Property classes usually begin with two foundational cases about animals. First, Pierson v. Post (New York, 1805) involved a dispute over a fox hunt. Second, Keeble v. Hickeringill (Queen’s Bench, 1707) involved a dispute over a duck hunt. Both cases had a common thread. On the one side was a traditional hunter, who engaged in the hunt with all the formalities. Post pursued the fox with hounds, while Keeble built an elaborate trap known a duck decoy. On the other side, Pierson intercepted the fox at the last minute, and Hickeringill shot-off a loud gun to scare away the ducks. In both cases, hunters were frustrated by–to put it loosely–jerks who did not abide by the informal hunting code of ethics. Who prevailed? In Pierson, the Court ruled for the jerk, because he was the first person to physically capture the fox. But in Keeble, the Court found that the jerk interfered with the hunter’s lawful employment.
An ongoing saga in England reflects something of a hybrid between Pierson and Keeble.
The Warwickshire Hunt club, which was founded in 1791, still holds elaborate fox hunts. Or something like that. Britain outlawed hunting of foxes using dogs in 2004. But hunters can still lay down artificial scents, which the hounds can track. However, critics of the hunt claim that dogs often wind up killing a fox.
Enter the West Midlands Hunt Saboteurs group. This organization takes extreme steps to interfere with the hunts, which are held on private property. Like Pierson, the saboteurs prevent the hunters from getting the fox. And like Hickeringill, the saboteurs try to scare away the prey:
At least three times a week, rain or shine, the activists pursue the galloping riders by S.U.V. and on foot through forests and fields, both to film evidence of what the activists say are illegal activities and to do whatever they can to hinder the actual hunt.
Turning the hunters’ tools against them, the activists blow their own hunting horns and crack whips in an attempt to confuse the hounds. They also wield canisters of citronella spray to mask the foxes’ scent and employ small amplifiers that play the sound of crying hounds to unsettle the pursuing pack further. Every activist has a walkie-talkie. . . .
The activists have spent years harrying the hunters. To confuse the pursuit of the fox, they master use of the hunting horn and learn dozens of distinctive shouts, including the “tallyho” that is yelled when the animal is spotted.
When I teach Pierson, I often joke that if there was a disputed hunt today, there would be recordings to indicate who caught the animal first. And so it is:
For the activists and the huntsmen alike, this is a propaganda war, too — a battle for hearts and minds. Video cameras are everywhere, some wielded by the activists, some carried by the hunters.
As one of the hunters came galloping past, she shouted at Mr. Graham: “You’re trespassing! Don’t film my children!”
Unfazed, he zoomed in with a hand-held camcorder on a group of hunters standing nearby on the windswept hillside. Without uttering a word, they turned their phones on him, recording the recorder.
There is nothing new under the sun.