The Timber Trespass statutes cover medical marijuana

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

MARTIN BIRCHLER, a single man; )

and JUDITH WILSON, a single )

woman; and DEAN B. LANG and )

DARLENE LANG, husband and wife, )

and the marital community )

composed thereof, )

)

Respondents, ) No. 64548-5

)

v. ) En Banc

)

CASTELLO LAND COMPANY, INC., )

a Washington corporation; and J.R. )

HAYES & SONS, INC., a )

Washington corporation, )

)

Petitioners. ) Filed August 21, 1997

)



TALMADGE, J. -- Castello Land Company (Castello) and J.R. Hayes &

Sons, Inc. (Hayes), destroyed the trees and vegetation of various

homeowners, and were found liable by the jury at trial for treble damages

under RCW 64.12.030. The jury also awarded emotional distress damages of

$2,000 to each of the homeowners. Castello and Hayes now contend emotional

distress damages cannot be recovered in a statutory action for injury to

trees and shrubs because the plaintiffs must elect either statutory or

common law remedies. We hold emotional distress damages, if proved, may be

recovered in an action under RCW 64.12.030, and no election of remedies is

necessary. We affirm the judgment on the verdict of the jury.

ISSUE

Are emotional distress damages recoverable in a timber trespass action

under RCW 64.12.030?

FACTS

During the late summer of 1990, Castello hired Hayes to grade and fill

Castello's undeveloped ravine, which abutted property belonging to the

respondents, Birchler, Lang, and Wilson (the homeowners). Despite

blueprints showing the proper boundaries of the respective properties,

Hayes' personnel at the jobsite intentionally encroached on Wilson's

property during the grading and filling operation, resulting in the removal

of vegetation, destruction of her fence, and the placement and grading of

fill. To make the grading consistent, Hayes later encroached on the

properties of Birchler and the Langs to a similar extent.

The homeowners sued Castello and Hayes for violation of RCW 64.12.030,

common law trespass, and violation of the Consumer Protection Act, RCW

19.86. The homeowners sought general damages in tort, including emotional

distress damages, and did not allege a distinct claim for emotional

distress. The trial court dismissed the RCW 19.86 claims on summary

judgment and the homeowners did not pursue their common law trespass

claims. Neither of these claims is at issue in this appeal. The

homeowners' sole theory for recovery at trial was RCW 64.12.030.1

Castello and Hayes moved at the beginning of the trial to strike the

homeowners' request for emotional distress damages on the ground that such

damages are not recoverable in a statutory timber trespass action. The

trial court denied the motion. The case went to trial in January 1995.

Employing special verdict forms for each homeowner, the jury found

Birchler, Wilson, and the Langs had suffered $17,000, $17,000, and $13,250

in damages, respectively. Moreover, in each case, the jury concluded

Castello and Hayes had failed to prove the trespass was not casual or

involuntary; the jury also found that they willfully or wantonly removed

the homeowners' trees and shrubbery, a prerequisite for the trebling of

damages.2 Thus, in each case, the judgment on the verdict was for three

times the amount of damages the jury found, a total of $141,750. In a

segregated portion of the verdict form, the jury also found Castello and

Hayes had caused the homeowners emotional distress, and awarded each

respondent $2,000 damages. The trial court did not treble the emotional

distress damages.3

Castello and Hayes appealed and the Court of Appeals affirmed the

judgment. Birchler v. Castello Land Co., Inc., 81 Wn. App. 603, 915 P.2d

564 (1996). Castello and Hayes sought review in this Court, which we

granted, solely on the availability of emotional distress damages in a

statutory timber trespass action.

ANALYSIS

RCW 64.12.030 creates a punitive damages remedy, trebling damages for

injury to, or removal of, trees, timber, or shrubs, when a person

trespasses on the land of another. This treble damage remedy is available

when the trespass is "willful," because if the trespass is "casual or

involuntary" or based on a mistaken belief of ownership of the land, treble

damages are not available. RCW 64.12.040. As befits a penal statute, our

decisions have interpreted this punitive damages provision narrowly. Grays

Harbor County v. Bay City Lumber Co., 47 Wn.2d 879, 886, 289 P.2d 975

(1955); Bailey v. Hayden, 65 Wash. 57, 61, 117 P. 720 (1911). At the same

time, our cases have been cognizant of the purpose of RCW 64.12.040: to

punish trespassers, to prevent careless or intentional removal of trees and

vegetation from property, and to roughly compensate landowners for their

losses. Pearce v. G. R. Kirk Co., 92 Wn.2d 869, 602 P.2d 357 (1979); Guay

v. Washington Natural Gas Co., 62 Wn.2d 473, 383 P.2d 296 (1963).

RCW 64.12.040 does not precisely articulate the damages that are

subject to trebling, indicating only that punitive damages are available

"{w}henever any person shall cut down, girdle or otherwise injure, or carry

off any tree, timber or shrub . . ." Our cases have generally confined the

treble damages remedy to injury to, or removal of, vegetation, although the

measure of damages has varied by the type of vegetation affected. In

Sherrell v. Selfors, 73 Wn. App. 596, 602, 871 P.2d 168, review denied, 125

Wn.2d 1002, 886 P.2d 1134 (1994), the Court of Appeals undertook a

compilation of the cases addressing the measure of damages in RCW 64.12.030

cases:

RCW 64.12.030 applies to any "tree", "timber" and shrub".

When the damage is to "timber", the landowner is generally

compensated based on the "stumpage value" of the severed trees,

together with other damages that are a normal consequence of the

logging operation. See, e.g., Henriksen v. Lyons, 33 Wn. App.

123, 127, 652 P.2d 18 (1982), review denied, 99 Wn.2d 1001

(1983); Bremerton Central Lions Club, Inc., {25 Wn. App.} at 7{,

604 P.2d 1325}. When the damage is to a "productive tree", its

production value rather than its stumpage value is the measure of

damages. See, e.g., Sparks, {39 Wn. App.} at 720{, 695 P.2d 588}

(measure is lost production value of fruit trees while

replacement trees are maturing less production costs). When the

damage is to Christmas trees intended to be sold at market, lost

profits, not stumpage value, {are} an appropriate measure of

damages. Pearce v. G.R. Kirk Co., 92 Wn.2d 869, 873-74, 602 P.2d

357 (1979).



The Sherrell court held the measure of damages in a case involving injury

to or destruction of residential/ornamental trees or shrubs, such as the

present case, was the restoration or replacement cost for the vegetation.

Id. at 603. See also Tatum v. R Cable, Inc., 30 Wn. App. 580, 636 P.2d

508 (1981), review denied, 97 Wn.2d 1007 (1982). None of these cases,

however, specifically addressed the issue of whether emotional distress

damages are recoverable under RCW 64.12.030.

A. Election of Remedies

Castello and Hayes rely primarily on the doctrine of election of

remedies for their view that emotional distress damages may not be

recovered under RCW 64.12.030:

Those who bring actions to recover damages for the loss of,

or injury to, trees, plants and shrubs must make an election to

pursue either common law remedies or the statutory remedy created

by RCW 64.12.030. . . . When the statutory remedy is chosen,

common law remedies and damages are pre-empted.



Pet. for Review at 7. Castello and Hayes do not cite any election of

remedies cases to support this assertion; nor do the election of remedies

cases help them.

The purpose of the doctrine of election of remedies is to prevent a

double redress for a single wrong. Lange v. Town of Woodway, 79 Wn.2d 45,

49, 483 P.2d 116 (1971); Barber v. Rochester, 52 Wn.2d 691, 695, 328 P.2d

711 (1958). "{T}hree elements must be present before a party will be held

bound by an election of remedies. Two or more remedies must exist at the

time of the election; the remedies must be repugnant and inconsistent with

each other; and the party to be bound must have chosen one of them."

Lange, 79 Wn.2d at 49. See also Watkins v. Siler Logging Co., 9 Wn.2d 703,

725, 116 P.2d 315 (1941).

A claim for damages from emotional distress is not an alternate or

cumulative remedy for timber trespass that one may elect in lieu of a

common law remedy or the statutory remedy, but merely another item of

damages for a wrong committed as a result of the timber trespass. Nor are

emotional distress damages "repugnant and inconsistent" with damages caused

by timber trespass. The facts of the present case do not present an

election of remedies issue.

Numerous cases indicate that a party can recover treble damages under

RCW 64.12.030, as well as other, provable, nonduplicative damages. For

example, in Henriksen v. Lyons, 33 Wn. App. 123, 652 P.2d 18 (1982), review

denied, 99 Wn.2d 1001 (1983), upon which Castello and Hayes rely, Henriksen

owned land in Skamania County. Lyons committed timber trespass on

Henriksen's land, and Henriksen obtained a verdict at a bench trial for the

trebled value of the trees cut under RCW 64.12.030, as well as a $3,000

judgment for diminution of the value of her land. Id. at 124. The Court

of Appeals affirmed the award of damages for timber trespass, but reversed

the $3,000 judgment for diminution in the value of Henriksen's land,

stating:

In this state, the landowner suffering a timber trespass may

elect to pursue either common law remedies or statutory remedies.

At common law, damages are measured by the difference in the

value of the land before and after the trespass. H. Falk, Jr.,

Timber and Forest Products Law sec. 156 (1958). The statutory

remedy trebles the "stumpage value" of the severed trees. It is

designed to compensate the landowner for all damages that are a

normal consequence of the logging operation including, inter

alia, "the loss of trees of less than merchantable size, the

carving out of unwanted logging roads, or possible soil erosion

and stream pollution". Pearce v. G. R. Kirk Co., 22 Wn. App.

323, 328, 589 P.2d 302, aff'd, 92 Wn.2d 869, 602 P.2d 357 (1979);

Ventoza v. Anderson, 14 Wn. App. 882, 545 P.2d 1219 (1976).

Extraordinary losses are recoverable, however, if they are

properly segregated. Nystrand v. O'Malley, 60 Wn.2d 792, 375

P.2d 863 (1962). By extraordinary, we mean losses that are not

the normal consequence of a logging operation conducted in a

reasonably prudent manner, e.g., damages to bridges, pipelines,

dwellings and outbuildings.



Henriksen, 33 Wn. App. at 127. The court held Henriksen was entitled to

recover for diminution in the value of her land under the timber trespass

statute, but only to the extent she could show the diminution was not a

"usual or normal consequence of a logging operation." Id. at 127-28.

Concluding the loss of value was not extraordinary, but was in fact the

usual or normal consequence of a logging operation, the Court of Appeals

vacated the award of damages for loss of property value. Id. at 128.

Accord Guay v. Washington Natural Gas Co., 62 Wn.2d 473, 383 P.2d 296

(1963); Nystrand v. O'Malley, 60 Wn.2d 792, 796, 375 P.2d 863 (1962); Lytle

Logging & Mercantile Co. v. Humptulips Driving Co., 60 Wash. 559, 111 P.

774 (1910).

Henriksen does not hold an action under RCW 64.12.030 precludes the

assertion of a claim for emotional distress, as Castello and Hayes contend.

Henriksen stands only for the straight-forward proposition that the timber

trespass statute subsumes under its rubric all damage claims that are a

usual or normal consequence of timber trespass.

Castello also cites Bill v. Gattavara, 34 Wn.2d 645, 209 P.2d 457

(1949), for the proposition, "Relinquishment of common law claims for

damages is the chief limitation which results from the election to pursue

the exclusive remedy afforded by the timber trespass statute." Br. of

Appellants at 15. Bill discusses election of remedies with regard to

timber trespass, but does not say the statute is an exclusive remedy

barring claims for emotional distress. In 1939, Bill and Gattavara owned

adjacent land near Issaquah. Gattavara sold the timber on his land at the

beginning of 1939, and the subsequent owners began logging operations on

it. Gattavara was to receive a fee for the stumpage. In 1943, Bill

discovered the new owners had been trespassing on his property, and had

removed 702,000 board feet of timber from it. He learned Gattavara had

received $1,368.90 as his fee for the stumpage. Bill sued both Gattavara

and the new owners under the timber trespass statute, and obtained a

trebled judgment for $7,371.00. On appeal, the Court reversed the judgment

against Gattavara on the grounds that Gattavara was not a joint tortfeasor

with his buyers and in fact had not trespassed on Bill's property. Bill v.

Gattavara, 24 Wn.2d 819, 167 P.2d 434 (1946). The remaining defendants

satisfied Bill's judgment against them in full in 1947. Bill then began

another action against Gattavara, this time claiming Gattavara's receipt of

the stumpage fees was unjust enrichment. The trial court dismissed the

action because Bill had already received full satisfaction for his loss in

the prior case. Thus, Bill, though employing election of remedy language,

is more in the nature of a res judicata decision: a person has only one

remedy for a wrong. No res judicata issue is present here.

The argument Castello and Hayes advance is essentially an exclusive

remedy argument rather than an election of remedies argument. They contend

RCW 64.12.030 provides for treble damages only for injury to, or

destruction of, vegetation in a trespass, and that this is the exclusive

remedy under the statute; any other damages must be pursued in a common law

trespass, conversion, replevin, or unjust enrichment action. In Pearce v.

G.D. Kirk Co., 92 Wn.2d 869, 872, 602 P.2d 357 (1979); however, we

indicated RCW 64.12.030 is not an exclusive remedy, and reiterate that

principle here. Thus, we hold that election of remedies, as Castello and

Hayes phrase the issue, does not bar recovery of emotional distress damages

under RCW 64.12.030.

B. Emotional Distress Damages

Having determined that damages under RCW 64.12.030 are not confined

exclusively to injury to or destruction of vegetation, we next turn to the

question of whether emotional distress damages are recoverable under RCW

64.12.030 for a trespass. The timber trespass statute sounds in tort.

Tacoma Mill Co. v. Perry, 40 Wash. 44, 47, 82 P. 140 (1905). Trespass is

an intentional tort. Bradley v. American Smelting and Ref. Co., 104 Wn.2d

677, 681-82, 709 P.2d 782 (1985); 75 Am. Jur. 2d Trespass sec. 25, at 28

(1991); Prosser & Keeton, Torts sec. 13, at 67-68 (5th ed. 1984). We have

"liberally construed damages for emotional distress as being available

merely upon proof of `an intentional tort'." Cagle v. Burns and Roe, Inc.,

106 Wn.2d 911, 916, 726 P.2d 434 (1986) (permitting damages for emotional

distress in wrongful termination action). A wide variety of Washington

cases permits damages for emotional distress as supplements to other causes

of action.4

Amicus argues that in the absence of explicit language in the statute

allowing emotional distress damages, "it would be improper to conclude that

the legislature intended to allow a measure of damages for willful tree

trespass that was not recoverable at common law at the time the Statute was

enacted." Br. of Amicus Curiae at 7. We disagree. First, as noted, there

is nothing to suggest the timber trespass statute was intended to bar other

causes of action. Second, the recovery of emotional distress damages in

cases of intentional torts is consistent with the modern rule. See cases

collected at Annot., Recovery for Mental Shock or Distress in Connection

With Injury to or Interference With Tangible Property, 28 A.L.R.2d 1070,

1091-93 (1953); Restatement (Second) of Torts sec. 929 (1977) (emotional

distress damages permitted for trespass to land).

We believe the correct rule is that emotional distress damages are

recoverable under RCW 64.12.030 for an intentional interference with

property interests such as trees and vegetation. In Schwarzmann v.

Association of Apartment Owners of Bridgehaven, 33 Wn. App. 397, 404, 655

P.2d 1177 (1982),5 then Judge Durham wrote for the Court of Appeals,

stating:

This state has indeed recognized that damages for

inconvenience, discomfort and mental anguish may result from an

intentional interference with property interests.



Accord Pepper v. J. J. Welcome Constr. Co., 73 Wn. App. 523, 547, 871 P.2d

601, review denied, 124 Wn.2d 1029, 883 P.2d 326 (1994). We agree and

apply this general principle in actions under RCW 64.12.030. Such

emotional distress damages must, of course, be based on more than mere

theory or speculation. Pepper, 73 Wn. App. at 547-48; Nord, 116 Wn.2d at

484.

CONCLUSION

Castello and Hayes destroyed and removed the homeowners' trees and

shrubs. As a result of the injury to their trees and shrubs, the jury

found the homeowners suffered emotional distress. The jury awarded them

damages for the loss of their trees and shrubs, and damages for their

emotional distress. There is nothing in the history of the timber trespass

statute to suggest it subsumes all other causes of action that may exist in

conjunction with a timber trespass. A hundred-year succession of

Washington cases supports damages for emotional distress arising from

intentional torts such as trespass generally. Emotional distress damages

may be recovered for intentional interference with property interests

specifically. We hold emotional distress damages, if proved, may be

recovered under RCW 64.12.030. We affirm the Court of Appeals and the

trial court's judgment on the verdict of the jury.



WE CONCUR:



1 RCW 64.12.030 provides:



Injury to or removing trees, etc. -- Damages



Whenever any person shall cut down, girdle or otherwise injure, or

carry off any tree, timber or shrub on the land of another person, or on

the street or highway in front of any person's house, village, town or city

lot, or cultivated grounds, or on the commons or public grounds of any

village, town or city, or on the street or highway in front thereof,

without lawful authority, in an action by such person, village, town or

city against the person committing such trespasses or any of them, if

judgment be given for the plaintiff, it shall be given for treble the

amount of damages claimed or assessed therefor, as the case may be.

2 RCW 64.12.040 provides:



Mitigating circumstances -- Damages



If upon trial of such action it shall appear that the trespass was

casual or involuntary, or that the defendant had probable cause to believe

that the land on which such trespass was committed was his own, or that of

the person in whose service or by whose direction the act was done, or that

such tree or timber was taken from unenclosed woodlands, for the purpose of

repairing any public highway or bridge upon the land or adjoining it,

judgment shall only be given for single damages.

3 Although counsel for the homeowners suggested in oral argument that the

emotional distress damages award should have been trebled, we do not reach

that issue as the homeowners did not seek cross-review on that issue in the

Court of Appeals, RAP 2.4(a), nor did they raise the issue in their Answer

to the Petition for Review. RAP 13.4(d).

4 See Nord v. Shoreline Sav. Ass'n, 116 Wn.2d 477, 485, 805 P.2d 800 (1991)

(emotional distress damages available for shock, anger, and upset in action

for concealment and deceit by business partner). Emotional distress

damages may be recovered in circumstances involving intentional injury to

property. See, e.g., Miotke v. City of Spokane, 101 Wn.2d 307, 332, 678

P.2d 803 (1984) (mental suffering an element of damage in public nuisance

action); Cherberg v. Peoples Nat'l Bank, 88 Wn.2d 595, 602, 564 P.2d 1137

(1977) (emotional distress damages available for willful breach of lease);

Nordgren v. Lawrence, 74 Wash. 305, 133 P. 436 (1913) (damages for mental

suffering available in action for wrongful entry by landlord into tenant's

premises); McClure v. Campbell, 42 Wash. 252, 84 P. 825 (1906) (damages for

mental suffering available in action for wrongful eviction).

5 We have interpreted RCW 64.12.030 to require "willful" trespass while our

cases pertaining allowing emotional distress damages in the property

context require an "intentional" interference with a property interest. In

this case, Castello and Hayes conceded below that willful and wanton

conduct for purposes of RCW 64.12.030 was deemed intentional conduct.

Report of Proceedings at 553-53. Moreover, the jury was instructed that

emotional distress damages were recoverable only if the defendants engaged

in "intentional wrongdoing." Clerk's Papers at 286-87. An intentional

interference with a property interest is required before emotional distress

damages may be awarded under RCW 64.12.030.

April 2002
Tree Law

You and I

Are suddenly what the trees try

To tell us we are:

That their merely being there

Means something; that soon

We may touch, love, explain.1

by Daniel M. Warner

"The Evergreen State" is an apt enough nickname for Washington, at least if you live on the west side of the mountains. It suggests the importance of trees and timber in the economic development of the state, and it is not surprising that a considerable body of "tree law" has grown up in Washington over the last century and beyond. As the state's economy has diversified in the last 40 years, though, "tree law" has become somewhat domesticated, increasingly touching on disputes between suburban neighbors as well as between timber-tract owners. And, of course, there are plenty of trees on the east side, too. This article briefly summarizes Washington tree law.

A landowner suffering timber trespass in Washington may elect to pursue either common-law or statutory remedies; the two remedies are mutually exclusive. When the statutory remedy is chosen, common-law remedies and damages are preempted.2 The common-law measurement of damage is the difference between the value of the real estate before and after the trespass.3

There are four statutes. The first is RCW 64.12.030, originally adopted in 1881:

Whenever any person shall cut down, girdle or otherwise injure, or carry off any tree, timber or shrub on the land of another person, or on the street or highway in front of any person's house, village, town or city lot, or cultivated grounds, or on the commons or public grounds of any village, town or city, or on the street or highway in front there-of, without lawful authority, in an action by such person, village, town or city against the person committing such trespasses or any of them, if judgment be given for the plaintiff, it shall be given for treble the amount of damages claimed or assessed therefor, as the case may be.

The second statute, RCW 64.12.040, also adopted in 1881, clarifies the "without lawful authority" part of .030 (quoted above) as follows:

If upon trial of such action it shall appear that the trespass was casual or involuntary, or that the defendant had probable cause to believe that the land on which such trespass was committed was his own, or that of the person in whose service or by whose direction the act was done, or that such tree or timber was taken from uninclosed woodlands, for the purpose of repairing any public highway or bridge upon the land or adjoining it, judgment shall only be given for single damages.

Note that .030 allows a person to make a claim when the trees cut are on the street in front of his house, not just on his property.4 The treble damages punishes the trespassing offender; it provides a rough measure for all damages that normally arise in a logging operation, including, inter alia, "the loss of trees of less than merchantable size, the carving out of unwanted logging roads, or possible soil erosion and stream pollution."5

The treble damages also discourages persons from forcing a landowner into becoming an unwilling seller of timber, on the theory that intentionally removing and selling another's timber would be profitable if, when caught, the wrong-doer only had to pay actual damages,6 but of course would not be profitable if treble damages were assessed. Under the statute, extraordinary losses are also recoverable if they are properly segregated. Extraordinary losses are "those that are not the normal consequence of a logging operation conducted in a reasonably prudent manner, e.g., damages to bridges, pipelines, dwellings and outbuildings."7 Once a plaintiff has established trespass and the cutting of timber, the burden of demonstrating the casual or involuntary nature of the trespass falls upon the defendant.8

In a 1994 case, the Washington Court of Appeals compiled the cases measuring damages under RCW 64.12.030.9 The statute applies to any "tree," "timber" or "shrub." When the damage is to "timber," the landowner is generally compensated based on the "stumpage value" of the severed trees, together with other damages that are a normal consequence of the logging operation, as noted just above. When the damage is to a "productive tree," its production value rather than its stumpage value is the measure of damages. Measure is lost production value of fruit trees while replacement trees are maturing, less production costs. When the damage is to Christmas trees intended to be sold at market, lost profits â?? not stumpage â?? are an appropriate measure of damages. When the damage is to residential or ornamental trees or shrubs, the appropriate damages are the restoration or replacement cost of the vegetation.

In Birchler,10 the court held that a plaintiff had to choose between common-law and statutory remedies. But once the statutory remedy is chosen, all appropriate damages are awardable, including damages for emotional distress:

A claim for damages from emotional distress is not an alternate or cumulative remedy for timber trespass that one may elect in lieu of a common law remedy or the statutory remedy, but merely another item of damages for a wrong committed as a result of the timber trespass. Nor are emotional distress damages "repugnant and inconsistent" with damages caused by timber trespass.11

Whether damages for emotional distress may also be trebled has not been addressed by Washington courts; the issue was not properly raised in Birchler.12

The third relevant statute is RCW 4.24.630, adopted in 1999:

(1) Every person who goes onto the land of another and who removes timber, crops, minerals, or other similar valuable property from the land, or wrongfully causes waste or injury to the land, or wrongfully injures personal property or improvements to real estate on the land, is liable to the injured party for treble the amount of the damages caused by the removal, waste, or injury. For purposes of this section, a person acts "wrongfully" if the person intentionally and unreasonably commits the act or acts while knowing, or having reason to know, that he or she lacks authorization to so act. Damages recoverable under this section include, but are not limited to, damages for the market value of the property removed or injured, and for injury to the land, including the costs of restoration. In addition, the person is liable for reimbursing the injured party for the party's reasonable costs, including but not limited to investigative costs and reasonable attorneys' fees and other litigation-related costs.

(2) This section does not apply in any case where liability for damages is provided under RCW 64.12.030 â?¦

This statute appears to combine both of the 1881 laws, and makes clear that damages include certain costs not called out in the earlier statutes. It would seem that â?? Birchler's failure to address the issue notwithstanding â?? under either the 1881 or 1999 laws, treble damages for emotional distress related to the trespass could be argued.

The fourth statute, the "Christmas tree statute," was enacted in 1937.

It shall be unlawful for any person to enter upon any of the state lands, including all land under the jurisdiction of the department of natural resources, or upon any private land without the permission of the owner thereof and to cut, break or remove therefrom for commercial purposes any evergreen trees, commonly known as Christmas trees, including fir, hemlock, spruce, and pine trees. Any person cutting, breaking or removing or causing to be cut, broken or removed, or who cuts down, cuts off, breaks, tops, or destroys any of such Christmas trees shall be liable to the state, or to the private owner thereof, for payment for such trees at a price of one dollar each if payment is made immediately upon demand. Should it be necessary to institute civil action to recover the value of such trees, the state in the case of state lands, or the owner in case of private lands, may exact treble damages on the basis of three dollars per tree for each tree so cut or removed.

The Washington court has held that a Christmas tree grower may elect remedies. He may choose between the Christmas tree statute's damages of $1 for each tree ($3 in the case of willful trespass) and not prove specific damages, or the general statute's treble-damages provision and obtain "more compensatory remedies."13 In the latter case, of course, proof of damages is required. It is unlikely that the Christmas-tree statute would be much used today, as its statutory damages are very small in today's money.

So much for the statutory regime. There are a couple of other tree law issues worth a glance:

Limbs or roots overhanging property line. A landowner has a remedy in his own hands as respects alleged nuisance from overhanging branches or cross-line roots from a tree on adjoining landowner's lot: without notice, if he has not encouraged the maintenance of such conditions; and after notice, if he has, he may clip the branches or roots overhanging his premises at the line.14

Tree or limb falling on neighbor's property. A rural landowner may be liable if he has actual or constructive notice that an alteration to a natural condition creates a hazard to persons on adjacent property. It would seem that a landowner who cuts trees on his own property, thus exposing a neighbor's trees to wind, might be liable if the wind blows down the neighbor's trees.15 And, in general, a possessor or owner of urban or residential land who has actual or constructive knowledge of defective trees is under a duty to take corrective action for the protection of the plaintiff on adjacent land.16

Rather unexcitingly, the modern trend is to abolish any distinction between urban and rural, and simply say that landowners have a general duty of care in all situations.17

None of us will ever see
A Bar News article as lovely as a tree,
But nevertheless it may be
That this bit of law is of use to you or me.

Daniel Warner is a professor of business legal studies in the Department of Accounting in the College of Business at Western Washington University in Bellingham. He is a periodic contributor to Bar News and may be reached at [email protected].

NOTES

1. John Ashbery (b. 1927), U.S. poet, critic; Some Trees.

2. Birchler v. Castello, 942 P.2d 968 (Wash. 1997).

3. Guay v. Washington Natural Gas Company, 383 P.2d 296 (Wash. 1963).

4. Simons v. Wilson, 112 P. 653 (Wash. 1911).

5. Pearce v. G. R. Kirk Co., 589 P.2d 302, aff'd, 602 P.2d 357 (Wash. 1979).

6. Guay v. Washington Natural Gas Co., 383 P.2d 296 (Wash. 1963).

7. Id.

8. Ventoza v. Anderson, 545 P.2d 1219 (Wash. Ct. App., 1976).

9. Sherrell v. Selfors, 871 P.2d 168, rev. den., 886 P.2d 1134 (Wash. 1994).

10. Note 2, supra.

11. Birchler, note 2, supra, at 973.

12. Birchler, note 2, supra, at footnote 3.

13. That is, more money. Pearce v. G.R. Kirk Co., 602 P.2d 357 (Wash. 1979), at 359.

14. Gostina v Ryland, 199 P. 298 (Wash. 1921): "One adjoining owner cannot maintain an action against another for the intrusion of roots or branches of a tree which is not poisonous or noxious in its nature. His remedy in such cases is to clip or lop off the branches or cut the roots at the line."

15. Albin v. National Bank, 375 P.2d 487 at 490 (Wash. 1962): "It was the basic theory of the plaintiffs, as stated by counsel, that when the loggers cut down the protective timber around from this snag and the other snags ... they increased the hazard. The trial court properly concluded that there was no duty to inspect and no liability so far as the owner was concerned (absent knowledge of a hazardous condition), so long as the forest remained in its natural condition; that the liability of the owner, if any, must be predicated on a dangerous condition created on its land, as a result of the logging operation, of which the owner knew or should have known; and presented the case to the jury on that theory."

16. Id., and Lewis v. Krussel, 2 P.3d 486 (Wash. Ct. App., 2000).

17. Lewis, note 16, supra.

Go to this site, http://www.sfr.psu.edu/PDFs/HicksThesis.pdf it is way to long to post here. But, it is very clear by the terms of the legislation pointed out here, medical marijuana is a cash crop worth huge money.

When any LEO takes your Medicine, he/she can be held responsible for up to 3 times it's value depending on which state you live in and the language of the marijuana laws.

Here is a conversation about this issue elsewhere in detail with others Eastside Narcotics Task Force - Page 2 - CannaCare Forums