Wild animals are the subject of property when mortally wounded or entrapped, so as to be deprived of their natural liberty.

This cause comes before us on a return to a certiorari directed to one of the justices of Queens county.

The question submitted by the counsel in this cause for our determination is, whether Lodowick 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?

The cause was argued with much ability by the counsel on both sides, and presents for our decision a novel and nice question. It is admitted that a fox is an animal feræ naturæ, and that property in such animals is acquired by occupancy only. These admissions narrow the discussion to the simple question of what acts amount to occupancy, applied to acquiring right to wild animals?

If we have recourse to the ancient writers upon general principles of law, the judgment below is obviously erroneous. Justinian's Institutes, lib. 2. tit. 1. s. 13. and Fleta, lib. 3. c. 2. p. 175. adopt the principle, that pursuit alone vests no property or right in the huntsman; and that even pursuit, accompanied with wounding, is equally ineffectual for that purpose, unless the animal be actually taken. The same principle is recognised by Bracton, lib. 2. c. 1. p. 8.

Puffendorf, lib. 4. c. 6. s. 2. and 10. defines occupancy of beasts feræ naturæ, to be the actual corporal possession of them, and Bynkershoek is cited as coinciding in this definition. It is indeed with hesitation that Puffendorf affirms that a wild beast mortally wounded, or greatly maimed, cannot be fairly intercepted by another, whilst the pursuit of the person inflicting the wound continues. The foregoing authorities are decisive to show that mere pursuit gave Post no legal right to the fox, but that he became the property of Pierson, who intercepted and killed him.

It therefore only remains to inquire whether there are any contrary principles, or authorities, to be found in other books, which ought to induce a different decision. Most of the cases which have occurred in England, relating to property in wild animals, have either been discussed and decided upon the principles of their positive statute regulations, or have arisen between the huntsman and the owner of the land upon which beasts feræ naturæ have been apprehended; the former claiming them by title of occupancy, and the latter ratione soli. Little satisfactory aid can, therefore, be derived from the English reporters.

Barbeyrac, in his notes on Puffendorf, does not accede to the definition of occupancy by the latter, but, on the contrary, affirms, that actual bodily seizure is not, in all cases, necessary to constitute possession of wild animals. He does not, however, describe the acts which, according to his ideas, will amount to an appropriation of such animals to private use, so as to exclude the claims of all other persons, by title of occupancy, to the same animals; and he is far from averring that pursuit alone is sufficient for that purpose. To a certain extent, and as far as Barbeyrac appears to me to go, his objections to Puffendorf's definition of occupancy are reasonable and correct. That is to say, that actual bodily seizure is not indispensable to acquire right to, or possession of, wild beasts; but that, on the contrary, the mortal wounding of such beasts, by one not abandoning his pursuit, may, with the utmost propriety, be deemed possession of him; since, thereby, the pursuer manifests an unequivocal intention of appropriating the animal to his individual use, has deprived him of his natural liberty, and brought him within his certain control. So also, encompassing and securing such animals with nets and toils, or otherwise intercepting them in such a manner as to deprive them of their natural liberty, and render escape impossible, may justly be deemed to give possession of them to those persons who, by their industry and labour, have used such means of apprehending them. Barbeyrac seems to have adopted, and had in view in his notes, the more accurate opinion of Grotius, with respect to occupancy. That celebrated author, lib. 2. c. 8. s. 3. p. 309. speaking of occupancy, proceeds thus: “ Requiritur autem corporalis quædam possessio ad dominium adipiscendum; atque ideo, vulnerasse non sufficit.” But in the following section he explains and qualifies this definition of occupancy: “ Sed possessio illa potest non solis manibus, sed instrumentis, ut decipulis, retibus, laqueis dum duo adsint: primum ut ipsa instrumenta sint in nostra potestate, deinde ut fera, ita inclusa sit, ut exire inde nequeat.” This qualification embraces the full extent of Barbeyrac's objection to Puffendorf's definition, and allows as great a latitude to acquiring property by occupancy, as can reasonably be inferred from the words or ideas expressed by Barbeyrac in his notes. The case now under consideration is one of mere pursuit, and presents no circumstances or acts which can bring it within the definition of occupancy by Puffendorf, or Grotius, or the ideas of Barbeyrac upon that subject.

The case cited from 11 Mod. 74--130. I think clearly distinguishable from the present; inasmuch as there the action was for maliciously hindering and disturbing the plaintiff in the exercise and enjoyment of a private franchise; and in the report of the same case, 3 Salk. 9. Holt, Ch. J. states, that the ducks were in the plaintiff's decoy pond, and so in his possession, from which it is obvious the court laid much stress in their opinion upon the plaintiff's possession of the ducks, ratione soli.

We are the more readily inclined to confine possession or occupancy of beasts feræ naturæ, within the limits prescribed by the learned authors above cited, for the sake of certainty, and preserving peace and order in society. If the first seeing, starting, or pursuing such animals, without having so wounded, circumvented or ensnared them, so as to deprive them of their natural liberty, and subject them to the control of their pursuer, should afford the basis of actions against others for intercepting and killing them, it would prove a fertile source of quarrels and litigation.

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. We are of opinion the judgment below was erroneous, and ought to be reversed.

Of six exceptions, taken to the proceedings below, all are abandoned except the third, which reduces the controversy to a single question.

Whether 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, as to have a right of action against another, who in view of the huntsman and his dogs in full pursuit, and with knowledge of the chase, shall kill and carry him away?

This is a knotty point, and should have been submitted to the arbitration of sportsmen, without poring over Justinian, Fleta, Bracton, Puffendorf, Locke, Barbeyrac, or Blackstone, all of whom have been cited; they would have had no difficulty in coming to a prompt and correct conclusion. In a court thus constituted, the skin and carcass of poor reynard would have been properly disposed of, and a precedent set, interfering with no usage or custom which the experience of ages has sanctioned, and which must be so well known to every votary of Diana. But the parties have referred the question to our judgment, and we must dispose of it as well as we can, from the partial lights we possess, leaving to a higher tribunal, the correction of any mistake which we may be so unfortunate as to make. By the pleadings it is admitted that a fox is a “wild and noxious beast.” Both parties have regarded him, as the law of nations does a pirate, “ hostem humani generis,” and although “ de mortuis nil nisi bonum,” be a maxim of our profession, the memory of the deceased has not been spared. His depredations on farmers and on barn yards, have not been forgotten; and to put him to death wherever found, is allowed to be meritorious, and of public benefit. Hence it follows, that our decision should have in view the greatest possible encouragement to the destruction of an animal, so cunning and ruthless in his career. But who would keep a pack of hounds; or what gentleman, at the sound of the horn, and at peep of day, would mount his steed, and for hours together, “ sub jove frigido,” or a vertical sun, pursue the windings of this wily quadruped, if, just as night came on, and his stratagems and strength were nearly exhausted, a saucy intruder, who had not shared in the honours or labours of the chase, were permitted to come in at the death, and bear away in triumph the object of pursuit? Whatever Justinian may have thought of the matter, it must be recollected that his code was compiled many hundred years ago, and it would be very hard indeed, at the distance of so many centuries, not to have a right to establish a rule for ourselves. In his day, we read of no order of men who made it a business, in the language of the declaration in this cause, “with hounds and dogs to find, start, pursue, hunt, and chase,” these animals, and that, too, without any other motive than the preservation of Roman poultry; if this diversion had been then in fashion, the lawyers who composed his institutes, would have taken care not to pass it by, without suitable encouragement. If any thing, therefore, in the digests or pandects shall appear to militate against the defendant in error, who, on this occasion, was the foxhunter, we have only to say tempora mutantur; and if men themselves change with the times, why should not laws also undergo an alteration?

It may be expected, however, by the learned counsel, that more particular notice be taken of their authorities. I have examined them all, and feel great difficulty in determining, whether to acquire dominion over a thing, before in common, it be sufficient that we barely see it, or know where it is, or wish for it, or make a declaration of our will respecting it; or whether, in the case of wild beasts, setting a trap, or lying in wait, or starting, or pursuing, be enough; or if an actual wounding, or killing, or bodily tact and occupation be necessary. Writers on general law, who have favoured us with their speculations on these points, differ on them all; but, great as is the diversity of sentiment among them, some conclusion must be adopted on the question immediately before us. After mature deliberation, I embrace that of Barbeyrac, as the most rational, and least liable to objection. If at liberty, we might imitate the courtesy of a certain emperor, who, to avoid giving offence to the advocates of any of these different doctrines, adopted a middle course, and by ingenious distinctions, rendered it difficult to say (as often happens after a fierce and angry contest) to whom the palm of victory belonged. He ordained, that if a beast be followed with large dogs and hounds, he shall belong to the hunter, not to the chance occupant; and in like manner, if he be killed or wounded with a lance or sword; but if chased with beagles only, then he passed to the captor, not to the first pursuer. If slain with a dart, a sling, or a bow, he fell to the hunter, if still in chase, and not to him who might afterwards find and seize him.

Now, as we are without any municipal regulations of our own, and the pursuit here, for aught that appears on the case, being with dogs and hounds of imperial stature, we are at liberty to adopt one of the provisions just cited, which comports also with the learned conclusion of Barbeyrac, that property in animals feræ naturæ may be acquired without bodily touch or manucaption, provided the pursuer be within reach, or have a reasonable prospect (which certainly existed here) of taking, what he has thus discovered an intention of converting to his own use.

When we reflect also that the interest of our husbandmen, the most useful of men in any community, will be advanced by the destruction of a beast so pernicious and incorrigible, we cannot greatly err, in saying, that a pursuit like the present, through waste and unoccupied lands, and which must inevitably and speedily have terminated in corporal possession, or bodily seisin, confers such a right to the object of it, as to make any one a wrongdoer, who shall interfere and shoulder the spoil. The justice's judgment ought, therefore, in my opinion, to be affirmed.

Judgment of reversal.

[案情]
波斯特带着猎狗在无人所有和居住的荒原上追捕一只狐狸，皮尔逊看到这一情形，在明知狐狸正在被追捕的情况下，当着波斯特的面杀死了这只狐狸，并将其拿走。波斯特因此起诉皮尔逊，就皮尔逊不法侵害波斯特的财产，要求皮尔逊赔偿。一审法院做出了对波斯特有利的判决，皮尔逊提起上诉，认为一审判决有错误，案件事实不足以支持波斯特的诉讼请求。上诉法院推翻了一审法院的判决。

[分析]
多数法官的意见
本案的争议点是：波斯特是否由于其携猎狗追捕狐狸的行为而对这只狐狸拥有所有权，皮尔逊因此不得将狐狸杀死和拿走。狐狸属于野生动物，一般原则是野生动物的所有权通过占有取的。因此，本案的争议就可以简化为，何种行为构成对野生动物的占有。
回顾古代学者对法律一般原则的论述，一审法院的判决是明显错误的。法学阶梯、弗莱塔和布拉克顿都认为追捕本身并不会使猎人对猎物拥有某种权利。追捕并使猎物受伤，也不会使猎人对猎物拥有某种权利。猎人必须实际取得了猎物，才对猎物拥有所有权。普凡道夫和宾克肖克将对野生动物的占有定义为对野生动物肉体的实际占有。普凡道夫心存疑虑的确认猎人给野生动物造成致命伤或重创，并在继续追捕该野生动物时，他人不得截取该野生动物。以上权威论述决定性的表明，仅仅追捕并不能使波斯特对狐狸拥有法律上的权利。皮尔逊中途截取并杀死了狐狸，狐狸因而成为皮尔逊的财产。
这样就只需要看看是否存在相反的原则或权威论述可以得出不同的结论。英国绝大多数关于野生动物所有权的案件，或者是依据成文法确定的原则讨论和判决，或者是关于猎人与野生动物捕获地所有权人之间的争议，前者基于占有主张对野生动物的所有权，后者基于其对土地的所有权主张对野生动物的所有权。因此，英国的案件对本案的判定没有多大帮助。巴奇莱克对普凡道夫关于野生动物占有的定义并不赞同，他认为并非在所有情况下，都必须有对野生动物肉体的实际捕获，才能构成对野生动物的占有。但是他没有描述根据他的观点，何种行为构成对野生动物的占有，并基于占有获得对野生动物的所有权，从而排除他人对该野生动物的主张。他也不认为追捕本身足以构成对野生动物的占有。在一定程度上，巴奇莱克对普凡道夫野生动物占有定义的质疑是合理和正确的。对野生动物肉体的实际占有并不是取得对野生动物权利不可或缺的要件。如果猎人给野生动物造成致命伤，并锲而不舍的对其进行追捕，其行为就可以视为对野生动物的占有。因为，猎人表明了其毋庸置疑的将野生动物猎为己用的意图，剥夺了野生动物的自由，并将野生动物置于自己的控制之下。因此，猎人通过努力和劳动，用网等工具将野生动物逮住，或采用其他方式剥夺了野生动物的自由，使其不能逃跑，都可以视为构成对野生动物的占有。
在本案中涉及的只是追捕行为，不存在普凡道夫所定义的构成对野生动物的占有的情形或行为，也不存在符合巴奇莱克观点的情形或行为。
将野生动物的占有限定在上述引述的权威论述范围内，有利于维护社会的稳定、和平和秩序。如果第一个看到、追捕野生动物的人没有重创或捕获该动物，从而剥夺了其自由，并使其处于自己控制之下，但该人却基于自己的追捕行为可以起诉中途截获并杀死该野生动物的人，这样将导致众多的纷争和诉讼。
尽管在本案中皮尔逊对波斯特的行为可能是非常无礼和缺乏善意的，但是他的行为并没有导致可以提供法律救济的损害。因此，下级法院的判决是错误的，应该予以推翻。

少数法官的反对意见
一个人带着自己的猎犬，在一片无人所有和居住的荒原上追捕一只狐狸，并且即将捕获猎物，另一个人看到猎人和其猎犬正在全力追踪，并知道他们在追踪什么猎物，却杀死该猎物，并将其拿走。前者是否就该猎物取得了一定的权利，从而有权起诉后者？
这是一个棘手的问题，应该交由猎人仲裁，而不是去关注法学阶梯、弗莱塔、布拉克顿、普凡道夫、洛克、巴奇莱克和布莱克斯通的论述。猎人们可以不费力的快速得出正确的结论。猎人组成的裁判庭可以妥善的处理可怜狐狸的毛皮和尸身，并确定一个先例。这一先例不会扰乱多年经验认可，并为狩猎女神黛安娜信奉者们所熟知的惯例和做法。但是当事人却把这个问题提交给法官解决，那么法官应当根据自己有限的理解尽量解决好它。双方在诉讼中确认狐狸是一种有害的野生动物，是人类的敌人。它给农民造成极大损失，对谷仓造成严重破坏。狐狸一经发现，立即杀死，这促进了公共利益，应当鼓励。因此，法官得出的结论，应该最大限度的鼓励消灭这种极端狡猾和残忍的动物。
一个人听到号角，在天刚破晓就骑着马，带着自己的猎犬，一连数个小时追踪狡猾的狐狸，当夜幕降临，在他精疲力竭时，如果允许另一个没有付出追捕劳动的人，无礼的杀死狐狸，拿走追捕的战利品，那么以后还有谁会养大批猎狗，还有谁会不辞劳苦的追踪狐狸？不管查士丁尼对此的观点如何，需要注意的是他的法典是在数个世纪前编篡的，时隔如此久远，我们应当有权为自己确立新的原则。在查士丁尼的年代，没有本案原告起诉书中所描绘的将携猎犬寻找、追踪和猎捕狐狸作为职业的人，当时猎捕狐狸的目的只是为了保护罗马帝国的家禽。如果当时这种职业普遍盛行，那么编篡法典的律师就会注意在法典中加入需要的鼓励措施。如果人们本身已随时代而改变，那么为什么法律不随之发生变化呢？
在审查了有关权威著述后，我发现确定什么足以构成对物的控制很难。是只需要看到它，或想要它，还是要宣布我们关于它的愿望；又或者在野生动物的情况下，需要设置陷阱、埋伏等待，或进行追踪；或者实际对野生动物造成伤害，杀死它，或对其肉体接触或占有是必要的？法律学者们对这些也进行了思考，观点各不相同。经过仔细的思考，我赞同巴奇莱克的观点，因为他的观点最为理性，遭到的反对也会最少。我们可以效仿一位君王为了避免触犯这些不同理论拥护者，选择中间道路的做法。如果野生动物被大猎犬追踪，则该猎物应归猎人而不是偶然的捕获者所有；如果猎物被猎人用矛或剑重创或杀死，结论相同。如果仅使用小猎犬追踪，则猎物归捕获者而不是追踪者所有。如果猎人用飞镖、投石器或弓箭杀死猎物，并仍在追踪该猎物，则猎物归猎人而不是随后发现和捕获的人所有。
在本案中，鉴于没有市政条例进行规范，我们可以采用上述的规则，这些规则与巴奇莱克的观点也是一致的。在本案中是使用大型猎犬追踪野生动物，野生动物所有权的取得，不需对野生动物的肉体接触或实际捕获，只要野生动物已经处于追踪者捕获的范围，或追踪者能够合理的预期（在本案中显然存在）获得他发现的野生动物，并意图将其取为己用。
农民作为社会中最有用的人，消灭狐狸这种有害动物将促进他们的利益。在本案中，在无人占有的荒原上追踪，并将很快捕获狐狸，就使追踪者对狐狸具有一种权利，任何其他人都无权拿走猎物。因此，下级法院的判决应得到支持。

[评论]
通过对野生动物的实际占有可以获得对野生动物的所有权。什么构成实际占有，在很大程度上是出于政策考虑。在本案中，多数法官和少数法官都赞成巴奇莱克观点，却得出了不同的结论。多数法官认为波斯特只是在追捕狐狸，既没有给狐狸造成致命伤，也没有捕获狐狸，从而并没有剥夺该野生动物的自由，使其处于自己控制之下。因此，波斯特并没有实际占有该野生动物，从而没有获得对该野生动物的所有权。而皮尔逊则杀死了狐狸，使其处于自己控制之下，从而实际占有该野生动物，获得对该野生动物的所有权。少数法官则认为波斯特使用大型猎犬追踪狐狸，该野生动物已经处于追踪者捕获的范围，波斯特能够合理的预期将获得他发现的野生动物，并意图将其取为己用，这就构成对该野生动物的实际占有。多数法官对实际占有的判断标准较为确定，容易把握。这样的判断标准可以增加预见性。而少数法官对实际占有的判断标准则随不同情况而变，缺乏预见性。
多数法官和少数法官在判词中都提到相关政策考虑。多数法官的政策考虑是促进社会的稳定、和平和秩序，减少纷争和诉讼。少数法官的政策考虑是最大限度的鼓励消灭狐狸。但是多数法官对实际占有的判断标准似乎更能促进最大限度的消灭狐狸。
多数法官的判词中谈到猎人与野生动物捕获地所有权人之间就野生动物所有权的争议。本案涉及的是在无人所有和居住的荒原上野生动物的所有权，不存在土地所有人的利益问题。如果是在有所有人的土地上捕获野生动物，就会存在捕获野生动物的人与该土地所有人之间就野生动物所有权的争议。传统的规则是土地所有人因其对土地的所有而被推定占有该土地上的野生动物。因此，如果未经土地所有人许可进入该土地的人，即使在该土地上捕获了野生动物，也不能取得对该野生动物的所有权，该野生动物的所有权权属于土地所有人。
在当代美国，基于管理和保护野生动物资源的目的，没有被个人实际占有的野生动物由一州公民集体所有，并由该州代表该州全体公民持有该所有权，也就是说该州作为受托人信托持有对该州野生动物的所有权。一州有权力对野生动所育权的取得进行规范。只有依照法律规定捕获野生动物的人，才能取得对野生动物的所有权。