• Video

Pierson v. Post: The Capture Rule

How do you establish ownership of an unowned resource? What does it mean to capture something? Professor Eric Claeys talks about why Pierson v. Post is often one of the first cases covered in Property Law. It raises questions about basic property rights, torts, and the hierarchy of legal authorities that should be consulted when deciding a difficult case. https://youtube.com/watch?v=sv5rr7Q0xtI


Pierson teaches a basic proposition that normally when you have an article of personal property and nobody yet owns it, the way that you come to acquire it is by having actual control over it, by capturing it. The capture rule is not self-executing. They're going to be hard cases, and Pierson's one of these cases. You could say that coming into hot pursuit of a fox is close enough to capture that we're going to treat it by law as capture. Why would we? Why would we not? That's a good set of topics to talk about. Pierson's also interesting on the first day of class because it's a good way to introduce students to legal reasoning. When you reason as a lawyer about an issue like whether or not the fox was captured, there's a hierarchy of authorities you have to go through. You have to look at whether there's any controlling statute. Then you have to ask whether there are any cases from the jurisdiction that might be relevant and then are there any other persuasive authorities from other jurisdictions that are closely on point? The Pierson case itself runs through that hierarchy. The court asks whether there are any statutes in New York, and the case is decided only 30 years after the United States separated from and revolted from Britain. The court also has to look at English authorities, and it says acts of parliament are not on point because Britain never has parliamentary legislative jurisdiction over New York. The court also runs through case law in New York. There's none. There is case law from England, but it's not quite close enough on point. At that point then, the court has to start consulting the international law treatises that lay the groundwork for property, treatises by people like Grotius and Pufendorf and then even Locke's Second Treatise of Government. Eventually, we get into looking to see what the canonical treatises say about the basics of property and how the basics of property apply to Pierson, but we only get there after a process of elimination. We've ruled out any statutes in all the cases that might apply but don't. It's a tort about a property right, and so I like to ask the students, so why are we studying a tort on the first day of property class? Gradually, I'll make the student see there's an action on the case, and Post is going to have his action only if he has a property right and he can show that Pierson committed a tort to his property right. Right then, I've got the students to think tort is a field about wrongs that somehow relate to property rights and rights in other parts of people's lives. Then once we see that there's a property issue that's crucial to settle the tort question, then we have to consult the different kinds of legal sources that might tell us whether Pierson had established a property right yet in the fox.

Related Content