9 - Toward an Interactive Theory of Nature and Culture: Ecology, Production, and Cognition in the California Fishing Industry

Summary

One of the great mythic cases in the history of Anglo-American property law is that of Pierson v. Post, which reached the New York Supreme Court of Judicature in 1805. This was a contest between competing fox hunters. Post, the plaintiff at trial, had flushed his prey and was about to shoot it when Pierson came along, killed the animal, and carried it off. The question presented to the justices on appeal, then, was when a wild animal became somebody's property: Did Post own the fox once he invested his labor in the chase, or did it remain in a “state of nature” until someone (Pierson, in this case) took actual possession of it?

The court found for the usurper Pierson. The majority reasoned that finding a “capture rule” – where property rights in a previously unowned resource came into being at the moment of possession, not before – would cut down on future litigation by providing a clear standard for hunters to follow. A capture rule would, moreover, encourage competition and economic growth by rewarding hunters who took their game more cleanly and efficiently than their rivals. The dissent, on the other hand, argued that Post had invested his labor in the chase and ought not to be robbed of the fruits thereof. Rewarding claim jumpers like Pierson, indeed, might even discourage people from hunting in the first place.

Pierson v. Post is a famous decision because of its mythic quality: It offers a nicely distilled picture of how property rights come into being.