Today in Supreme Court History: November 25, 1757

11/25/1757: Henry Brockholst Livingston's birthday. He dissented in the property law classic, Pierson v. Post (NY 1805).

Justice Henry Brockholst Livingston

Comments

[Dan Schiavetta]

Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S.Ct. 63 (decided November 25, 2020): in a 5 - 4 vote, Court grants stay on Free Exercise grounds of Covid-19 executive order limiting church attendance to ten persons in red zones or 25 persons in orange zones; less restrictive alternatives available

Yates v. United States, 355 U.S. 66 (decided November 25, 1957): refusal to give names of Communist Party members results in only one conviction for contempt even though question was asked and refusal to answer ten times (in the more important decision in this case, the Court held that the First Amendment restricts Smith Act convictions to advocacy of specific overthrow actions, not overthrow as a general principle, 354 U.S. 298)

Saxbe v. Bustos, 419 U.S. 65 (decided November 25, 1974): ruling against Farmworkers Union and holding that INS regulations permit aliens to cross border for daily work with only a green card and without need of certification from the Secretary of Labor

[BrotherMovesOn]

Pierson v. Post. Good times.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

When I first read about that, it fascinated me. Who owns a fox in the wild? Does starting a chase make it yours? Even when it crosses property lines? Is the chaser allowed to trespass in pursuit of lost property like that? What if it was his dog or horse or stray cow, would that make any difference? If he wounds it, he has a moral duty to finish it off; does that change the conditions under which he can trespass while chasing it? Does wounding it give him a better claim to owning it? If he loses track of it and someone else takes up the pursuit, are they stealing his property as they would be if it were his dog or horse or stray cow? Can someone else pursue it even while he is pursuing it? If the second pursuer catches it, does the first pursuer have any claim? If it dies from its wound, does that change any property claim? What if multiple people wound it?

My memory is that the case didn't really settle much at all in the general sense, and there is very little recorded about what actually happened. But it made me think a lot about property and wild animals and trespassing.

[Dan Schiavetta]

Guy is fox hunting. Just as he's closing in, another guy shoots the fox and gets it. Sues for conversion; case dismissed because the fox wasn't his to begin with, therefore no conversion.

When we went over this in class, my only thought was Oscar Wilde's crack about foxhunting being "the indefensible in pursuit of the inedible". Hard to believe anybody would go to court over this.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Thanks for the refresh.

I suppose someone who has the time and resources to go fox hunting also has the time and resources to continue the hunt in court. I am a bit surprised there was no duel involved.

[Dan Schiavetta]

Ha!

[jdgalt1]

The plaintiff seems to also be arguing that as the victim of multiple attacks by that fox on his farm animals, he wanted the carcass as a trophy. Whatever the judges had to say about that is in Latin I can’t parse.

[The Margrave of Azilia]

Ah, the Grotius quotes. Google Translate should clarify matters:

“Requiritur autem corporalis quædam possessio ad dominium adipiscendum; atque ideo, vulnerasse non sufficit.”

“But some bodily possession is required to obtain dominion; and therefore, it is not sufficient to have wounded.”

“Sed possessio illa potest non solis manibus, sed instrumentis, ut decipulis, retibus, laqueis dum duo adsint: primum ut ipsa instrumenta sint in nostra potestate, deinde ut fera, ita inclusa sit, ut exire inde nequeat.”

“But that possession is possible not with the hands alone, but with instruments, such as spears, nets, and snares, as long as two are present: first, that the instruments themselves are in our power, then that the beast is so enclosed that he cannot get out.”

[Dr. Ed 2]

Game animals belong to the state.

[BrotherMovesOn]

Fox is not a game animal. That is completely irrelevant to the suit for conversion.
I recommend you read the decision (and dissent).
Alphabet man, exactly.