§ 32.06 LARCENY: PERSONAL PROPERTY OF ANOTHER

• Jurisdiction: North Carolina

§ 32.06. Larceny: Personal Property of Another

[A] Personal Property

[1] Land and Attachments Thereto

The common law of larceny does not protect land.⁵¹ By its nature, land is immovable; a wrongdoer cannot carry it away and thereafter damage, destroy, or lose it. The underlying purpose of larceny law, therefore, does not apply to real estate. Moreover, land can only be "taken" in the sense that a person may come onto it and evict the rightful possessor, or obtain title to unoccupied land by adverse possession. These injuries can be compensated adequately by civil action.

Items attached to the land, such as trees, crops, and inanimate objects affixed in the earth,⁵² also fall outside the scope of the offense. Once they are severed from the land, however, they become personal property and subject to larceny law.

Certain fictions were developed by the courts to deal with the taking and carrying away of trees and crops recently severed from the land. For example, suppose D wrongfully enters V's land and chops down a tree. Once the tree is severed from the land, its legal nature changes from real to personal property. Because D is the first person to control the timber after it has become personal (rather than real) property, D is in possession of it. Because V never had possession of the severed tree as personal property, D did not take possession of it trespassorily (or otherwise) from V. Even though the severed tree lies on V's land, D retains possession of it as long as he remains near it. If he takes the tree from V's land immediately, therefore, he has committed no larceny, although he is liable in tort or criminal law for trespass to the land.

On the other hand, suppose that D leaves the land with the intention of returning the next day to retrieve the timber he has severed. As soon as he leaves, D loses possession of the timber. Because it sits on V's land in D's absence, possession of the personal property immediately shifts to V. Therefore, when D enters the land the next day and carries away the timber with the intent of depriving V of it permanently, D is guilty of larceny.⁵³

The Model Penal Code and many modern statutes dispense with these rules. The Model Penal Code's theft laws cover all property ("anything of value"⁵⁴), including "immovable" property, such as real estate, and "movable" property, "including things growing on, or found in land."⁵⁵

[2] Animals

At common law, animals in the state of nature or ferae naturae (e.g., wild deer, wild birds, fish in an open river) were not "property" within the meaning of larceny law. However, once an animal was confined by a person on his...