P v. Davis (3rd Dist) Diverting Uncaptured Water Flowing Underground Is Not Theft.

Before we look at the facts of this case, I must say that Davis' appellate attorney and the Third District panel (and its clerks) deserve an A+ for their work on this case.  While it involves a mere misdemeanor, the depth of judicial analysis and client advocacy here are impressive.

Davis owned some land upon which existed a marijuana field.  The marijuana was being grown in accordance with our state's medical marijuana laws, but there was an issue with how the plants were being watered.  Land adjacent to Davis' was owned by a railroad.  Underground of the railroad's land flowed water.  This underground stream was being diverted to Davis' land to water the marijuana.

For this subterranean riparian diversion, Davis was convicted of petty theft of the State's water, PC 488.  Davis appealed.

The Third District Reverses.

The threshold issue here is whether the water at issue was "personal property" as only personal property may be the subject of larceny.  After an impressive review of the historical underpinnings of the common law of property, the panel concludes that the water at issue was not personal property of the State.  Before water is legally captured and contained it belongs to no one (or everyone), despite the State's authority to regulate people's behavior relative to said water.  Naturally flowing water does not, prior to legal capture and containment, have an owner.  

The State's subsequent argument is that the water at issue comprised a real property interest and that in diverting the water, Davis stole a real property interest from the railroad via PC 495.

Another very interesting history-based review of real property law follows with the panel finding that while crops, minerals, and oil constitute real property interests whose removal constitutes theft of a real property interest under 495, water does not.

The law geek inside me is sad that I do not have sufficient time to spend analyzing this opinion as it brought back memories of my 1L year in law school reading about captured fox and other seemingly anachronistic events provided to illustrate the reasoning behind the common law of property.  That said, I am left with much admiration for Davis' appellate lawyer and the Third District panel for their work product on this case.