Property 1.1 – Overview


I. Introductory Case: Pierson v. Post

A. Facts of the case

  • Post led a hunting party that was chasing a fox.
  • Pierson came onto the scene and killed the fox before Post got to it.
  • Post sued Pierson for trespassing on what Post claimed was Post’s property (the fox). Post requested money damages, as well as possession of the fox.
  • Pierson argued that the fox was not Post’s property. Pierson argued that the fox did not become the property of anyone until it had been caught, and Pierson had been the first to catch it.

B. Significance of the case

  • This case involves and illustrates many of the issues that are behind Property Law, such as who has ownership over something, how ownership is acquired, and how those questions should be decided.

C. Outcome of the case (from end of the video)

  • Pierson won, as the court ruled that one must take physical possession of the fox in order to obtain ownership. Post’s chase and investment were not enough to have given Post ownership.

II. What Is Property Law?

  • It allocates, manages, and protects control over valued resources.
  • It assigns control by granting ownership over certain things that it recognizes as property.

III. Property Law Is Foundational to Understanding Other Areas of Law

A. Contract Law Example

  • A contract for sale of a good requires property ownership over the thing that is being sold.

B. Criminal Law Example

  • Theft or arson involves issues of whether one owns the property in question.

C. Constitutional Law Example

  • Due process over deprivation of property or just compensation for the taking of property both require an understanding of the idea of property.

IV. Basic Issues Considered in Property Law

A. What is property?

  • Property law considers whether a certain thing can actually be property or not.

B. How do we acquire ownership over something?

  • Property law considers whether to reward certain activities as opposed to others.
  • Property law also considers whether to reward certain results, such as exercising control over something as property, like by taking physical possession of it. (Example: In Pierson v. Post, Pierson actually took physical possession of the fox.)

C. What meaning does the property have for the owner?

  • Examples…
    • The fox in Pierson v. Post represented the hunters’ pride, activities, and identity.
    • A house may have meaning as a home, rather than just as a shelter of bricks and wood.
    • A broken stopwatch may have meaning as an heirloom filled with memories.

V. Implications of Property Law

A. Property Law & Social Relationships

  • Property law creates rules that govern relationships between individuals with respect to property.

B. Property Law & Society In General

  • Property rules do not apply only in a given situation between two individuals. They also apply in society in general.
  • Property laws must be accepted by society in general in order for the legal system to work.
  • Property laws can create a societal context. (Example: Some property laws may promote a social context of equity and justice, while others may promote hierarchies.)

VI. Other Basic Issues in Property Law

  • What is property?
  • What rights go along with property?
  • How does the court enforce those rights?
  • How do property rights affect the organization of our larger society?


Facts of Pierson v. Post


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’s Argument


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 [with] the fox. He argued, as a result, that he was entitled to damages, that they should pay money to him, and that he should be given back the possession of the fox itself.

Pierson’s Argument


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.

Implications of Pierson v. Post Regarding Property Law


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 v. 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.

Definition of 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.

Property Law Is Foundational to Other Areas of Law


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.

Property Law Is Foundational to Contract Law
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.

Property Law Is Foundational to Criminal Law


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 a crime.

Property Law is Foundational to Constitutional Law


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.

Basic Questions That Arise in Pierson v. Post


But as Pierson v. Post illustrates, just because Property is foundational doesn’t mean that it’s clear or easy. Going back to the case in Pierson v. 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?

Property law examines whether or not something can actually be property.

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?

Property law considers which activities to acquire ownership we should reward.


And assuming that something 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?

Activities to Acquire Ownership in Pierson v. Post
Going back to Pierson v. 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 w[ere] so close [to being realized]. He was almost already there.

Property law considers what results we should reward.


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.

Property law considers what meaning the thing has for the owner.

Of course, property is not just about the thing. It’s just not 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 [its] 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.

Meaning that the alleged “owners” attached to the fox in Pierson v. Post

After all, the litigation costs in this particular case—raising it all the way up to the nearest supreme court—[were] 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 and 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 the case has more meaning than just the item itself. It’s connected to the individual.

Examples of meaning that an owner may attach to a thing

And in some ways, a lot of various aspects of property have this particular feature. We don’t talk about a house as just bricks and wood. We talk about it, 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.

Property law considers social relationships and rules that can govern them in society.

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

Property rules must work not just for two individuals, but for society in general

“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 v. Post is not just important to Pierson, or even [to] Post. It, in some ways, sets up a rule that would be then applicable going forward in society.

Broader Societal Implications of Property Law

And whether or not that rule is accepted by society, in general, may determine whether or not that particular rule works, and [whether] people turn to the legal system or [whether] 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 in determining 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.

Example: Store owner’s rules affect visitor’s rights but also affects 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.

Property rules create a broader societal context.

In other words, property is not just about the thing, or about the individual who owns 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.

Summary of Basic Concepts Studied in Property Law

With that said, what we’re going to do in this particular course is [not only] go through these questions, but through them understand the basics of property law and its 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, [and] what it means to have certain rules, as opposed to others.

Property Law also involves making legal arguments

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 are talking about property. In some ways, in making the property arguments, we are having a broader discussion and debate about how we think property should be integrated into our broader society, and what is important, and what is not.

Conclusion to Pierson v. Post

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

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