From the desk of Kyle Riley: Can a court grant relief under the waste statute when a person enters a neighbor’s land and cuts down trees without permission?
Claims Pointer: The timber trespass statute is the only claim available to an injured party whose sole damages are from injury to trees or from removal of trees.
Gunn v. Riely, 2015 WL 263656, Court of Appeals of Washington, Division 2.
Robert Gunn owned a property in Clallam County, Washington, which was adjacent to a plot owned by Terry and Petra Riely (Rielys). A grassy path ran through Gunn’s property, parallel to the borderline between Gunn’s property and the Rielys. Between 2000 and 2009, the Rielys used the path to access their property, and Gunn consistently protested. The Rielys asserted that they had an easement over the grassy path, but Gunn confirmed in 2008 that the deed was silent as to an easement. In 2009, the Rielys hired Oasis Well Drilling to construct a well on their property. The Rielys told Oasis that they could use the grassy path, knowing that Oasis would need to cut down trees along the path in order to get their equipment onto the Rielys’ property. Oasis chopped down 107 trees.
Gunn filed a complaint for timber trespass in 2010. In 2013, Gunn filed an amended complaint, alleging that the Rielys entered his property without permission and injured his trees. Gunn also asserted a claim under the waste statute, RCW 4.24.630, as an alternative to recovery under the timber trespass statute, RCW 64.12.030. The Rielys filed an answer, alleging that they had an implied easement over the property. In their trial brief, the Rielys for the first time argued fault of a non-party. After a two-day bench trial, the judge found the Rielys liable for timber trespass under the waste statute, stating:
“The essence of the claim here is damage to the land, not to the trees. The value of the trees is the smallest component of damages and trebling it is really useless in terms of restoring to Mr. Gunn what he has lost. That doesn’ t do it, can not [sic] do it.
“So I do not find that the timber trespass statute [RCW 64. 12. 030] is designed to or in effect does provide liability for damages that are suffered in this case.”
The court awarded Gunn $1,359 (triple damages under the timber statute), and over $21,000 in attorney’s fees and costs. The Rielys moved for reconsideration, arguing that the court improperly applied the waste statute when it should have applied the timber statute. The trial court denied the motion and the Rielys appealed.
The Court of Appeals first examined whether damages were appropriate under the waste statute, RCW 4.24.630. The Court of Appeals rejected the trial court’s ruling that the waste statute applied because the timber statute did not fully compensate Gunn. After reviewing legislative history on the issue, the court determined that the legislature intended that recovery under the waste statute is unavailable when damages under the timber statute apply.
The court next addressed the Rielys’ appeal that the trial court improperly struck its defense of fault by a non-party (Oasis) and ordered not to present evidence of an implied easement. The court concluded that the trial court properly struck the Rielys’ affirmative defense because they waived that defense by not identifying Oasis in their Answer. The court explained that because Washington is a notice pleading state, a party must plead affirmative defenses or they are waived. The Rielys argued that Gunn’s discovery requests relating to Oasis nonetheless put Gunn on notice. The court responded that the discovery notified Gunn of their potential liability and existence, but not that the Rielys intended to assert a defense assigning Oasis to be at fault.
Finally, because the trial court granted attorney fees based on the waste statute, the court of appeals reversed and sent the case back to the trial court to apply the timber trespass statute.
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