§ 8.4 - Timberland and Neighbors
Jurisdiction | Washington |
§8.4 TIMBERLAND AND NEIGHBORS
This section addresses some of the issues that inevitably arise involving timberland owners and neighbors. Even in those situations in which neighbors also are timberland owners and/or operators, issues arise. When, however, the neighbor's perspective is different, complex and substantial issues may arise. See generally Greg Tolbert and Greg Fullem, Western Forestry and Conservation Association, TIMBERLAND AND NEIGHBORS (2008).
(1) Timber trespass or damage
Under common law, if timber was cut or injured without the owner's permission, the timberland owner generally was entitled to recover damages for trespass, to recover (replevin) any logs the timberland owner could trace, to an injunction against future trespasses, and to any other appropriate equitable relief. See generally J.H. Cooper, Annotation, Measure of Damages for Destruction of or Injury to Trees and Shrubbery, 69 A.L.R.2D 1335 (1960).
These principles now are supplemented by a number of statutes, as discussed below.
RCW 64.12.030 often is referred to as the "timber trespass statute," although the statute is not restricted to situations equivalent to common-law trespass. See JDFJ Corp. v. Int'l Raceway, Inc., 97 Wn.App. 1, 970 P.2d 343 (1999). RCW 64.12.030 authorizes treble damages against anyone who, without lawful authority, cuts down, girdles, or otherwise injures or removes any tree, timber, or shrub. The treble damages remedy under RCW 64.12.030 is limited to willful or reckless trespass; if a trespass is casual or involuntary or based on a mistaken belief of ownership, treble damages are not available. See RCW 64.12.040; see also Birchler v. Castello Land Co., Inc., 133 Wn.2d 106, 942 P.2d 968 (1997). Whether a person acts willfully is a factual issue.
With respect to timber trespass and fire liability, in Broughton Lumber Co. v. BNSF Railway Co., 174 Wn.2d 619, 627, 278 P.3d 173 (2012), the Washington Supreme Court addressed "whether [a] defendant's failure to prevent a fire from spreading constitutes timber trespass as contemplated by [RCW 64.12.030 or RCW 64.12.040]." The Washington timber trespass statute allows a plaintiff to recover treble damages when the trespass is "willful or reckless." Id. at 626 (internal quotation marks and citation omitted). However, the statute allows a plaintiff to recover only single damages when the trespass is "'casual or involuntary.'" Id. at 625 (quoting RCW 64.12.040). The court concluded that, when Washington enacted the timber trespass statutes in 1869, the term "trespass" "did not refer to indirect acts or culpable omissions causing collateral damage, but only to direct acts causing immediate injuries." Id. at 640. According to the court, "the legislature intended the timber trespass statute to apply only when a defendant commits a direct trespass that immediately injures a plaintiff's trees." Id. Therefore, the court held that "a plaintiff cannot recover damages under former RCW 64.12.030 and RCW 64.12.040 for trees damaged by a fire that spreads from a defendant's neighboring parcel, where the alleged acts or omissions of the defendant caused only collateral injury." Id. The decision did not address other possible theories of liability for fire that burns timberlands.
RCW 60.24.035 provides for stumpage liens and RCW 64.12.020 deals with waste. These statutes apply when there is a preexisting relationship between the parties.
RCW 4.24.630 authorizes treble damages, investigative costs, and attorney fees for wrongful timber removal. Note, however, that this statute does not apply in any case in which liability for damages is provided under RCW 64.12.030. See RCW 4.24.630(2); see also JDFJ Corp. v. Int'l Raceway, Inc., 97 Wn.App. 1, 970 P.2d 343 (1999).
Timber and timberland owners who have suffered a timber trespass may pursue either common-law remedies or statutory remedies. As a general rule, under common-law remedies, damages are measured by the difference in value before and after the trespass. Under the timber trespass statute, RCW 64.12.030, however, as discussed more fully below, the measure of damages may vary. See Allyn v. Boe, 87 Wn.App. 722, 943 P.2d 364 (1997), review denied, 134 Wn.2d 1020 (1998); see also Henriksen v. Lyons, 33 Wn.App. 123, 652 P.2d 18 (1982), review denied, 99 Wn.2d 1001 (1983).
Although discussed in greater detail below, the following is a useful summary for the measure of damages, which vary considerably depending upon the type of vegetation affected, and which damages then may be trebled under RCW 64.12.030.
Damage to timber (mature or merchantable timber). Stumpage value (i.e., value of timber as it stands before it is cut) together with other damages that are the normal consequence of a logging operation. See Allyn v. Boe, 87 Wn.App. 722; see also Sherrell v. Selfors, 73 Wn.App. 596, 871 P.2d 168, review denied, 125 Wn.2d 1002 (1994).
Damage to timber (young timber). Net present value of the stumpage value at maturity.
Damage to productive trees (e.g., fruit, nut). Production value (i.e., lost production value of trees while replacement trees are maturing less production costs). See Sparks v. Douglas County, 39 Wn.App. 714, 695 P.2d 588 (1985).
Damage to Christmas trees. Lost profits. See Pearce, 92 Wn.2d 869.
Damage to ornamental trees (located on residential or recreational property). Either restoration and replacement costs or diminution in the value of the affected property. See Happy Bunch, LLC v. Grandview North, LLC, 142 Wn.App. 81, 173 P.3d 959 (2007), review denied, 164 Wn.2d 1009 (2008); Birchler v. Castello Land Co., Inc., 81 Wn.App. 603, 915 P.2d 564 (1996), aff'd, 133 Wn.2d 106 (1997); Tatum v. R & R Cable, Inc., 30 Wn.App. 580, 636 P.2d 508 (1981), review denied, 97 Wn.2d 1007 (1982), overruled on other grounds by Beckmann v. Spokane Transit Auth., 107 Wn.2d 785, 733 P.2d 960 (1987).
In any case, although timber trespass damages are not limited to the fair market value of the underlying property, such damages must still be reasonable in relation to the value of the property. See Allyn, 87 Wn.App. 722.
Damages under RCW 64.12.030 are not confined exclusively to injury to or destruction of vegetation. Birchler, 133 Wn.2d at 115. In certain situations, courts have awarded emotional distress damages. See Birchler, 81 Wn.App. 603 (emotional distress damages are recoverable under RCW 64.12.030 for an intentional interference with property interests such as trees and vegetation); Allyn, 87 Wn.App. 722 (property owner's family had left the land undeveloped for 85 years, even refusing to cut firewood from the property during the Great Depression, and intended to retire on the property and preserve the trees). Emotional distress damages must, however, be "based upon more than mere theory or speculation." Birchler, 133 Wn.2d at 117.
Under the timber trespass statute, RCW 64.12.030, when the damage is to timber, the proper measure of damages (before any trebling) is the diminution in value of the fee attributable to the loss of or injury to the timber. The price at which the particular trees could have been sold often is not adequate nor a fair measure of damages. Logging costs usually are much higher where less than a normal commercial unit is logged; trees having little or no value if sold alone could be of substantial value if logged as part of a larger unit. In Sherrell, 73 Wn.App. 596, the Washington Court of Appeals provided a useful discussion of the proper measure of damages under RCW 64.12.030.
When the damage is to mature timber, the landowner generally is compensated based upon the stumpage value of the severed trees together with other damages that are a normal consequence of the logging operation. See Sherrell, 73 Wn.App. at 602; Henriksen v. Lyons, 33 Wn.App. 123, 127, 652 P.2d 18 (1982), review denied, 99 Wn.2d 1001 (1983); Ventoza v. Anderson, 14 Wn.App. 882, 545 P.2d 1219 (1976), review denied, 87 Wn.2d 1007 (1976). "Stumpage is the value of timber as it stands before it is cut or, as otherwise defined, the compensation to be paid by a purchaser for standing timber to be cut and removed." Ventoza, 14 Wn.App. 891. When such trespass occurs in commercial logging operations and does not materially reduce the value of the remaining timber or the underlying land, the best evidence of damages may be the price the trespasser received for the logs less the trespasser's average logging costs for the operation. See Bailey v. Hayden, 65 Wash. 57, 117 P. 720 (1911).
When a timber trespass involves young timber, the best evidence of damages may be the future projected market value discounted at an appropriate interest rate from the time a normal commercial harvest could have occurred to the time of the trespass. Young timber may not yet be merchantable but still may add substantial value to the land.
There is authority that, under the timber trespass statute, damages for lost trees must be reasonably related to the value of the land. See Allyn, 87 Wn.App. 722.
The treble damage statute applies to ornamental trees and shrubs as well as commercial timber. Tatum v. R&R Cable, Inc., 30 Wn.App. 580, 636 P.2d 508 (1981), review denied, 97 Wn.2d 1007 (1982); Butler v. Anderson, 71 Wn.2d 60, 426 P.2d 467 (1967). When the damage is to a "productive tree," its production value rather than its stumpage value is the measure of damages. Sparks v. Douglas County, 39 Wn.App. 714, 720, 695 P.2d 588 (1985) (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, stumpage value may not be an appropriate measure of damages; rather, an appropriate measure of damages may be lost profits if the landowner expected to sell the Christmas trees at retail. See Pearce, 92 Wn.2d at 873-74. Simply stated, when timber trespass involves ornamental trees or timber that...
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