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.