Olivia & William Herring Et Ux v. Jose & Blanca Pelayo, Et Ux
198 Wash. App. 828
| Wash. Ct. App. | 2017Background
- Olivia and William Herring and Jose and Blanca Pelayo are adjacent landowners who share a boundary tree lying on the common property line.
- On Dec. 2, 2011 the Herrings had some branches removed from the boundary tree; they did not notify the Pelayos.
- On Dec. 31, 2011 the Pelayos hired a tree trimmer who removed all remaining branches from the boundary tree without consulting the Herrings; removal killed the tree.
- The Herrings sued for timber trespass under RCW 64.12.030 (alternative trespass claim under RCW 4.24.630 was pled but not applied).
- At bench trial Jose Pelayo admitted he knew the tree was on the common line, directed removal of the remaining branches, and believed removal would kill the tree. The trial court found timber trespass, denied mitigating circumstances, and awarded damages plus attorney fees.
- On appeal the Court of Appeals affirmed liability and the denial of mitigation but accepted the Herrings’ concession that attorney fees were erroneously awarded and remanded to vacate that portion of the judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Pelayos violated RCW 64.12.030 (timber trespass) — willfulness element | Herrings: removal was willful and destroyed common-tree; treble damages available | Pelayos: trial court failed to explicitly find willfulness; challenged finding of timber trespass | Court: no specific written willfulness finding required where evidence undisputed; Jose’s admissions established willfulness, so RCW 64.12.030 applies |
| Whether Pelayos acted with lawful authority to trim overhanging branches on common-line tree | Herrings: cotenants cannot lawfully remove parts of a common tree in a manner intended to kill it | Pelayos: Mustoe/Gostina permit trimming overhanging branches regardless of tree location | Court: distinguished Mustoe; cotenants have duty not to destroy common property; trimming that a cotenant knows will kill a shared boundary tree is not lawful authority under RCW 64.12.030 |
| Whether mitigating circumstances under RCW 64.12.040 apply (probable cause / casual/involuntary) | Herrings: no mitigation; Pelayos acted intentionally | Pelayos: cutting while standing on their property gave probable cause to believe land was theirs, so only single damages | Court: Jongeward controls; location of actor (on own land) irrelevant; defendants failed to prove trespass was casual/involuntary or that they had probable cause; mitigation denied |
| Whether trial court properly awarded attorney fees | Herrings: requested fees but offered no statutory or contractual basis at trial | Pelayos: challenged fees award | Court: RCW 64.12.030 contains no fee provision; absent statutory/contractual/equitable basis fee award improper — remand to vacate fees award |
Key Cases Cited
- Sunnyside Valley Irrig. Dist. v. Dickie, 149 Wn.2d 873 (standard of review for bench trial findings)
- Jongeward v. BNSF Ry. Co., 174 Wn.2d 586 (timber trespass statute applies even where defendant did not enter plaintiff’s land)
- Mustoe v. Ma, 193 Wn. App. 161 (right to trim encroaching vegetation on one’s property)
- Gostina v. Ryland, 116 Wash. 228 (distinguishes trimming encroachment from cutting down tree)
- Happy Bunch, LLC v. Grandview N., LLC, 142 Wn. App. 81 (boundary tree is common property of adjoining owners)
- Blake v. Grant, 65 Wn.2d 410 (willfulness element required for treble damages under timber trespass statute)
- Ventoza v. Anderson, 14 Wn. App. 882 (burden on defendant to prove trespass was casual/involuntary)
- LeMaine v. Seals, 47 Wn.2d 259 (no need for written findings on undisputed facts)