278 P.3d 157
Wash.2012Background
- Jongeward plaintiffs sue BNSF for timber trespass claim after a fire negligently started along BNSF's right-of-way destroyed about 4000 trees on Jongeward property.
- Fire started Aug 11, 2007; no BNSF employee was on plaintiffs' land; fire spread from railroad property onto plaintiffs' land.
- Certification from federal court posed three questions about former RCW 64.12.030 and its treble-damages scheme.
- Statute directs treble damages for cutting down, girdling or otherwise injuring, or carrying off any tree, timber or shrub; RCW 64.12.040 provides a single-damages mitigation.
- Majority holds the timber trespass statute does not apply to negligent fire spread that destroys trees; plaintiff may rely on common law; questions 1 and 3 answered no and not addressed, respectively; question 2 answered yes under certain circumstances.
- Dissent argues the statute also contemplates casual or involuntary trespass and single-damages recovery, which could permit relief beyond treble damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether negligent fire spreading onto property falls within timber trespass | Jongeward argues 'otherwise injure' includes damage from fire that spreads | BNSF contends only direct trespass (cutting/girdling/carrying off) triggers liability | No; fire spread does not constitute 'otherwise injure' under former RCW 64.12.030 |
| Whether plaintiff may recover under timber trespass when defendant never physically enters plaintiff's land | Jongeward asserts liability when direct trespass to trees occurs even without land entry | BNSF argues physical presence on land is required | Yes; direct trespass causing immediate injury to trees can recover even without physical presence on land |
| Whether damages under timber trespass must be reasonable in relation to property value | Jongeward seeks treble damages where applicable as remedy | BNSF contends damages should be capped by underlying property value | Not addressed; court declines to answer due to holding that statute does not apply |
Key Cases Cited
- Birchler v. Castello Land Co., 133 Wash.2d 106 (1997) (timber trespass principles; direct trespass to trees)
- Guay v. Wash. Natural Gas Co., 62 Wash.2d 473 (1963) (treble damages under timber trespass statute; direct acts)
- Suter v. Wenatchee Power & Light Co., 35 Wash. 1 (1904) (trespass classifications and common law origins)
- Stenberg v. Pacific Power & Light Co., 104 Wash.2d 710 (1985) (statutes of limitations; historical distinction between trespass types discouraged)
- Jordan v. Welch, 61 Wash. 569 (1911) (fire-related damages context in early statutes)
- Mullally v. Parks, 29 Wash.2d 899 (1948) (timber trespass damages; direct acts)