I will ask some of you to take sides and make arguments on behalf of hypothetical clients in several factual situations. In doing so, I want you to assume that after doing some research, you are able to locate only three precedents that are relevant to your lawsuits:
1. Keeble v. Hickeringill (p. 112, note 5). Notice that this case focused not so much on prior possession, as on the defendant's malicious interference with the trade or livelihood of another. The court distinguished good faith competition (setting up your own decoys to attract the ducks) from malicious interference (maliciously frightening the ducks away from your neighbor's pond). Here is a link to a picture of the kind of duck decoys used in Keeble.
2. Pierson v. Post (p.112, note 4). Post was out with his hounds chasing a wild fox, when Pierson, whom the dissenting judge referred to as a "saucy intruder who had not shared in the labors of the chase," knowing the fox was being chased, nevertheless shot and killed it. Who is the first possessor, Post (the hunter) or Pierson (the saucy intruder)? Court holds: Mere pursuit of a wild animal is not sufficient possession to establish a right of occupancy. The court suggested that the test is whether the hunter has "so wounded, circumvented or ensnared [the animal], as to deprive [it] of [its] natural liberty, and subject [it] to the control of [its] pursuer." The hunter loses and the intruder wins.
3. Liesner v. Wanie (not in your book). Pls mortally wounded a wolf and were in hot pursuit when Def intervened and shot and killed the wolf and carried it away. Held: For Pls--by mortally wounding the wolf and pursuing it, Pls "had him so in their power that escape was highly improbable, if not impossible....The instant a wild animal is brought under the control of a person so that actual possession is practically inevitable, a vested property [right]...accrues which cannot be divested by another's intervening and killing it."
