Overview

In 1802 a person named Lodowick Post was out on an uninhabited beach in Long Island, New York. He was out there to hunt. He was riding a horse, he was accompanied by hounds, they were in pursuit of a fox, and he was leading an entire hunting party. Now, they identified a particular fox and they were chasing it, but as they got close, another individual, Jesse Pierson, who was not a part of Post's hunting party, came onto the scene, promptly killed the fox, and carried it off. Post was upset about this. But instead of just dealing with it as an interpersonal matter, Post sued.

Post went to court and essentially argued that the fox that they were chasing belonged to him, that Pierson had trespassed on his property by essentially killing and taking off the fox. He argued as a result that he was entitled to damages, that he should pay money to him, and that he should be given back the possession of the fox itself.

Pierson, on the other hand, the individual who had killed the fox, countered by arguing that the fox hadn't belonged to anyone at the time that it was being chased, that he was the first to catch it, and only then did someone acquire ownership over the fox and that was him, Pierson.

What should be the outcome of this case? Who owns the fox? And when was that ownership acquired? And how should this decision be made? Now, at first glance, Pierson versus Post, also commonly known as the fox case, appears to be nothing more than a petty squabble between two contentious hunters. But the case also illustrates many of the issues that are behind property law.

Property Law

Now, property, at its most basic level, is the law about how we allocate, manage, and protect control over valued resources. We do so by essentially recognizing certain things as property and we assign control by granting someone ownership over that property.

Now, property is taught in the first year of law school because it's considered a foundational course to understanding various other fields of law. And in fact, one can argue that property is the most foundational in terms of law itself.

It's hard to determine, for example, whether or not a contract of sale for a good is good, without really understanding whether or not someone even has property ownership over the thing that's being sold.

We can't really make a determination about whether a criminal law over property has been violated, such as theft or arson, without determining whether or not someone has property over such a thing, and what that interference actually entails in essentially constituting the crime.

And various constitutional rights dealing with property, let's say, due process over deprivation of property or just compensation for the taking of property, can't really be managed or really made sense of without understanding what the basic idea of property is.

Complex Nature of Property

But as Pierson versus Post illustrates, just because property is foundational doesn't mean that it's clear or easy. Going back to the case in Pierson versus Post, we're dealing with a fox. And in some ways, the most basic questions that arise out of this are, what is the property itself, and whether or not something can actually be property. Can a fox be owned?

We take it for a given, of course, that land and certain things can be owned, though, of course, in different times and in different countries, that's not always the case. But can you actually own a fox? Does it make a difference if it's wild or domesticated? Does it make a difference if it's alive or dead? Locked in a cage or running free? And where is the line? If we can own living things, can we own people? How about one's organs or genetic code? Should one's likeness or personality or even reputation be considered property? How about an idea that someone has or an invention?

And assuming that something that can be owned, how do we acquire ownership over that? And, of course, if we're talking about certain activities that one does in order to acquire ownership, should we be rewarding certain activities as opposed to others? How does something get transformed into property? What kind of activities are we privileging?

Going back to Pierson versus Post, should Post prevail because of all this investment and labor? After all, he raised the horses, he trained them along with the hounds. He was the one that was giving chase. He was the one that was doing all the work. Or maybe he should own it because his intentions and expectations of capturing the fox were so close. He was almost already there.

On the other hand, if we're looking at results, it was ultimately Pierson that killed the fox. He was the first one to actually close the deal. And in some ways, if we're talking about being able to exercise control over something as property, he was the first one to actually take possession of the fox. The one to actually be able to be in a position to even exercise the type of control that we usually associate with property.

Of course, property is not just about the thing. It's not just about whether or not the fox can be owned. Property is also about the owner of the fox. It's connected to a person. A basic idea of property, of course, is that a person has certain ownership and control and certain rights over a particular thing. In this case, the fox is not important just because it's a fox, because of its fur, or because of meat. Because the property itself is connected to an individual, we also have to understand in some ways the meaning of that property to the individual and what it means for that particular individual themselves.

After all, the litigation costs in this particular case, raising it all the way up to the New York Supreme Court, was much more than the value of the fox itself. This may seem irrational, but of course, for the litigants in the case, this was vitally important to them. It represented to a certain degree their pride, it represented their activities, it represented what it meant to them to go out and hunt foxes. The fox, in some case, has more meaning than just the item itself. It's connected to the individual.

And in some ways, a lot of the aspects of property have this particular feature. We don't talk about a house as just bricks and wood. We talk about in some ways as what it means to a particular person that owns it. Shelter, of course, is a necessity of life; to have that shelter means that person can live. But also in some ways, a house is a home. It has significance beyond just what it does in terms of sheltering an individual. Just as a broken stopwatch may be worthless on the open market, for the owner that may be invaluable as an heirloom. It may be filled with memories.

How does the law account for that? How do we recognize it when we're dealing with issues more on individuals over the law? And once we recognize that property is more than just about the thing, and it's connected in some ways to an individual, then we're also talking about social relationships.

The fox case was not just about who had ownership over the fox. It was in some ways about the relative activities and relationship between Pierson and Post. By claiming property over the fox, Post was asserting not just that he had a right to the fox, but that Pierson had a duty not to interfere with his activity, with his pursuit and his hunt. And how a court rules on a particular case like Pierson versus Post is not just important to Pierson or even Post. It in some ways sets up a rule that would be then applicable going forward in society.

And whether or not that rule is accepted by society in general may determine whether or not that particular rule works, and people turn to the legal system, or people turn to extra legal means such as violence in order to resolve their particular disputes. And in this case, we also recognize the broader societal implications of property law, not just to determine the rights of the two individuals. Whether or not we have a society in which property is unevenly allocated may affect in some ways our understanding of democracy or the sense of justice or equity in a particular society.

Whether a store owner who has ownership of a particular store has the right to exclude someone on the basis of their race, for example, may not just define whether or not a particular individual may be harmed based on their race, but whether or not we have a society that is based on our understanding of racial categories and hierarchies.

In other words, property is not just about the thing or about the individuals who own it. In some ways it's about the broader societal context in which the property rule then constructs through how it operates through the law.

With that said, what we're going to do in this particular course is go through not only these questions, but through them understand the basics of property law and the significance. We're going to look at what is property, what rights go along with property, and how the court enforces them. We're also going to look at the broader stakes that are involved when we think about property, how we organize our society, what it means to have certain rules as opposed to others.

And, of course, important to all law students, through answering these questions and looking at these doctrines and cases, we're going to develop different ways of making legal arguments. And not just because legal arguments are important to winning a particular case, but the arguments themselves also illustrate the stakes and consequences that are at play when we're talking about property. In some ways, in making the property arguments, we are having a broader discussion and debate about how we think properties should be integrated into our broader society and what is important and what is not.

By the way, if you're curious about Pierson versus Post, Pierson won. The court ruled essentially that just by chasing the fox, even with all that investment, it wasn't sufficient. You actually have to take physical possession. In that case, Pierson was the one that did it.