Commentary on Washington State law and how it Relates to real Estate

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An overview of real property trespass

Posted on February 27, 2013 by Robert P. Dickson

With a few exceptions, the legal doctrine of trespass is governed by common law precedent. (Common law is developed over time through decisions made by courts. Statutory law, or simply “statutes,” are laws created by and through legislatures.) The tort of trespass states that someone may be liable for damages if he or she interferes with another person’s possession of real property. For property owners, there are two statutes which govern trespass onto property: RCW 4.24.630 and 64.12.030.

20130226-211041.jpgRCW 4.24.630 states that someone who wrongfully goes onto the land of another and removes timber, crops, minerals, or other similar valuable property from the land, or wrongfully causes waste or injury to the land, is liable for treble damages plus attorney’s fees. Wrongfully is defined in the statute when a “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.”

RCW 64.12.030 is more narrow in comparison to 4.24.630. In that provision, a trespasser is liable for treble damages if he or she damages trees or shrubbery of another. There is NO attorney’s fees provision, as is found in 4.24.630, however the same treble damages component is available. (It should be noted that damage caused to property that is purely incidental to the removal of the subject timber/trees does not count as another statutory violation and is instead, subsumed into the treble damages.)

These statutory damages are primarly related to injury to property (or the plants/trees contained thereon). If a statutory remedy is not available, that does not preclude typical tort liability as dictated by case law (i.e. when someone interferes with the possessory right of another). In fact, the tort of intentional inflection of emotional distress is available to Plaintiff and not precluded by virtue of the existence of RCW 4.24.630 or 64.12.030.

A natural question to pose after looking at those trespass rules, is what to do about pollution? A trespass may be an ongoing trespass (such as a water pipe from on property unlawfully directing water onto another person’s property), thus, how does the law handle issues of pollution where vast quantities of particulates are spread over large geographical areas? The court requires a Plaintiff to satisfy the following 4-part test in order to be eligible for damages:

1) The invasion must affect an interest in exclusive possession of property; AND
2) The party must be intentionally doing the act which results in the invasions; AND
3) The polluting party must reasonably foresee that the act done could result in an invasion of plaintiff’s possessory interest; AND
4) Finally, there must be substantial damages to the res.

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Does the RCW mandate attorney’s fees awards in timber trespass cases? Appeals court in Bassani Farms v. Maddox says “no.”

Posted on December 30, 2012 by Robert P. Dickson

One of Washington State’s greatest natural resources is its trees and forests. Given the abundance of this natural resource, Washington has enacted several statutes which govern accidental or intentional damage to and/or removal of timber on someone else’s property (without permission of course). These laws are set forth in RCW 4.24.630 and RCW 64.12.030.
Although both RCW 4.24.630 and RCW 64.12.030 deal with damage to and removal of trees, there has always been a conflict between these statutes. Namely, how does the court award damages to a prevailing party in an action when the trespasser damaged and/or removed trees, but did not injured the property? (Both RCW 4.24.630 and 64.12.030 discuss damages for timber trespass, yet 4.24.630 includes a provision for attorney’s fees).

MischwaldRCW 4.24.630 says that if a person goes onto another’s property without permission and removes or damages timber, that person is liable for treble damages and attorney fees. RCW 64.12.030, however, says that if a person goes onto another’s property without permission and removes or damages any tree, timber, or shrub, that person is liable only for treble damages—no attorney fees may be awarded.

Recently, in Bassani Farms, LLC v. Maddox, the Washington Appellate Court (Division III) offered some guidance on this conflict. For one, the Bassani Court asserted that RCW 64.12.030 requires no mental state and applies equally to intentional and negligent takings and damages to trees and shrubs. Second, the Bassani Court reiterated that RCW 4.24.630(2) expressly exempts any claims that fall under RCW 64.12.030’s language from being applied to RCW 4.24.630. The result is therefore, that prevailing claims pertaining ONLY to damage and/or removal of trees from a landowner’s property can only be awarded treble damages—no attorney fees can be awarded.

Ultimately, Bassani’s outcome may negatively impact on landowners whose trees have been damaged and/or removed and seek redress in court. In such cases, attorney fees may be substantial. Consequently, the possibility of recovering attorney fees may be equally, if not more, important to a landowner as is recovering treble damages. If courts are finding that a landowner’s claims apply under RCW 64.12.030 (which does not allow attorney fees), not RCW 4.24.630, landowners may be less likely to sue because they will not be awarded attorney fees and any other litigation-related costs.

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RCW Waste Statute Not Applicable to Easement Interference

Posted on December 29, 2012 by Robert P. Dickson

Recently, an interesting issue developed over the applicability of Washington State’s statute regarding waste caused to an easement.  Surveyor-road
The facts are fairly straightforward: an individual owned property burdened by an easement for ingress/egress, which benefited his neighbors.  The actual road was  considerably smaller than the easement area provided and was located in a rural section of Washington.  A dispute arose when he  shifted the road to a section of the easement which would allow him expanded use of the remaining unused portion of the property.  Needless to say, the road was significantly impacted by this conduct, such that the court required him to replace the road to the prior location (which was essentially running down the center of the easement).  To that end, the neighbors expended a significant amount of attorney’s fees.  In order to recoup their expenses, they invoked RCW 4.24.630 (Washington’s waste statute) which states that if you wrongfully go onto the land of another and cause injury to the property, you are eligible to recover treble damages, PLUS attorneys fees and costs.

The tripwire for invoking this law is that it is contingent on a form of trespass.  Recovery for damage to an easement is different (and impossible, most would say) because if the easement is on the trespasser’s property, then it is virtually impossible to “go onto the land of another” since by definition an easement still remains the property of the burdened estate.  Though there is not a wealth of authority in Washington which supports this, however there is a key decision in Colwell v. Etzel, 119 Wn. App. 432, 81 P.3d 895 (2003) where an appeals court criticizes the trial court’s interpretation of RCW 4.24.630.  In that case, the trial court said that the statute did not mean that somehad had to physically enter on the land of another, but that trespassing was satifised if someone’s “interest in land” harmed or interfered with.  The appeals court dissagreed, saying that the statute is clearly worded, and requires that there be an actual physical trespass before it can be utilzed to recover fees and treble damages.  There are other decisions which support this, but they are unpublished (espcially a 9th Cirucuit case — Ehlers v. ConocoPhillips).

There is also the aspect of the law itself in that it is considered punitive by the court.  As such, it MUST be construed narrowly.  The end result is that there is simply not enough room left for interpretation and the law must be read to mean what it says…only going onto the land of another will trigger RCW 4.24.630.  Consequently, if you go onto an easement located on your property and cause damage to it, you may be liable for the damage, but you are NOT liable for attorney’s fees and treble damages under RCW 4.24.630.

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