People v. Davis
2016 Cal. App. LEXIS 799, 3 Cal. App. 5th 708, 208 Cal. Rptr. 3d 39 (2016)
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Rule of Law:
The unauthorized diversion of uncaptured, flowing water is not larceny because such water is a public resource that does not become personal property subject to ownership until it is lawfully captured and confined.
Facts:
- In 2009, a neighbor complained that Kenneth Ralph Davis was diverting water from a stream to cultivate a marijuana field.
- The water at issue flowed from a drainage system built into a train tunnel on property owned by Union Pacific Railroad.
- Davis installed a 2,500-gallon tank in the ground on Union Pacific's property to capture the water flowing from the tunnel.
- A submersible pump in the tank sent the water through PVC piping uphill to Davis's marijuana field.
- Davis asserted that he believed the diversion site was on his own property, as his wells were inadequate for the cultivation.
- Davis did not have permission from Union Pacific Railroad to be on its property or to divert the water.
- Davis also did not have the required permission from the California Department of Fish and Game for the water diversion.
Procedural Posture:
- A jury in the Butte County Superior Court (trial court) found Kenneth Ralph Davis guilty of petty theft of water.
- Davis appealed his conviction to the Appellate Division of the Butte County Superior Court.
- The Appellate Division affirmed the trial court's judgment.
- At Davis's request, the Appellate Division certified the case for transfer to a higher court.
- The California Court of Appeal, Third District, ordered the transfer to decide the sole issue of whether Davis could be convicted of petty theft of water.
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Issue:
Does the un-permitted diversion of uncaptured, flowing water from another's property constitute petty theft (larceny) under California law?
Opinions:
Majority - Butz, J.
No. The conviction for petty theft cannot stand because there cannot be a simple larceny of uncaptured, flowing water. Larceny requires the taking of personal property, but water in its natural state is a public resource, not personalty. The state's role as a public trustee over water resources is an expression of its regulatory police power, not a proprietary or possessory interest sufficient to support a theft charge. Citing common law principles, the court analogized flowing water to wild animals, which do not have an owner until lawfully captured. Since neither the State of California nor the landowner, Union Pacific, had captured the water and reduced it to personal property, there was no property for Davis to steal. The court also rejected the theory of larceny by severance of realty under Penal Code § 495, reasoning that unlike oil or minerals, water diverted for irrigation is legally not considered 'severed' from the realty, and Union Pacific had no superior possessory interest in the uncaptured, flowing water on its land.
Analysis:
This decision reinforces the fundamental common law distinction between real property rights (usufructuary rights to use water) and ownership of personal property. It clarifies that the state's public trust authority over natural resources like water is purely regulatory and does not create the possessory interest required to sustain a larceny charge. This holding effectively limits prosecutors from using general theft statutes for the unauthorized taking of public resources, pushing them instead toward specific environmental and regulatory statutes designed to govern such conduct. The case serves as a key precedent distinguishing the concepts of regulation and ownership in natural resource law.
