Court Tosses Conviction |for Watering Pot Farm

(CN) — A California man who diverted a stream to irrigate his marijuana plants should not have been convicted of petty theft, a state appeals court ruled.

Kenneth Ralph Davis received a visit from a deputy after a neighbor complained that Davis was growing marijuana and had diverted a stream.

The deputy knew about the marijuana, having checked the field for compliance with medical use. Davis denied the diversion of the stream and showed the deputy a well on his property.

Insisting that Davis was lying, the neighbor took the deputy to a 2,500-gallon tank embedded in the ground. Water from a train tunnel was filling the tank through a large PVC pipe before getting pumped to Davis' marijuana field.

Davis did not have permission from the state or the railroad to divert the water. Despite his testimony that he thought the diversion site was on his property, Davis was convicted in 2014 of diverting the natural course of a stream and petty theft of water.

He was placed on three years' probation, conditioned on a 90-day jail term, as the case was consolidated with a conviction for trespass injuring wood or timber.

On appeal, Davis argued that the water was nuisance groundwater in which the state had only a regulatory interest.

A three-justice panel of the Third District California Court of Appeals agreed and dismissed his conviction for petty theft.

"We agree that there cannot be a simple larceny of uncaptured flowing water," Justice M. Kathleen Butz wrote.

"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," she added.

Butz explained that particles of water do not qualify as personal property until they are captured.

"As the railroad had not itself captured any of the flowing water, and the creation of an irrigation system would not have effected a severance from realty had the railroad accomplished it, a possessory interest superior to defendant did not exist when he diverted the water from the railroad's realty," she wrote.

Brenda Gonzalez, spokeswoman for Calif. Attorney General Kamala Harris, said the state is "studying the opinion."

Davis's attorney, Charles Bonneau, said, " Mark Twain said that in California, 'Whiskey is for drinkin, water is for fightin.' Despite that, there seems to be no prior case of theft of water, specifically unappropriated water, in California.

"Now we know, assuming that the court's opinion becomes final, that unappropriated water is not state property and unless a victim can be identified there is no criminal theft. There may be a criminal diversion of the water, but not theft," Bonneau said.

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