae naturae may be acquired without bodily touch or manucaption provided the pursuer is within reach or has a reasonable prospect of taking what he has discovered an intention of converting to his own use.44 A pursuit like the present through waste and unoccupied lands must inevitably and speedily have terminated in corporal possession.45 Such a pursuit confers a right to the object of it.46 Any interferer who shoulders the spoil is a wrongdoer.47