Court holds soil is larcenable property under Criminal Code, convicting accused of stealing 10 lorry loads.

[*1382] 1972 November.29

(CHRYSOSTOMIS, D.J.)

IN THE DISTRICT COURT OF LIMASSOL

Police,

v.

Philippos Andreou Protopapas,

Accused.

(Case No. 17216/71).

Criminal Law - Stealing - Land - Soil - Whether soil is larcenable - Section 255(3) of the Criminal Code, Cap.154.

Stealing - Soil - See, also, under "Criminal Law".

Larceny - Soil - See, also, under "Criminal Law".

Sub-Inspector Kleanthis, for the Prosecution.

J. Potamitis, for the Accused.

JUDGMENT

The following judgment was delivered by;-

CHRYSOSTOMIS, D.J.: The accused is charged that [*1383] between the 1st and the 16th day of August, 1971, both days inclusive, on a date to the Prosecution unknown, at the locality "Sydjia" in the area of Yermasoyia River, in the District of Limassol, did steal 10 lorry loads of soil, valued at £30.-, the property of Ioannis Sofroniou Adjeadjiotis of.Nicosia, contrary to ss.255 and 262 of the Criminal Code, Cap. 154.

The Prosecution called seven witnesses in support of their case and the accused, on being called upon, elected to give evidence on oath and called no other witnesses.

The salient facts of this case are as follows:-

The accused is a road construction contractor and during August 1971, following an agreement with Messrs. Hadjiosif Asprides and Zapites, undertook the division into building sites of their property under Reg, No. 18781 dated 31.10.70, situated at the locality "Sydjia" in the area of Yermasoyia River.Such a division was to be effected according to plan and the accused had to construct the roads and pavements, and level and clear the ground.

The plan on the strength of which such a division was to be made was produced by P.W. 2 Efremis Zenonos, the foreman of the accused and is now exhibit 1 before me.

This plot of land is coloured blue, yellow and red on exhibit 2, a sketch which was prepared and produced in Court by P.W. 3 Yiannis Constantinides a D.L.O. clerk. [*1384]

Upon division of the above property into building sites the areas coloured yellow and red acceded to the public road.

The area coloured red is 15’ long

by 20' wide, taken from North to South. On its northern side it abuts plot 53/1/1 and on its eastern side it abuts plot

52/2.

Plot 53/1/1 is encircled by colour

green. It is a field of an extent of 2 donums 1 evlek & 1,800 sq. feet and is registered in the name of Ioannis Sofroniou

Prokopiou. Its Registration No.is 20105 dated 20.10.69.

Ioannis Sofroniou Prokopiou is the same person as the complainant referred to in the charge sheet with the name Ioannis Sofroniou Adradjiotis.

Plot 52/2 is registered in the name of another person.

The D.L.O. clerk also produced a survey plan (exh.3) indicating the relevant plots.Plot 53/1/1 is delineated in yellow.

When the work of division started and the northern road (indicated by colour green on exhibit 2) was under construction, accused’s employees on his instructions, demolished part of a fence which

was erected along the western boundary of plot 53/1/1 extending upto plot 52/3/2, shown on Exhibit 2, for the purpose of

constructing the said road, upto the land mark of the plot under division. This land mark is marked by point "B" on exhibit 1. [*1385]

When this road was constructed at point "B" on Exhibit 1, the surface of the road and that of the abutting field, Plot 52/2, became uneven. It was described that a "step" (skali) was formed, thus preventing the rain water from flowing away freely from the said road.

Accused's foreman, informed the accused about the formation of the "step" and accused instructed him as well as P.W.5, Dourmoush Ali Kiamil, to level it.

Following his employer's instructions and those of accused’s foreman, P.W.5 Dourmoush Ali Kiamil, entered with accused’s tractor onto plots 52/2 and 53/1/1, and levelled the ground by removing soil from both plots, in order to eliminate the "step" that was created, and proceeded further making the ground surface of those plots downhill from point "B" onwards towards the east.

The soil from those plots was removed by means of the shovel of the tractor and according to P.W. 5,the soil formed a heap. When the heap was formed, P.W.5 by means of the shovel of the tractor loaded the soil onto accused’s motor lorry driven by accused’s employee P.W.6 Tahir Mehmet.

P.W.2 on this point, stated that the soil was removed and loaded onto the said lorry by one and the same action although all the rest of the prosecution witnesses who testified on that point, stated that such a heap of soil was formed on either of the said two plots.

The lorry driver (P.W.6) was instructed by the accused to drive his motor lorry where the tractor was and P.W. 5, was loading it with soil in the manner aforesaid. [*1386]

Accused’s foreman then instructed P.W.6, to unload the soil so removed onto the land under division, at a point where the ground level was lower and near a well.

The whole quantity of soil so removed amounted to about 10 lorry loads which was unloaded in heaps onto the land under division.

Accused's foreman,P.W.2, stated that the purpose of placing the soil onto the said land was to fill up the well and use it for the construction of the pavements, but during cross-examination he clarified that the accused did not indicate such an intention to him, but he placed it at the said area in case of need, for the construction of the pavements. He further stated that they could use the soil, this inferring that the soil was useful for the division works.

On 16.8.71, a few days after the said removal started, the complainant (P.W.1) who is a Police Sub- Inspector, accompanied by P.C. 2121 Athanasios Panaretou (P.W.4) visited his said field

and found out that soil had been removed from it, without his consent. He indicated on exhibit 2 by drawing lines with a ball pen, in his

plot No.53/1/1, the extent of the area from which the soil had been removed and

stated the depth of the excavation. He estimated that 30 lorry loads of soil valued at £90.- been removed from his field and that

a heap of soil amounting to 3 lorry loads was still in the middle of his field. He further explained that this soil was made ready [*1387] for cultivation purposes. The complainant complained to the accused about the removal and the accused replied "En doulia pou sazete".

Complainant’s evidence as to the extent of the removal and accused’s reply to the said complaint is corroborated by the evidence of P.W.4, P.C. 2121Athanasios Panaretou to whom the complainant reported the case on the same day.

A few days later the accused instructed his said employees to place back the soil so removed. So the heaps which were not levelled onto the land under division were placed in their original position and levelled on the complainant's land. The accused further built a dry wall along the southern boundary of complainant’s land, which abuts the northern road of the land divided by him.

The complainant on giving evidence complained that only two lorry loads of soil were placed back, without his consent. Also the dry wall was built, without his consent.

At this stage I find it easier to make a finding, after having considered the totality of the evidence adduced, that the soil removed from complainant's land was in fact placed back at its original position and I cannot accept that only part of its wa replaced.

As to the construction of the dry wall I do not propose to comment as it is not of the essence of this case. [*1388]

Be that as it may, the investigation proceeded and on 7.9.71 the accused made a statement to the police and on the same day he was formally charged.

Accused’s statement and answer to the formal charge, were produced by the investigating officer of this case P.W.7 P.C.2591 Yiannakis Michaelides and are now Exhibits 4 & 5 before me.

The accused in his statement (Exh.4) alleged inter alia that he instructed his foreman to remove some soil from a nearby field in order to level it with the road surface, so that the rain water would flow away freely from that road which ended by the boundary of that field, but his employees removed more than they should have.

Accused's answer to the formal charge (exhibit 5) is as follows:-

"Den paradehome sas edosa katathesi ke sas ipa tin kouventa".

On giving evidence on oath the accused did not dispute the salient facts of this case. As to the removal of the soil he gave the following explanation:

"I thought of removing soil from plot No. 53/1/1 as I thought that it was better to make it sloping than creating an ’ohto’. So the soil was removed from plot 53/l/l. The load of soil so removed from plot 53/1/1 must have been 1 or 2 lorry loads….. The levelling carried out by my driver was instructed by me." [*1389]

Accused further stated that he trespassed in plot No. 53/1/1 at a depth of 10’ and that the soil was placed back and a, dry wall was built.

He further stated that the soil so removed was piled in a heap

and loaded on the lorry by one and the same action. From there it was transported to the land under division, where it

was unloaded.

Although the accused was under the obligation to level the new sites if that was needed and also to clean them from stones, he nevertheless stated that he was not in need of soil for the work that he carried out. But again he

said that he did not intend to take back the soil so removed at any time. He only did so because of the complainant’s complaint. The

quantity of soil removed from complainant’s field according to the accused must have been 1 or 2 lorry loads.

The value of the soil was also disputed. He denied that 10

lorry loads of that soil was worth £30.- "For me he said, it is not even worth £0.500 mils. I do not know how much it

costs for people in need of it".

I have considered the totality of the evidence before me and I had the opportunity to watch the demeanour of all prosecution witnesses and that of the accused.

In the light of this evidence I make the following findings of fact:- [*1390]

a) The accused instructed his employees to remove soil from plots 52/2 and 53/1/1 in the manner it was finally removed without the consent of the owner.

b) The complainant in estimating the amount of soil so removed must have thought that the southern boundary of his field was abutting,plot 52/3/2, thus covering the area coloured red on exhibit 2 and . . extending towards the east upto the eastern boundary of plot 52/1, as the crow flies This can be inferred from the fact that the fence on the Western boundary of his field was abutting plot 52/3/2 and was not limited to the actual boundaries.

c) The quantity of soil so removed from plots 53/1/1 and 52/2, amounted to about 10 lorry loads. On this point I prefer the evidence of the tractor driver and of the lorry driver who carried out the work. I cannot rely on the evidence of the complainant who as a non expert, made an estimate by having a glance at the several heaps.

d) Further I have no doubt that a quantity of soil was in fact removed from complainant's field and this was admitted by the accused, but such a quantity must have been less than that removed from plot 52/2, bearing in mind that one of the purposes for such a removal was the levelling of the ground of that field which abuts the northern road towards the east. Thus the soil removed from complainant's [*1391] field must have been less than 10 lorry loads, but I cannot make a definite finding as to the exact quantity removed in the light of the evidence adduced.

e) The soil so removed had definetely some value. It is the common knowledge of the great majority of mankind that even soil is sold. Of course to its value labour and transportation expenses are added, but I find myself in disagreement with learned counsel for the defence who submitted that the soil has no value before removal and that the sale price only represents labour and transportation. Such evidence was not adduced.On the contrary the complainant stated that the value of it is £3.- per lorry load and the accused on giving evidence stated that for him it had no value but he did not know how much it cost for people in need of it. Therefore even from the complainant's evidence and that of the accused it can be inferred that the soil removed had some value.

f) The soil so removed was not removed and loaded onto accused’s motor lorry by one and the same action. On the contrary it was gradually heaped, following repeated scraping of the ground surface by the shovel of the tractor. Following this, the tractor was loading the soil from the heap so formed on the motor lorry and the soil was eventually unloaded onto the land under division. This is evident from [*1392] the evidence of the complainant, that of the tractor driver (P.W.4) and of P.W. 6, The lorry driver.

P.W.2 supported the version of the accused i.e. that the removal and loading was done with one and the same action, but in view of the rest of the evidence adduced I disregard the evidence of P.W.2, on this point. Furthermore in the light of the case of Anastasis and another v. The, Police,

19 C.L.R. 131 even if I were to accept accused’s version, on this point, the position would still be the same, if all the rest of the ingredients constituting the offence of stealing are proved.

g) P.W.2, 5 & were the accused's employees who acted according to his instructions.

Having made the above findings, I shall now proceed to consider whether the facts as I have found them constitute the offence of stealing. No doubt the accused’s act was tortious but was it felonious too?

I do not propose to go straight to this point but I shall arrive gradually to my conclusion by trying first to give a wide picture of the evolution of the law in my endeavour to decide on the submission of learned counsel for the defence that soil is not larcenable. [*1393]

Learned counsel for the defence based Ms submission on s. 255 sub-section (3) of Cap. 154 which, reads as follows:-

"(3) Everything which has value and is the property of any person, and if adhering to the realty then after severance therefrom, is capable of being stolen".

He argued that things which have value and which adhere to the realty are capable of being stolen after severance. The soil does not adhere to the realty but it is the realty itselftherefore it is not larcenable.

Larceny is the most ancient of the offences relating to property. From the very ancient times till the modern times, various conceptions of this offence were introduced and eventually the legal idea of larceny in England came at last to be, that of the crime which is committed when any person

(1) takes, and (2) carries away - or when (3) a bailee appropriates - (4) another

person’s (5) personal chattel (6) of some value (7) without any claim of right, and (8) with an intention to deprive

that other person of the whole benefit of his title to the chattel.

In ancient times views were expressed that land was legally capable of being stolen but eventually they were abandoned. No one ever held it in England, For, since a larceny could only be committed by carrying a thing away this clearly made it essential that the thing should be [*1394] movable. The movableness of the thing must have existed before the theft. A thing therefore was not

larcenable if it first became movable by the very act of taking. Thus until 1968 when the theft Act was introduced, it

was no theft at all to take a mould from a garden or sand from a pit; or pull down a wall and carry away the bricks. So it was no larceny to strip wood work or other fixtures from a house, or cut down a tree; but these acts have been made specific offences (Larceny Act 1916, s.8).

It is evident in the light of the authorities that land could not at common law be the subject of larceny. But if anything was attached to or formed part of the realty it was larcenable, if after the severance had once been fully completed, the thing, was abandoned by the thief and then repossessed. In the case of the thief, the severance and the taking should not be one continuous act.

A step towards a definition of larceny "by statute was taken in England in 1916, by the Larceny Act 1916, s.1(3)(a), which preserved the rule that (with some exceptions as to fixtures, growing plants and mineral ores) anything attached to or forming part of the realty shall not be capable of being stolen by the person who severs the same from the realty, unless after severance, he has abandoned possession thereof".

Section 255(1(2)(3) Cap. 154 of our Law is a verbatim statement of s.1(2)(3) of the Larceny Act, 1916, with the only difference that the proviso to s.1(3) is omitted from our section 255(3) of Cap. 154. [*1395]

In Halsbury’s Statutes of England, Second Edition, Volume 5 at p. 1011 one reads about the Larceny Act 1916, the following:

"This Act consolidates the common law and the statute law relating to larceny and kindred offences punishable on indictment……

This Act contains the first statutory definition of larceny, which while it substantially reproduces the old law, slightly enlarges the category of things capable of being stolen particularly in regard to animals".

The interpretation of s.255(3) (previously s.249(3)) occupied our Supreme Court, in the case of Antonis Anastassi and another v. The Police 19 C.L.R.131.

At p. 132 Hallinan C.J. had this to say:-

"Now in the present case it is clear that the legislative authority has made ’other provision’ which excludes the common law upon which counsel for the appellant relies because our s. 249(3) follows verbatim s.l (3) of the English Act of 1916 but omits the Proviso contained in the English Act. In the circumstances it must be assumed that this omission was deliberate, and that the legislative authority intended to modify the English Law. For these reasons this Court is of the opinion that once the trees were severed from the realty and ceased to occupy the upright position of a growing tree, the timber so cut down was capable of being stolen". [*1396]

In this case the Supreme Court dealt with fixtures and growing things. The issue as to soil did not arise.

Such an opportunity was given to the English Court in the case of Billing v. Pill (1953) 2 All E.R.1061.

Lord Goddard C.J.delivering the judgment of the Court, had this to say at p. 1062 letter C as to the interpretaion of s.1(3) of the Larceny Act 1916,

"..... We are concerned with s.1(3) defining the offence of larceny. Everything which has value and is the property of any person, and if adhering to the realty then after severance therefrom, shall be capable of being stolen ’ If one stops there, it is clear that anything adhering to the land that can be severed is capable of being stolen".

At letter ’F’ on the same page he stated:

"The construction I put on that sub-section is that things which adhere to the realty can be stolen after they have been severed Therefore, I think the whole of this case comes down to the meaning of the words 'anything attached to or forming part of the realty'. Those words might be read as meaning 'attached so as to form part’. It seems odd that a thing can be attached to the realty and yet not form part of it. If is attached to the [*1397] realty and may form part thereof, we have to consider whether it is attached to the realty in the sense in which those words are used in this subsection. In my opinion, the proviso is aimed at preserving the old common law position that one cannot be charge with stealing real property. What is real property? Land, we all know is real property and if objects are so attached to the land that they become part of the land then those objects become for instance as between landlord and tenant landlord's fixtures…"

In this case the Court was again

dealing with fixtures but from the interpretation given by Goddard C.J. of s.1(3) which is identical to our s.255(3) it is evident

that in his opinion, land would be larcenable in England if the proviso did not exist and since from our law this proviso is missing it is clear from this

decision and that of our Supreme Court in the case of Anastassi and Another v. The Police (supra) that soil is larcenable, whom severed as our legislative authority departed from the common law principle, that land is not larcenable. Standing trees were always regarded as forming part of the realty and since in our law contrary to the English law as it was upto 1968, they can be stolen by the same person who cuts them and takes them away by one and the same action without abandoning them and then repossessing them. I do not see why soil cannot be larcenable.

Furthermore in view of the aforementioned construction it can be inferred that our sub-section 3 does not only refer to fixtures. [*1398]

No doubt the Courts were repeatedly met with difficulties when they were faced with the construction of the law of larceny and as the inadequacies of the law were exposed by the ingenuity of rogues, the Courts by judicial interpretation extended the law to punish more sophisticated forms of dishonesty. This was achieved by extending the ambit of the original crime of larceny by means of fictions and strained interpretations of the concepts which constitute the definition of that crime.

But inevitably this effort created a complicated structure which was much felt in England and thus the Theft Act 1968 was introduced in England.

Following this tendency and the interpretation given by Goddard C.J., I arrived at the conclusion that soil is larcenable under our Law.

I shall now revert to consider whether the act of the removal was felonious.

From the facts as I found them the removal of the soil was done by the servants of the accused when authorised by him and his foreman and such a removal was done within the general scope of the servants' employment.

The accused had no claim of right and the taking was intentional and without mistake and with knowledge that the property of another person was being taken. The accused himself stated that he never intended to return the soil so removed back to its original place. Therefore [*1399] his intention was fraudulent and that answers another submission of learned Counsel for the Defence.

P.W. 2 Efrem Zenonos stated that the purpose was to fill up a well and to use the soil for the construction of the pavements although during cross-examination he said that the accused did not tell him so.

No doubt the purpose of the removal was two-fold. One purpose was to level the ground by the edge of the northern road and the other was the filling up of the well and the levelling of the land under division. That is why the soil was unloaded in several heaps at various points on that land and near the well.

Such a levelling was one of the obligations of the accused in dividing the said land and if that soil was not needed by him and he was in surplus of soil as he stated, I do not see why he did not take it some where else. As to that he failed to give an explanation.

On the totality of the evidence before me and for the reasons aforesaid I find that the removal of the soil was also felonious and that the prosecution proved the charge of stealing beyond reasonable doubt. What they failed to prove is the exact quantity of soil stolen from complainant's land. They proved, however, that some quantity of soil which has some value was in fact stolen.

In the result and in the light of s.85(1) of Cap. 155, I find the accused guilty as charged.

Accused found guilty as

charged.