Historical Details of Pierson v. Post

Charles Duan

Pierson v. Post is perhaps the most celebrated case in American property law, and scholars have delighted in debating its history and theory. Among other things, research has shown that the case’s presentation of the facts is incomplete and likely misleading. This post collects some of the academic literature to reconstruct a brief history of events, challenging the presentation of the facts as recited by the court.

Lodowick Post and Jesse Pierson were young men of well‑to‑do families. The Piersons were local farmers and longtime residents of the Southampton area where the case took place, and the Posts were more recent newcomers who had made their fortune in business (Lodowick’s father Nathan Post may have been a whaling ship captain). Fox hunting was typically seen by upper‑class New Yorkers as a leisure sport, the agricultural New Englanders would have treated foxes as dangerous vermin who stole farmers’ chickens. Southampton, at the eastern end of Long Island and closer to Connecticut than New York City, was “thus on a boundary, of sorts,” between these cultural and professional difference.

The case report describes the land on which the fox was found as “wild and uninhabited, unpossessed and waste.” But it may have been a community‑owned pasture in which the Piersons had an ownership share. In any event, the fox was found not far from Pierson’s house, suggesting that Pierson may have killed the fox to protect his chickens. Pierson was not himself hunting, but saw the fox run down a well and clubbed it to death. Post arrived and demanded the body of the fox, to which Pierson apparently responded, “it may be you was going to kill him, but you did not kill him. I was going to kill him and did kill him.”

Despite serious flaws in litigation procedure, the New York Supreme Court plainly saw the case as an opportunity to develop the law, and waited for over two years to issue an opinion. In Professor Berger’s view, The opinions' citation to Roman and civil law rather than Blackstone and common law perhaps suggests the court’s desire to reject English law after the American Revolution. Furthermore, the judges’ backgrounds may have played a role in their conceptions of property: The Livingston family was one of the largest landowners in New York state, renting their property to thousands of tenant farmers; Tompkins’ parents were tenant farmers who rented land.

What of this informs your understanding of the outcome of the case? The New England–New York cultural divide? The different interests of farmers and leisure hunters with respect to foxes? The title ownership of the land? English versus American norms? Something else? And is this case really about the initial allocation of property, as most textbooks suggest? As Professor Singer writes, Pierson is not about the means of initial acquisition but rather concerns social relationships."

Bibliography

Image: Shiretoko-Shari Tourist Association, Red fox (Vulpes vulpes schrencki) native to Hokkaido lying in the snow.