[WSBARP] Porter v. Kirkendoll

Fri Sep 27 11:47:33 PDT 2019

I read Porter with interest, and also just read Chen v. Thomas (unpublished 29661-6-II Jan. 13, 2014) that Jeff Davis posted. I agree that this is definitely a case of two statutes legislated at different times and covering overlapping ground, and I agree that the best service the Supreme Court could have done in this instance would have been to point out the conflict, then do their best to deal frankly with it until the legislature fixes it.

That said, I do think they almost got there, by stating that RCW 64.12.030 and RCW 4.24.630 are "redundant" when it comes to injury, damage, or removal of trees/timber from the property. Redundancy at least implies that one of them is unnecessary and should be deleted.

I think it could have been more clearly stated that the scope of redundancy is determined by the scope of RCW 64.12.030: when the act is to injure/damage/remove trees/timber/shrubs. In that circumstance, RCW 4.24.630 does not apply at all because subsection (2) explicitly states that RCW 64.12.030 controls. Since treble damages are available either way, the only difference is that if one trespasses and injures trees/timber, there is no attorney fee award available to the plaintiff. Which seems nonsensical to me, as I see no policy reason why that particular type of damage should be exempted from the attorney fee award.

Analytically, I suppose that means I would look at RCW 64.12.030 first, and see if my case's injuries are covered. If so, I'm stuck with no fee award. But to the extent there are any injuries that are not covered, I can go to RCW 4.24.630 and get a fee award at least relating to pursuit of those claims.

For what it's worth, I have seen circumstances where there is trespass and waste without injury to trees/timber. Of course there are plenty of cases where a neighbor bulldozes over a boundary line and knocks down the adjacent landowner's trees or landscaping, or hires a timber harvester and points them at the wrong boundaries. But major vandalism of a building and other improvements, whether by physical damage or by contamination from, say, meth manufacture or smoking, can all cause waste of property without implicating timber trespass. Even in a case of actual timber trespass where valuable trees have been cut down and hauled off, maybe there was collateral damage that still could be pursued under 4.24.630? Denuding land causing erosion, cuts and fills, leaving piles of slash that have to be cleaned up, damaged and degraded dirt roads, costs of restoration...RCW 4.24.630 also covers any and all "wrongful waste or injury to the land or personal property or improvements" in addition to the timber itself, and RCW 64.12.030 doesn't.

The legislative history is interesting--RCW 4.24.630 was enacted in 1994<http://lawfilesext.leg.wa.gov/biennium/1993-94/Pdf/Bills/Session%20Laws/Senate/6080.SL.pdf?cite=1994%20c%20280%20%C2%A7%201.> and was a bill to protect "agricultural and forest land." The same bill also amended RCW 79.01.760 (now RCW 79.02.300<https://app.leg.wa.gov/rcw/default.aspx?cite=79.02.300>) which is explicitly about Public Lands Management. And the attorney fees award is available to plaintiff only; it's a one-way award provision. I wonder if the legislature even truly intended this statute to apply to anything other than agricultural and forest land.

In contrast, RCW 64.12.030 has been around since territorial times--at least 1869--and has never been updated except to add protection for Christmas trees in 2009. Unsurprisingly, it has no attorney fee provision.

RCW 4.24.630
Liability for damage to land and property-Damages-Costs-Attorneys' fees-Exceptions.
(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, * 79.01.756, 79.01.760, 79.40.070, or where there is immunity from liability under RCW 64.12.035.
[ 1999 c 248 § 2; 1994 c 280 § 1.]

RCW 64.12.030
Injury to or removing trees, etc.-Damages.
Whenever any person shall cut down, girdle, or otherwise injure, or carry off any tree, including a Christmas tree as defined in *RCW 76.48.020, timber, or shrub on the land of another person, or on the street or highway in front of any person's house, city or town lot, or cultivated grounds, or on the commons or public grounds of any city or town, or on the street or highway in front thereof, without lawful authority, in an action by the person, city, or town against the person committing the trespasses or any of them, any judgment for the plaintiff shall be for treble the amount of damages claimed or assessed.
[ 2009 c 349 § 4; Code 1881 § 602; 1877 p 125 § 607; 1869 p 143 § 556; RRS § 939.]

Sincerely,

Eric

Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1417 31st Ave South
Seattle WA  98144-3909
phone 206-625-0092
fax 206-625-9040

From: wsbarp-bounces at lists.wsbarppt.com [mailto: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'
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
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rob at hctc.com<mailto:rob at hctc.com>

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