18.2-99: Stealing Coal or Trees

This is an interesting statute which I have never seen used:

§ 18.2-99: Things which savor of the realty, and are at the time they are taken part of the freehold, whether they be of the substance or produce thereof, or affixed thereto, shall be deemed goods and chattels of which larceny may be committed, although there be no interval between the severing and taking away.

"Savor to the realty" (more often stated as savor of the realty) is a phrase which American jurisprudence carried over from British. Blackstone discusses "incorporeal hereditaments which savour of the realty, that is, which issue out of corporeal ones, or which concern, or are annexed to, or may be exercised within the same ; as, rents, estovers, commons, and the like."  Commentaries, Book II: Freehold Estates of Inheritance.  This is an old usage of "savor" which basically means something which can only be obtained through a particular real property.  Blackstone is talking about the incorporeal things which can be reached through a particular real property; 18.2-99 is addressing the corporeal.

The language "of the substance or produce thereof, or affixed thereto" lays out its parameters. If an item is "of the substance" it would be an unliving resource found within the land. If a plot of land has a unique type of granite and someone comes onto the property and takes the granite that person is in violation of this statute. "Produce thereof" would be things such as trees or crops. In fact, the only case I can find addressing this statute is an unpublished opinion about timber harvested by a tenant who had no right to it. White v. Commonwealth (U), No. 0540-13-4 (2104)(decided on grounds not dealing with this statute). "Affixed thereto" would cover things such as houses, outhouses, tombstones, &cetera which are intended to be permanent when attached to the property. Thus, when a kid comes along and steals a tombstone he has violated this statute. It's harder to steal a permanently attached house although a case could be made that this is the statute which allows the prosecution of people stealing copper wires, pipes, and roofing from a house fixed to realty.

The language "although there be no interval between the severing and taking away" seems to be surplussage. When the item was severed from the property would have no relevance upon its taking. In fact, if the severing and taking happen simultaneously (or nearly so) it makes the case easier as causation and intent become much clearer - the thief cannot argue he took down those trees to improve his view of Witch Mountain and only sold the logs when it became obvious the landowner wasn't going to remove them and they became a hazard sheltering snakes and raccoons.