[WSBARP] Logging trees in easement

[Carmen Rowe]

In responding to Bryce's query about an easement holder who logged the
trees necessary to use the easement -

I have a little different take than some of the comments.

First, I agree with those that said the timber trespass statute is
inapplicable, as there is likely "lawful authority". The easement holder
has the right to have the servient property owner remove anything that
interferes with the use of the easement.

Second, I do think the better practice would have been for the easement
holder to ask the servient property owner to remove the trees not
"self-help".

That said - I diverge from some prior comments in that I think the servient
property owner obligated to pay removal fees as they were responsible for
those - they had to remove the trees upon request so long as reasonably
necessary for dominant easement holder to exercise easement rights. But
give the servient owner the trees themselves, or if already sold, the
proceeds, as they were his/her trees.

In other words: I think the easement holder essentially stepped into the
shoes of exercising the servient property owner's obligations, and the
servient owner obligated to cover the costs of exercising those obligations
as he/she would have born them to begin with if they had done it themselves
(as they would have had to do); but also entitled to what was theirs (the
trees). Put another way: they are obligated/entitled to no more and no less
than if they had done the job themselves.

That is of course limited to the scenario Bryce confirmed, that no more
trees were taken down than necessary to exercise easement rights. Anything
beyond that would be a different analysis.


Carmen Rowe, Attorney/Owner


Phone: (360) 669-3576 (direct cell)
Email:  Carmen at GryphonLawGroup.com

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