Pierson v Post 3 Cal R 175, 2 Am. Dec. 264 (Supreme Court of New York, 1805)

"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. A verdict having been rendered for the plaintiff below [Post], [Pierson appealed]

TOMPKINS, J. 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? It is admitted that a fox is a 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 rights to wild animals?

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 course of quarrels and litigation.

However, uncourteous of 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 the opinion the judgment below was erroneous, and ought to be reversed.

[Justice Livingston now gives his dissenting opinion.]

LIVINGSTON, J. My opinion differs from that of the court . By the pleading it is admitted that a fox is a wild and noxious beast ... . 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, ... of a vertical sun, pursue the windings of his 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 of labors of the chase, were permitted to come in at the death, and bear away in triumph the object of pursuit? ...

[W]e are at liberty to adopt one of the provisions just cited ... that property in animals feræ naturæ may be acquired without bodily touch or prospect (which certainly existed here) of taking, what he has thus discovered an intention of converting to his own use ... .

Source, Quoted in Cooter and Ulen, Law and Economics (Scott Foresman and Company 1988), pp. 126-27.