In 1805, two men went to court over a dead fox. Nearly 200 years later, two men went to court over a baseball. The cases are separated by two centuries and look nothing alike on the surface. But they are still asking the exact same question: at what point do you actually own something?
It is a question property law has been wrestling with for hundreds of years, and it still does not have a clean answer.
Lodowick Post was fox hunting on vacant land in New York. He and his dogs had been chasing a fox across open land that neither he nor anyone else owned. Then Jesse Pierson — a schoolteacher on his way home — spotted the fox, killed it and took it.
Post sued, claiming that the fox was his.
The New York Supreme Court of Judicature sided with Pierson in 1805, establishing what would become one of the most cited rules in American property law: the rule of certainty. To own something, you must capture and control it. Pursuit alone — no matter how committed you are or how close you are — does not count.
“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,” the court wrote, “it would prove a fertile source of quarrels and litigation.”
But not everyone agreed. Judge Henry Brockholst Livingston — who would later serve as a U.S. Supreme Court Justice — wrote a dissenting argument that Post had a reasonable prospect of capturing the fox and that should have been enough. He believed the majority was over-relying on ancient legal texts and that the case would have been better settled by sportsmen who understood local hunting customs.
The majority held firm. You either have it or you do not.
The tension of certainty versus fairness sat largely undisturbed in property law for nearly two centuries. Then Barry Bonds stepped to the plate.
On Oct. 7, 2001, Bonds hit his 73rd home run of the season, breaking the single-season record. The ball flew into the stands at Pacific Bell Park in San Francisco, where fan Alex Popov reached up and got his hands on it. Within seconds, Popov was mobbed by the crowd, attacked and interfered with before he could secure possession. The ball hit the ground. Another fan, Patrick Hayashi, picked it up.
Same question. Completely different circumstances.
The San Francisco Superior Court found itself in uncharted territory. Popov was not in full possession, but he wasn’t empty-handed either. He had made contact, he had intent and he had been stopped by the unlawful actions of others. Existing law had no language for that.
So Judge Kevin McCarthy invented some. He coined the term “qualified pre-possessory interest” — meaning that when a person takes significant steps toward possession and is stopped by someone else’s unlawful conduct, that effort counts for something. Not full ownership. But something.
The court also acknowledged a deeper complication: in a strict sense, neither man had a clean claim. Major League Baseball, the stadium, the manufacturer of the ball, Bonds himself — all had conceivable stakes in it. But because none of those parties inserted themselves into the lawsuit, the court could only resolve the dispute between Popov and Hayashi.
Its solution: split it. Sell the ball, divide the proceeds equally.
It was messy. It was unsatisfying. But it was also honest.
The two cases — one about a centuries-old fox hunt in New York, one about a record-breaking baseball in San Francisco — reveal something fundamental about how property law actually works. It is not about absolute ownership. It is about competing claims, and which one the law can most fairly resolve with the facts it has.
Sometimes the answer is clear. Sometimes a judge has to invent a new term to describe what happened.
And sometimes, two centuries apart, the law is still asking the same question it never fully answered the first time.
