Dissent in Pierson v. Post
3 Cai. R. 175 (N.Y. Sup. Ct. 1805) (1805) · Supreme Court of New York
Pierson v. Post is the foundational case on the acquisition of property rights in wild animals (ferae naturae). It established that mere pursuit of a wild animal does not create a property right; actual capture or mortal wounding is required. The case remains the starting point for virtually every Property law course in American legal education.
What was the dissent in Pierson v. Post?
Justice Livingston dissented, arguing that the case should have been submitted to a panel of experienced hunters rather than decided by reference to ancient legal authorities. He contended that a rule granting rights to the pursuer with a reasonable prospect of capture would better incentivize the socially useful activity of fox hunting and discourage the kind of unsportsmanlike interception Pierson engaged in.
Case Overview
Facts
Post was hunting a fox on wild, uninhabited land, actively pursuing it with his hounds. Pierson, knowing that Post was in pursuit, intercepted and killed the fox, taking it for himself. Post sued Pierson in trespass, claiming that his pursuit of the fox gave him a superior right to the animal. The trial court ruled in favor of Post, and Pierson appealed.
Majority Holding
The court held that mere pursuit of a wild animal, even with a reasonable prospect of capture, does not vest property rights in the pursuer. Only actual physical possession through capture, mortal wounding, or trapping such that escape is certain to be prevented can establish ownership of a wild animal.
Majority Reasoning
Writing for the majority, Justice Tompkins relied heavily on authorities from Roman law and natural law treatises, particularly Justinian's Institutes and Puffendorf. The court reasoned that adopting a rule requiring actual capture provided certainty and ease of administration, as opposed to the vague and contentious standard of 'reasonable prospect of capture.' The court emphasized that clear rules of possession reduce disputes and litigation. The majority concluded that occupancy, meaning actual corporeal possession, was the only workable standard for acquiring property rights in wild animals. The court was concerned that a pursuit-based rule would lead to endless quarrels among hunters.
The Dissenting Opinion
Justice Livingston dissented, arguing that the case should have been submitted to a panel of experienced hunters rather than decided by reference to ancient legal authorities. He contended that a rule granting rights to the pursuer with a reasonable prospect of capture would better incentivize the socially useful activity of fox hunting and discourage the kind of unsportsmanlike interception Pierson engaged in.
Key Quotes
“Pursuit alone vests no property or right in the huntsman; and that even pursuit, with wounding, is equally ineffectual for that purpose, unless the animal be actually taken.”
“Property in animals ferae naturae may be acquired without bodily touch or manucaption, provided the pursuer be within reach, or have a reasonable prospect of taking, what he has thus discovered with an intention of converting to his own use.”
“However uncourteous or unkind the conduct of Pierson towards Post, in this instance, may have been, yet his act was productive of no injury or damage for which a legal remedy can be applied.”
Impact and Legacy
Pierson v. Post established the foundational principle that possession, not mere pursuit, is the basis for property rights in unowned resources. The case has been applied broadly beyond wild animals to natural resources such as oil, gas, water, and even broadcast signals. Its emphasis on clear rules versus flexible standards continues to influence property law and jurisprudence.
Exam Relevance
Pierson v. Post frequently appears on Property exams in questions involving the acquisition of unowned resources, competing claims to wild animals or natural resources, and policy debates about clear rules versus flexible standards. Students should be prepared to apply the capture rule and discuss the Livingston dissent's competing rationale favoring a reasonable-prospect-of-capture test.
Study Tips
- Focus on the policy debate between the majority's bright-line rule (actual capture) and the dissent's flexible standard (reasonable prospect of capture).
- Understand how this case connects to broader themes of first possession and the labor theory of property.
- Be prepared to apply the rule to modern analogues such as oil and gas, water rights, and intellectual property.
- Remember that the fox was on unowned land, which is critical to the analysis — the result might differ on owned property.
Read the Full Case Analysis
View the complete brief for Pierson v. Post including full reasoning, doctrine, and study resources.
More Property Dissents
Kelo v. City of New London
545 U.S. 469 (2005) (2005)
Justice O'Connor's dissent argued that the majority's decision effectively eliminated any meaningful limit on government takings, as virtually any lawful use of property would generate some incidental public benefit such as taxes and jobs. She warned that the decision would disproportionately harm politically weak communities whose properties would be taken for the benefit of those with more political influence. Justice Thomas wrote a separate dissent arguing for a return to the original public meaning of 'public use,' which he contended required actual use by the public.
Penn Central Transportation Co. v. New York City
438 U.S. 104 (1978) (1978)
Justice Rehnquist dissented, joined by Chief Justice Burger and Justice Stevens, arguing that the landmarks law imposed a disproportionate burden on Penn Central by singling out the terminal for special restrictions that benefited the public. Rehnquist contended that the cost of preserving a landmark should be spread across the community through eminent domain and compensation rather than borne by individual property owners. He argued the TDRs were an inadequate substitute for just compensation.
Lucas v. South Carolina Coastal Council
505 U.S. 1003 (1992) (1992)
Justice Blackmun dissented, arguing that the majority created an arbitrary categorical rule based on the degree of value diminution. He contended that the state's interest in protecting the coast from erosion and storm damage was a legitimate exercise of the police power that should be analyzed under the Penn Central framework. Justice Stevens also dissented, criticizing the categorical approach as disconnected from the underlying policy concerns of takings law.
Van Valkenburgh v. Lutz
304 N.Y. 95, 106 N.E.2d 28 (1952) (1952)
The dissent argued that Lutz's 30-plus years of continuous, open, and notorious occupation of the lot — including building structures, cultivating gardens, and using the property as his own — clearly satisfied all the requirements for adverse possession. The dissenters contended that the majority's interpretation was overly technical and that Lutz's statements in the earlier proceeding should not be dispositive when viewed in context.
Nahrstedt v. Lakeside Village Condominium Association
8 Cal.4th 361, 878 P.2d 1275 (1994) (1994)
Justice Arabian dissented, arguing that the majority's rigid test sacrificed individual rights to community conformity. He contended that the restriction should be judged by its reasonableness as applied to the specific facts, and that banning indoor cats that cause no disturbance was unreasonable and an unwarranted intrusion on the owner's use of her property.
Stambovsky v. Ackley
169 A.D.2d 254, 572 N.Y.S.2d 672 (N.Y. App. Div. 1991) (1991)
Justice Smith dissented, arguing that the majority's decision was inconsistent with New York's adherence to caveat emptor and that the buyer had a duty to investigate the property. The dissent contended that the majority was creating a new exception to caveat emptor that would generate uncertainty about what kinds of non-physical conditions sellers must disclose.