Pierson v. Post, 3 Cai. R. 175, 2 Am. Dec. 264 (N.Y. 1805).

Facts
Post (P) was in pursuit of a fox while hunting with his hounds. Pierson (D) killed and captured
the fox despite knowing that Post had been pursuing it. Neither party owned the land on which
they were hunting. Post brought suit in trespass on the case, contending that he acquired title to
the fox when he began to hunt it. Pierson asserted that Post did not have control over the fox and
therefore had not acquired any property interest in it. The trial court entered judgment for Post
and the plaintiff appealed.

Issue
• Does the mere fact that a person is pursuing a wild animal grant that person a right to the
animal?

Holding and Rule

• No. The mere fact that a person is pursuing a wild animal does not grant that person a
right to the animal.

In order to obtain title to a ferae naturae (wild animal) a person must take it. The “first to kill and
capture” is the superior rule of law. Had Post mortally wounded the animal, it would have been
sufficient to show possession since this would have deprived the animal of its natural liberty.
However, the plaintiff was only able to show pursuit and therefore acquired no property interest
in the animal.

Disposition: Reversed.
Dissent
The death of a fox is a matter of public interest. As a matter of public policy our decision should
offer the greatest possible encouragement to the destruction of this animal. Because it was nearly
certain that Post would have captured the fox the judgment should be affirmed.

Notes: The dissent sought to reward the pursuer for his effort. The majority rule however is
very easy to administer.

FLASHCARD: Post, a hunter, was pursuing a fox. Pierson, prevented Post from catching the fox, killed it,
and carried it off (saucy intruder); Court rules that property in animals is acquired by occupancy. Pierson's act
produces no legal remedy. Dissent says foxes are nuisance and court should have ruled for Post to encourage
hunters. Today, cultural norms have changed. Fox might be protected.
Ghen v. Rich, 8 F. 159 (Mass. 1881).
Facts
Plaintiff Ghen killed a whale at sea leaving his identifying bomb-lance in the whale. The custom
and usage in the whaling industry in Cape Cod had been that one who kills a whale using a
specially marked bomb lance owns the whale. If such a whale were found on a beach the finder
would notify the killer and receive a finder’s fee.

The whale later washed up on shore 17 miles away and was discovered by Ellis. Ellis knew or
should have known of the custom and usage of the whaling industry regarding the finding of a
lost whale killed by another. Ellis sold the whale at auction to defendant Rich who then shipped
off the blubber. Ghen discovered the fate of the whale and initiated a libel action against Rich to
recover the value of the whale.

Issues
1. Can the court look to custom and usage within an industry to determine the rule of law
regarding the ownership of property?
2. Who is the owner of a whale that was harpooned and then found on shore by another?

Holding and Rule

1. Yes. The court can look to custom and usage within an industry to determine the rule of
law regarding the ownership of property.
2. The party who harpoons the whale is the owner even if it is later discovered on the shore
by another.

The rule that the killer of a whale is the rightful owner has been recognized and acquiesced in for
many years and embraces an entire industry. The rule requires the first taker to do all that is
possible under the circumstances and offers reasonable salvage to the finder for securing or
reporting the property. Unless it is sustained, the whaling industry must necessarily cease, for no
person would engage in it if the fruits of his labor could be appropriated by a chance finder.

Disposition
Judgment for plaintiff Ghen.

FLASHCARD: Ghen shot whale; whale sunk; Ellis found whale; Rich bought whale from Ellis; Norm would have
been for Ghen to pay Ellis a finder's fee; Court rules that Ghen can recover profit of whale oil
Evans v. Merriweather
Brief Fact Summary. Merriweather (Plaintiff) owned a mill downstream from Evans’s (Defendant) mill.
The stream, which powered both mills, was usually of sufficient flow to not cause any problems, but in
1837, a drought caused the stream to lose a considerable amount of flow. The Defendant diverted the
stream, by using a dam, into Defendant’s well, causing Plaintiff’s mill to cease operation.

Synopsis of Rule of Law. A person with a stream running through their land may use all of the stream if
the use is for home or livestock, but when the use is for manufacturing, the stream must have enough left
for downstream proprietors.

Facts. The Plaintiff owns a mill that is downstream from Defendant’s mill. The stream, which powered
both mills, was usually of sufficient flow to not cause any problems, but in 1837, a drought caused the
stream to lose a considerable amount of flow. The Defendant diverted the stream, by using a dam, into
Defendant’s well. The Plaintiff’s mill was not operational due to the stream being dry. Plaintiff brought suit
three or four weeks after Defendant had dammed the stream, and Plaintiff obtained a verdict of $150.00.
The parties had stipulated to a statement of facts which include that Defendant hauled in extra water for
his boilers and that the water was placed into Defendant’s well along with the stream water.

Issue. To what extent can riparian proprietors use the water of a non-navigable stream?

Held. Defendant Evans illegally diverted the whole of the stream into his well.
The court stated the rule from an early English case regarding water courses, provides that a water
course is “ex jure naturae,” and having taken a certain course naturally, cannot be diverted. The property
in a stream consists not in the fluid itself but in the advantage of the flow of the stream. A riparian
proprietor (one who makes a living from the stream) has an undoubted right to use the water for hydraulic
or manufacturing purposes, but must do so as to do no injury to any other riparian proprietor.
The use of a stream must be a reasonable use. Although manufacturing promotes the prosperity and
comfort of mankind, it cannot be considered to be essential to man’s existence.
An individual owning a spring on his land, from which water flows in a current through a neighbor’s land,
would have the right to use the whole of it if necessary to supply his natural wants. This is for use in the
home or for water for his livestock. However, if he desires to use the stream for manufacturing purposes
he must leave enough water for the downstream proprietor.
In these cases it must be left to the jury to determine if the party complained of has used more than his
share of the stream. Here, under the facts agreed to it is clear that the Defendant used more than his fair
share of the stream.

Discussion. This case is important for its discussion of the principles involved in stream use cases. The
reasonable use doctrine is an important method of deciding these cases. Notice that the use would have
been reasonable if it was “natural,” i.e. to quench thirst, but unreasonable if “artificial,” i.e. manufacturing.

FLASHCARD:
Evans mill was upstream of Merriweather's mill. During a drought, Evans diverted all the water into his own mill;
Court applies reasonable use test; court differentiates between natural and artificial uses; Evans diversion was
for artificial use and deprived Merriweather of natural use; Diverting water was not reasonable.
Barnard v. Monongahela Natural Gas Co.
Facts: Gas company held leases on two adjoining tracts.
- 66 acre tract owned by Plaintiffs Barnard
- 156 acre tract owned by neighbor Barnard
1
Gas company drilled well on property of neighbor Barnard.
- 75% of well’s drainage area was beneath land of Plaintiffs Barnard.

Issues Discussed:

Landowner v. Landowner
Landowner drills near property line and draws gas from underneath tract of adjoining landowner.
- Landowner is free to drill as close to property line as he wishes.

- Remedy for adjoining landowner is to drill and offset well.“What then can the neighbor do?
Nothing; only go and do likewise. He must protect his own oil and gas. He knows it is wild
and will run away if it finds an opening and it is his business to keep it at home.”
- Court acknowledged potential waste arising from this rule.
1
Landowner v. Lessee gas company
Lessee holds leases on adjoining tracts owned by separate landowners.
Lessee drills well on adjoining tract that draws gas from underneath tract of landowner.
- Drilling near property line is acceptable so long as conduct is not done with fraudulent intent.

- Refusing to develop complaining landowner’s lease may constitute fraud.

- Monongahela drilled a subsequent drill well on land owned by Plaintiffs Barnard.

---
Plume v. Seward & Thompson:
It was decided that occupation of land required that one must USE the land through ACTUAL or
CONSTRUCTIVE occupation and mark clear BOUNDARIES on that land OR be able to prove that the
land was granted by the Sovereign.
- Acts that constitute dominion and ownership of land must reasonably correspond with the size of the
tract of land, the condition and appropriate use of the tract of land, and acts of ownership that usually
accompany ownership of similarly situated land.
Commonwealth v. Aves - court ruled in Commonwealth v. Aves that a
master or mistress who brought a slave voluntarily to Massachusetts, a free state, lost
rights to the person after entering the state.

The case of Commonwealth v. Aves, 35 Mass. 193 (1836) is a relatively well-known

early decision in which a respected northern state court judge declared free a slave
brought into a non-slave state only "for [a] temporary purpose . . . but not acquiring
a domicil here."

What I have not seen emphasized about Aves is that, in one significant
respect, the reasoning was narrower than that employed by some
contemporaneous slave state courts.

In Aves, Chief Justice Lemuel Shaw of the Supreme Judicial Court of

Massachusetts went out of his way to explain that the slave's presence in the
state did not change his status per se. Instead, the slave was entitled to his
freedom because Massachusetts law would not enforce his restraint:

[I]f such persons have been slaves, they become free, not so much because
any alteration is made in their status, or condition, as because there is no
law which will warrant, but there are laws, if they choose to avail themselves
of them, which prohibit, their forcible detention or forcible removal.

The difference between a change in status and the absence of law to enforce
the restraint might at first seem metaphysical, but in fact it can be crucial.
What happens if the slave returns with his master to a slave state and then
sues there for his freedom? If his status has changed, in theory the slave
state court should declare him free. But if he retains the status of a slave,
and the sole question was a matter of enforcement, then he remains a slave.

Although Chief Justice Shaw admitted the issue was not before him, he drew
precisely this conclusion:

Whether, if a slave, voluntarily brought here and with his own consent
returning with his master, would resume his condition as a slave, is a
question which was incidentally raised in the argument, but is one on which
we are not called on [note the use of the double preposition!] to give an
opinion in this case, and we give none. From the principle above stated, on
which a slave brought here becomes free, to wit, that he becomes entitled to
the protection of our laws, and there is no law to warrant his forcible arrest
and removal, it would seem to follow as a necessary conclusion, that if the
slave, waives the protection of those laws, and returns to the state where he
is held as a slave, his condition is not changed.

I have in other posts reviewed a number of slave state decisions concerning

slaves who moved to free territory or states and later returned to slave
states, where they sued for the freedom. (Most of the decisions I have
discussed involve the Supreme Court of Missouri; click the appropriate tag.)
It is true that the slave state courts required residence rather than transit
(although some defined transit extremely narrowly). But in effect, they
assumed that, once the slave became free, he remained free even when he
returned to a slave state. In other words, his status had changed.

1
2
3

2
3