California appellate court holds State lacks possessory interest in groundwater

In People v. Davis, the state sued a  marijuana cultivator who was convicted of illegally diverting the natural course of a stream. The defendant was convicted by the trial court and appealed the petty theft conviction, arguing there could be no theft because the State of California has only a regulatory interest in use of public waters.  Because public waters do not constitute personalty, he argued that he could not be subject to the crime of larceny, i.e., of theft of someone else’s possession.

An essential element of larceny is that there must be personal property that is subject to ownership. The victim of a larceny crime must have a possessory interest in the item superior to the defendant.  With this in mind, the court of appeal noted that the “state in its role as public trustee does not have any proprietary ownership of public waters, beyond any riparian or appropriative rights it might acquire as a property owner.” Id. at 714 (citing to State of California v. Superior Court (2000) 78 Cal.App.4th 1019 (emphasis in original.)  The court further characterized the State’s role as “trustee” over public resources as a mere “legal fiction of the 19th Century expressing the state’s police power over its resources” noting that public resources have no owner until lawfully captured, at which point they become the personal property of the captor. Id.

The Third District ultimately sided with the defendant holding that the State’s ability to regulate the defendant’s behavior did not create a possessory interest in the diverted water. Therefore, the Court of Appeal reversed the conviction for larceny.