Facts: A hunter was on public lands pursuing a fox. D knew the pursuit was going on
and intercepted the hunter, killing the fox and taking it himself. P sued claiming D had
no rights to the fox because it was being hunted by someone else. The trial court found
for P, and D appeals.
Issue: Does mere pursuit of a wild animal create property rights over the wild animal by
the pursuer?
Holding: Reversed. However obnoxious and discourteous D’s actions, P had no legal
rights to the animal simply because he was pursuing it. Wounding, killing, or ensnaring
of the animal as to deprive it of natural liberty is the basis for possession, therefore D had
rightful possession over the fox.
Rationale:
Justinian’s Institutes determined that pursuit alone vests no property rights over a wild
animal, nor is pursuit and wounding, unless the animal has been actually taken.
Puffendorf stated that possession of wild animals is based on actual corporal possession
of them, however he states that if the pursuer has mortally wounded the animal and who
is still pursing the animal, an interceptor cannot take the animal for himself.
Barbeyrac agreed with Puffendorf but believed that bodily seizure over the animal is not
always necessary to constitute possession. A pursuer who as mortally wounded an
animal who has not abandoned his pursuit has deemed possession of him because he
manifests an unequivocal intention of appropriating the animal for his individual use.
In addition, encompassing and securing such animals with nets or traps that render his
escape impossible is also deemed as just possession.
Dissent:
The case should have been presented to arbitration of sportsmen. The opinions of ancient
philosophers on such the subject are outdated and they all differ on the topic. Foxes are
dangerous animals that need to be speedily eliminated and a hunter who takes the time
and effort as well as money to sponsor a hunt of such an animal should not be denied the
spoils of his endeavor by a “saucy invader.”
Rule: actual capture, or ensnarement, or mortal wounding + pursuit
Justinian- Byzantine Emperor 6th Century- actual capture
Fleta- English treatise, medieval- actual capture
Bracton- English treatise 13th Century- actual capture
Puffendorf- German, 17th Century- actual capture; mortal wounding + pursuit
Bynkershoek- Dutch 18th Century- actual capture
Barbeyrac- Swiss 18th Century- actual capture not required; mortal wounding + pursuit,
use of nets or toils that deprive the animal of its natural liberty
Trespass on the case- (super casum) A common-law form of action to recover for
another’s wrongful act that indirectly causes one’s injury called also action on the case
case
Trespass force and arms- (trespass vi et armis) To commit an unlawful injury to the
person, property, or rights of another, with actual or implied force or violence, especially
to enter onto another’s land wrongfully.
Ratione soli- “ownership of the soil”