As I started to read this opinion earlier today, I found myself wondering why the authorities bothered to prosecute a guy for diverting the course of a stream under Fish & Game Code 1602 and petty theft of water under Section 488 of the Penal Code. I mean, sure, it may be a crime, but do we really care all that much if a guy takes a little water that's flowing off of a big hill near some railroad tracks? I couldn't figure why people were making such a big deal out of this whole thing; jury trial, appeal to the appellate division, onto the Court of Appeal, etc. Why this big interest in prosecution?
Then I read more of the opinion. Oh, now I understand. The guy was diverting the water to irrigate his marijuana field. They couldn't bust him for the marijuana because he was complying with the Compassionate Use Act. So they busted him for the water.
Ultimately the Court of Appeal reverse the conviction for petty theft of water, holding that under the facts of this case, you can't be convicted to "stealing" water that doesn't belong to anyone. Moreover, in doing so, Justice Butz waxes poetic, with fancy language that brought a smile to my face (and that hurt my brain). A snippet:
"Water is a resource for which '[o]wnership . . . is vested [collectively] in the
state’s residents.' . . . [A]t common law there could not be larceny of public resources because
these are not anyone’s personal property. . . . Similar to Brady, the only larceny provision
expressly premised on taking water involves theft of water as the captured product of a
utility company, along with gas and electricity. . . . Consequently, this
was an invalid legal theory on which to premise defendant’s larceny conviction. . . .
To get our metaphysics up and running, there is no ownership of water, gas, or
oil on the land other than in usufruct. Water in its natural state is categorized as a type of real property until
severed from the realty 'and confined in portable receptacles,' at which point the water
transmutes to personal property. Water
that is diverted for purposes of irrigation, however, 'is not deemed severed and thus
remains [realty]' (13 Witkin, supra, § 91, p. 113); 'In the case of water for irrigation,
delivered in ditches or pipes, the severance does not take place at all'.
In a usually overlooked part of People v. Dillon (1983) 34 Cal.3d 441 (Dillon)—in
contrast with the always distinguished holding that the imposition of life punishment on
the defendant for first degree murder was constitutionally disproportionate under the facts
of that case (id. at p. 489)—it discussed the evolution of severance of realty as a basis for
larceny. Originally, in “a hypertechnical remnant of an archaic formalism that can no longer be seriously defended” (id. at p. 457), the common law limited larceny to personal
property because land could not be asported. However, as the definition of real property
broadened, it began to include “many items that can be more or less readily detached and
removed from the land.” (Ibid.) Given a reluctance to expand the class of offenses then
subject to capital punishment, courts “clung to the artificial distinction” between
personalty and realty, and developed the principle that severed realty (which ordinarily
would become personalty had the landowner accomplished it) asported in a single
transaction with the severance never became the owner’s personalty, so a larceny did not
take place. (Ibid.) “Thus, in a perverse and unintended application of the work ethic,
thieves industrious enough to harvest what they stole and to carry it away without pause
were guilty at most of trespass, while those who tarried [before returning to take it away]
or enjoyed fruits [severed by others], faced the hangman’s noose.” (Id. at p. 458.)."