Per curiam, delivered by
Tompkins, J.
This cause comes before us on a return to a certiorari directed to one of the justices of Queen’s county.
The question submitted by the counsel in this cause for our determination is, whether Lodowick Post, by the pursuit with his hounds in the manner alleged in his declaration, acquired such a right to, or property in the fox, as will sustain an action against Pierson for killing and taking him. away ?
The cause was argued with much ability by the counsel on both sides, and presents for our decision a novel and alee question. It is admitted, that a fox is an animal feres natura, and that property in such animals is acquired by occupancy only. These admissions narrow the- discussion to the simple question of what acts amount to occupancy, applied to acquiring right to wild animals.
If we have recourse to the ancient writers upon general principles of law, the judgment below is obviously erroneous. Justinian's Institutes, lib. 2. tit. 1. sect. 13, and Fleta, lib. iii. c. ii. page 175, adopt the principle, that pursuit alone, vests no property or right in the huntsman ; and that even pursuit, accompanied with wounding, is equally ineffectual for that purpose, unless the animal be actually taken. The same principle is recognised by Bracton, lib. ii. c. i. page 8.
Puffendorf lib. iv. c. 6. sec. 2. Ѡ 10. defines occupancy of beasts feres natura,- to be the actual corporal possession of them, ¿¡nd Bynkershoek is cited as coinciding in this definition. 11 is indeed with hesitation that Piijfendorf affirms, that a wild beast mortally wounded, or greatly maimed, cannot be Fairly intercepted by another, whilst the pursuit [178]*178of the person inflicting the wound continues. The foregoing authorities arc decisive to shew, that mere pursuit, gave Post no legal right to the for, but that he became the pro» perty of Pierson, who intercepted yard killed him.
It therefore only remains to inquire, whether there are any contrary principles, or authorities,, to be found in other books, which ought to induce a different decision. Most of the cases which have occurred in Englandrelating to pro» perty in wild animals, have either been discussed and decided upon the principles of their positive statute regulations, or have arisen between the huntsman, and the owner of the land upon which beasts ferm natures have been apprehended 5 the former claiming them by title of occupancy, and the latter rations soli. Little satisfactory aid can, therefore, be derived from the English reporters.
Barbeyrac in his notes on Pujfendorf, does not accede to the definition of occupancy by the latter, but, on the contrary, affirms, that actual bodily seizure is not, in all tases, necessary to constitute possession of wild animals. He does not however, describe the acts which, according to his ideas, will amount to an appropriation of such animals to private use, so as to exclude the claims of all other persons, by title of occupancy, to the same animals; and he is far from averring that pursuit alone is sufficient for that purpose. To a certain extent, and as far as B trbeyrac appears to me to go, his objections to Pajfendorf’s definition of occupancy are reasonable and correct. That is to say, that actual bodily seizure is not indispensable to acquire right to, or possession of wild beasts ; but that, on the contrary, the mortal wounding of such beasts, by one not abandoning his pursuit, may, with the utmost propriety, be deemed possession of him j since thereby,..the pursuer manifests an unequivicaf intention of appropriating the animal to his individual use, has deprived him of his natural liberty, and brought him within his certain control. So, also, encompassing and , securing such animals with nets and toils, or otherwise intercepting them, so as to deprive them of their natural liberty, and render escape impossible, may justly be deemed tb give possession of them t© those persons who, by their industry and labor, have used such means of apprehending «them. Bar-, ieyrac seems to have adopted, and had in view' ⅛ his note?, [179]*179the xrore accurate opinion oí Grotius, with respect to occupancy» That celebrated author, UL lb c. 8» sect. 3*page 309, speaking of occupancy, proceeds thus, “ Requiriiur autem “ corporalis quasdam possessio ad dominium, adipiseendum $ M atque ideo, uulnerasse non sufficitP But in the following section he explains and qualifies this definition of occupancy ? “ Sed possessio illa potest non soils manibus, sed instruí ⅞⅛ mentis, ut decipulis, retibus, laqueis dum quo adsint s pri^ ^ mum ut ipsa instrumenta sint in nostra potestate, delude 6i utfcra, lía inclusa sit, ut exire inde nequeatThis qualification embraces the full extent of Barbeyrads objection So Puffendorf>3 definition, and allows as great a latitude to acquiring property by occupancy, as can reasonably be in» fenred from the words or ideas expressed by Barbeyrac in his notes. The case now under consideration is one of mere pursuit, and presents no circumstances or acts which can faring it within the definition of occupancy by Puffendorf, or Grotius, or the ideas of Barbeyrac upon that subject.
The case cited from 11 Mod. 74 — 130, I think clearly distinguishable from the present; inasmuch, as thefe the action was for maliciously hindering and disturbing the plaintiff in the exercise and enjoyment of a private franchise j and in the report of the same case 3 Salk. 9. Holt, Chief Justice, states, that the ducks were in the plaintiff’s decoy pond and so in his possession, from which it is obvious the court laid much stress in their opinion, upon the plaintiff’s possession of the ducks, ratione soli.
I am the more readily inclined to confine possession or occupancy of beasts ferce naturas, within the limits prescribed by the learned authors above cited, for the sake of certainty, and preserving peace and order in society. If the first seeing, starting or pursuing such animals, without having so wounded, circumvented or ensnared them, so as to deprive them of their natural liberty, and subject them to the control of their pursuer, should afford the basis of actions against others for intercepting and killing them, it would prove a fertile source of quarrels and litigation.
However uncourteous or unkind the conduct of Pierson towards Post, in this instance, may have been, yet his act was productive of no injury or damage, for which a legal [180]*180remedy can be applied. I am of opinion the judgment be« was erroneous? and ought to be reversed. ■
Livingston J.
My opinion differs from that of the court. Of six exceptions, taken to the proceedings below, all are abandoned except the third, which reduces the controversy to a single question.
Whether a person, who with his own hounds, starts and hunts a fox, on waste and uninhabited ground, and is-on the point of seizing his prey, acquires such an interest in.
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Per curiam, delivered by
Tompkins, J.
This cause comes before us on a return to a certiorari directed to one of the justices of Queen’s county.
The question submitted by the counsel in this cause for our determination is, whether Lodowick Post, by the pursuit with his hounds in the manner alleged in his declaration, acquired such a right to, or property in the fox, as will sustain an action against Pierson for killing and taking him. away ?
The cause was argued with much ability by the counsel on both sides, and presents for our decision a novel and alee question. It is admitted, that a fox is an animal feres natura, and that property in such animals is acquired by occupancy only. These admissions narrow the- discussion to the simple question of what acts amount to occupancy, applied to acquiring right to wild animals.
If we have recourse to the ancient writers upon general principles of law, the judgment below is obviously erroneous. Justinian's Institutes, lib. 2. tit. 1. sect. 13, and Fleta, lib. iii. c. ii. page 175, adopt the principle, that pursuit alone, vests no property or right in the huntsman ; and that even pursuit, accompanied with wounding, is equally ineffectual for that purpose, unless the animal be actually taken. The same principle is recognised by Bracton, lib. ii. c. i. page 8.
Puffendorf lib. iv. c. 6. sec. 2. Ѡ 10. defines occupancy of beasts feres natura,- to be the actual corporal possession of them, ¿¡nd Bynkershoek is cited as coinciding in this definition. 11 is indeed with hesitation that Piijfendorf affirms, that a wild beast mortally wounded, or greatly maimed, cannot be Fairly intercepted by another, whilst the pursuit [178]*178of the person inflicting the wound continues. The foregoing authorities arc decisive to shew, that mere pursuit, gave Post no legal right to the for, but that he became the pro» perty of Pierson, who intercepted yard killed him.
It therefore only remains to inquire, whether there are any contrary principles, or authorities,, to be found in other books, which ought to induce a different decision. Most of the cases which have occurred in Englandrelating to pro» perty in wild animals, have either been discussed and decided upon the principles of their positive statute regulations, or have arisen between the huntsman, and the owner of the land upon which beasts ferm natures have been apprehended 5 the former claiming them by title of occupancy, and the latter rations soli. Little satisfactory aid can, therefore, be derived from the English reporters.
Barbeyrac in his notes on Pujfendorf, does not accede to the definition of occupancy by the latter, but, on the contrary, affirms, that actual bodily seizure is not, in all tases, necessary to constitute possession of wild animals. He does not however, describe the acts which, according to his ideas, will amount to an appropriation of such animals to private use, so as to exclude the claims of all other persons, by title of occupancy, to the same animals; and he is far from averring that pursuit alone is sufficient for that purpose. To a certain extent, and as far as B trbeyrac appears to me to go, his objections to Pajfendorf’s definition of occupancy are reasonable and correct. That is to say, that actual bodily seizure is not indispensable to acquire right to, or possession of wild beasts ; but that, on the contrary, the mortal wounding of such beasts, by one not abandoning his pursuit, may, with the utmost propriety, be deemed possession of him j since thereby,..the pursuer manifests an unequivicaf intention of appropriating the animal to his individual use, has deprived him of his natural liberty, and brought him within his certain control. So, also, encompassing and , securing such animals with nets and toils, or otherwise intercepting them, so as to deprive them of their natural liberty, and render escape impossible, may justly be deemed tb give possession of them t© those persons who, by their industry and labor, have used such means of apprehending «them. Bar-, ieyrac seems to have adopted, and had in view' ⅛ his note?, [179]*179the xrore accurate opinion oí Grotius, with respect to occupancy» That celebrated author, UL lb c. 8» sect. 3*page 309, speaking of occupancy, proceeds thus, “ Requiriiur autem “ corporalis quasdam possessio ad dominium, adipiseendum $ M atque ideo, uulnerasse non sufficitP But in the following section he explains and qualifies this definition of occupancy ? “ Sed possessio illa potest non soils manibus, sed instruí ⅞⅛ mentis, ut decipulis, retibus, laqueis dum quo adsint s pri^ ^ mum ut ipsa instrumenta sint in nostra potestate, delude 6i utfcra, lía inclusa sit, ut exire inde nequeatThis qualification embraces the full extent of Barbeyrads objection So Puffendorf>3 definition, and allows as great a latitude to acquiring property by occupancy, as can reasonably be in» fenred from the words or ideas expressed by Barbeyrac in his notes. The case now under consideration is one of mere pursuit, and presents no circumstances or acts which can faring it within the definition of occupancy by Puffendorf, or Grotius, or the ideas of Barbeyrac upon that subject.
The case cited from 11 Mod. 74 — 130, I think clearly distinguishable from the present; inasmuch, as thefe the action was for maliciously hindering and disturbing the plaintiff in the exercise and enjoyment of a private franchise j and in the report of the same case 3 Salk. 9. Holt, Chief Justice, states, that the ducks were in the plaintiff’s decoy pond and so in his possession, from which it is obvious the court laid much stress in their opinion, upon the plaintiff’s possession of the ducks, ratione soli.
I am the more readily inclined to confine possession or occupancy of beasts ferce naturas, within the limits prescribed by the learned authors above cited, for the sake of certainty, and preserving peace and order in society. If the first seeing, starting or pursuing such animals, without having so wounded, circumvented or ensnared them, so as to deprive them of their natural liberty, and subject them to the control of their pursuer, should afford the basis of actions against others for intercepting and killing them, it would prove a fertile source of quarrels and litigation.
However uncourteous or unkind the conduct of Pierson towards Post, in this instance, may have been, yet his act was productive of no injury or damage, for which a legal [180]*180remedy can be applied. I am of opinion the judgment be« was erroneous? and ought to be reversed. ■
Livingston J.
My opinion differs from that of the court. Of six exceptions, taken to the proceedings below, all are abandoned except the third, which reduces the controversy to a single question.
Whether a person, who with his own hounds, starts and hunts a fox, on waste and uninhabited ground, and is-on the point of seizing his prey, acquires such an interest in. the animal, as to have a right of action against another, who in view of the huntsman and his dogs in full-pursuit, and with knowledge of the chase, shall kill and carry him; away 1 ....
This is a knotty point, and should have been submitted to the arbitration of sportsmen, without poring over Justi-nianfFleta, Bracton; Bajfendorj Locke, Bafbeyrac or Black-stóne., all of whom have been cited ; they would have had no difficulty in coming to a prompt and correct conclusion. In a court, thus constituted, the skin and carcas e of poor Re-nard would have been properly disposed of, and a precedent set, interfering with no usage or custom which the experience tif ages has sanctioned, and which must be so well known to every votary of Diana. But the parties have referred the question to our judgment, and we must dispose of it as well as we can, from the partial lights we possess, leaving to a higher tribunal, the correction of any mistake which we may be so unfortunate as to make. By the pleadings it is admitted, that a fox is a “ wild and noxious beast.’* . Both parties have regarded him, as the law of nations does a pirate “ hostem humani generis,” and although “ de mor-Utuis nil nisi bonumf be a maxim of our profession, the memory of the deceased has not'been spared. His depredations on farmers and on barn-yards, have not been forgotten ; and to put him to death, wherever found, is allowed to be meritorious, and of public benefit. Hence it follows,’ that our decision should have in view the greatest possible encouragement to the destruction of-an animal, so cunning and ruthless in his career. But who would keep a pack of hounds ; or what gentleman;- at the. sound of the horn, and at peep of day would mount his.steed,, and for [181]*181hours together, “ sub jove frígido” or a vertical sun, pursue the windings of this wily quadruped, if, just as night came on, and his stratagems and strength were nearly exhausted, a saucy intruder, who had not shared in the honors or la-bours of the chase, were permitted to come in at the death, and bear away In triumph the object of pursuit? Whatever Justinian may have thought of the matter, it must bé recollected that his code was compiled many hundred years ago, and it would be veiy hard indeed, at the distance of so many centuries, not to have a right to establish a rule for ourselves. In his day, we read of no order of men, who made it a business, in the language of the declar ation in this cause,u with hounds and dogs to find, start, pursue, hunt, u and chase,” these animals, and that too, without any other motive, than the preservation of Roman poultry ; if this diversion had been then in fashion, the lawyers who composed his institutes, would have taken care not to pass it by, without suitable encouragement. If any thing therefore, in the digests or pandects shall appear to militate against the defendant in error, who, On this occasion, ivas the foxhun-ter, we have only to say témpora mutantur; and if men themselves change with the times, why should not laws also un„ dergo an alteration ?
It may be expected, however, by the learned counsel, that more particular notice be taken of their authorities. I have examined them all, and feel great difficulty in de. termlning, whether to acquire dominion over a thing, before in common, it be sufficient that we barely see it, or know where it is, or wish for it, or make a declaration of our will respecting It i Or whether, in the case of wild beast", setting a trap, or lying in wait, or starting, or pursuing, be enough; or If an actual wounding, or killing, or bodily tact and occupation be necessary^ Writers on general law, who have favored us with their speculations on these points,differ ob them all j but, great as is the diversity of sentiment among them, some conclusion must be adopted on the question immediately before us. After mature deliberation, I embrace that of Barbeyrac, as the most rational, and least.liable to objection. If at liberty, we might imi=> ■iáfce (he courtesy of ⅞ certain Emperor, who, to avoid giv* [182]*182ing offence to the advocates of any of these, different doctrines,- adopted a middle course, and by ingenious distinctions, rendered it difficult to say, (as often happens after a fierce and angry contest,) to whom the palm of victory be» longed. He ordained, that if a beast be followed with large dogs and hounds, he shall belong to the hunter, not to the chance occupant; and in like manner, if he be killed or wounded with a lance or sword; but if chased with beagles onlyH then he passed to the captor, not to the first pursuer. If slain with a dart, a sling or a bow, he fell to the hunter, if still in chase, and not to him who might afterwards find and seize him.
Now, as we are without any municipal regulations of oui own, and the pursuit here,- for aught that appears on the case, being with dogs and hounds of imperial stature, we áre at liberty to adopt one of the provisions just cited,' which comports also with the learned conclusion of Bar-beyrac, that property in animals Jera: natura:, may be acquired without bodily touch or manucaption, provided the pursuer be within reach, or have a reasonable prospect (which certainly existed here) of taking, what. he has thus discovered an intention of converting to his own- use.
When we reflect also that the interest of our husbandmen', the most useful of men in any community, will be advanced by the destruction of a beast so .pernicious and incorrigible, we cannot greatly err, in saying, that a pursuit like the present^ through waste and unoccupied lands, and which must inevitably and speedily have terminated in corporal possession, or bodily seisin, -confers such a right to the object of it, as to make any one a wrong doer, who shall interfere and shoulder the spoil. The justice’s judgement ought therefore, in my opinion, to be affirmed.