Discuss the law of wild animals as it relates to personal property. Provide a modern-day example of how this concept would apply.
The law of wild animals is a simple, but complex doctrine. It is simple in that “possession provides notice to the world of the owner’s rights.” [1] It is complex in that the definition of possession is not relegated only to an actual possession or capture. There are a few variables to consider in determining possession. For instance, in Pierson, Post was hunting a fox. As he chased the fox, Pierson appeared. Because of a long-standing feud between the Pierson and Post families, Pierson, upon seeing Post’s efforts to capture the fox, did not want Post to succeed. Pierson interfered in the pursuit, killed the fox and took it for himself. [2] While Pierson argued that the fox was his property because he killed it and took possession of it, Post argued that if not for the intervention of Pierson, he (Post) would have captured the fox and because of this fact, the fox was indeed his property. [3]
This posed a dilemma for the courts in that the court recognized the right of first capture meant that the first person to kill or capture a wild animal acquired title to it. [4] But what about the time, expense and effort Post put into the chase, only to have Pierson undermine his efforts? The court resolved this dilemma in holding that possession does not only mean the literal physical possession of physical capture. [5] Possession can be determined based on the caliber of the hunter’s pursuit in that the hunter may or may not have a high degree of probability that the pursuit will eventually conclude with a physical capture of the wild animal. [6] When there is a high degree of certainty that the animal will be captured during the pursuit, the court holds that if a third party interferes and captures the wild animal, the party who committed to the pursuit should be entitled to take title to the animal.
Without this holding, the motivation to expend resources to hunt wild animals is greatly diminished when a bystander could simply step in with minimal effort or expense to take possession. In applying this wild animal doctrine to current events, we see the importance of the right of first capture. The expense, and sustained efforts to acquire title to property must be protected and rewarded when another attempts to become unjustly enriched by interfering in such efforts. Today, we can see examples related to this doctrine. For instance, in trademark law we can understand the power of branding. The branding can be used to drive the customer to make a purchase. In essence, the customer is being pursued by (let’s say) McDonalds. Because of the branding and what the customer expects to receive from McDonalds, the customer decides to spend his money there. When Mr. McDowell (just as in the movie “Coming to America”) decides to unjustly enrich himself by taking advantage of the time and expense McDonalds expended to capture the customer by infringing on trademarks to make McDowells look like McDonalds, we see the nexus between McDowell’s modern-day act of trademark infringement and the action of Pierson, in Pierson v. Post.
[1] John G. Sprankling, Understanding property law 28 (2000).
[2] Pierson v. Post, 3 Cai. R. 175, 177 (N.Y. 1805).
[3] Id.
[4] Sprankling, supra, note 1, at 24.
[5] Pierson, supra, note 2, at 182.
[6] Id.