Info Litigation Opinion

Trespassing or just conversion? Waste? Nuisance? A rose by any other name….

Trespass to land and waste

The title of RCW 64.12 is Waste / Trespass.  This is an example of a legal concept which is perhaps a little overly broad, because as you will see, it includes concepts such as damage to property that you wouldn’t consider “trespass” in ordinary speech.

For example, consider this (relatively) recent case:

Porter v. Kirkendoll, 194 Wn.2d 194, 449 P.3d 627 (2019)

In this case, some loggers got hemmed up because they were hired by a guy who lied about where his property line was.  The loggers then tried to enter a settlement agreement with the property owner, but for the reasons set out by the court, that indemnity didn’t survive.

Contrast that with: Mustoe v. Xiaoye Ma, 193 Wn. App. 161, 371 P.3d 544 (2016) where the owner of a property sued for removal of trees and emotional distress following their removal, however, the court of appeals found that Ma was permitted to remove that portion of the root structure that had encroached into her property.

“Mustoe had two large Douglas fir trees located entirely on her property, about 2.5 feet from the property line. In October 2013, Jordan dug a ditch on Ma’s property along the border of Mustoe’s lot. The ditch was 18–20 inches deep. In the process, Jordan exposed and removed the trees’ roots, leaving them to extend only 3–4 feet from the trunks. This resulted in a loss of nearly half of the trees’ roots, all from the south side, exposing them to southerly winds with no support. The damaged trees posed a high risk of falling onto Mustoe’s home. The landscape value of the trees was estimated to be $16,418; the cost of their removal was estimated to be $3,913.

On January 6, 2014, Mustoe filed suit against Ma and Jordan, asserting that Jordan had negligently, recklessly, and intentionally excavated and damaged her trees, along with other property and emotional distress damages.”

 Cutting down trees may seem like a “different” species of tort ‘animal’ from what ordinary people would consider “trespassing”.

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.