§ 19.4 - Trespass

• Jurisdiction: Washington

§19.4 TRESPASS

This section discusses the law of trespass in Washington.

(1) In general

Trespass is an interference with the right to exclusive possession of property. Bradley, 104 Wn.2d 677; Gaines v. Pierce Cnty., 66 Wn. App. 715, 719, 834 P.2d 631 (1992), review denied, 120 Wn.2d 1021 (1993). A claim of trespass does not require a permanent or recurring invasion. Hoover v. Pierce Cnty., 79 Wn. App. 427, 431-32, 903 P.2d 464 (1995), review denied, 129 Wn.2d 1007 (1996). In addition to the common-law definition, Washington has adopted a statutory trespass provision, which states:

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.

RCW 4.24.630(1). The statute has been applied to cases involving removal of sand and gravel, Saddle Mountain Minerals, L.L.C. v. Joshi, 152 Wn.2d 242, 95 P.3d 1236 (2004); Saddle Mountain Minerals, L.L.C. v. Santiago Homes, Inc., 146 Wn. App. 69, 189 P.3d 821 (2008), review denied, 165 Wn.2d 1033 (2009); and to easements, Colwell v. Etzell, 119 Wn. App. 432, 81 P.3d 895 (2003); Standing Rock Homeowners Ass'n. v. Misich, 106 Wn. App. 231, 23 P.3d 520, review denied, 145 Wn.2d 1008 (2001). RCW 4.24.630 also applies to waste, which is beyond the scope of this chapter. See Volume 4, Chapter 5 (Waste), of this deskbook.

RCW 4.24.630 does not apply by its terms to violations under the various timber trespass provisions in RCW 64.12.030-040, and RCW 79.02.300 and .340. RCW 4.24.630(2). See §19.4(3), below. In addition the general trespass statute does not apply to trespasses on public lands. Specific provision therefor can be found in RCW 79.02.320. See Northlake Marine Works, Inc. v. State Dep't of Natural Res., 134 Wn. App. 272, 290-92, 138 P.3d 626 (2006) (failure to obtain permit for waterway constitutes trespass under statute).

In Clipse v. Michels Pipeline Construction Co., 154 Wn. App. 573, 580, 225 P.3d 492 (2010), Division I of the Court of Appeals ruled in a certified question of statutory interpretation from the trial court that a plaintiff may establish a claim for treble damages for wrongful trespass under RCW 4.24.630 only by showing that the defendants intentionally and unreasonably committed one or more acts and knew or had reason to know they lacked authorization. The court rejected an interpretation of the statute under which a wrongful act occurs merely by coming onto the property of another and that would require only a showing that the person lacked authorization. Id. at 577; see also Borden v. City of Olympia, 113 Wn. App. 359, 374, 53 P.3d 1020 (2002), review denied, 149 Wn.2d 1021 (2003).

Although a violation of RCW 4.24.630 requires intentional conduct, liability for common-law trespass may be based on intentional or negligent conduct. To show negligence, a plaintiff must show duty, breach, causation, and damages. Gaines, 66 Wn. App. at 720. Intentional trespass occurs only when there is "(1) an invasion of property affecting an interest in exclusive possession; (2) an intentional act; (3) reasonable foreseeability that the act would disturb the plaintiff's possessory interest; and (4) actual and substantial damages." Wallace v. Lewis Cnty., 134 Wn. App. 1, 15, 137 P.3d 101 (2006) (citing Bradley, 104 Wn.2d at 690-92).

Note: The citation to Bradley in Wallace has created some uncertainty regarding the situations in which the four-part test would apply. Bradley implies that the test applies only to indirect intentional trespass. 104 Wn.2d at 691-93 But Wallace involved a direct intentional trespass, i.e rodents and mosquitoes from the defendant's tire pile causing on-going harm to the plaintiff's properties. 134 Wn. App. at 15. The Washington Supreme Court, however, also held in Bradley that the distinction between direct and indirect invasions to land had been abandoned in Zimmer v Stephenson, 66 Wn.2d 477, 482-83, 403 P.2d 343 (1965). Bradley, 104 Wn.2d at 689-90. Consequently, it remains uncertain whether Bradley's four-part test applies only to indirect intentional trespasses or to all intentional trespasses without regard to whether they are direct or indirect. See Grundy v. Brack Family Trust, 151 Wn. App. 557, 565 n.8, 213 P.3d 619 (2009), review denied, 168 Wn.2d 1007 (2010).

A continuing intentional trespass arises when an intrusive substance remains on a person's land, causes actual and substantial harm to that person's property, and is abatable. Crystal Lotus Enters. Ltd. v. City of Shoreline, 167 Wn. App. 501, 506, 274 P.3d 1054 (2012) (discharges of storm water saturating plaintiff's lots not intentional acts for trespass claim).

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