[WSBARP] Porter v. Kirkendoll

Thu Sep 26 12:17:19 PDT 2019

All the slip opinion says is Porter v. Kirkendoll, Sept. 26, 2019, No.
96214-6.

Robert D. Wilson-Hoss 
Hoss & Wilson-Hoss, LLP 
236 West Birch Street 
Shelton, WA 98584 
360 426-2999

www.hossandwilson-hoss.com
rob at hctc.com

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From: wsbarp-bounces at lists.wsbarppt.com
[mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Bryce Dille
Sent: Thursday, September 26, 2019 11:36 AM
To: 'WSBA Real Property Listserv'
Subject: Re: [WSBARP] Porter v. Kirkendoll

Can you give a cite to the case thanks

Bryce H. Dille | Attorney at Law

Dille Law, PLLC

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From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com>
On Behalf Of Rob Wilson-Hoss
Sent: Thursday, September 26, 2019 9:59 AM
To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com>
Subject: [WSBARP] Porter v. Kirkendoll

Another rant from me about a Supreme Court case. If you think that
practitioners shouldn't criticize court decisions directly in public, then
this isn't for you. And it is only really for those who deal with real
property timber trespass and waste claims.  

Another head scratching decision from the Supreme Court today, Porter v.
Kirkendoll. There is much analysis about torts and indemnification and so
on, which seems right to me, but the part at the end discusses when the
waste statute applies, with its added damages (attorney fees and expert
fees, etc.), and when the timber trespass statute applies. Virtually any
waste case that I have seen will involve the destruction to or removal of,
in the words of the timber trespass statute, "cut down, girdle, or otherwise
injure or carry off any tree, timber or shrub... ."  Maybe you have had a
waste case that did not involve any of this, but I haven't seen one.

The problem is that the waste statute says that it applies when someone goes
onto the property of another and removes timber, crops, etc, or wrongfully
causes injury to the land... .But it also says, at the very end, it won't
apply when the timber trespass applies.

So, the Supreme Court says that the first part of the waste statute about
timber and so on, we just have to ignore that. The result will be that the
waste statute is pared back about 95% in many cases. 

Except for the first part of the waste statute, the part where it says that
it applies to removal of timber, which, again, it decides to ignore,  the
Supreme Court said that the two statutes could be reconciled, when each
refers to removing timber, by the slightly different language in the timber
trespass statute that says "carry off." The decision pretends to make that
carry off language apply to all of the actions you can do to a tree, but it
is clearly only disjunctive- cut down OR carry off any tree. Nonsense. The
result is very difficult for practitioners - if the wrongdoer leaves the
trees there, as opposed to carrying off the trees "a distance," then the
waste statute applies? What distance? What if the log trucks are loaded when
the injunction hits?

They do include in a footnote a reference to not deciding this issue as
posed by a footnote in Gunn v. Riely, 185 Wn App 517, 525 n6, at their
footnote 10, which is a pretty big issue. So, I guess, the only thing that
they are really saying is that if there is no comprehensive property damage
that includes damage to property and removal of timber, as Gunn said,  and
which hasn't been decided one way or the other by either case, then the
issue is, how far did they take the trees? 

Saying that this was the intent of the Legislature just makes me say,
Really? How about just admitting that the Legislature didn't think very
clearly about this and the result is sort of a mess? Or, you could twist
things into your conclusion that this is "the legislature's clear intent." 

Again, Really?

This was a 9-0 decision. 

Robert D. Wilson-Hoss 
Hoss & Wilson-Hoss, LLP 
236 West Birch Street 
Shelton, WA 98584 
360 426-2999

www.hossandwilson-hoss.com
rob at hctc.com

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