Could bypassing a municipal water meter and taking unpaid water be charged as larceny?

Plain-English summary

A solicitor described a greenhouse whose water meter was allegedly tampered with, leaving years of water use unpaid. A utility employee allegedly altered the meter with the operator’s knowledge or at the operator’s request. The solicitor asked whether the greenhouse operator could be charged with larceny instead of relying only on the meter-tampering statute.

The AG said water held in municipal mains and pipes could be property capable of theft, and that taking it without payment could constitute common-law larceny. He discussed a separate statute making unauthorized meter tampering an offense, but did not treat it as the exclusive possible charge. The opinion did not find that the described operator had committed larceny; the facts and intent remained to be established.

Currency note

This opinion was issued in 2005. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could water in municipal pipes be stolen property?
The AG said yes. He cited authorities treating water confined in mains and service pipes as property that could be the subject of larceny.

Did the meter-tampering statute rule out larceny?
The opinion said no. It concluded that water theft could be charged under common-law larceny despite the separate meter offense.

Did the AG decide the greenhouse operator was guilty?
No. The question was whether larceny was legally possible on such facts, not whether the alleged conduct and required intent were proven.

Background and statutory framework

The request quoted § 16-13-385 on unauthorized water-meter tampering. The AG compared that offense with the common-law definition of larceny: unauthorized taking and carrying away of another’s property with intent to steal.

Citations and references

The original conclusion says “the theft of water from a municipality could be considered larceny under the common law.”

Official title

Questioning whether it would be possible to charge a greenhouse operator employed by the Commission on Public Works with larceny under the common law or by some other disposition.

Requester

The Honorable Jerry W. Peace, Solicitor, Eighth Judicial Circuit

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/march-30-2005-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/05march-30Peace.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY McMAsTER

March 30, 2005

ATIDRNEY GENERAL

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The Honorable Jerry W. Peace
Solicitor, Eighth Judicial Circuit
Post Office Box 516
Greenwood, South Carolina 29648-0516
Dear Solicitor Peace:
In a letter to this office referenced the following situation: An operator of a greenhouse has a part-time employee who is also employed by the Commission on Public Works. This employee, with at least the knowledge, if not at the request of the greenhouse operator, tampered with the water meter. This has resulted in the greenhouse operator not paying for water for his greenhouse for over 15 years. The estimated loss of revenue is between
$50,000 and $170,000.
You cited the provisions of S.C. Code Ann. § 16-13-385 (2003) which provide that: (A) It is unlawful for an unauthorized person to alter, tamper with, or bypass a meter which has been installed for the purpose of measuring the use of electricity, gas, or water. A meter found in a condition which would cause electricity, gas, or water to be diverted from the recording apparatus of the meter or to cause the meter to inaccurately measure the use of electricity, gas, or water or the attachment to a meter or distribution wire of any device, mechanism, or wire which would permit the use of unmetered electricity, gas, or water or would cause a meter to inaccurately measure the use is prima facie evidence that the person in whose name the meter was installed or the person for whose benefit electricity, gas, or water was diverted caused the electricity, gas, or water to be diverted from going through the meter or the meter to inaccurately measure the use of the electricity, gas, or water. (B) A person who violates the provisions of this section for a first offense is guilty of a misdemeanor and, upon conviction, must be fined not more than

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• COWMBIA, S.C. 29211-1549 • TELEPHONE: 803-734-3970 •

FACSIMILE: 803-253-6283

The Honorable Jerry W. Peace
Page 2
March 30, 2005
five hundred dollars or imprisoned not more than thirty days. For a second or subsequent offense, the person is guilty of a misdemeanor and, upon conviction, must be fined not more than ten thousand dollars or imprisoned not more than three years, or both.

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As you indicated, a first offense violation of such provision is a magistrate court offense. You have asked whether it would be possible to charge the greenhouse operator with larceny under the common law or by some other disposition. As stated in a prior opinion of this office dated January 26, 2001, the common law definition oflarceny is " ... the felonious or trespassory taking (without proper authorization) and carrying away of the property of another with the intent to steal." As to your situation involving the tampering with of the water meter with the result of not paying for the water taken, it has been stated that Water .. .impounded in mains and service pipes from which they are supplied to customers are the personal property of the municipality or private corporation owning the mains and pipes, and are the subject oflarceny; hence, a person is guilty of the crime if he or she diverts such water... for his or her own consumption. 52B C.J.S. Larceny, § 7. Similarly stated,
... water which is reduced to actual physical possession by being taken into vessels or storage receptacles, or by confinement in pipes or other artificial conduits, may be the subject of larceny. Thus, water supplied by a water company to a consumer and standing in his or her pipes may be a subject of larceny, and the same is true of water in the main supply line, so that a consumer who, by means of false connections, diverts the water so that it flows around his or her meter and consumes it on his or her property without the consent of the owner and without having it registered, with intent thus to deprive the owner thereof without payment therefor, may be held guilty of larceny. Although a jurisdiction may have a separate code section making it an offense to divert water from a water system, the taker may be charged under the general larceny provision rather than the specific code section. 50 Am.Jur.2d Larceny,§ 77. See also: Clark v. State, 170 P.275, 276 (Okla. 1917) ("Norean it be successfully contended that water confined within the mains and pipes of the city's

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The Honorable Jerry W. Peace
Page 3
March 30, 2005

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water system may not be the subject oflarceny. It was such at common law."); Adams et al. v. Portage Irrigation. Reservoir and Power Co. et al., 72 P.2d 648, 652 (Utah, 1937) ("Waters in this state are of two classes, public waters and private waters. The latter class is not only subject to exclusive control and ownership, but may be used, sold, or wasted. It consists of such waters only as have been reduced to actual, physical possession of an individual by being taken into his vessels or storage receptacles. It is private property and maybe the subject oflarceny); People v. Kraus, 37 N.E.2d 182, 184 (Ill. 1941) ("Water in the pipes of a waterworks system, gas, and electricity are the subject of larceny.") Consistent with the above, in my opinion, the theft of water from a municipality could be considered larceny under the common law. If there are any questions, please advise. Sincerely,

Charles H. Richardson
Senior Assistant Attorney General
REVIEWED AND APPROVED BY:

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Robert D. Cook
Assistant Deputy Attorney General