Legal fictions in Pierson v. Post.

• Author: McDowell, Andrea

American courts and citizens generally take the importance of private property for granted. Scholars have sought to explain its primacy using numerous legal doctrines, including natural law, the Lockean principle of a right to the product of one's labor, Law & Economics theories about the incentives created by property ownership, and the importance of bright line rules. The leading case on the necessity of private property, Pierson v. Post, makes all four of these points. This Article argues that Pierson has been misunderstood. Pierson was in fact a defective torts case that the judges shoe-horned into a property mold using legal fictions and antiquated "facts" about foxhunting. Moreover, at least one of the judges knew his arguments were farfetched. My conclusions undermine several theories about private property that are based on Pierson v. Post.

TABLE OF CONTENTS INTRODUCTION I. THE ISSUE, THE OPINIONS, AND THE PARTIES A. The Opinions B. The Parties II. THE FOX IN ENGLISH COMMON LAW III. FOXHUNTING AS AN ELITE SPORT IN ENGLAND A. The Form of the Hunt B. The Fox Population C. The Cost of Foxhunting D. Relations between Hunters and Farmers in England E. English Law Brought Up to Date IV. FOXHUNTING IN AMERICA V. PIERSON V. POST AND LEGAL SCHOLARSHIP A. Discussions of Social Policy B. Economic Analysis of Pierson v. Post C. Possession as Communication D. Possibility of an Action for Malicious Interference VII. CONCLUSION: WHAT NOW FOR PIERSON V. POST? APPENDIX INTRODUCTION

Pierson v. Post was decided in 1805, just over two hundred years ago. (1) It is famous today as the leading case for the proposition that private property is necessary and desirable, and it is included for that purpose in leading property law textbooks (2) and in property law scholarship. (3) Some of the practical claims and policy arguments in the opinions, however, are peculiar, and I would even go so far as to call them frivolous. We can infer from the half-joking, half-serious tone of the dissenting judge, Henry Brockholst Livingston, that he would agree with this assessment. Despite what should be obvious from his style, scholars have taken seriously his description of foxhunting and based their theories, at least in part, on insubstantial foundations. This article seeks to correct those misunderstandings.

The whole statement of facts in the reporter, at least part of which was taken from Post's complaint, is one sentence long:

Post, being in possession of certain dogs and hounds under his command, did, "upon a certain wild and uninhabited, unpossessed and waste land, called the beach, find and start one of those noxious beasts called a fox," and whilst there hunting, chasing and pursuing the same with his dogs and hounds, and when in view thereof, Pierson, well knowing the fox was so hunted and pursued, did, in the sight of Post, to prevent his catching the same, kill and carry it off. (4) Post, the hunter, sued Pierson, the killer, in trespass-on-the-case and won at trial. Pierson appealed on six grounds, but the Supreme Court of New York granted certiorari on a single issue: whether Post had acquired a property in the fox. (5)

Judge Tompkins, writing for the majority, finds no property in the hunter and holds for the killer on two grounds. First, he cites Roman and civil law jurists for the principle that property in ferae naturae can only be acquired by capture. This natural law argument, however, did not necessarily resolve the dispute. As Charles Donahue notes, jurists differed on the question of what amounted to capture. (6) This enabled Tompkins to choose the outcome consistent with his second consideration, namely the advantage of a bright line rule. Ultimately, he favored Pierson, the killer, because this was the result that would provide the most certainty and thereby promote the policy of peace and order in society.

Judge Livingston dissented, also making two arguments: first, a utilitarian argument that the court's holding should promote the extermination of pests; second, a Lockean fairness claim that one is entitled to the fruits of one's labor. Readers have given too much credit to both of these arguments, however. The first was based on the fiction that the elaborate and expensive sport of foxhunting served an important public purpose; the second on the fiction, required by the posture of the case, that the dead fox was valuable property.

The multiple policy considerations raised by Pierson v. Post make it a rich case for class discussion--it truly has endless possibilities. However, by taking Livingston's argument seriously, generations of students and a number of prominent scholars have built their understanding of property on a shaky foundation. Modern scholars, including James Krier, (7) Dhammika Dharmapala and Rohan Pitchford, (8) and Carol Rose, (9) have based arguments on a misunderstanding of the facts on the ground and have given the Livingston opinion a general application that is not only undeserved but ironic.

In this Article, I show that Livingston's unpersuasive argument that the law should favor hunters because they perform a public service reflects English law that was already archaic in 1805. His reasoning presumes an English-style foxhunt. The horn, horses, and pack of hounds, as well as the all-day hunt and the phrases "honours of the chase," "at the death," and "triumph," are all characteristic of formal foxhunting. They are not appropriate to more utilitarian ways of killing an animal, such as shooting, trapping, poisoning, or, as in Pierson's case, bludgeoning to death.

While it is true that English common law had favored hunters because of their service to the community, that rule was long outdated when Livingston wrote his opinion. Foxhunting had become a luxury sport, and social norms had changed to reflect a more Coasian approach to the conflict between hunters and land holders. Within four years of Pierson v. Post, this rift between social practice and the law evoked in Livingston's opinion was recognized in Essex v. Capel (1809). (10) In practice, foxhunters of the eighteenth century did not seek to eradicate foxes but actually went to great lengths to maintain the population by protecting their breeding areas and, when there was a scarcity in one location, by bringing in foxes from another.

I will also show that, by 1800, the English population, and, in 1809, the English courts, understood that the issue before them was which of two competing activities--hunting for sport or destroying vermin--should be favored. This was eventually settled not by the courts but by the evolution of a convention that foxes should be allowed to thrive and that hunters would compensate farmers for farm animals lost to foxes. In other words, English hunters internalized the damage caused by a healthy, huntable fox population. (11) Livingston, however, used the outdated common law rules in a changed world, and it is no wonder that his opinion is somewhat convoluted. If, in addition, Livingston's assumption that Post was hunting in the English style was mistaken, as it may have been, his reasoning would be even more off the mark. Modern scholarship on Pierson that takes Livingston's policy statement at face value is therefore misguided.

Moreover, the dead fox was worth little to Pierson and nothing to Post. Yet Livingston's opinion has been taken to mean that the hunter's efforts should be rewarded with the fox pelt. As Livingston knew, however, Post had no use for a dead fox; he wanted the triumph of the kill. In fact, at the end of an English style hunt, there was no fox at all--it was eaten by the hounds.

Contrary to most property theorists, I shall argue that the harm Post suffered was malicious interference with the hunt, but that he had to shoe-horn the facts into a property claim because of common law constraints. There are signs that Post originally sued in tort. Without the equivalent of the modern "hunter harassment statutes," however, he had to show a property interest as part of his claim, giving rise to the novel questions of property law for which the case is famous. The paradoxes in the opinion arise from the court's willingness to treat this as a property case.

This Article begins with a brief review of the majority and dissenting opinions and of the parties in Pierson v. Post. Part II discusses the special status of the fox as "vermin" in the common law, which differed from that of other ferae naturae. The fact that vermin could not be owned, for instance, has interesting repercussions for the property claims made in Pierson v. Post. Part III covers the eighteenth-century development of fox hunting from extermination to a sport for gentlemen. Livingston's argument that riding to hounds was a public service was long out of date, as the English recognized.

Part IV considers foxhunting in the United States. The cost of a hunt was very high compared to either the comparatively low value of a fox skin or the damage that foxes inflicted on farmers. The live fox was much more valuable to Post and his friends than the dead fox was to either Post or Pierson. In America, however, "sportsmanlike" hunting or "hunting to hounds" was practiced only south of New England up to and including New York City and Eastern Long Island. New Englanders disapproved of the elaborate form of the sport, causing additional friction between hunters and nonhunters, and, perhaps, adding to the tensions between Pierson and Post.

Finally, Part V discusses various approaches to Pierson v. Post that build on the shaky foundation of Livingston's dissent, including attempts to "solve" Livingston's problem of how best to promote the killing of foxes, analyses of the case in the language of Law & Economics, and the suggestion that Post's counsel could have framed his claim as malicious interference. These discussions go wrong because of Livingston's mischaracterization of the problem.

I shall argue that the facts of...