RCW 4.24.630- Timber Trespass (Page 1 of 2)

Sparks v. Douglas county, 39 Wn.App. 714-Treble Damages - "production value"

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CASE SUMMARY

PROCEDURAL POSTURE: Appellant landowners challenged the order of the Superior Court for Douglas County (Washington), which entered a judgment and awarded damages to the landowners based on the production value of seven cut apple trees located outside respondent county's right of way on the basis that the superior court erred in refusing to treble the damages Wash. Rev. Code § 64.12.030.

OVERVIEW: At the county's request the landowners removed a row of apple trees, which later became the center of the county road and granted the county a right of way deed. Years later the county ordered further trees cut to unblock the view of an intersection, the landowner trimmed the trees but refused to remove them. The county then ran a survey from a disputed monument and claimed trees within 20 feet as being in the right of way and cut down the trees. The landowner filed a claim for damages, and while the claim was pending the county returned and cut down seven more trees. The superior court affirmed the county's right of way and granted the landowner damages but refused to treble the damages. The landowner appealed. The court affirmed in part and reversed in part. The court found that the superior court had correctly determined the right of way. However, the court found that the superior court had committed error in failing to award treble damages because the county knew a lawsuit was pending which disputed its right of way when it cut down the seven trees. The court found under the circumstances the award of treble damages under § 64.12.030 was mandatory.

OUTCOME: The court affirmed the part of the order of the superior court which determined the width of the county's right of way and determined the county was liable for timber trespass, but reversed the part of the order that denied treble damages for timber trespass to the landowner and remanded to the superior court for the trebling of damages.

CORE TERMS: deed, right of way, treble damages, color, trespass, legal description, feet, fruit trees, center line, destruction, conveyed, trebling, cutting, treble, prescriptive, ownership, stumpage, easement, general rule, adverse possession, probable cause, substantial evidence, measure of damages, involuntary, conveyance, announced, disputed, monument, surveyor, trebled

LexisNexis® Headnotes Hide Headnotes

Contracts Law > Statutes of Frauds > General Overview
Real Property Law > Deeds > Statutes of Frauds
Real Property Law > Purchase & Sale > Contracts of Sale > Formalities
HN1Go to the description of this Headnote. Deeds must contain an adequate legal description of the real property to be conveyed. An inadequate legal description is a violation of the statute of frauds.

Real Property Law > Adverse Possession > General Overview
Real Property Law > Deeds > General Overview
HN2Go to the description of this Headnote. Where property is held under color of title possession of the entire property is not required for purposes of adverse possession. Correlatively, it is a well-settled general rule that one who enters upon land under color of title, such as a deed, and possesses only a part of the land, will be deemed to have possession of the entire tract to the limits of the boundaries described in the color of title for purposes of adverse possession, the constructive seisin in deed is the equivalent of actual seisin.

Real Property Law > Ownership & Transfer > Natural Persons
Torts > Damages > Punitive Damages > General Overview
Torts > Premises Liability & Property > Trespass > General Overview
HN3Go to the description of this Headnote. Where a person has knowledge of a bona fide boundary dispute, and thereafter consciously, deliberately, and intentionally enters upon the disputed area for the purpose of destroying, and does destroy, trees or other property which cannot be replaced, such acts are neither casual nor involuntary, nor can they be justified upon the basis of probable cause for belief by the tort feasor that he owned the land, but, on the contrary, are without lawful authority and will subject such person to treble damages as provided by Wash. Rev. Code §64.12.030.

Real Property Law > Torts > Trespass to Real Property
Torts > Damages > Punitive Damages > General Overview
Torts > Premises Liability & Property > Trespass > General Overview
HN4Go to the description of this Headnote. Wash. Rev. Code § 64.12.030 provides that whenever any person shall cut down, any tree, on the land of another person, without lawful authority, in an action by such person against the person committing such trespasses if judgment be given for the plaintiff, it shall be given for treble the amount of damages claimed or assessed therefor, as the case may be.

Real Property Law > Torts > Trespass to Real Property
Torts > Damages > Compensatory Damages > Property Damage > General Overview
Torts > Premises Liability & Property > Trespass > Remedies > Damages > General Overview
HN5Go to the description of this Headnote. Wash. Rev. Code § 64.12.040 provides that if upon trial of such action it shall appear that the trespass was casual or involuntary, or that the defendant had probable cause to believe that the land on which such trespass was committed was his own, judgment shall only be given for single damages.

Torts > Damages > General Overview
HN6Go to the description of this Headnote. The primary aim in measuring damages is compensation. This contemplates that the damages for a tort should place the injured person as nearly as possible in the condition he would have occupied if the wrong had not occurred.

Governments > Legislation > Interpretation
Torts > Damages > Punitive Damages > General Overview
HN7Go to the description of this Headnote. The language of the Wash. Rev. Code § 64.12.030 is mandatory, whenever any person shall cut down, any tree if judgment be given for the plaintiff, it shall be given for treble the amount of damages claimed or assessed therefor, as the case may be. Wash. Rev. Code § 64.12.030. The only time damages are mitigated is under Wash. Rev. Code § 64.12.040. To not assess treble damages would eliminate the clear statutory distinction between negligent and intentional destruction of growing fruit trees. Such an interpretation would render the statute meaningless; statutes must be construed so as to be effective.

Civil Procedure > Appeals > Standards of Review > Substantial Evidence > General Overview
HN8Go to the description of this Headnote. An appellate court will not retry factual issues of a case but will only review the record to determine if the findings are supported by substantial evidence.

Hide Headnotes / Syllabus

SUMMARY: [***1] Nature of Action: Action to recover damages from a county for cutting down fruit trees which the plaintiff claimed were not within the county's right of way.

Superior Court: The Superior Court for Douglas County, No. 12195, Charles W. Cone, J., on April 19, 1983, entered a judgment awarding damages based on the production value of seven cut trees located outside the county's right of way.

Court of Appeals: Holding that the trial court had correctly determined the width of the county's right of way but that the plaintiff was entitled to treble damages for timber trespass, the court affirms the liability determination and awards treble damages.

HEADNOTES
WASHINGTON OFFICIAL REPORTS HEADNOTES

WA[1][1] Deeds — Legal Description — Deficiency — Effect A deed containing an inadequate legal description of the property to be conveyed violates the statute of frauds and is void.

WA[2][2] Adverse Possession — Extent of Right — Color of Title — Possession of Part of Land Described A prescriptive right based on possession under color of title extends to the entire property described in the title conveyance documents, even if the entire property was not occupied by the adverse possessor throughout the prescriptive period.

WA[3][3] Trespass — Cutting of Timber — Treble Damages — Disputed Ownership The cutting down of trees growing on land which the cutter knows is subject to a legal action to determine ownership does not qualify for single damages under RCW 64.12.040 as activity which is casual or involuntary or which is based on probable cause for the cutter's belief that he owns the land.

WA[4][4] Statutes — Construction — Meaningful Interpretation A statute is interpreted in a manner which makes it meaningful and effective.

WA[5][5] Trespass — Cutting of Timber — Treble Damages — Valuation Method — Effect The fact that damage resulting from the cutting down of trees is measured by the production value of the trees rather than by their stumpage value does not preclude the trebling of damages for a willful timber trespass under RCW 64.12.030.

WA[6][6] Appeal and Error — Findings of Fact — Review — In General A trial court's factual resolutions will be sustained on appeal if they are supported by substantial evidence.

COUNSEL: Lowell D. Sperline and Sperline & Lacy, Inc., P.S., E. Wenatchee, Washington, for appellants.

Judith L. McCauley, Prosecuting Attorney, Waterville, Washington, for respondents.

JUDGES: McInturff, J. Green, C.J., and Munson, J., concur.

OPINION BY: McINTURFF

OPINION

[*716] [**588] Mr. and Mrs. Sparks appeal from a judgment for $ 6,365.33 against Douglas County for the destruction of seven fruit-bearing trees in their orchard. They contend the [**589] judgment sum must be trebled under RCW [***2]
64.12.030. We reverse in part and remand for trebling of damages.

In the spring of 1950, Mr. Sparks was contacted regarding a request by Douglas County to extend Columbia Drive, now Empire Way, through his property. Mr. Sparks agreed to remove one row of fruit trees, which would become the center of the road, and to grant the County a right of way which would extend to the next row of trees on either side, approximately 40 feet in width. Mr. Sparks and his wife then signed a legal document entitled Right of Way Deed granting to Douglas County

a strip of land 40 feet wide, being 20 feet on each side of line of said road as surveyed in the SW 1/4 of the NE 1/4 & SE 1/4 of the NE 1/4 of Section 27, Township 23 North, Range 20 E.W.M.

The road was established and maintained without incident until 1979-80 when a problem developed regarding the fruit trees which blocked the view of the intersection of Empire Way and 32 N.W. In an effort to placate the County, Mr. Sparks removed some limbs but the county engineer was not satisfied. Mr. Sparks was warned that if the trees were not cut back sufficiently, the County would remove them. The County then ran a survey line, using [***3] a monument disputed by the experts, and from that line claimed trees within 20 feet east as being on the right of way.

On April 21, 1980, the county road department proceeded to cut down five of Mr. Sparks' bearing apple trees. A claim was filed for damages of $ 6,675 on May 7, 1980, which was [*717] denied; this action followed.

While the action was pending, the County returned to the Sparks property in January 1981 and cut more bearing apple trees. The trial court found a total of 12 trees were removed, 7 of which were not within the County's right of way. The court granted Mr. Sparks damages for $ 6,365.33 but did not allow treble damages as it found the County "had a deed which indicated to them that the trees were on Douglas County right of way."

The first issue raised by Mr. and Mrs. Sparks concerns the lateral extent of the right of way granted to Douglas County.

The court determined the legal description contained in the 1950 deed was insufficient and that decision is supported by the evidence. Frederick Skinner, engineer and land surveyor, testified he was unable to locate the road or its direction from information contained on the face of the deed.

HN1Go to this Headnote in the case. WA[1][1] Deeds must [***4] contain an adequate legal description of the real property to be conveyed. In re Estate of Verbeek, 2 Wn. App. 144, 156, 467 P.2d 178 (1970). An inadequate legal description is a violation of the statute of frauds. In re Estate of Verbeek, at 157 (citing Bigelow v. Mood, 56 Wn.2d 340, 353 P.2d 429 (1960)). No reference was made to a specific survey and there was evidence a surveyor could not locate the property, given the description contained in the deed. The cases cited by the County are not dispositive as they hold specific reference to the second document must be made within the deed.

The court concluded the County had a prescriptive right, not only to the roadway as blacktopped, but to the full 40-foot right of way the parties had arguably intended as evidenced by the written documents of the road establishment procedure.

The question of the extent of the easement acquired, i.e., whether it included the road banks as well as the blacktopped area, is answered in Yakima Vly. Canal Co. v. Walker, 76 Wn.2d 90, 455 P.2d 372 (1969). The facts are [*718] similar, the only difference being the establishment of a canal [***5] and its banks as opposed to a highway. The question before the trial court there was the same as here: what was the lateral extent of the easement? There, in 1894, Ada Wilson conveyed a one-half interest in real property to the canal company which included a right of way to the extent of 50 feet from the center line of the canal as surveyed. The other one-half interest was never conveyed. In 1965, the defendants acquired the one-half interest not conveyed and constructed a house, fence and patio [**590] which the court later determined encroached on the canal's right of way.

WA[2][2] The court stated at page 93:

It is abundantly apparent that plaintiff claims its 50-foot easement on both sides of the canal center line under color of title. Even though the conveyance be defective or void, the true owner will be deemed disseized to the extent of the boundaries stated in the conveyance by the adverse claimant's possession of a part of the premises.

The rule is well stated in 3 Am. Jur. 2d Adverse Possession § 27, at 109:

It is the general rule that HN2Go to this Headnote in the case.where property is held under color of title possession of the entire property is not required for purposes of adverse [***6] possession. Correlatively, it is a well-settled general rule that one who enters upon land under color of title, such as a deed, and possesses only a part of the land, will be deemed to have possession of the entire tract to the limits of the boundaries described in the color of title for purposes of adverse possession, . . . The constructive seisin in deed is the equivalent of actual seisin.

The court then concluded the surveillance of the canal banks was critical to the structural support of the canal and prevention of extensive flooding. By constructing the fence the defendants had made such an inspection impossible. The court then granted an injunction directing defendants to remove their improvements.

The same principles apply to the case at bench. The County has a prescriptive right under color of title to a 40-foot right of way even though it has never exercised ownership [*719] of the road banks until recently. The unobstructed view down Empire Way is necessary for the prevention of traffic accidents at the intersection of Empire Way and 32 N.W. Hence, we affirm the 40-foot right of way.

WA[3][3] The second issue raised by Mr. Sparks concerns the measure of [***7] damages to be awarded for the seven trees cut which were outside the County's right of way. The trial court set the value of the trees at $ 6,365.33, based on the loss of production formula announced in Penney Farms, Inc. v. Heffron, 24 Wn. App. 150, 599 P.2d 536 (1979). The question to be determined is whether those damages should be trebled in light of RCW 64.12.030 1 and RCW 64.12.040. 2 In Hirt v. Entus, 37 Wn.2d 418, 430, 224 P.2d 620 (1950), our court stated the following general rule:

HN3Go to this Headnote in the case."Where a person has knowledge of a bona fide boundary dispute, and thereafter consciously, deliberately, and intentionally enters upon the disputed area for the purpose of destroying, and does destroy, trees or other property which cannot be replaced, such acts are neither casual nor involuntary, nor can they be justified upon the basis of probable cause for belief by the tort feasor that he owned the land, but, on the contrary, are without lawful authority and will subject such person to treble damages as provided by statute."

(quoting Mullally v. Parks, 29 Wn.2d 899, 190 P.2d 107 (1948)).

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
1 HN4Go to this Headnote in the case.RCW 64.12.030 provides:

"Whenever any person shall cut down, . . . any tree, . . . on the land of another person, . . . without lawful authority, in an action by such person . . . against the person committing such trespasses . . . if judgment be given for the plaintiff, it shall be given for treble the amount of damages claimed or assessed therefor, as the case may be."
[***8] 2 HN5Go to this Headnote in the case.RCW 64.12.040 provides:

"If upon trial of such action it shall appear that the trespass was casual or involuntary, or that the defendant had probable cause to believe that the land on which such trespass was committed was his own, . . . judgment shall only be given for single damages."

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There is evidence that the County cut seven trees in the spring of 1981 despite the fact a lawsuit was pending [*720] against the County in which Mr. Sparks claimed ownership of the land in question. Under the rule announced in Hirt, the County had sufficient notice of a boundary dispute and chose to continue with the destruction of the trees. We conclude, under these circumstances, the County's trespass [**591] was not within the parameters of RCW 64.12.040 so as to allow the court a statutory rationale for denying treble damages. The trial court's finding of good faith, as to these trees, is not supported by substantial evidence.

However, we raise another issue, sua sponte, regarding the application of treble damages where the value of the tree is based on its production, rather than stumpage [***9] value. Counsel has responded to this issue.

Penney Farms, at 151-52, provides the following insights with respect to setting damages for loss of fruit trees:

The purpose underlying tort damages is succinctly set forth in C. McCormick, Law of Damages § 137 (1935):

HN6Go to this Headnote in the case.The primary aim in measuring damages is compensation[.] . . . [T]his contemplates that the damages for a tort should place the injured person as nearly as possible in the condition he would have occupied if the wrong had not occurred[.]

The court then established the measure of damage of a fruit tree as being the lost production value while replacement trees were maturing less the cost of production. The court was not faced with the issue of intentional destruction and the possible trebling of those damages based on production value.

In Pearce v. G.R. Kirk Co., 92 Wn.2d 869, 873-74, 602 P.2d 357 (1979), the court considered arguments advanced by a landowner who sought treble damages for the intentional cutting and removing of Christmas trees from her land. The court stated:

It was proved to the satisfaction of the trial court here, and the defendant does [***10] not question that proof, that the plaintiff planned, with the help of her father, to cut these Christmas trees and sell them at retail. . . . it is apparent that to award her only the stumpage value would be to deny full compensation for her loss.

[*721] The court then affirmed the award of treble the amount the plaintiff would have realized had she been allowed to market her trees as Christmas trees, less the cost of transportation to market and the costs of sale.

In Lawson v. Helmich, 20 Wn.2d 167, 181, 146 P.2d 537 (1944), an action was brought under the statute for the intentional destruction of apple trees. The court trebled the damages of $ 500 which were based on the difference in the value of the property before and after the trees were cut, rather than the stumpage value of the trees.

HN7Go to this Headnote in the case. WA[4][4] WA[5][5] The language of the statute is mandatory

Whenever any person shall cut down, . . . any tree . . . if judgment be given for the plaintiff, it shall be given for treble the amount of damages claimed or assessed therefor, as the case may be.

(Italics ours.) RCW 64.12.030. The only time damages are mitigated is under RCW 64.12.040, which we have [***11] found does not apply in this case. To not assess treble damages would eliminate the clear statutory distinction between negligent and intentional destruction of growing fruit trees. Such an interpretation would render the statute meaningless; statutes must be construed so as to be effective. Avlonitis v. Seattle Dist. Court, 97 Wn.2d 131, 138, 641 P.2d 169, 646 P.2d 128 (1982).

The purpose of the treble damages statute is outlined in Henriksen v. Lyons, 33 Wn. App. 123, 125, 652 P.2d 18 (1982):

Although the award of treble damages conflicts with the more general policy against punitive damages, it is thought to be justified in this context because (1) it discourages the practice of private eminent domain; (2) it provides a rough estimate of future damages, especially for premature harvesting of trees; and (3) it punishes the voluntary trespasser.

Based on the damage formula announced in Penney Farms, the court arrived at the proper measure of damages; it erred when it declined to treble those damages because of its finding the County acted in good faith. We, therefore, [*722] remand [**592] for a trebling of the amount [***12] found by the court.

The first issue raised by the County in its cross appeal concerning the sufficiency of the legal description has been answered. The County's argument regarding the doctrine of "estoppel by deed" is a moot issue because the court has determined the County is entitled to all of the land described by right of prescriptive easement under color of title.

The County next argues the court was in error when it established the center line 5 to 6 feet west of the original monument. The County cites Erickson v. Wick, 22 Wn. App. 433, 437-38, 591 P.2d 804 (1979) and Staaf v. Bilder, 68 Wn.2d 800, 415 P.2d 650 (1966) in support of the rule that the intent of a new survey is to reestablish the boundary lines as determined by the original surveyors rather than where modern surveys would place them. A review of the testimony provided by the County's expert Mr. Rotter and by Mr. Sparks' expert, Mr. Skinner, indicates disagreement as to the validity of the monuments used to begin the survey and the fact there may have been a discrepancy in the deflection angle of 7 or 8 minutes in the survey done by Mr. Rotter. A determination of the center [***13] line of the road is a factual determination to be made by the trial court. The judge had an opportunity to view the site as well as all the center lines determined by the different surveys. He determined the line drawn by Western Pacific Engineering was the most accurate.

HN8Go to this Headnote in the case. WA[6][6] An appellate court will not retry factual issues of a case but will only review the record to determine if the findings are supported by substantial evidence. In re Marriage of Smith, 100 Wn.2d 319, 324, 669 P.2d 448 (1983); Thorndike v. Hesperian Orchards, Inc., 54 Wn.2d 570, 343 P.2d 183 (1959). The testimony relating to the line drawn by Western Pacific Engineering is substantial evidence to support the court's finding.

  The case is remanded to the Superior Court for trebling of the damage award of $ 6,365.33.

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Last edited by james sr (2011-12-10 01:51:46)

Allyn, ET.AL. v. Boe, ET.AL., 87 Wn.App. 722-PRODUCTIVE TREE VALUE-MMJ

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COURT OF APPEALS OF WASHINGTON, DIVISION TWO

87 Wn. App. 722; 943 P.2d 364; 1997 Wash. App. LEXIS 1491

September 5, 1997, Filed

SUBSEQUENT HISTORY:  Petition for Review Denied May 5, 1998, Reported at: 134 Wn.2d 1020, 958 P.2d 315, 1998 Wash. LEXIS 366.

CASE SUMMARY

PROCEDURAL POSTURE: Appellant property owners sought review of the decision of the Superior Court of Thurston County (Washington), which ordered a new trial in a timber trespass action because of juror misconduct and the failure to instruct the jury that damages could not exceed the underlying value of the property. Appellee neighbors cross-appealed contending that the discovery rule did not apply, and thus the action was barred by the statute of limitations.

OVERVIEW: In a timber trespass action, the jury had awarded damages for harvested trees in an amount more than double the value of the underlying property in favor of property owners. The trial court ordered a new trial because of juror misconduct and improper calculation of damages. The court held that the trial court did not abuse its discretion in ordering a new trial on this ground because a juror who concealed bias during voir dire committed misconduct. Furthermore, although it declined to adopt a rule that damages in a timber trespass cannot exceed the value of the underlying property, the court held that under the formula presented to the jury, the damages for lost trees had to be reasonably related to the value of the land. The court found no abuse of discretion on the damages findings because the trial court's ruling that damages could not exceed the value of the land necessarily implied a finding that the damages awarded did not bear such a reasonable relationship. In addition, the court rejected neighbor's cross-appeal holding that the action was not barred by the statute of limitations because the discovery rule applied to timber trespass actions.

OUTCOME: The court affirmed the judgment of the trial court granting a new trial.

CORE TERMS: trespass, timber, juror, new trial, misconduct, discovery rule, juror misconduct, restoration, acres, market value, emotional distress, voir dire, replacement, land's value, cause of action, statute of limitations, expert testimony, emotional, landowner, cutting, deliberations, formula, bias, injured party, cut down, prejudicial, restoring, disclose, inhere, treble

Civil Procedure > Judgments > Relief From Judgment > Motions for New Trials
Civil Procedure > Appeals > Standards of Review > Abuse of Discretion
HN1Go to the description of this Headnote. The granting of a new trial motion is a matter within the discretion of the trial court, and its ruling will not be disturbed absent a showing of clear abuse of that discretion. When such an order, however, is predicated upon rulings of law, no element of discretion is present.

Civil Procedure > Trials > Jury Trials > Jurors > Misconduct
Civil Procedure > Judgments > Relief From Judgment > Motions for New Trials
Criminal Law & Procedure > Juries & Jurors > Voir Dire > Appellate Review
HN2Go to the description of this Headnote. A juror's misrepresentation or failure to speak when called upon during voir dire regarding a material fact can amount to juror misconduct. When there is strong evidence to the effect that a juror was biased when he entered upon the case and swore falsely on voir dire, concealing his bias, the trial court will not abuse its discretion in granting a motion for new trial. The misconduct consists of his deception of the court and counsel as to his incompetence as an impartial juror. Furthermore, a juror who brings to the jury deliberations information outside the record commits misconduct.

Civil Procedure > Trials > Jury Trials > General Overview
Civil Procedure > Judgments > Relief From Judgment > Motions for New Trials
HN3Go to the description of this Headnote. The court must make an objective inquiry into whether the extraneous evidence could have affected the jury's verdict, not a subjective inquiry into the actual effect. Whether such misconduct occurred and whether it was prejudicial are matters within the sound discretion of the trial court, who saw both the witnesses and the trial proceedings, and had in mind the evidence. Any doubt as to whether the misconduct affected the verdict must be resolved against the verdict.

Civil Procedure > Trials > Jury Trials > Jurors > Misconduct
Civil Procedure > Trials > Jury Trials > Jurors > Selection > General Overview
Civil Procedure > Trials > Jury Trials > Jury Instructions > General Overview
HN4Go to the description of this Headnote. The thought processes of jurors inhere in the verdict and cannot be used to impeach it. Even a jury's failure to follow instructions or a misunderstanding of the instructions inheres in the verdict. Juror affidavits, therefore, may not be used to challenge the thought processes involved in reaching a verdict.

Governments > Courts > Common Law
Governments > Legislation > Statutory Remedies & Rights
Torts > Premises Liability & Property > Trespass > Remedies > General Overview
HN5Go to the description of this Headnote. A landowner suffering a timber trespass may pursue either common law remedies or statutory remedies. At common law, damages are measured by the difference in land value before and after the trespass. Under Wash. Rev. Code § 64.12.030, the measure of damages may vary. When the damage is to "timber," the landowner recovers the stumpage value of the trees, together with other damages that are the normal consequence of a logging operation. When the damage is to a "productive tree," such as a fruit tree, the proper measure is the tree's production value.

Torts > Damages > Compensatory Damages > Property Damage > Award Calculations
HN6Go to the description of this Headnote. The recovery of restoration costs in excess of a property's value is permitted if there is a reason personal to the owner for restoring the original condition.

Real Property Law > Torts > Trespass to Real Property
Torts > Damages > Compensatory Damages > Property Damage > General Overview
Torts > Premises Liability & Property > Trespass > Remedies > Damages > Award Calculations
HN7Go to the description of this Headnote. Although timber trespass damages are not limited to the fair market value of the underlying property, such damages must still be reasonable in relation to the property value. Courts have stressed that only reasonable costs of replacing destroyed trees with identical or substantially similar trees may be recovered. Proposed replacement costs may be unreasonable in relation to either the damage to the land or the land's value before the trespass.

Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Affirmative Defenses > Tolling > Discovery Rule
Governments > Legislation > Statutes of Limitations > Time Limitations
Torts > Procedure > Statutes of Limitations > General Overview
HN8Go to the description of this Headnote. Under the discovery rule, the cause of action accrues, and the statute of limitation begins to run, when the plaintiff discovers or reasonably could have discovered all the essential elements of the cause of action. The statute does not begin to run until the plaintiff knows or with reasonable diligence should know that the defendant was the responsible party.

Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Affirmative Defenses > Tolling > Discovery Rule
Real Property Law > Torts > Trespass to Real Property
Torts > Procedure > Statutes of Limitations > General Overview
HN9Go to the description of this Headnote. The discovery rule applies to timber trespass actions at least where, the defendant conceals his wrongdoing.

Torts > Damages > Compensatory Damages > Pain & Suffering > Emotional & Mental Distress > General Overview
Torts > Premises Liability & Property > Trespass > Remedies > Damages > General Overview
HN10Go to the description of this Headnote. Because extraordinary losses in a timber trespass action are recoverable if properly segregated, a landowner can recover for emotional distress damages.

Civil Procedure > Appeals > Standards of Review > Abuse of Discretion
Criminal Law & Procedure > Appeals > Standards of Review > Abuse of Discretion > Evidence
Evidence > Testimony > Experts > Admissibility
HN11Go to the description of this Headnote. The trial court has discretion on whether to admit expert testimony; its discretion will only be overturned for an abuse of that discretion.

Hide Headnotes / Syllabus

SUMMARY: Nature of Action: Action for damages for timber trespass.

Superior Court: After directing a verdict on liability in favor of the plaintiffs, and after the jury had determined the plaintiffs' tree loss and emotional distress damages and found that the trespass was willful, the Superior Court for Thurston County, No. 90-2-02437-4, Daniel J. Berschauer, J., on March 29, 1995, granted the defendants' motion for a new trial.

Court of Appeals: Holding that the trial court did not abuse its discretion in granting a new trial based on the misconduct of a juror in concealing bias, that restoration cost damages could be awarded for the timber trespass in an amount greater than the value of the underlying land so long as the damages are reasonably related to the land's value, and that the action was subject to the discovery rule and was not time barred, the court affirms the decision of the trial court.

HEADNOTES
WASHINGTON OFFICIAL REPORTS HEADNOTES

WA[1][1] New Trial -- Review -- Questions of Law A trial court's grant of a new trial on the basis of a legal rather than factual issue is reviewed under the error of law standard.

WA[2][2] Jury -- Misconduct -- Failure To Disclose Information -- Misrepresentation -- Material Fact A juror's misrepresentation or failure to speak regarding a material issue of fact when called upon during voir dire constitutes juror misconduct that may warrant a new trial.

WA[3][3] Jury -- Selection -- Examination -- Failure To Disclose Information -- Bias A juror's failure during voir dire to disclose information regarding a material issue of fact that would reveal the juror's bias constitutes misconduct that may warrant a new trial.

WA[4][4] Jury -- Misconduct -- Extraneous Evidence -- Interjection Into Deliberations -- In General A juror commits misconduct by bringing information outside the record into the jury deliberations.

WA[5][5] Jury -- Misconduct -- New Trial -- Prejudice -- Necessity Juror misconduct warrants a new trial if the misconduct is prejudicial.

WA[6][6] Jury -- Misconduct -- Prejudice -- Objective or Subjective Test Whether juror misconduct is prejudicial to a party is determined by an objective test that asks whether the misconduct could have affected the jury's verdict. Doubts are resolved against the verdict.

WA[7][7] Jury -- Misconduct -- Prejudice -- Discretion of Court Whether a juror has committed misconduct and whether a juror's misconduct is prejudicial are issues addressed to the trial court's sound discretion.

WA[8][8] Jury -- Misconduct -- Review -- Standard of Review A trial court's ruling that a juror committed misconduct and that the misconduct was prejudicial is reviewed for an abuse of discretion. Discretion is not abused unless the ruling is manifestly unreasonable, is based on untenable grounds, or was made for untenable reasons.

WA[9][9] Appeal -- Assignments of Error -- Argument -- Not Raised by Parties In general, an appellate court will not consider an argument not presented by a party before the court.

WA[10][10] Trial -- Verdict -- Impeachment -- Juror's Mental Processes -- In General The thought processes of jurors inhere in the verdict and may not be used to impeach the verdict.

WA[11][11] Trespass -- Cutting of Timber -- Treble Damages -- Measure of Damages -- In General In an action under RCW 64.12.030 for timber trespass, the measure of damages depends upon the circumstances of the trespass and the nature of the vegetation injured or destroyed.

WA[12][12] Trespass -- Cutting of Timber -- Treble Damages -- Measure of Damages -- Restoration Cost -- Exceeding Value of Land -- Reasonableness In an action under RCW 64.12.030 for timber trespass, damages may be awarded, before trebling, for the cost of restoring the vegetation, even if the restoration cost exceeds the underlying value of the land, if the owner of the land has a personal reason for restoring the property as nearly as possible to its original condition and the damages are reasonable in relation to the fair market value of the land. Proposed replacement costs may be unreasonable in relation to either the damage to the land or the land's value before the trespass.

WA[13][13] Limitation of Actions -- Accrual of Cause -- Discovery Rule -- What Constitutes Under the discovery rule, a cause of action does not accrue until (1) the injured party discovers, or reasonably could have discovered, all of the essential elements constituting the action, and (2) the injured party knows, or with reasonable diligence should know, the identity of the party presumably responsible for the injury.

WA[14][14] Limitation of Actions -- Accrual of Cause -- Discovery Rule -- Applicability -- Knowledge of All Elements -- Concealment by Defendant The discovery rule may be applied to delay the accrual of a cause of action if the party responsible for the plaintiff's injury has concealed information from the plaintiff that would have revealed the elements of the plaintiff's cause of action.

WA[15][15] Trespass -- Cutting of Timber -- Statutory Provisions -- Right of Action -- Accrual of Cause -- Discovery Rule An action under the timber trespass statute (RCW 64.12.030) does not accrue until the injured party discovers, or reasonably could have discovered, all of the essential elements constituting timber trespass and the injured party knows, or with reasonable diligence should know, the identity of the party presumably responsible for the trespass.

WA[16][16] Trespass -- Cutting of Timber -- Treble Damages -- Additional Damages -- Emotional Distress Emotional distress damages may be awarded under the timber trespass statute (RCW 64.12.030) if they are properly segregated from the trespass damages.

WA[17][17] Evidence -- Opinion Evidence -- Expert Testimony -- Review -- Standard of Review The admission of expert testimony is reviewed for an abuse of the trial court's discretion.

WA[18][18] Evidence -- Opinion Evidence -- Expert Testimony -- Qualifications -- Failure To Challenge -- Effect A witness is qualified to give expert testimony if no challenge is raised to the witness's qualifications.

COUNSEL: Keith L. Kessler, Bradley J. Moore, Garth L. Jones, and Stritmatter Kessler Whelan Withey, for appellants.

Jon E. Cushman and Cushman Raymond & Middleton, P.S., for respondents.

JUDGES: Authored by David H. Armstrong. Concurring: Carroll C. Bridgewater. Dissenting: Elaine M. Houghton

OPINION BY: David H. Armstrong

OPINION

[*725] [**367] Armstrong, J. -- In this timber trespass action, the jury awarded damages for harvested trees in an amount more than double the value of the underlying property. The trial court ordered a new trial because of: (1) juror misconduct and (2) the court's failure to instruct the jury that damages could not exceed the underlying value of the property. The Allyns appeal. The defendants cross-appeal, contending that, because the discovery rule does not apply to timber trespass actions, the action is barred by the statute of limitations. Because a juror who conceals bias during voir dire commits misconduct, we hold that the trial court did not abuse its discretion [***2] in ordering a new trial on this ground. Furthermore, although we decline to adopt a rule that damages in a timber trespass cannot exceed the value of the underlying property, we hold that under the formula presented to the jury, the damages for lost trees must be reasonably related to the value of the land. [*726] Because the trial court's ruling that damages cannot exceed the value of the land necessarily implies a finding that the damages awarded did not bear such a reasonable relationship, we find no abuse of discretion on this ground either. Finally, we hold that the discovery rule applies to timber trespass actions and, therefore, the case was timely filed.
FACTS

The Allyn family has owned 10 acres of wooded, undeveloped property in Thurston County for more than 85 years, purposely leaving the land undeveloped. Richard and Winifred Allyn, the current owners, had planned to eventually build a retirement cabin on a small portion of the land. They currently reside in Bellevue, Washington.

Gordon Boe and Myron Struck (hereinafter "Boe") began logging their adjoining land in July 1987. While logging, they cut down 283 trees from about two acres of the Allyns' land. Boe completed the [***3] logging by September 18, 1987.

Mr. Allyn visited his property on September 12, 1989, and saw that two acres had been logged. He was very upset and reported the theft to the Sheriff's Office. Mr. Allyn suspected Boe because he saw logs on Boe's land and a neighbor told him that Boe had logged his own land in the summer of 1987. But when questioned by the police, Boe denied cutting the trees even though he knew from a survey in 1988 that he had cut some of the Allyns' trees.

Mr. Allyn then hired an attorney, a private investigator, a surveyor, and a timber expert to find out who had cut down his trees. In early October 1990, the timber expert matched a cut tree on Boe's land to a stump on the Allyns' land. Mr. Allyn then sued Boe on October 10, 1990, alleging timber trespass in violation of RCW 64.12.030, and seeking damages for the trespass and for emotional distress.

The defendants sought a dismissal, arguing that the [*727] three-year statute of limitations had run. The trial court denied the motion, finding that, under the discovery rule, the statute of limitations had not begun to run until the Allyns learned of all the elements of the claim, including who had cut the trees. The court [***4] then directed a verdict on liability in favor of the Allyns.

Boe moved to exclude all evidence that the value of the cut timber exceeded the fair market value of the entire 10 acres of land, [**368] arguing that, as a matter of law, the damages in a timber trespass case cannot exceed the fair market value of the underlying parcel of land. The trial court denied the motion.

Molly Beck, an arborist expert for the Allyns, testified on the value of the cut trees. In evaluating the loss, she rejected the cost of cure and replacement value methods because she believed these would yield an exorbitant value. Beck estimated the cost of replanting the trees, some more than two feet in diameter, in excess of $ 400,000. Beck also rejected the stumpage value method, used when evaluating timber as a commodity, because the Allyns were not growing the trees for the timber market.

Instead, Beck used the basic formula method. Under this method, the arborist determines the cost per unit of trunk cross-sectional area to purchase and plant an available replacement tree. Here, Beck used $ 27 per square inch. The total square inches of the cut tree's trunk can then be determined and the value of the tree calculated. [***5] Beck gave the example of a 21-inch diameter Douglas fir with a total calculated value of $ 9,342. This total is then reduced by factors for the location, condition, and species of the tree, resulting in a value of $ 420 for the example tree. Beck calculated the total value of all the trees cut to be $ 84,597. She determined this figure without regard to the appraised market value of the Allyns' land.

Beck conceded that the arborist's manual she used in her calculations stated that "the appraised value of a tree should usually be reasonable in relation to the value of the property in which it is situated." The manual also [*728] suggested that such value could range from seven to fifteen percent of the total value of the land. But Beck disagreed and testified that a tree's value can exceed the value of the property on which it stands.

Struck testified that the logs were sold for $ 27,269. According to Struck, about two-thirds of the trees sold came from the Allyns' 2 acres, while the other third came from the defendants' 15 acres. Donald Taylor, a real estate appraiser, testified that he appraised the Allyns' land with the trees still standing at $ 35,000. Another appraiser had valued [***6] the land at $ 27,500. A forestry management expert testified that the stumpage value of the trees was $ 16,355.

The jury awarded the Allyns $ 75,000 for the loss of trees and $ 25,000 for emotional distress. The jury also found that Boe had willfully trespassed on the Allyns' land. 1 Boe moved for a new trial. In support of the motion, Boe obtained affidavits from several jurors alleging that the following juror misconduct had occurred during deliberations: (1) one juror, a realtor, said that she could get $ 125,000 for the Allyns' land, that she knew Taylor, the defendant's real estate expert, and that he would testify to anything; (2) another juror, a retired logger, said that timber trespass damages had to be tripled and the jury then tripled its damage award. During voir dire, the realtor-juror had said that she knew Taylor, but when asked if this would prevent her from being impartial, she said nothing.

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1 Because of this finding, the trial judge would have been required to treble the $ 75,000 award to $ 225,000. RCW 64.12.030.

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[***7] Boe also renewed his argument that the court should have instructed the jury that timber trespass damages could not exceed the value of the underlying property. Finding the result an "injustice," the trial judge ordered a new trial, concluding that he should have limited damages to no more than the fair market value of the property. The judge also ruled that the realtor juror's statements amounted to misconduct and formed an alternative basis for the new trial. The trial judge, however, ruled [*729] that the statements of the retired logger juror inhered in the verdict and were not juror misconduct. The Allyns appealed and Boe cross-appealed.
ANALYSIS
A. Order Granting a New Trial

WA[1][1] HN1Go to this Headnote in the case. The granting of a new trial motion is a matter within the discretion of the trial court, and its ruling will not be disturbed absent a showing of clear abuse of that discretion. Kramer v. J.I. Case Mfg. Co., 62 Wn. App. 544, 561, [**369]
815 P.2d 798 (1991). When such an order, however, is predicated upon rulings of law, no element of discretion is present. Robinson v. Safeway Stores, Inc., 113 Wn.2d 154, 158, 776 P.2d 676 (1989).

1. Juror Misconduct

WA[2][2] WA[3][3] WA[4][4] HN2Go to this Headnote in the case. A juror's misrepresentation or failure to speak [***8] when called upon during voir dire regarding a material fact can amount to juror misconduct. Robinson, 113 Wn.2d at 158.

When there is strong evidence to the effect that a juror was biased when he entered upon the case and swore falsely on voir dire, concealing his bias, the trial court will not abuse its discretion in granting a motion for new trial. The misconduct consists of his deception of the court and counsel as to his incompetence as an impartial juror.

Robinson, 113 Wn.2d at 158 (quoting Nelson v. Placanica, 33 Wn.2d 523, 528-29, 206 P.2d 296 (1949)). Furthermore, a juror who brings to the jury deliberations information outside the record commits misconduct. Richards v. Overlake Hosp. Med. Ctr., 59 Wn. App. 266, 270, 796 P.2d 737 (1990); see also Halverson v. Anderson, 82 Wn.2d 746, 752, 513 P.2d 827 (1973).

WA[5][5] WA[6][6] WA[7][7] WA[8][8] HN3Go to this Headnote in the case. The court must make an objective inquiry into whether the extraneous evidence could have affected the jury's verdict, not a subjective inquiry into the actual effect. Richards, 59 Wn. App. at 273. Whether such misconduct [*730] occurred and whether it was prejudicial are matters within the sound discretion of the trial court, who saw both the [***9] witnesses and the trial proceedings, and had in mind the evidence. Richards, 59 Wn. App. at 271-72. Any doubt as to whether the misconduct affected the verdict must be resolved against the verdict. Richards, 59 Wn. App. at 273.

In Robinson, the court held that a juror's failure to disclose his bias against California residents, and his perception of their role in the legal process, constituted juror misconduct because the plaintiff was from California. Robinson, 113 Wn.2d at 158-59. In Allison v. Department of Labor & Indus., 66 Wn.2d 263, 265, 401 P.2d 982 (1965), the court held that the trial court should have granted a new trial when a juror also failed to disclose bias during voir dire. The juror stated that, although he had appealed his workers' compensation claim three times, he could be fair and impartial. Allison, 66 Wn.2d at 264-65. Juror affidavits, however, established that during deliberations the juror said "anyone claiming against the state should get everything they can." Allison, 66 Wn.2d at 265.

Here, the juror said that she knew Taylor, but then said nothing when asked if that would prevent her from giving both sides a fair trial. During deliberations, [***10] however, the juror then attacked Taylor's credibility: "he would testify to anything." This attack was not based on what she had heard or seen in the courtroom, but rather on information outside the trial record: she "knew him." Furthermore, the statement dealt with a material issue -- the credibility of an expert on the land's value. Boe maintained throughout the trial that any claimed loss in excess of the value of the underlying property would not be reasonable. If the jury accepted the realtor juror's opinion that the property was worth $ 125,000, 2 rather than $ 35,000, an award of $ 75,000 would conform with Boe's argument. Although the juror's statement may not be as serious as those found [*731] in other cases, the trial court ruled that the statement constituted juror misconduct and, therefore, was grounds for a new trial. Because we cannot conclude that the trial court abused its discretion, we affirm the granting of a new trial based on juror misconduct. See Richards, 59 Wn. App. at 271.

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2 The juror's opinion as to the land's value inheres in the verdict. See Richards, 59 Wn. App. at 274.

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[***11] Citing Richards, the dissent concludes that Boe failed "to make the strong and affirmative [**370] showing of juror misconduct required to support a new trial." Dissenting op. at 739. In Richards, the alleged misconduct occurred when a juror, based on her medical knowledge, suggested that a mother's flu caused a child's birth defects. The trial court denied the plaintiff's motion for new trial. Finding no abuse of discretion, the Court of Appeals affirmed. The court concluded, "ultimately the determination of whether juror misconduct in interjecting evidence outside of the record affected the verdict is within the discretion of the trial court." Richards, 59 Wn. App. at 272. Here, the trial court found misconduct that affected the verdict--a decision within its sound discretion. We cannot say its decision was "manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." Richards, 59 Wn. App. at 271 (citing State ex. rel. Carroll Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)).

WA[9][9] The dissent also concludes that the realtor-juror did not conceal her opinion of Taylor because she was asked vague and open-ended questions. Dissenting op. at 739. But the Allyns never claimed [***12] on appeal that the voir dire questions were vague. They asserted only that the jury's reasoning inhered in the verdict. In general, we will not entertain arguments not presented by the parties. See In re F.D. Processing, Inc., 119 Wn.2d 452, 455-56, 832 P.2d 1303 (1992).

WA[10][10] Boe also urges us to find juror misconduct and affirm because of the retired logger juror's statement that timber trespass damages had to be tripled, which caused the jury to triple its damage award. But HN4Go to this Headnote in the case.the thought processes of jurors inhere in the verdict and cannot be [*732] used to impeach it. Johnson v. Carbon, 63 Wn. App. 294, 301, 818 P.2d 603 (1991); Ayers v. Johnson & Johnson Baby Prods. Co., 117 Wn.2d 747, 768, 818 P.2d 1337 (1991). Even a jury's failure to follow instructions or a misunderstanding of the instructions inheres in the verdict. Ayers, 117 Wn.2d at 769; Gardner v. Malone, 60 Wn.2d 836, 841, 376 P.2d 651 (1962); Hosner v. Olympia Shingle Co., 128 Wash. 152, 155, 222 P. 466 (1924) (failure to read instructions inheres). Juror affidavits, therefore, may not be used to challenge the thought processes involved in reaching a verdict. Ayers, 117 Wn.2d at 768. Accordingly, the trial court [***13] properly denied a new trial on this alternative basis.

2. Limitation on Timber Trespass Damages

WA[11][11] The Allyns contend also that the trial court erred in ruling that it should have limited timber trespass damages, before any statutory trebling, to the fair market value of the property. HN5Go to this Headnote in the case.A landowner suffering a timber trespass may pursue either common-law remedies or statutory remedies. 3 Henriksen v. Lyons, 33 Wn. App. 123, 127, 652 P.2d 18 (1982). At common law, damages are measured by the difference in land value before and after the trespass. Henriksen, 33 Wn. App. at 127. Under the statute, the measure of damages may vary. When the damage is to "timber," the landowner recovers the "stumpage value" of the trees, together with other damages that are the normal consequence of a logging operation. Sherrell v. Selfors, 73 Wn. App. 596, 602, 871 P.2d 168 (1994).

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3 RCW 64.12.030 allows treble damages for a willful trespass.

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When the damage is to a "productive tree," such as a fruit tree, the proper measure [***14] is the tree's production value. Sparks v. Douglas County, 39 Wn. App. 714, 720, 695 P.2d 588 (1985). Lost profits may be recovered for injury to Christmas trees intended to be sold at market. Pearce v. G.R. Kirk Co., 92 Wn.2d 869, 873-74, 602 P.2d 357 (1979). For ornamental greenery on residential or recreational property, the landowner can recover restoration and replacement costs. Birchler v. Castello Land Co., [*733]
Inc. , 81 Wn. App. 603, 607, 915 P.2d 564 (1996), aff'd, 133 Wn.2d 106, 942 P.2d 968 (1997); Tatum v. R&R Cable, Inc., 30 Wn. App. 580, 583, 636 P.2d 508 (1981), overruled on other grounds by Beckmann v. Spokane Transit Auth., 107 Wn.2d 785, 733 P.2d 960 (1987). Finally, the damages may be based on the difference in the value of the land [**371] before and after the cutting. Sherrell, 73 Wn. App. at 602.

WA[12][12] None of these cases, however, addresses the question whether damages under these various methods may exceed the underlying value of the property. HN6Go to this Headnote in the case.THE RESTATEMENT ON TORTS permits the recovery of restoration costs in excess of a property's value if "there is a reason personal to the owner for restoring the original condition." RESTATEMENT (SECOND) OF TORTS § 929 cmt. [***15] b (1965); see also Heninger v. Dunn, 162 Cal. Rptr. 104, 107-08, 101 Cal. App. 3d 858 (1980). Other jurisdictions also do not limit damages to the value of the underlying property. In Samson Constr. Co. v. Brusowankin, 147 A.2d 430, 218 Md. 458 (1958), Maryland's highest court allowed reasonable restoration costs, even though greater than the land's value, if the jury found the plaintiffs had personal reasons for restoring the land as nearly as possible to its original condition. Samson, 147 A.2d at 437.

The Supreme Courts of Colorado and Alaska have adopted similar rules. See Weld County Bd. of County Comm'rs v. Slovek, 723 P.2d 1309, 1317 (Colo. 1986); G&A Contractors, Inc. v. Alaska Greenhouses, Inc., 517 P.2d 1379, 1385-87 (Alaska 1974). In Weld, the Colorado court held that restoration costs, greater than the original value of the property but not unreasonable in relation to that value, were within the trial court's discretion if payment of the market value would not adequately compensate the owner for some personal reason. Weld, 723 P.2d at 1317. The Alaska court ruled that the trial court did not err in awarding reasonable restoration costs, even though these exceeded the value [***16] of the land. G&A, 517 P.2d at 1385-87.

Here, Mr. Allyn testified to the great attachment that he and his family had to the land and its trees. The land [*734] had been left undeveloped for more than 85 years by the Allyn family. He also testified that during the Great Depression, when his family lived on the land in a small building, they refused to cut down any of the trees for firewood. Moreover, Mr. Allyn and his wife intended to retire on the land, preserving the trees. No evidence suggested that the Allyns intended to commercially harvest the trees. Finally, Mr. Allyn testified that he was very upset when he first saw the logged land. The Allyns, therefore, demonstrated personal reasons for restoring the land to its original condition. Accordingly, we hold here the jury could award damages, before any statutory trebling, in excess of the value of the underlying land.

But, HN7Go to this Headnote in the case.although timber trespass damages are not limited to the fair market value of the underlying property, such damages must still be reasonable in relation to the property value. See Weld, 723 P.2d at 1317; G&A, 517 P.2d at 1385-87. "Courts have stressed that only reasonable costs of replacing destroyed trees with identical [***17] or substantially similar trees may be recovered." Heninger, 162 Cal. Rptr. at 108 . Proposed replacement costs may be unreasonable in relation to either the damage to the land or the land's value before the trespass. Heninger, 162 Cal. Rptr. at 108-09.

The facts in Heninger are very similar to the present case. Heninger owned forested mountain land that he valued for its natural beauty. Heninger, 162 Cal. Rptr. at 106, 109. He intended to keep the land, valued at $ 179,000, unimproved. Heninger, 162 Cal. Rptr. at 106, 109. The defendants, however, bulldozed a road on the land, killing or damaging 225 trees and destroying the underbrush. Heninger, 162 Cal. Rptr. at 106. Substantially identical restoration, including the transplanting of a large number of mature trees, cost approximately $ 241,000. Heninger, 162 Cal. Rptr. at 109. Although noting that restoration costs may exceed the value of the underlying property, the court held that this was a manifestly unreasonable expense in relation to the land's value before the trespass. Heninger, 162 Cal. Rptr. at 109.

[*735] Here, Taylor, the real estate appraiser, appraised the Allyns' full 10 acres with the trees still standing [***18] at $ 35,000. Other evidence suggested a possibly lower value -- $ 27,500. Beck, however, testified that, under the basic formula method, the loss of [**372] trees from two acres exceeded $ 84,000. 4 The $ 75,000 damage award, before trebling, for trees cut down from only 2 out of a total of 10 acres, therefore, was more than double the highest appraised value for the entire 10 acres with the trees still standing.

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4 The evidence suggested the trees from the two acres were the most valuable ones on the land.

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In addition, the jury awarded $ 25,000 for emotional distress. Such damages are allowed because "they are unique to the values and sensitivities of the property owner" and "reflect the emotional value a particular person has attached to the property." Birchler, 81 Wn. App. at 608. This rationale is similar to the rationale Beck used in choosing the basic formula, i.e., because the landowner intended to keep the trees "for sentimental, historic, functional, or aesthetic value," and his "feelings for their aesthetic [***19] and functional attributes." Because the parties have not raised the question, we do not decide whether the emotional distress damages award duplicated any part of the award for loss of the trees calculated on the basic value formula. But the close similarity of purpose of the two awards further supports the trial judge's ruling that the total award was not reasonable and amounted to an unjust result.

In conclusion, we hold that although timber trespass damages may exceed the value of the underlying property in the proper case, the damages must still be reasonable in relation to the value of the property. Heninger, 162 Cal. Rptr. at 109; see also Samson, 147 A.2d at 437; Weld, 723 P.2d at 1317; G&A, 517 P.2d at 1385-87. Accordingly, we find no abuse of discretion as to the trial court's alternative ground for granting a new trial.

[*736] CROSS APPEAL ISSUES
B. Discovery Rule in Timber Trespass Cases

In his cross-appeal, Boe contends that the trial court should have dismissed the action because it was not filed within the three-year statute of limitations. RCW 4.16.080(1). He further maintains that the discovery rule does not apply to toll the statute in timber trespass cases.

[***20] A cause of action generally accrues at the time the act or omission occurs. In re Estates of Hibbard, 118 Wn.2d 737, 744, 826 P.2d 690 (1992). In some cases, however, injured parties do not, or cannot, know they have been injured when the injury occurs. Where harm has been sustained, but the plaintiff is unaware of it, a literal application of the statute of limitations may result in a grave injustice. Gazija v. Nicholas Jerns Co., 86 Wn.2d 215, 220, 543 P.2d 338 (1975). The discovery rule is designed to prevent such injustice. Gazija, 86 Wn.2d at 220.

WA[13][13] HN8Go to this Headnote in the case. Under the discovery rule, the cause of action accrues, and the statute of limitation begins to run, when the plaintiff discovers or reasonably could have discovered all the essential elements of the cause of action. Hibbard, 118 Wn.2d at 744; United States Oil & Ref. Co. v. State Department of Ecology, 96 Wn.2d 85, 92, 633 P.2d 1329 (1981). And the statute does not begin to run until the plaintiff knows or with reasonable diligence should know that the defendant was the responsible party. Orear v. International Paint Co., 59 Wn. App. 249, 257, 796 P.2d 759 (1990).

WA[14][14] The Washington Supreme Court adopted the discovery [***21] rule in a medical malpractice action, Ruth v. Dight, 75 Wn.2d 660, 453 P.2d 631 (1969). Although the rule has been extended only to "certain torts," Bowles v. Washington Dep't of Retirement Sys., 121 Wn.2d 52, 80, 847 P.2d 440 (1993), it has been applied where the defendant has concealed information from the plaintiff. Kittinger v. Boeing Co., 21 Wn. App. 484, 488, 585 P.2d 812 (1978).

[*737] In Kundahl v. Barnett, 5 Wn. App. 227, 231, 486 P.2d 1164, review denied, 80 Wn.2d 1001 (1971), the court applied the discovery rule to surveyor malpractice where there was encroachment on neighboring land due to a faulty survey. The discovery rule also applies to negligently caused injury to real property and to damage to real property arising out of construction on adjacent property. Doyle v. Hicks, 78 Wn. App. 538, 544, [**373] 897 P.2d 420 (1995), review denied, 128 Wn.2d 1011, 910 P.2d 482 (1996). The decision to extend the discovery rule to a cause of action is a matter of judicial policy. Denny's Restaurants, Inc. v. Security Union Title Ins. Co., 71 Wn. App. 194, 216, 859 P.2d 619 (1993).

WA[15][15] We hold that HN9Go to this Headnote in the case.the discovery rule applies to timber trespass actions at least where, as here, the defendant [***22] conceals his wrongdoing. See Kittinger, 21 Wn. App. at 488. Boe knew in 1988, from the survey, that he had trespassed on the Allyns' property and cut down their trees. But he did not tell the Allyns of the trespass. Furthermore, when confronted by the sheriff, Boe denied cutting the trees. Mr. Allyn was forced to hire an investigator and timber expert to learn who had cut his trees. Thus, although Mr. Allyn learned of the trespass within the three-year period of the statute, he was frustrated in identifying the trespasser by Boe's denials and concealment. Under these circumstances, fairness compels the application of the discovery rule. Moreover, we see no meaningful distinction between this timber trespass action and the other cases of tortious injury to real property where the discovery rule has been applied. See, e.g., Kundahl, 5 Wn. App. at 231 (discovery rule applies to surveyor malpractice where encroachment on neighboring land was due to a faulty survey); Doyle, 78 Wn. App. at 544 (discovery rule applies to negligently caused injury to real property and to damage to real property arising out of construction on adjacent property). Accordingly, the statute of limitations [***23] on the Allyns' timber trespass cause of action against Boe did not begin to run until October [*738] 1990, when Mr. Allyn learned that Boe had logged his property. The action, therefore, was timely filed.
C. Emotional Distress Damages

WA[16][16] Boe then argues that the trial court erred in permitting the Allyns to recover emotional distress damages. Division One of this court recently held that, HN10Go to this Headnote in the case.because extraordinary losses in a timber trespass action are recoverable if properly segregated, a landowner can recover for emotional distress damages. Birchler, 81 Wn. App. at 607. The court found that such damages cannot be fairly characterized as "a customary by-product" of removing vegetation because the damages are unique to the values and sensitivities of the property owner. Birchler, 81 Wn. App. at 608. Because trees, timber, or vegetation may have little market value, but great emotional value to the landowner, emotional distress damages provide compensation for the personal injury to the landowner. Birchler, 81 Wn. App. at 608-09. Accordingly, the trial court properly permitted the Allyns to recover emotional distress damages.
D. Expert Testimony and Verdict Form

WA[17][17] WA[18][18] Boe then [***24] argues that the trial court erred in admitting the expert testimony of Beck. HN11Go to this Headnote in the case.The trial court has discretion on whether to admit expert testimony; its discretion will be overturned only for an abuse of that discretion. State v. Swan, 114 Wn.2d 613, 655, 790 P.2d 610 (1990), cert. denied, 498 U.S. 1046, 112 L. Ed. 2d 772, 111 S. Ct. 752 (1991). Beck testified to her qualifications; Boe does not challenge these qualifications. Accordingly, the trial court did not abuse its discretion in admitting Beck's testimony.

Finally, Boe's contentions regarding the special verdict form and its emotion distress damages portion are without merit.

[*739] We affirm.

Bridgewater, J., concurs.

DISSENT BY: Elaine M. Houghton

DISSENT

Houghton, C.J. (dissenting) -- I respectfully dissent. The record here does not support the majority's conclusion that a new trial was warranted based upon juror misconduct. During voir dire, the realtor-juror indicated that she knew Taylor. She was then asked if her knowledge and familiarity with Taylor prevent her from "giving either party a fair trial." She indicated that it would not.

Generally courts are reluctant to disturb a jury's verdict absent a strong and affirmative showing of juror misconduct. [***25] See, e.g., Richards v. Overlake Hosp. Med. Ctr., 59 Wn. App. 266, 271, [**374] 796 P.2d 737 (1990). A juror's responses during voir dire may amount to misconduct requiring a new trial where the juror "give[s] a false answer on a material matter during voir dire examination that conceals information properly requested by a litigant." Robinson v. Safeway Stores, Inc., 113 Wn.2d 154, 160, 776 P.2d 676 (1989) (quoting Smith v. Kent, 11 Wn. App. 439, 444, 523 P.2d 446 (1974)).

Here the juror was asked whether her knowledge of Taylor would prevent her from giving the parties a "fair trial." Because this question was vague and open-ended, her response cannot be characterized as a false answer. Further, because the question was too vague to effectively inquire into her opinions regarding Taylor's reputation as an appraiser, her response cannot be considered as concealing information properly requested by a litigant. Boe had the opportunity to ask more pointed questions, but declined to do so. For these reasons, I believe that Boe fails to make the strong and affirmative showing of juror misconduct required to support a new trial order. I would reverse the trial court and reinstate the jury's [***26] verdict.

I would also decline to limit timber trespass damages as the majority has. In concluding that timber trespass damages are not limited by the value of the land, the majority concedes that trees have value beyond that of a mere commodity. [*740] But the rule adopted here arbitrarily limits timber trespass damages by requiring that they be reasonably related to the fair market value of the land.

In Washington, a plaintiff may bring an action for timber trespass under RCW 64.12.030 where the defendant unlawfully removes ornamental trees and shrubs from the plaintiff's property. Tatum v. R&R Cable, Inc., 30 Wn. App. 580, 583, 636 P.2d 508 (1981), overruled on other grounds, Beckmann v. Spokane Transit Auth., 107 Wn.2d 785, 790, 733 P.2d 960 (1987). In such cases the appropriate measure of damages is the cost of replacement and restoration. Birchler v. Castello Land Co., Inc., 81 Wn. App. 603, 607, 915 P.2d 564 (1996), aff'd, 133 Wn.2d 106, 942 P.2d 968 (1997); Sherrell v. Selfors, 73 Wn. App. 596, 603, 871 P.2d 168 (1994); Tatum, 30 Wn. App. at 583.

Here, calculating replacement and restoration costs is within the province of the jury as the finder of fact. Selfors, 73 Wash. [***27] App. at 603; Tatum, 30 Wn. App. at 583-84. There was evidence before the jury that the actual cost of replacement was well in excess of $ 75,000. Further, there was evidence that, under the basic formula method, the total value of the removed trees was $ 84,597. Because the jury's award of $ 75,000 is supported by substantial evidence, I would affirm.

The majority also relies upon the jury's award of $ 25,000 for emotional damages to support its conclusion that the "total award" is unreasonably excessive in relation to the land. A plaintiff in a timber trespass action may recover for emotional distress in addition to statutory damages. Birchler, 81 Wn. App. at 607-09. No case cited by the majority supports the proposition that emotional damages are in any way limited by the value of the land. Because they are properly segregated here, I believe that it is improper to aggregate emotional and statutory damages as the majority has here.

Review denied at 134 Wn.2d 1020 (1998).
__________________

ANNOTATED REVISED CODE OF WASHINGTON
2011 by Matthew Bender & Company, Inc.,
a member of the LexisNexis Group.
All rights reserved.

*** STATUTES CURRENT THROUGH THE 2010 REGULAR AND 2ND SPECIAL SESSIONS ***
*** AND RESULTS OF NOVEMBER 2010 ELECTION ***

TITLE 64.  REAL PROPERTY AND CONVEYANCES 
CHAPTER 64.12.  WASTE AND TRESPASS

GO TO REVISED CODE OF WASHINGTON ARCHIVE DIRECTORY

Rev. Code Wash. (ARCW) § 64.12.030  (2011)

§ 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.

HISTORY: 2009 c 349 § 4; Code 1881 § 602; 1877 p 125 § 607; 1869 p 143 § 556; RRS § 939.

NOTES: *REVISER'S NOTE: RCW 76.48.020 was recodified as RCW 76.48.021 pursuant to 2009 c 245 § 29.

CROSS REFERENCES.

   Trespass, public lands: Chapter 79.02 RCW.

EFFECT OF AMENDMENTS.

   2009 c 349 § 4, effective July 26, 2009, added "including a Christmas tree as defined in RCW 76.48.020," substituted "city or town lot" for "village, town or city lot" throughout, and made stylistic changes.

LexisNexis 50 State Surveys, Legislation & Regulations

   
Timber and Logging

JUDICIAL DECISIONS

ANALYSIS
Go to Appellate reviewAppellate review
Go to ApplicabilityApplicability
Go to Burden of proofBurden of proof
Go to Choice of remediesChoice of remedies
Go to Computation of damagesComputation of damages
Go to ConstructionConstruction
Go to DiscoveryDiscovery
Go to Emotional distress damagesEmotional distress damages
Go to EvidenceEvidence
Go to IntentIntent
Go to Jury instructionsJury instructions
Go to Jury questionJury question
Go to Legislative intentLegislative intent
Go to LiabilityLiability
Go to ProcedureProcedure
Go to PurposePurpose
Go to ScopeScope
Go to Treble damagesTreble damages

Return to Topic List APPELLATE REVIEW.

   Where reliance by defendant on his own amateur survey resulted in defendant unlawfully logging three acres of plaintiff's property, reasonable minds could differ as to whether defendant's conduct was willful or merely negligent; accordingly, jury verdict of treble damages would not be disturbed on appeal. Henriksen v. Lyons, 33 Wn. App. 123, 652 P.2d 18 (1982), review denied, 99 Wn.2d 1001 (1983).

   Where evidence of wrongful cutting is completely conflicting judgment of trial, court may not be disturbed. Jorgensen v. Johnson, 194 Wash. 703, 77 P.2d 374 (1938); Sloop v. Thomas, 20 Wn.2d 409, 147 P.2d 511 (1944).

Return to Topic List APPLICABILITY.

   This section is not limited simply to situations equivalent to common law trespass; it includes, within its scope, unauthorized logging by a lessee. International Raceway, Inc. v. JDFJ Corp., 97 Wn. App. 1, 970 P.2d 343 (1999).

   This section did not apply to tree damage caused by seepage from an irrigation district canal. Seal v. Naches-Selah Irrigation Dist., 51 Wn. App. 1, 751 P.2d 873, review denied, 110 Wn.2d 1041 (1988).

   City's unlawful cutting down of tree on plaintiff's parking strip does not constitute taking for public use under constitution, hence filing of claim is condition precedent. Shaw v. City of Yakima, 183 Wash. 200, 48 P.2d 630 (1935).

   Section has no application where owner of fee cut and removed timber that had been reserved from grant and belonged to another. Skamania Boom Co. v. Youmans, 64 Wash. 94, 116 P. 645 (1911).

   Section applies only to shrubs, trees, and timber. Lytle Logging & Mercantile Co. v. Humptulips Driving Co., 60 Wash. 559, 111 P. 774 (1910).

   Owner may maintain trespass for injuries to property where railroad makes entry on his lands without notice. Bellingham Bay Ry. & Nav. Co. v. Loose, 2 Wash. 500, 27 P. 174 (1891).

   Section applies where applicant to purchase public lands cuts timber on land before issue of patent. United States v. Kelly, 3 Wn. Terr. 421, 17 P. 878 (1888).

Return to Topic List BURDEN OF PROOF.

   Once trespass and damages have been proven, burden shifts to defendant to show that trespass was casual or involuntary or done with probable cause to believe that land was his own, so that single damages only will be awarded. Seattle-First Nat'l Bank v. Brommers, 89 Wn.2d 190, 570 P.2d 1035 (1977).

   Under this section and RCW 64.12.040, which provides treble damages for an unauthorized and willful cutting of trees on the land of another, the burden of proving that the trespass was casual or involuntary, and therefore not willful, is upon the defendant. Longview Fibre Co. v. Roberts, 2 Wn. App. 480, 470 P.2d 222 (1970).

Return to Topic List CHOICE OF REMEDIES.

   A landowner suffering a timber trespass may elect to pursue either common law remedies or statutory remedies. Henriksen v. Lyons, 33 Wn. App. 123, 652 P.2d 18 (1982), review denied, 99 Wn.2d 1001 (1983).

   Because plaintiff elected the statutory remedy for unlawful logging of her property and pursuant thereto was awarded treble the stumpage value of the trees cut, she was not entitled to damages for diminuation of the value of her land except to the extent that such damage was not a usual or normal consequence of a logging operation. Henriksen v. Lyons, 33 Wn. App. 123, 652 P.2d 18 (1982), review denied, 99 Wn.2d 1001 (1983).

   Where owner elects remedy, he may be barred to bring another action on same cause. Bill v. Gattavara, 34 Wn.2d 645, 209 P.2d 457 (1949).

   Owner of land from which standing timber has been removed by trespass may bring common law action for trespass, replevin, conversion, action in implied contract or for statutory trespass. Bill v. Gattavara, 34 Wn.2d 645, 209 P.2d 457 (1949).

Return to Topic List COMPUTATION OF DAMAGES.

   Appellant successfully sued appellee pursuant to Washington's timber trespass statute, RCW 64.12.030, after appellee wrongfully directed loggers to cut down 12 large trees near the border between the parties' land; the trial court awarded $ 32,519.22 to appellant on its timber trespass claim plus $ 2,500 for the cost of grinding out the remainder of the stumps. Happy Bunch, LLC v. Grandview N., LLC, 142 Wn. App. 81, 173 P.3d 959 (2007).

   A jury can award damages for timber trespass, before any statutory trebling, in excess of the value of the underlying land, but the damages must still be reasonable in relation to the property value. Allyn v. Boe, 87 Wn. App. 722, 943 P.2d 364 (1997), review denied, 134 Wn.2d 1020, 958 P.2d 315 (1998).

   Even though a landowner establishes personal reasons for restoring the land to its original condition, replacement costs must still be reasonable in relation to the value of the land before trespass or to the damage to the land. Allyn v. Boe, 87 Wn. App. 722, 943 P.2d 364 (1997), review denied, 134 Wn.2d 1020, 958 P.2d 315 (1998).

   Awards for emotional distress damages as well as for violations of this section upheld; the statutory damages compensate for diminished value to property, while emotional distress damages provide compensation for injury to the person. Birchler v. Castello Land Co., 81 Wn. App. 603, 915 P.2d 564 (1996), aff'd, 133 Wn.2d 106, 942 P.2d 968 (1997).

   Proper measure of damages for the intentional destruction of seven fruit trees was lost production value trebled. Sparks v. Douglas County, 39 Wn. App. 714, 695 P.2d 588 (1985).

   Damages treble the stumpage value awarded for an intentional timber trespass are not necessarily punitive but attempt to compensate the owner of growing timber for premature harvesting by the trespasser. Bloedel Timberlands Dev., Inc. v. Timber Indus., Inc., 28 Wn. App. 669, 626 P.2d 30, review denied, 95 Wn.2d 1027 (1981).

   Stumpage value is not an adequate measure of relief to a plaintiff who intended to market his trees by cutting them and selling them as logs or lumber rather than by selling them as standing timber. Pearce v. G.R. Kirk Co., 92 Wn.2d 869, 602 P.2d 357 (1979).

   Prejudgment interest is not allowable upon jury award in a timber trespass case brought under this section. Ventoza v. Anderson, 14 Wn. App. 882, 545 P.2d 1219, review denied, 87 Wn.2d 1007 (1976); International Raceway, Inc. v. JDFJ Corp., 97 Wn. App. 1, 970 P.2d 343 (1999).

   This section precludes the allowance of interest. Rayonier, Inc. v. Polson, 400 F.2d 909 (9th Cir. 1968).

   Verdict may stand where evidence shows cost of restoration more than damages awarded. Hertzog v. Star Logging Co., 73 Wash. 197, 131 P. 806 (1913).

   Testimony of witness as to value of own timber may be sufficient where not contradicted by other evidence. Hertzog v. Star Logging Co., 73 Wash. 197, 131 P. 806 (1913).

   Verdict for $974.19 for trespass in cutting trees may be excessive where most favorable testimony showed value of $785.74. Nethery v. Nelson, 51 Wash. 624, 99 P. 879 (1909).

Return to Topic List CONSTRUCTION.

   This section is penal in character and must be strictly construed. The relief provided by this section is exclusive and cannot be extended by implication. Rayonier, Inc. v. Polson, 400 F.2d 909 (9th Cir. 1968).

   Section is penal and shall be strictly construed. Gardner v. Lovegren, 27 Wash. 356, 67 P. 615 (1902); Skamania Boom Co. v. Youmans, 64 Wash. 94, 116 P. 645 (1911); Bailey v. Hayden, 65 Wash. 57, 117 P. 720 (1911).

Return to Topic List DISCOVERY.

   The discovery rule, which tolls the statute of limitations, applies to timber trespass actions at least where the defendant conceals his wrongdoing. Allyn v. Boe, 87 Wn. App. 722, 943 P.2d 364 (1997), review denied, 134 Wn.2d 1020, 958 P.2d 315 (1998).

Return to Topic List EMOTIONAL DISTRESS DAMAGES.

   Emotional distress damages are recoverable in an action for timber trespass. Allyn v. Boe, 87 Wn. App. 722, 943 P.2d 364 (1997), review denied, 134 Wn.2d 1020, 958 P.2d 315 (1998).

   Emotional distress damages may be recovered in a timber trespass action under this section, and no election between statutory and common law remedies is necessary. Birchler v. Castello Land Co., 133 Wn.2d 106, 942 P.2d 968 (1997).

   An intentional interference with a property interest is required before emotional distress damages may be awarded under this section. Birchler v. Castello Land Co., 133 Wn.2d 106, 942 P.2d 968 (1997).

Return to Topic List EVIDENCE.

   That cutting and removal of trees was willful or reckless may be shown by circumstantial evidence. Seattle-First Nat'l Bank v. Brommers, 89 Wn.2d 190, 570 P.2d 1035 (1977).

Return to Topic List INTENT.

   It is not necessary to prove intent beyond commission of the act and its consequences. Harold v. Toomey, 92 Wash. 297, 158 P. 986 (1916).

   Intent to commit the trespass is necessary element in order to justify imposition of treble damages. Gardner v. Lovegren, 27 Wash. 356, 67 P. 615 (1902); Bailey v. Hayden, 65 Wash. 57, 117 P. 720 (1911); Tronsrud v. Puget Sound Traction, Light & Power Co., 91 Wash. 660, 158 P. 348 (1916).

Return to Topic List JURY INSTRUCTIONS.

   Held error to instruct that if defendant removed cut timber after notice to cease cutting, his acts as to such timber are intentional and to refuse to instruct that such removal if done to save as much loss as possible would not be evidence that original trespass was wilful. Rogers v. Kangley Timber Co., 74 Wash. 48, 132 P. 731 (1913).

Return to Topic List JURY QUESTION.

   Question of whether trespass was wilful or involuntary and in good faith is for jury. Gibson v. Thisius, 16 Wn.2d 693, 134 P.2d 713 (1943); Hawley v. Sharley, 40 Wn.2d 47, 240 P.2d 557 (1952).

Return to Topic List LEGISLATIVE INTENT.

   When the legislature enacted RCW 79.40.070, it did not intend to deprive Christmas tree owners of the remedy previously provided in this section. Pearce v. G.R. Kirk Co., 92 Wn.2d 869, 602 P.2d 357 (1979).

   This section does not require a landowner to prevent or lessen damages caused by a willful trespasser. Ventoza v. Anderson, 14 Wn. App. 882, 545 P.2d 1219, review denied, 87 Wn.2d 1007 (1976).

   In enacting this treble damage statute for wrongful cutting of timber the Washington legislature did not limit recovery either to a common-law form of action or a common-law standard of recovery and phrase "such trespasses" is used merely in the more general sense of trespass, that is, the doing of an unlawful act or of a lawful act in an unlawful manner to the injury of another person or property. Rayonier, Inc. v. Polson, 400 F.2d 909 (9th Cir. 1968).

   Laws 1943, Ch. 22 changed existing law to make recovery of treble damages mandatory instead of permissive where plaintiff prevails. Graffell v. Honeysuckle, 30 Wn.2d 390, 191 P.2d 858 (1948).

Return to Topic List LIABILITY.

   Where county had sufficient notice of a boundary dispute and chose to continue with the destruction of trees, including seven trees on appellant's property, the county was required to pay treble damages, its trespass not being within the parameters of the state allowing courts to deny treble damages for good faith errors. Sparks v. Douglas County, 39 Wn. App. 714, 695 P.2d 588 (1985).

   The holder of a utility easement may be held liable for treble damages when it deviates from the location of that easement without first obtaining permission of the landowner. Tatum v. R & R Cable, Inc., 30 Wn. App. 580, 636 P.2d 508 (1981), overruled on other grounds, Beckman v. Spokane Transit Auth., 107 Wn.2d 785, 733 P.2d 960 (1987).

   Where guardian had no authority to order logging of estate timber and loggers had no probable cause to believe logging was authorized, loggers were liable for treble damages to estate. Seattle-First Nat'l Bank v. Brommers, 89 Wn.2d 190, 570 P.2d 1035 (1977).

   Where some of plaintiff's trees were cut by defendant and some by third parties, it was proper to find defendant an independent tortfeasor and to apportion damages. Rauscher v. Halstead, 16 Wn. App. 599, 557 P.2d 1324 (1976).

   The removal of timber from land to which the owner of an undivided one-half interest therein had conveyed that interest to the defendant rendered the defendant liable to the nonconsenting cotenant for treble damages under this section. Rayonier, Inc. v. Polson, 400 F.2d 909 (9th Cir. 1968).

   This section is strictly limited to damages resulting from the cutting or destruction of trees, hence where a plaintiff was allowed damage for both removal of trees and removal of a bulkhead such damage being unsegregated, the trial court properly refused to allow treble damages under this section. Nystrand v. O'Malley, 60 Wn.2d 792, 375 P.2d 863 (1962).

   Trespass may be wilful and not casual or involuntary, where parties informed by owner he did not want trees cut. Ross v. Norton, 36 Wn.2d 835, 221 P.2d 476 (1950).

   Where person with knowledge of bona fide boundary dispute intentionally enters disputed area and destroys trees, he may be subjected to treble damages. Mullally v. Parks, 29 Wn.2d 899, 190 P.2d 107 (1948).

   Where trespass is committed by advice or direction of defendant, it is unimportant what relation exists between immediate wrongdoer and the person sought to be charged. Bill v. Gattavara, 24 Wn.2d 819, 167 P.2d 434 (1946).

   Element of wilfulness may be sufficiently shown where county employees cut trees and brush on lands adjoining highway knowing they are trespassing on private property. Fredericksen v. Snohomish County, 190 Wash. 323, 67 P.2d 886 (1937).

   City may be liable for cutting down shade trees. Shaw v. City of Yakima, 183 Wash. 200, 48 P.2d 630 (1935).

   City may not be liable for cutting down shade trees in street. Schaller v. City of Tacoma, 99 Wash. 166, 168 P. 1136 (1917).

   Finding that trespass was not casual may be sustained where defendants cut trees without having made any effort to locate true boundary. Nethery v. Nelson, 51 Wash. 624, 99 P. 879 (1909).

   Where innocent purchaser buys logs from wilful trespasser, he may be liable for value of logs at time of purchase. United States v. Kelly, 3 Wn. Terr. 421, 17 P. 878 (1888).

Return to Topic List PROCEDURE.

   Court may allow amendment of complaint where no surprise claimed. Townsend v. Three Lakes Lumber Co., 67 Wash. 654, 122 P. 29 (1912).

   Judgment may be directed under this section where evidence sufficient. Northern Pac. Ry. v. Myers-Parr Mill Co., 54 Wash. 447, 103 P. 453 (1909).

   Timber company and mill company both owned and managed by same persons may be joined in one action for point trespass. Heybrook v. Index Lumber Co., 49 Wash. 378, 95 P. 324 (1908).

Return to Topic List PURPOSE.

   The purpose of this section is threefold: to punish a voluntary offender, to provide a rough measure for future damages, and to discourage persons from carelessly or intentionally removing another's merchantable shrubs or trees on the gamble that the enterprise will be profitable if actual damages only are occurred. Guay v. Washington Natural Gas Co., 62 Wn.2d 473, 383 P.2d 296 (1963).

Return to Topic List SCOPE.

   The cost of removing debris is not among the injuries contemplated by the waste or trespass statutes. Tuthill v. Palermo, 14 Wn. App. 781, 545 P.2d 588, review denied, 87 Wn.2d 1002 (1976).

   The cost of removing a pile of debris resulting from a wilful cutting of trees and shrubs is not one of the injuries contemplated by this section, for when the debris was removed there was no damage to the land or dimunition in its value, and thus no injury for which treble damages could be allowed. Guay v. Washington Natural Gas Co., 62 Wn.2d 473, 383 P.2d 296 (1963).

Return to Topic List TREBLE DAMAGES.

   Trebling of plant damages to the neighbor was proper where the landowners did not have probable cause to believe the plants were on their property and they were not entitled to mitigation under RCW 64.12.040; however, certain injured plants were not in the "street" in front of the neighbor's house and the trial court erred in awarding her damages for them. Maier v. Giske, 154 Wn. App. 6, 223 P.3d 1265 (2010).

   Where appellee wrongfully directed loggers to cut down 12 large trees at the common boundary line with appellant's property, appellant brought a successful suit against appellee under Washington's timber trespass statute, RCW 64.12.030; the trial court erred by ruling that RCW 64.12.030's treble damages provision did not apply because the trees were growing on the property line; as appellee knowingly and willfully cut trees belonging in part to another, the trial court had no discretion to award other than treble damages. Happy Bunch, LLC v. Grandview N., LLC, 142 Wn. App. 81, 173 P.3d 959 (2007).

   Treble damages for timber trespass in logging on adversely possessed property was properly awarded. Erickson Bushling, Inc. v. Manke Lumber Co., 77 Wn. App. 495, 891 P.2d 750 (1995).

   The reasons for treble damages rule are: (1) to punish the voluntary trespasser, (2) to provide a rough measure of future damages to the owner of the timber, and (3) to discourage persons from removing another's timber on the gamble the enterprise will be profitable if actual damages only are incurred. Seattle-First Nat'l Bank v. Brommers, 89 Wn.2d 190, 570 P.2d 1035 (1977).

   One who willfully or recklessly cuts down and removes trees from the land of another is liable to the latter for treble damages. Seattle-First Nat'l Bank v. Brommers, 89 Wn.2d 190, 570 P.2d 1035 (1977).

   This section allows treble damages computed on the stumpage value of trees cut whether or not removed. Ventoza v. Anderson, 14 Wn. App. 882, 545 P.2d 1219, review denied, 87 Wn.2d 1007 (1976).

   Treble damages will be imposed under this section on trespassers cutting trees unless the trespasser can bring himself within the terms of the exculpatory statute, RCW 64.12.040, i.e., it must be made to appear that the trespass is casual or involuntary, or that the trespasser had probable cause to believe that he had express authority to cut trees on the land. Smith v. Shiflett, 66 Wn.2d 462, 403 P.2d 364 (1965).

   To support treble damages for the removal of timber under this statute and RCW 64.12.040, there must be an element of willfulness on the part of the trespasser; however, willfulness may be established by circumstantial evidence. Blake v. Grant, 65 Wn.2d 410, 397 P.2d 843 (1965).

   Where survey of timber land by the defendant was not accurate and as such amounted to negligence, but the trespass was not willful or in reckless disregard of probable consequences, treble damages were not allowed. Grays Harbor County v. Bay City Lumber Co., 47 Wn.2d 879, 289 P.2d 975 (1955).

   Treble damages may be awarded upon trial court's finding, supported by the evidence, that trespass not casual, voluntary or excusable, defendants being aware of property line. Allen v. Mickelson, 43 Wn.2d 509, 262 P.2d 179 (1953).

   Where person with knowledge of bona fide boundary dispute intentionally enters disputed area and destroys trees, such acts may subject him to treble damages. Hirt v. Entus, 37 Wn.2d 418, 224 P.2d 620 (1950).

   Where jury set amount of damage and finds it was wilfully done, judgment shall be for treble the amount found by jury. Lawson v. Helmich, 20 Wn.2d 167, 146 P.2d 537 (1944).

   Where facts show no good reason for defendant to believe he was cutting his own timber and there is unlawful removal, statute requires treble damages. Martinson v. Gregorson, 129 Wash. 701, 225 P. 243 (1924).

   Where mortgagor instead of redeeming at law from mortgage foreclosure, seeks accounting in equity for rents and profits during redemption period, he may not exact penalty of treble damages under this section. Cogswell v. Brown, 102 Wash. 625, 173 P. 623 (1918).

   In action for treble damages for wilful trespass, it is not necessary that answer affirmatively set up trespass as casual or involuntary where under general denial such fact shown. Luedinghaus v. Pederson, 100 Wash. 580, 171 P. 530 (1918).

   Treble damages may not be recovered for injuring trees which defendants were authorized to trim beyond menace of power wires. Tronsrud v. Puget Sound Traction, Light & Power Co., 91 Wash. 660, 158 P. 348 (1916).

   Treble damages means treble the value of the standing timber and not its increased value after it is cut into logs. Bailey v. Hayden, 65 Wash. 57, 117 P. 720 (1911).

   Owner of a city lot may recover treble damages for cutting trees in abutting street and alley. Simons v. Wilson, 61 Wash. 574, 112 P. 653 (1911).

   Treble damages may be awarded where no claim by defendant that trespass was casual or involuntary and jury found defendant had no probable excuse. Northern Pac. Ry. v. Myers-Parr Mill Co., 54 Wash. 447, 103 P. 453 (1909).

   Proof of contract agreeing to pay value of timber cut may be valid defense to action for treble damages. Tacoma Mill Co. v. Perry, 40 Wash. 44, 82 P. 140 (1905).

   Not error for attorney to inform jury that court will treble damages they find occurred. Gardner v. Lovegren, 27 Wash. 356, 67 P. 615 (1902).

The Deaconess Hospital, Respondent, v. Washington State Highway Commission et al., Appellants

No. 37673

SUPREME COURT OF WASHINGTON

66 Wn.2d 378; 403 P.2d 54; 1965 Wash. LEXIS 876

June 7, 1965

SUBSEQUENT HISTORY:  [***1]  Petition for Rehearing Denied September 14, 1965.

CASE SUMMARY

PROCEDURAL POSTURE: Appellant, Washington State Highway Commission, sought review of a decision by the Superior Court for Spokane County (Washington), which granted respondent property owner's request for an injunction against the expansion of a state highway. The trial court found that appellant had not complied with the statutory notice and hearing requirements, had acted arbitrarily and capriciously, and would have been creating a nuisance in fact.

OVERVIEW: Respondent brought suit against appellant and sought injunctive relief against the further construction of a state highway, contending that the proximity of the highway to respondent's hospital would have rendered a wing of the hospital unusable. Appellant renewed its challenge to the jurisdiction of the Spokane County trial court, asserting that the suit was actually one against the state, and as such was required to have been brought in Thurston County under Wash. Rev. Code § 4.92.010 and Wash. Const. art. 2, § 26. The court agreed with appellant and reversed the decision by the trial court in favor of respondent. The court found that the state, being most vitally affected by the permanent injunction, was the real party in interest and the party actually enjoined. The court further ruled that the Superior Court for Spokane County was, therefore, without jurisdiction to hear the cause under the law. The court reasoned that the individual appellants and the Highway Commission as an organ of government comprised the only agents of government charged by law with carrying out the state's highway program.

OUTCOME: The court reversed the decision of the trial court that granted respondent's request for an injunction against appellant and the further construction of a state highway.

CORE TERMS: highway, freeway, street, abutting owner, notice, injunction, route, nuisance, enjoin, sovereign, noise, state highway, feet, wing, condemnation, enjoined, abutting, ingress, subject matter, capricious, traffic, egress, real party in interest, eminent domain, license, statutory authority, sovereign state, grade, state officers, nuisance in fact

LexisNexis® Headnotes Hide Headnotes

Civil Procedure > Federal & State Interrelationships > Sovereign Immunity > State Immunity
Constitutional Law > State Autonomy > General Overview
International Law > Immunity > General Overview
HN1Go to the description of this Headnote.    Wash. Const. art. 2, § 26 declares that the legislature shall direct by law, in what manner, and in what courts, suits may be brought against the state. A sovereign state cannot be sued without its consent. The immunity is absolute, and, when consent is given, it may be qualified or conditional and may specify a particular court in which the permitted actions may be maintained.

Civil Procedure > Pleading & Practice > Pleadings > Complaints > General Overview
Civil Procedure > Remedies > Bonds > Executions
Governments > Courts > Clerks of Court
HN2Go to the description of this Headnote.    Pursuant to the powers granted by Wash Const. art. 2, § 26, the legislature enacted Wash. Rev. Code § 4.92.010, part of which reads that any person or corporation having any claim against the state of Washington shall have a right of action against the state in the superior court of Thurston county. The plaintiff in such action shall, at the time of filing his complaint, file a surety bond executed by the plaintiff and a surety company authorized to do business in the state of Washington to the effect that such plaintiff will indemnify the state against all costs that may accrue in such action, and will pay to the clerk of said court all costs in case the plaintiff shall fail to prosecute his action or to obtain a judgment against the state. Claim, as used in the foregoing section, means cause of action and extends to suits in equity.

Constitutional Law > State Autonomy > General Overview
HN3Go to the description of this Headnote.    A suit against state officers in which an attack is made against the constitutionality of a state statute is not a suit against the state.

Civil Procedure > Venue > General Overview
Constitutional Law > State Autonomy > General Overview
Governments > Local Governments > Claims By & Against
HN4Go to the description of this Headnote.    The decisions of the Supreme Court of Washington have uniformly indicated that it regards Wash. Rev. Code § 4.92.010, as a statute of jurisdiction rather than merely one of venue. When a suit against the state is commenced in a superior court outside Thurston County, such court does not have jurisdiction of the action.

Real Property Law > Eminent Domain Proceedings > Valuation
Transportation Law > Bridges & Roads > Public Use
HN5Go to the description of this Headnote.    The owner of property abutting upon a public street has a right to use the street for ingress and egress. Converting such a street to a limited access facility, if it shuts off an abutting owner's ingress thereto, damages the abutting owner's property rights and is compensable in eminent domain. Wash. Rev. Code § 47.52.072 through Wash. Rev. Code § 47.52.075 is designed to give the abutting owners on a street, who may lose access thereto, an opportunity to be heard and present alternate plans before the damage is done them.

Real Property Law > Eminent Domain Proceedings > General Overview
HN6Go to the description of this Headnote.    Unless the abutting owner will lose or suffer substantial loss of ingress or egress to an existing street, he is not entitled to the notice prescribed in Wash. Rev. Code § 47.52.072.

Real Property Law > Eminent Domain Proceedings > Constitutional Limits & Rights > General Overview
Real Property Law > Eminent Domain Proceedings > Title Acquired
Transportation Law > Rail Transportation > Lands & Rights of Way
HN7Go to the description of this Headnote.    So plenary are the state's powers in eminent domain that it may take land for highway purposes even though the taking may trench upon the railroad right of way. Once the purpose for which the lands are taken has been adjudged to be public, the kind and type of roadway, the route to be followed, the design and engineering details become the subject of administrative decision. These decisions will not be set aside or molested by the courts unless shown to have been arrived at without statutory authority or by bad faith or fraud, or capriciously or arbitrarily.

Administrative Law > Judicial Review > Standards of Review > General Overview
HN8Go to the description of this Headnote.    Courts ought not substitute their judgment for that of the administrative agency nor review the wisdom of administrative decisions unless such review will shed substantial light on the method by which the decisions were reached. If the administrative agency has acted honestly, with due deliberation, within the scope of and to carry out its statutory and constitutional functions, and been neither arbitrary, nor capricious, nor unreasonable, there is nothing left for the courts to review. A different conclusion would place the judiciary in the untenable position of substituting its judgment for that of the administrative agency contrary to a number of decisions on this particular point.

Real Property Law > Torts > Nuisance
Real Property Law > Torts > Nuisance > Defenses > Statutory Authorization
HN9Go to the description of this Headnote.    Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance. Wash. Rev. Code § 7.48.160.

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SUMMARY: Appeal from a judgment of the Superior Court for Spokane County, No. 169664, Ralph P. Edgerton, J., entered February 27, 1964. Reversed.

Action for injunctive relief. Defendants appeal from a judgment in favor of the plaintiff.

HEADNOTES
WASHINGTON OFFICIAL REPORTS HEADNOTES

WA[1][1] States — Action Against State — Real Party in Interest Where the allegations of the pleadings are such as to raise substantial issues of potential damage to property without ascertainment and payment of just compensation, or unlawful or arbitrary and capricious action by state officers beyond the scope of or contrary to their statutory authority, an injunctive action will lie in the county where the damages or acts allegedly occurred or were about to occur, notwithstanding RCW 4.92.010, which provides that actions against the state shall be brought in the Superior Court for Thurston County.

WA[2][2] Same — Action Against State — State's Interest in Highway Project An injunctive action alleging potential property damage from noise and fumes from a proposed highway, and further alleging that members of the Highway Commission were proceeding unlawfully and beyond the scope of statutory authority, was not required to be brought in Thurston County under [***2]  RCW 4.92.010, by the fact that within the scope of requested relief was the possibility that a state highway project might be enjoined until the damages could be ascertained and the state officers complied with statutory provisions, nor by the fact that a permanent injunction was asked upon the basis of nuisance, where it did not appear that any of the claims were injected for jurisdictional purposes.

WA[3][3] Eminent Domain — Highways — Limited Access Highway — Condemnation Abutting property owners are entitled to notice and an opportunity to be heard, as provided in RCW 47.52.072-075, before any street is converted into a limited access facility only if the owners lose the right of egress from and ingress to said street, since interference with the owners' rights of egress and ingress damages their property rights and is compensable in eminent domain; and if such owners do not suffer substantial loss of egress or ingress they suffer no damage and are not entitled to the statutory notice.

WA[4][4] Same — Highways — Limited Access Highway — Abutting Property Owner The construction of an elevated limited access highway which leaves untrammeled the entire width [***3]  of an existing, adjacent street as well as its parking strips and sidewalks, does not permit an abutting property owner along said street to acquire the rights of an abutting owner along the highway, since his rights of egress and ingress to the existing street are left unimpaired.

WA[5][5] Highways — Administrative Law and Procedure — Review of Administrative Decision Once it has been established that the taking of land in eminent domain for the construction of a limited access highway is for a public purpose, the kind of roadway, the route to be followed and the engineering details become the subject of administrative decision by the proper governmental body, which decisions will not be set aside by the court unless shown to have been arrived at without statutory authority, by bad faith or fraud, or capriciously or arbitrarily.

WA[6][6] Same — Nuisance — Activity Authorized by Statute A highway built pursuant to specific legislative enactment (RCW 47.16.020) and under general statutory authority of the highway statutes, cannot constitute a nuisance in fact simply because of its proximity to a certain building, since nothing which is done or maintained under [***4]  the express authority of a statute can be deemed a nuisance (RCW 7.48.160).

COUNSEL: The Attorney General, Delbert W. Johnson and Angelo R. Petruss, Assistants, for appellants.

Schweppe, Reiter, Doolittle & Krug, Thomas R. Beierle, and Benjamin H. Kizer, for respondent.

Lewis L. Stedman, for amicus curiae Washington State Hospital Association.

Williams, Cole & Kinnear and Kenneth A. Cole, for amicus curiae Association of Washington Cities.

Keith, Winston & Repsold, by Patrick H. Winston, for amici curiae Spokane County Good Roads Association et al.

JUDGES: En Banc. Hamilton, J. Rosellini, C. J., Hill, Finley, Weaver, and Hunter, JJ., concur. Ott, J., concurs in the result. Hale, J. Ott, J., concurs with Hale, J. Donworth, J., concurring in part and dissenting in part.

OPINION BY: HAMILTON; HALE

OPINION

[*379]   [**56]  Respondent, The Deaconess Hospital, commenced this action in Spokane County, seeking to enjoin the Washington State Highway Commission, the commissioners thereof, and the director of highways from proceeding further in the location [***5]  and construction of state  [*380]  primary highway No. 2, a multilane freeway passing through the city of Spokane and within 65 to 70 feet from the north wing of respondent hospital. The state of Washington, as a distinct entity, was not named as a party.

In support of the relief which it sought, respondent in substance alleged that (a) it was an owner of property abutting on the proposed freeway; (b) the noise and fumes of traffic from the proposed freeway, together with projected interference with established access routes, would invade and restrict the peaceable enjoyment of the hospital properties, constitute a nuisance in fact, and cause substantial damage to respondent's property rights; (c) statutory notice and hearing requirements relating to highway planning (RCW 47.52.130 and 47.52.140) and access limitation (RCW 47.52.072) were not complied with, thus rendering appellants' actions unlawful; and (d) by reason of noncompliance with statutory procedures and because alternative and preferable routes were available, appellants' decision as to location and routing of the highway was arbitrary and capricious.

Respondent did not, in this action, seek damages. It sought only [***6]  injunctive relief against the highway commission and its officers. The scope of the relief which it contemplated was (1) a permanent injunction compelling appellants to re-route the proposed highway; or (2) an injunction restraining appellants from proceeding with the proposed highway until they had complied with the statutory notice and hearing requirements; or (3) an injunction enjoining completion of the highway until respondent's damage had been ascertained and compensation paid therefor.

Appellants moved to dismiss respondent's complaint, asserting as a basis for such motion that the action was an action against the state and jurisdiction over such rested exclusively in the Superior Court of Thurston County. Affidavits and counter-affidavits were filed, and the motion was extensively argued before the trial court. The trial court denied the motion. Appellants did not seek review by way of prohibition, certiorari, or other extraordinary remedy.  [*381]  Instead, appellants answered respondent's complaint, denying the material allegations thereof. A lengthy trial ensued.

At the conclusion of the evidence submitted by the parties, the trial court, in essence, found and [***7]  concluded that respondent was an abutting owner, and that appellants had not complied with the statutory notice and hearing requirements, had acted arbitrarily and capriciously, and as to respondent's properties, would be creating a nuisance in fact and would inflict damage upon such properties. The trial court thereupon issued a permanent injunction restraining appellants from locating and constructing the highway in question along the proposed route in front of respondent hospital.

[**57]  On appeal, appellants renew their challenge to the jurisdiction of the Superior Court of Spokane County.

In support of their challenge, appellants rely upon the provisions of RCW 4.92.010, 1 and the application given thereto by this court in State ex rel. Pierce Cy. v. Superior Court, 86 Wash. 685, 151 Pac. 108 (1915) (a taxpayer's action to restrain the state highway commissioner, the state auditor, and the Pierce County Commissioners from issuing warrants against the state in payment for work performed under a highway construction contract); State ex rel. Pate v. Johns, 170 Wash. 125, 15 P.2d 693 (1932) (a student's action to compel the board of regents of the University of Washington [***8]  to admit him upon payment of a state resident's tuition fee rather than a non-resident's tuition fee); and State ex rel. Thielicke v. Superior Court, 9 Wn.2d 309, 114 P.2d 1001 (1941) (a suit initiated against the state in Thurston County seeking recovery for property  [*382]  damage arising out of highway construction). In each of the cited cases, this court held that, by their nature, the actions were in essence and in substance actions against the pecuniary and sovereign interests of the state and that the jurisdiction for such actions lay in Thurston County.

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1 "Any person or corporation having any claim against the state of Washington shall have a right of action against the state in the superior court of Thurston county. The plaintiff in such action shall, at the time of filing his complaint, file a surety bond executed by the plaintiff and a surety company authorized to do business in the state of Washington to the effect that such plaintiff will indemnify the state against all costs that may accrue in such action, and will pay to the clerk of said court all costs in case the plaintiff shall fail to prosecute his action or to obtain a judgment against the state: . . ." RCW 4.92.010.

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[***9]  WA[1][1] Respondent, on the other hand, points to its allegations and evidence dealing with abutting ownership, unlawful and arbitrary and capricious action on the part of appellants as state officials, and potential invasion of and damage to its property rights, and urges that the action falls within the ambit of State v. Superior Court for Walla Walla Cy., 167 Wash. 334, 9 P.2d 70 (1932) (an action initiated in Walla Walla County to enjoin the director of highways and his subordinates from changing the grade of an existing highway without ascertainment and payment of just compensation to an abutting owner); State ex rel. Robinson v. Superior Court, 181 Wash. 541, 43 P.2d 993 (1935) (involving an action initiated in Spokane County to enjoin the state director of agriculture from revoking a license under the provisions of the state agricultural adjustment act, an act declared to be unconstitutional); State ex rel. Robinson v. Superior Court, 182 Wash. 277, 46 P.2d 1046 (1935) (involving an action initiated in King County to enjoin the state director of agriculture from enforcing the provisions of a re-enacted agricultural adjustment act and canceling a license);  [***10]  Wiegardt v. Brennan, 192 Wash. 529, 73 P.2d 1330 (1937) (an action initiated in Pacific County to enjoin the state director of fisheries from enforcing a statutorily established closed season on razor clams); and State ex rel. Fleming v. Cohn, 12 Wn.2d 415, 121 P.2d 954 (1942) (an action initiated in Thurston County to compel the state basic science examining board to issue certificates to plaintiffs which it was alleged were arbitrarily and capriciously refused, the question being whether an appeal bond was required). In each of the cited cases, this court held that the state and its sovereign interests were not so affected as to render it a real party in interest to the action. In short, this court indicated that where the allegations of the pleadings were such as to  [*383]  raise substantial issues of (a) potential damage to property without ascertainment and payment of just compensation, or (b) unlawful or arbitrary and capricious action by state officers beyond the scope of or contrary to their statutory authority, an injunctive action would lie in the county where the damages or the acts allegedly occurred or were about to occur.

WA[2][2]  [**58]  In the instant [***11]  case, respondent alleged prospective damage to its properties arising out of noise and noxious fumes. Within the scope of its request for relief in this respect was the possibility that the trial court might have enjoined completion of the highway project until respondent's damages were ascertained and paid. Respondent also alleged that appellants, as agents and administrators, were proceeding unlawfully and beyond the scope of their statutory authority in that they had failed to comply with the notice and hearing provisions of the statute with respect to route and access limitations. Within the scope of respondent's request for relief in this regard was the possibility that the trial court might have enjoined further development of the project until appellants had complied with the statutory provisions. The fact that respondent also alleged and emphasized a nuisance in fact and requested a permanent injunction predicated thereupon, or that the trial court followed respondent's theory in this respect, does not, from the jurisdictional point of view, necessarily obliterate respondent's other claims. Issue was joined by the appellants upon all claims at all stages of the action,  [***12]  and evidence was introduced and admitted bearing upon all issues. There is nothing in the extensive and spirited trial of this action to indicate that any particular facet of respondent's claims was injected purely as "window dressing" for jurisdictional purposes. Neither does the fact that respondent's claim of potential property damage emanates from alleged noise and fumes necessarily distinguish it from a claim of potential damage arising out of a change of grade or other type of physical invasion. Cf. Ackerman v. Port of Seattle, 55 Wn.2d 400, 348 P.2d 664, 77 A.L.R.2d 1344 (1960).

[*384]  The instant case, therefore, falls within the ambit of State v. Superior Court for Walla Walla Cy., supra (167 Wash. 334), if not also within the circumference of the State ex rel. Robinson v. Superior Court cases, supra, Weigardt v. Brennan, supra, and State ex rel. Fleming v. Cohn, supra. Jurisdictionally, it was maintainable in Spokane County, and the trial court did not err in denying appellants' motion to dismiss.

Turning then to the merits, Judge Hale's opinion expresses the view of the court. We concur in his exposition and disposition thereof.

Hale, J. --  [***13]  The king, it was once said, can do no wrong. Though so ancient an aphorism be held to declare the rule for today, clothing the king's sovereign successor in the same immunity, this case demonstrates a silent corollary to it, that wrong or no wrong, whatever the successor sovereign would do, his officers and agents can long be delayed in the doing of it.

The Washington State Highway Commission, its Commissioners, and the Director of Highways intend to build state primary highway No. 2 as a multilane freeway through Spokane. They started origin and destination traffic surveys as early as 1947, adapted the plans for the route and highway to the Federal Aid Highway Act of 1956 (23 U.S.C. § 128), and held public hearings on the proposed routes in 1958. Four separate arteries or plans were presented and discussed at these hearings. From these alternative proposals, the Commission selected the route in issue.

The highway will run east and west along the north edge of Fourth Avenue, 65 feet away and across the street from the north face of Deaconess Hospital's north wing on a viaduct elevated about 10 feet above the far sidewalk and about level with the first floor windows of the north [***14]  wing. In this area, the freeway will be 109 feet wide, have 7 lanes for traffic, and, on its north edge away from the hospital,  [*385]  a 2-lane offramp. Thus, because the ground slopes  [**59]  away from the front of the north wing of the hospital and the highway will be elevated about 10 feet on the viaduct to about the first floor of the north wing, patients on the first floor, north wing, will be on an approximate level with and 65 feet away from the extreme south edge of the proposed freeway. Although the freeway will project about 10 feet over the north sidewalk of Fourth Avenue in the area of the hospital, it will not overhang any part of the street but only a portion of the north parking strip. Fourth Avenue will thus be open in its full width for normal traffic.

Deaconess General Hospital asserts that the increase in noise and noxious fumes -- including carbon monoxide and hydrocarbons -- generated by freeway traffic will make its north wing virtually untenable for the housing of patients, and force it to abandon the north wing as a place to maintain the 100 hospital beds which now occupy this space. The loss of 100 beds at this time, when considered in relation [***15]  to the laboratories, surgeries, pharmacy, nursing services, X ray, physical therapy and other facilities maintained by the hospital to supply complete hospital services for 300 patients, will, among other damages, says Deaconess, throw the entire hospital operation out of balance. Therefore, says the hospital, the freeway will, as to it, by causing tremendous increases in noise levels and noxious fumes, constitute a nuisance in fact, and should in equity be enjoined notwithstanding its location by officials of the state for a public purpose.

Bringing this suit for an injunction and for no other purpose, the hospital seeks to prevent construction of the freeway along the proposed Fourth Avenue situs and anywhere else within 300 feet of the hospital. We mention in passing that this case should neither be confused nor identified with those actions to recover for indirect damages to the freehold by what has come to be known as inverse condemnation, exemplified in Martin v. Port of Seattle, 64 Wn.2d 309, 391 P.2d 540; and Ackerman v. Port of Seattle, 55 Wn.2d 400, 348 P.2d 664, 77 A.L.R.2d 1344. Our concern is with the injunction, not monetary damages.

[*386]  From a decree [***16]  permanently enjoining construction of the Spokane freeway along Fourth Avenue and elsewhere "within such proximity of the hospital as to constitute a nuisance in fact" comes this appeal by the Highway Commission, its constituent members and the Director of the Department of Highways. First -- and perhaps foremost -- among the 39 assignments of error considered by this court is the question of jurisdiction. Appellants assign error to the trial court's refusal to dismiss the action for lack of jurisdiction in Spokane County, urging that the Superior Court for Thurston County has exclusive jurisdiction.

Jurisdiction

Appellants, claiming the State of Washington to be the real party in interest, although not named as a party defendant, say that this is a suit against the sovereign state and cognizable exclusively in the Superior Court for Thurston County under art. 2, § 26, of the state constitution and RCW 4.92.010. Their motion to dismiss for want of jurisdiction, strenuously argued and voluminously briefed, having been denied May 27, 1963, appellants did not elect to challenge the jurisdiction by prohibition or other extraordinary remedy but, appealing now on the merits, urge the [***17]  jurisdictional point anew.

HN1Go to this Headnote in the case.Article 2, § 26, Washington State Constitution, declares:

    The legislature shall direct by law, in what manner, and in what courts, suits may be brought against the state.

This court has said of this constitutional provision, "A sovereign state cannot be sued without its consent. The immunity is absolute, and, when consent is given, it may be qualified or conditional and may specify a particular court in which the permitted actions may be maintained." State ex rel. Thielicke v. Superior Court, 9 Wn.2d 309, 114 P.2d 1001 (1941). Earlier, speaking of this same sovereign immunity, we said, in State ex rel. Pierce Cy. v.  [**60]
Superior Court, 86 Wash. 685, 151 Pac. 108 (1915):

    It is well settled that an action cannot be maintained against the state without its consent, and that the state,  [*387]  when it does so consent, can fix the place in which it may be sued, limit the causes for which the suit may be brought, and define the class of persons by whom it can be maintained. In other words, the state being sovereign, its power to control and regulate the right of suit against it is plenary; it may grant the right or refuse [***18]  it as it chooses, and when it grants it may annex such condition thereto as it deems wise, and no person has power to question or gainsay the conditions annexed. This state has, by its constitution (art. 2, § 26), empowered the legislature to direct by law in what manner and in what courts suits may be brought against it, and the legislature has provided that all such suits shall be brought in the superior court of Thurston county. Rem. & Bal. Code, § 886 (P.C. 453 § 9).

HN2Go to this Headnote in the case.Pursuant to the powers granted by art. 2, § 26 of the state constitution, the legislature enacted RCW 4.92.010, the pertinent part of which reads:

    Any person or corporation having any claim against the state of Washington shall have a right of action against the state in the superior court of Thurston county. The plaintiff in such action shall, at the time of filing his complaint, file a surety bond executed by the plaintiff and a surety company authorized to do business in the state of Washington to the effect that such plaintiff will indemnify the state against all costs that may accrue in such action, and will pay to the clerk of said court all costs in case the plaintiff shall fail to prosecute his [***19]  action or to obtain a judgment against the state . . . .

Claim, as used in the foregoing section, means cause of action ( State ex rel. Robinson v. Superior Court, 182 Wash. 277, 46 P.2d 1046 (1935); Northwestern & Pac. Hypotheek Bank v. State, 18 Wash. 73, 50 Pac. 586, 42 L.R.A. 33 (1897)), and extends to suits in equity. State ex rel. Price v. Peterson, 198 Wash. 490, 88 P.2d 842 (1939).

That the state has never placed itself on a parity with private persons as a party litigant in civil actions may be seen in the provisions of the statute requiring a cost bond so that the people at large be not improvidently taxed with court costs and expenses nor harassed by groundless or  [*388]  frivolous litigation. 2 And even in recent legislation allowing actions against the sovereign state for tortious conduct, the state has stringently qualified the privilege, imposing several restrictions including a cost bond and the filing of a detailed statement of claim with the state auditor as conditions precedent. Laws of 1963, chapter 159, p. 752 (RCW 4.92.010, et seq.).

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2 Finding of fact 25 prophesies that others not party to this action will bring legal action to stop the freeway, as follows:

". . .

"It is also clear that the Deaconess Hospital would not be the only institution to be disturbed, damaged or destroyed by the erection of the freeway on its present planned path. There are also schools, churches, apartments, businesses and residences to be annoyed by the noise and fumes from the loud and noisome freeway."

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[***20]  The policy thus continues that, save for rigidly defined exceptions, the state permits itself to be sued exclusively in the Superior Court of the State of Washington for Thurston County, and prohibits suits against itself in other counties.

Is this an action against the state? Respondent hospital affirmatively declares that it brings this action not against the sovereign state, but on the contrary against the named and designated members of the State Highway Commission and the Director of Highways as individuals to enjoin them  [**61]  from officially acting in violation of the statutes and arbitrarily, capriciously, unreasonably and on a fundamentally wrong basis as public officers. The hospital specifically denies, both in its brief and complaint, that this is an action against the state, alleging in the complaint that "This action is not brought against the State of Washington." 3

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3 Deaconess Hospital epitomizes its position on jurisdiction in its brief as follows:

"The trial court properly ruled that this was not an action against the state, but was an action to enjoin state officials from unlawfully exceeding their authority and unlawfully interfering with the rights of respondent, over which it had jurisdiction. Appellants ignore this allegation in the Complaint (Tr. 1):

"'This action is not brought against the State of Washington but is brought against the individual members of the State Highway Commission, and its Director because of their individual and collective failure to heed and obey the statutes of the State of Washington, and because of the arbitrary and capricious decisions hereinafter alleged.'

"In particular, respondent sought to enjoin appellants from unlawfully creating a nuisance, for failing to follow statutory procedures in two important respects, and for arbitrarily and capriciously locating the freeway as planned. The trial court found in favor of respondent on each of these issues. It should go without saying that since the acts complained of are acts of officials going beyond their authority, the State is not interested in defending these wrongful actions and should not be held a party to this action."

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[***21]   [*389]  The allegation in the pleadings and assertion in the briefs that this is not an action against the state must be regarded as conclusions and, of course, not binding upon the state. Whether the sovereign state is the real party in interest to the action remains the true issue. In resolving this issue, it would be a mistake to assume that this is an action to recover damages for injury to the hospital's freehold by a constitutional taking or damaging as was the gist of an action in inverse condemnation in Ackerman v. Port of Seattle, supra, where we held that frequent low airplane flights from a large airport over one's land amount to the taking of an air easement. There no injunction was sought and this court held that the damages for such a taking would be the difference in value of the property before the airport was extensively used and the value thereafter.

Nor is it correct to assume that respondent hospital contends it is an abutting owner to the proposed freeway so that it may intervene as a party in the condemnation proceedings by which the State of Washington is acquiring the right of way. The hospital's claim as an abutting owner is addressed to the matter [***22]  of notice required under RCW 47.52.072 to abutting owners who will lose access to a street that is being converted into a limited-access roadway -- a point we will consider later in this opinion.

Respondent hospital maintains the suit strictly to enjoin the building of the freeway along the designated route and within 300 feet of its building. 4 In asserting that the Superior  [*390]  Court for Spokane County had jurisdiction to permanently enjoin the freeway as a private nuisance, the hospital overlooks the point that the injunction likewise halts a continuous course of conduct by the state in maintaining the freeway long into the future and far beyond the tenure of the public officials enjoined. The hospital brings to our attention a number of cases which, in our view, while showing that every action against a state official is not ipso facto an action against the state, do not seem to affirm jurisdiction in Spokane County. It refers first to State ex rel. Robinson v. Superior Court, 181 Wash. 541, 43 P.2d 993 (1935), as one of the two leading cases on this subject in this state.

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4 The prayer of the complaint requests relief as follows:

". . . that the defendants, and each of them, be permanently enjoined and restrained from locating or building said freeway at any point closer to the hospital than at a distance of 300 feet therefrom; . . ."

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[***23]   [**62]  In that case, Robinson, State Director of Agriculture, had served notice of hearing upon Newport, a creamery operator, to revoke Newport's license to do business under the State Agricultural Adjustment Act. Newport commenced an action in the Superior Court in Spokane County to enjoin the Director of Agriculture from proceeding with the revocation hearing, and the director, urging that this was an action against the sovereign state and could, therefore, be brought only in Thurston County, applied to the supreme court for a writ of prohibition to prevent the Superior Court of Spokane County from proceeding further with the injunction.

Meanwhile, in two earlier cases, it had been held that provisions of the Agricultural Adjustment Act, under which the director purported to revoke Newport's license, were unconstitutional and void. Referring to the two cases, and ruling the injunction proceedings to be not against the state, we said:

    Under those decisions, the director had no power at all to promulgate the order complained of, and his threatened action to revoke Newport's license was without the zone, and wholly in excess, of his authority. Under such circumstances,  [***24]  the action is one, not against the state, but against the officer acting without the scope of his authority. [Citing cases.] The action is, therefore, maintainable in Spokane county.

[*391]  Nowhere in that case do the interests of the state appear important; the sole question was whether the superior court had power to prevent a public officer from exercising authority he did not possess. Because the enactment under which the director presumed to revoke the license had been held unconstitutional, he was without power to carry out the legislative purpose; and the county where the license was to be revoked was, therefore, the county of jurisdiction. Once the law under which its officers presumed to act had been declared void, the state, as a sovereign entity, lost interest in the proceedings.

In the other case referred to as a leading authority by respondent hospital, State ex rel. Robinson v. Superior Court, 182 Wash. 277, 46 P.2d 1046 (1935), we again have the Director of Agriculture seeking to revoke a license under the Washington Agricultural Adjustment Act followed by an injunction in the Superior Court in King County to prevent him from doing so, and prohibition [***25]  to halt the superior court from assuming jurisdiction. The only question before the court was whether the Superior Court of King County had jurisdiction.

After commenting that the Agricultural Adjustment Act was unconstitutional and that the director was without power to revoke the license, we said:

    The question thus narrows itself to this: Is the action which was brought in the superior court an action against the state? If it is, then it can be maintained only in Thurston county, and the motion to quash the writ should have been granted. If it is not an action against the state, then the rule of immunity does not apply.

    It is now settled beyond question that HN3Go to this Headnote in the case.a suit against state officers in which an attack is made against the constitutionality of a state statute is not a suit against the state. (Italics ours.)

And pointing out the distinctions between actions against public officials individually and those against the state (as shown in State ex rel. Pate v. Johns, 170 Wash. 125, 15 P.2d 693 (1932)), we said:

    Here, while the state may, as a matter of policy, be concerned in the welfare of its producers, the act itself  [*392]  does not relate to anything [***26]  which is the property of the state or to any right in which the state is concerned. State ex rel. Robinson v. Superior Court, 182 Wash., at 283.

Wiegardt v. Brennan, 192 Wash. 529, 73 P.2d 1330 (1937), likewise relied on by  [**63]  the hospital, seems to support the appellants' position. Actions to declare a statute unconstitutional and to prevent public officers from acting thereunder are not actions against the state and may be brought in the county where the officers will take action. State ex rel. Robinson v. Superior Court, 182 Wash. 277, 46 P.2d 1046 (1935). Plaintiffs, in Wiegardt, brought action against the Director of Fisheries to prevent his arresting them for harvesting razor clams from their own tidelands during March, April and May, directly alleging that the statute (Rem. Rev. Stat. § 5750) under which the arrests would be made was unconstitutional as repugnant to § 1 of the fourteenth amendment to the United States Constitution, and art. 1, § 3 of the state constitution.

We said:

    The action must be considered as one against the named appellants individually, since the complaint alleged that the operations of the respondents were [***27]  not within the terms of the statute, but that, if its provisions embraced them, it was unconstitutional.

In a later case, this court said the state is not the real party in interest in mandamus to compel the basic science examining board to issue a certificate that the applicant had obtained a passing grade when it was claimed that examination papers had not been fairly graded. Nothing in the cause indicated that the sovereign state was the real party in interest or had any paramount concern with the results other than its general interest that justice be done. State ex rel. Fleming v. Cohn, 12 Wn.2d 415, 121 P.2d 954 (1942). State v. Superior Court for Walla Walla Cy., 167 Wash. 334, 9 P.2d 70 (1932), cited by the hospital, will be considered infra.

Although the hospital deliberately refrained from naming the state as a party defendant, it has enjoined the  [*393]  only agency and the only state officers extant authorized and empowered to carry out the state's sovereign powers to build and maintain a system of highways. Allegations that the officials intend to carry out this constitutional power in an arbitrary, capricious or unreasonable manner, or on a fundamentally [***28]  wrong basis, or create a private nuisance in the exercise of this sovereign power, do not, even if proved, take the state out of the case if it is the real party in interest.

The individual appellants and the Highway Commission as an organ of government comprise the only agents of government charged by law with carrying out the state's highway program. We know of no other agency or public officers having this power or duty. See RCW, title 47. The state has thus, for the time being, vested in the Highway Commission, the director and officers, its sovereign authority to build and maintain highways.

The state, not the commission, director or members thereof, supplies the money and exercises the sovereign powers of eminent domain in acquiring the right of way. And it is the state which will become the owner and wield exclusive jurisdiction over the right of way against everyone except the United States.

It is the state, not merely its officers and agents, which is directly precluded from building the freeway by this injunction; it is the state, apart from the injunction upon the acts of its officers and agents, that is totally blocked by this injunction from discharging its sovereign [***29]  powers, now and permanently. The state may constitutionally relieve these officers of their powers and duties and transfer them to other officers, or vest these identical powers in the Governor or in others, or create a new and different agency to exercise exclusive dominion over the highway system on behalf of the sovereign; or it may divide the duties and powers among several governmental entities. But whatever steps may be taken, by whatever officials in building and maintaining a state primary highway, the sovereign state is, in the final analysis, the actor taking the steps. It is the  [*394]  State of Washington, not its officers, agents or functionaries, acting under its constitutional authority in eminent domain, which is constructing  [**64]  and will own and maintain the freeway.

Our decisions on this question of jurisdiction point directly to the conclusion that the Thurston County division of the superior court had exclusive jurisdiction. State v. Superior Court for Walla Walla Cy., 167 Wash. 334, 9 P.2d 70 (1932), cited by both appellants and respondent marks the distinctions between actions of state officials and actions of the sovereign. We there sustained [***30]  an injunction to prevent the State Highway Director from damaging abutting real property without undertaking condemnation proceedings. Plaintiffs showed that they were abutting owners on Preston Avenue in Waitsburg, Walla Walla County; that they had improved their properties with reference to the established grade; that Preston Avenue was a part of the state highway. Plaintiffs alleged that the defendant officials "were proceeding to raise the grade of Preston avenue, without legal right and in violation of plaintiffs' constitutional rights as abutting owners . . . and that no proceedings had been had for the purpose of ascertaining the damage which plaintiffs would suffer because of changing the grade." (Italics ours.) The state, contending that the action was against it and, therefore, cognizable only in Thurston County, applied for a writ of prohibition to prevent the Superior Court of Walla Walla County from proceeding further.

In denying the writ, we held that the action could be tried in the county where the damages were claimed because the purpose of the action was to compel the state to bring a condemnation petition -- a cause triable in the county where the land [***31]  is situated. Referring to an earlier case ( State ex rel. Pierce Cy. v. Superior Court, 86 Wash. 685, 151 Pac. 108 (1915)), in which Thurston County had been held to have exclusive jurisdiction, we said:

    We carefully pointed out in that case that the funds there involved were the funds of the state, and that the officers were not charged with acting in excess of the  [*395]  authority conferred upon them by law. Here, the contrary is alleged by plaintiffs in the principal action.

    . . . .

    That a change of an established grade of a street or highway may constitute a damage to the property of abutting owners for which they are entitled to recover, has been consistently held in this state from Brown v. Seattle, 5 Wash. 35, 31 Pac. 313, 32 Pac. 214, 18 L.R.A. 161, to Great Northern Railway Co. v. State, 102 Wash. 348, 173 Pac. 40. In the last cited case, we held that the same rules of law, under our constitution, applied to the state as to other municipalities within the state; that the fact that the state did not condemn the owner's property in advance did not absolve it from liability; and that the constitutional provisions were designed to protect all the [***32]  essential elements of ownership which make property valuable. (Italics ours.)

and, finally:

    Our constitutional provision respecting eminent domain is very strict and positive, and somewhat farther reaching than other similar constitutional provisions we have examined. It certainly would be evaded if, under the legislation permitting persons to sue the state only in Thurston county, in all cases where the state takes or damages private property without first purchasing or condemning and paying into court the damages therefor, landowners from remote corners of this large state were forced to sue in Thurston county for their constitutional damages.

    In all such cases, the state goes to the county in which the land is situated to purchase by negotiations or to condemn, if necessary; and it cannot justly be said that these state highway officers, although acting in good faith and innocently, can damage the property of plaintiffs in the original action and compel them to sue in Thurston county to recover their damages, or to enjoin the  [**65]  state officers from proceeding without legally acquiring the right by contract or condemnation. The state, like any other appropriator [***33]  of private property, must go to the courts having local jurisdiction of the property. Condemnation actions are strictly local in their character.

In Walla Walla, the officials were proceeding to take and damage property for public use without just compensation having been first made or paid into court as prescribed by  [*396]  art. 1, § 16 of the state constitution. Complainants were abutting owners, claiming damage as such to their freeholds. Quite properly, they were entitled to enjoin the state's officers from usurping the powers of the sovereign and proceeding as condemnors until the state brought condemnation proceedings in Walla Walla County under its sovereign powers in eminent domain, thereby giving abutting owners their day in court on the question of damages.

No one claims in the instant case that the state is proceeding other than under a valid constitutional exercise of power to acquire the freeway right of way; nor does Deaconess claim damages to the market value of its real estate as an abutting owner.

Lest there be any doubt as to the significance of the Walla Walla holding, we refer to State ex rel. Pate v. Johns, 170 Wash. 125, 15 P.2d [***34]
693 (1932), which, in turn, commented on the Walla Walla decision. In Pate, we held that an action against the regents of the University of Washington to compel the registrar to accept a lower tuition than the amount demanded was in reality and legal effect an action against the state because such fees are required by law to be covered into the state treasury. The action, therefore, involved state funds and ought perforce be brought in Thurston County. Referring to Walla Walla in support of this decision, we said of it:

    There, the state was not the real party in interest entitling it to support its officers whose conduct, though in good faith, was threatening to damage one's private property in violation of the state's own constitution; that kind of a situation creates no real interest on the part of the state. Here, the state is interested in the enforcement of one of its laws designed to produce revenue for the help and maintenance of its University. In this affair, the state has a real, direct and positive interest. (Italics ours.)

If the state has a real, direct and positive interest in the maintenance of its University, assuredly it has a real,  [***35]  direct and positive interest in the maintenance of its highways.

[*397]  And in an action brought in Yakima County against the members of the Tax Commission to enjoin the collection of the sales tax on baseball admissions and to have the statute under which the tax was assessed declared unconstitutional ( Weber v. School Dist. No. 7 of Yakima Cy., 185 Wash. 697, 56 P.2d 707 (1936)), we said:

    Clearly, the superior court for Yakima county was without jurisdiction to proceed in the cause. The sole purpose of this action was to determine the title to the amount of money deposited by the respondents in the superior court for Yakima county. It was not alleged or contended in the trial court, nor was it argued on appeal, that the appellant tax commissioners claimed this money as individuals. They claimed it only as agents of the state. It follows that the action was, in fact, an action against the state, hence could only be maintained in the superior court for Thurston county.

But perhaps the strongest authority on the point is State ex rel. Thielicke v. Superior Court, 9 Wn.2d 309, 114 P.2d 1001 (1941), where relators brought an action for damages against the state [***36]  in Thurston County, alleging injury to their real and personal property in King County from construction of the tunnel approaches to the Lake Washington pontoon bridge. After answer, relators moved for change of venue from Thurston to King County on the statutory ground that the convenience of  [**66]  witnesses and the ends of justice would be thereby forwarded. The trial court, finding good cause to grant the change of venue on the grounds urged, nevertheless, denied it under RCW 4.92.010, the very statute at issue in the instant case. On mandamus to compel the court to order a change of venue to King County, we said:

    HN4Go to this Headnote in the case.The decisions of this court have uniformly indicated that we regard Rem. Rev. Stat., § 886 [RCW 4.92.010], as a statute of jurisdiction rather than merely one of venue. We have many times held that, when a suit against the state is commenced in a superior court outside Thurston county, such court does not have jurisdiction of the action. State ex rel. Pate v. Johns, 170 Wash. 125, 15 P.2d 693; State ex rel. Slade v. Jones, 182 Wash. 94, 45 P.2d 30; Weber v. School Dist. No. 7, 185 Wash. 697,  [*398]  56 P.2d 707; State ex rel.  [***37]  Shomaker v. Superior Court, 193 Wash. 465, 76 P.2d 306; State ex rel. Price v. Peterson, 198 Wash. 490, 88 P.2d 842.

and, pointing out the significance of Walla Walla Cy., supra, went on to say:

    In that case, certain land owners sought to enjoin the state highway director from damaging their real property by changing the grade of a state highway without first instituting a condemnation action, as required by the state constitution, to ascertain the compensation to be paid for such damage.

We affirmed a similar analysis of Walla Walla Cy., supra, in State ex rel. Slade v. Jones, 182 Wash. 94, 45 P.2d 30 (1935).

The officers and agents of the state in building this freeway, unlike their counterparts in Walla Walla, supra, purport to act and are acting in exercise of the powers of eminent domain on behalf of the state. They have brought petitions in condemnation in the name of and negotiated for the state and have taken every step lawfully available to the state under the constitution by which to acquire the right of way. An injunction against them inescapably runs against the state and blocks the state from exercising its sovereign [***38]  powers, for there is no other way in which the state can acquire the right of way. The state, therefore, being most vitally affected, is the real party in interest and the party actually enjoined.

Deaconess Hospital, having brought and maintained this suit to enjoin the state from committing a nuisance in building and maintaining a freeway within 300 feet of its building, is maintaining a claim against the State of Washington -- a claim cognizable only in Thurston County. RCW 4.92.010. The Superior Court for Spokane County was, therefore, without jurisdiction to hear the cause. It was, accordingly, error for the Superior Court for Spokane County to deny appellants' motion to dismiss for want of jurisdiction.

Had the case been brought here on prohibition or certiorari before trial on the merits, there is little doubt  [*399]  that we would have terminated the proceedings in Spokane County. But we now have for review on a voluminous record a fully litigated case, encompassing 39 separate assignments of error. The parties have brought here a trial record made in a court of general and virtually unlimited jurisdiction whose constituent judges have constitutional and common-law [***39]  power to sit in all judicial districts of the state -- and it can be thus said that, although the Superior Court for Spokane County lacked jurisdiction in particular, the judges of the Superior Court of the State of Washington generally had jurisdiction over both the parties and subject matter of this case. Thus, the trial was no mere academic exercise, but a genuine, adversary proceeding to resolve and finally determine all issues.

An overly rigid adherence to the policy that this court, having decided that the Superior Court for Spokane County lacked jurisdiction, ought not review the other claims of error, conceivably could work a marked injustice on the prevailing party by  [**67]  exposing it to further delay and expense through a revival of the action in Thurston County, making the loser a winner, and vice versa.

All rules of law and equity have for their ultimate purpose the furtherance of justice and the prevention of injustice. The rules governing appellate review should be applied to that end here.

If, because the Spokane County division of the superior court committed error in retaining the cause for trial, we treat the case as moot or purely advisory, there exists [***40]  a chance that many of the issues will be retried in the Superior Court for Thurston County, delaying again the decision in a matter of great moment. Since the issues raised by the pleadings are of general public import -- likely to recur elsewhere -- and involve the expenditures of millions of dollars appropriated by the Congress and which could conceivably lapse from nonuse, further long delay in resolving the issues so ardently pressed here would represent a failure in judicial administration. Viewing this case as genuinely adversary, fully tried and argued by the parties on justiciable issues, affecting an important segment of the  [*400]  state's highway system, identified with the public interest, and involving millions of dollars in public funds, we deem it appropriate to consider the other assignments of error on their merits.

This we did in National Elec. Contractors Ass'n v. Seattle School Dist. No. 1, ante p. 14, 400 P.2d 778 (1965), a suit to enjoin the installation of an electrical switchboard by the school maintenance department and to compel that the job be opened for competitive bids. Long after the switchboard had been installed by the maintenance department,  [***41]  we considered the case on review, saying:

    Obviously, the electrical switchboard has been installed and is in use. Whether the Seattle School District should have been enjoined from doing that work is a matter of interest and concern so far as future installations are concerned, but is of only academic interest insofar as the present litigation is concerned.

We thereupon proceeded to construe the statute in a genuine review of the issue, adopting a widely acknowledged rule from other jurisdictions that, where matters of important public interest are involved, the appeal may be retained even though the questions presented may be moot, citing State ex rel. Yakima Amusement Co. v. Yakima Cy., 192 Wash. 179, 73 P.2d 759 (1937). Mootness can as well be claimed to deprive a court of jurisdiction as other jurisdictional deficiencies, for the courts have no business determining academic problems or deciding controversies having only theoretical existence.

If, as the dissent in National Elec. Contractors, supra, suggests, the principal danger to a review on the merits is that some of the adversary enthusiasm may be lost, one can be assured from a study of the record in the [***42]  instant case that adversary enthusiasm reached its highest possible pitch, culminating in blocking for several years, a gigantic public project through the injunctive processes of a court having no jurisdiction in the premises.

Recently, in Grein v. Cavano, 61 Wn.2d 498, 379 P.2d 209 (1963), in a suit brought by members against the officers of a labor union to force an accounting, and we said that  [*401]  the case became moot because of an intervening election of officers, one of the principal issues raised by the pleadings was whether and in what amount the plaintiffs should be awarded attorneys' fees. Despite the intervening mootness, resulting in no determination or judgment, this court in a considered review of the issue as to attorneys' fees adopted the theory that the action was brought to preserve, defend or create a common fund and gave our opinion on the merits of this question. We said there:

    The only significant issue, as we see it, is the ultimate issue in this case. Did the trial court commit reversible error in awarding $ 9,052.48 in costs and attorneys' fees to respondents (the  [**68]  plaintiffs in this action) when neither party prevailed because [***43]  the case was dismissed as moot?

The same philosophy underlying these cases -- to prevent a manifest injustice -- prompted this court in State ex rel. Washington State Fin. Comm. v. Martin, 62 Wn.2d 645, 384 P.2d 833 (1963), to adopt the doctrine of prospective overruling and thus preserve the validity of nearly two-thirds of a billion dollars in school revenue bonds unconstitutionally, but in good faith, issued and purchased under a decision of the court, and from which the state had derived a marked benefit. It therefore seems right to review sui generis this case on appeal.

We go to the merits, however, without receding in any degree from the rule that the Supreme Court does not render advisory opinions or decide moot questions. We reserve a rule that occasionally there will arise a question of such general public interest and importance, tried in a genuinely adversary proceedings on truly justiciable issues that, even though intervening questions going to the jurisdictional authority of the trial court might serve to end the particular case in a particular court, the questions of law and fact can be said to survive, thereby granting this court a discretion in the [***44]  public interest to hear and determine the appeal on the merits.

Pg. 1 of 2

Ellen M. Henriksen, Respondent, v. William Lyons, Appellant

No. 4731-4-II

COURT OF APPEALS OF WASHINGTON, Division Two

33 Wn. App. 123; 652 P.2d 18; 1982 Wash. App. LEXIS 3271

October 13, 1982

SUBSEQUENT HISTORY:  [***1]  Reconsideration Denied November 9, 1982. Review Denied by Supreme Court February 24, 1983.

CASE SUMMARY

PROCEDURAL POSTURE: Defendant adjacent landowner challenged a decision of the Superior Court for Skamania County (Washington), which entered a judgment in favor of plaintiff adjacent landowner in an action for timber trespass.

OVERVIEW: Defendant, a professional logger for 30 years, began logging his land. To establish the line separating his parcel from plaintiff's property, defendant conducted his own survey using a surveying chain and two compasses. Defendant cut and logged some of plaintiff's timber by mistake. On appeal, defendant argued that the trial court erred both in trebling the stumpage value of the cut trees and in awarding additional damages. The court affirmed the trebling of stumpage value, but reversed the award of additional damages. The court held that the treble damages were proper given that the trial court could have properly found an element of willfulness in defendant's inadequate line establishment procedure, the failure to consult adjacent landowners to determine the true line, failed to close his traverse in conducting his survey, and made a significant error in direction in running the east-west line. The court also held that the trial court erred by awarding $ 3,000 for diminution in value of plaintiff's land because plaintiff elected the statutory remedy and the additional damages were not extraordinary but only the by-product of normal logging operations.

OUTCOME: The court affirmed the trebling of stumpage value in favor of plaintiff in the action for timber trespass, but reversed the award of additional damages.

CORE TERMS: trespass, timber, treble damages, willfulness, logging operation, stumpage, treble, property lines, diminution, trebling, willful, acre, corner, statutory remedies, east-west, adjoining, landowner, measured, bias, monument, highway, village, circumstantial evidence, substantial evidence, reasonably prudent, affidavit of prejudice, punitive damages, starting point, recoverable, involuntary

LexisNexis® Headnotes Hide Headnotes

Real Property Law > Torts > Trespass to Real Property
Torts > Intentional Torts > Conversion > Remedies
Torts > Premises Liability & Property > General Premises Liability > Duties of Care > Duty on Premises > Trespassers > General Overview
HN1Go to the description of this Headnote.    Conversion of trees exposes a wrongdoer to liability in an amount that is treble the on-site value of the timber. Wash. Rev. Code § 64.12.030. Where the wrongdoer can satisfy the burden of showing that the trespass was casual or involuntary, or he had probable cause to believe the property was his own, recovery is limited to single damages. Treble damages should be awarded only where there is an "element of willfulness" on the part of the trespasser. Willful behavior can be established by circumstantial evidence.

Civil Procedure > Appeals > Standards of Review > Substantial Evidence > General Overview
Torts > Damages > Punitive Damages > General Overview
Torts > Premises Liability & Property > Trespass > General Overview
HN2Go to the description of this Headnote.    In the context of a timber trespass, the question of whether one acted "willfully" so as to require trebling of damages is treated as one of fact. The Washington Supreme Court states that the issue is for the finder of fact and refuses to disturb findings based on substantial evidence.

Governments > Courts > Common Law
Governments > Legislation > Statutory Remedies & Rights
Torts > Premises Liability & Property > Trespass > Remedies > General Overview
HN3Go to the description of this Headnote.    In Washington, the landowner suffering a timber trespass may elect to pursue either common law remedies or statutory remedies. At common law, damages are measured by the difference in the value of the land before and after the trespass. The statutory remedy trebles the "stumpage value" of the severed trees. Extraordinary losses are recoverable if they are properly segregated. By extraordinary, it is meant losses that are not the normal consequence of a logging operation conducted in a reasonably prudent manner, e.g., damages to bridges, pipelines, dwellings, and outbuildings.

Civil Procedure > Appeals > Reviewability > Preservation for Review
HN4Go to the description of this Headnote.    Even constitutional rights can be waived by failing to utilize the machinery available for asserting them.

Hide Headnotes / Syllabus

SUMMARY: Nature of Action: Action seeking treble damages for timber trespass. The defendant had logged timber on his neighbor's property after conducting an erroneous survey to establish the property line.

Superior Court: The Superior Court for Skamania County, No. 6376, Ted Kolbaba, J., on November 19, 1979, entered a judgment in favor of the plaintiff for treble damages for the value of the trees cut and additional damages for the decrease in the value of the land.

Court of Appeals: Holding that treble damages were proper under the circumstances and that the defendant had waived his right to challenge the trial judge for bias but that the plaintiff was not entitled to additional damages for the decrease in the value of the land, the court reverses the additional damage award and affirms the remaining portions of the judgment.

HEADNOTES
WASHINGTON OFFICIAL REPORTS HEADNOTES

WA[1][1] Trespass — Cutting of Timber — Treble Damages — Willfulness — Proof — Review Treble damages for a timber trespass under RCW 64.12.030 requires a showing of willful behavior. The element of willfulness is an issue of fact which can be established by circumstantial evidence. A finding of willfulness based on substantial evidence will not be disturbed on appeal.

WA[2][2] Trespass — Cutting of Timber — Treble Damages — Willfulness — Deficiencies in Survey Deficiencies in the procedures used in taking a survey to establish property lines may be so substantial as to constitute the element of willfulness necessary to recover treble damages for a timber trespass.

WA[3][3] Trespass — Cutting of Timber — Treble Damages — Additional Damages — Decrease in Land Value In an action seeking treble damages for timber trespass under RCW 64.12.030, additional damages for the diminution of the value of the land are not recoverable unless the land has sustained injury which is not a normal consequence of a logging operation conducted in a reasonably prudent manner.

WA[4][4] Judges — Disqualification — Bias — Review — Waiver A party's deliberate failure to file an affidavit of prejudice against the trial court judge constitutes a waiver of his right to allege on appeal that the trial judge should have been disqualified.

COUNSEL: William Lyons, pro se.

Hugh A. Knapp, for respondent.

JUDGES: Reed, C.J. Worswick and Swanson, JJ., concur.

OPINION BY: REED

OPINION

[*124]   [**19]  Ellen Henriksen owns approximately 76 acres in western Skamania County. She [***2]  brought this action against William Lyons, the owner of an adjacent parcel, seeking damages for timber trespass. Trial to the court resulted in a judgment in plaintiff's favor for (1) the stumpage value of the trees cut, which was trebled pursuant to RCW 64.12.030; and (2) $ 3,000 for diminution in value of the land. On appeal, defendant maintains the trial court erred both in trebling the stumpage value of the cut trees and in awarding additional damages. We affirm the trebling of stumpage value but reverse the award of additional damages.

In the summer of 1978, Lyons, a professional logger for 30 years, began logging his land. To establish the line separating his parcel from the Henriksen property, defendant conducted his own survey using a surveying chain and two compasses. Both he and his employee helper had experience locating property lines in this manner.

According to Lyons and his employee, the survey was commenced at a cement corner monument with a brass plate embedded in the top which Lyons presumed marked the 16th corner of the section. It is unclear as to who set the monument, or under what circumstances. Unfortunately, the monument was 50 feet from the actual [***3]  corner. From this point defendant measured in a northerly direction along a fence which he mistakenly assumed was the boundary. He testified that he backed off 30 feet from the measured distance as a precautionary measure. He then squared the corner and established the east-west property line using the chain and compass. The net result of this amateur survey was that a triangular strip of plaintiff's  [*125]  property, consisting of approximately 3 acres, was logged.

We consider first the trial court's assessment of treble damages. HN1Go to this Headnote in the case.Conversion of trees exposes a wrongdoer to liability in an amount which is treble the on-site value of the timber. Smith v. Shiflett, 66 Wn.2d 462, 403 P.2d 364 (1965); Longview Fibre Co. v. Roberts, 2 Wn. App. 480, 470 P.2d 222 (1970); RCW 64.12.030. 1 Where the  [**20]  wrongdoer can satisfy the burden of showing that the trespass was casual or involuntary, or he had probable cause to believe the property was his own, recovery is limited to single damages. Seattle-First Nat'l Bank v. Brommers, 89 Wn.2d 190, 570 P.2d 1035 (1977); RCW 64.12.040. 2

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
1 RCW 64.12.030 states:

"Injury to or removing trees, etc. -- Damages. Whenever any person shall cut down, girdle or otherwise injure, or carry off any tree, timber or shrub on the land of another person, or on the street or highway in front of any person's house, village, town or city lot, or cultivated grounds, or on the commons or public grounds of any village, town or city, or on the street or highway in front thereof, without lawful authority, in an action by such person, village, town or city against the person committing such trespasses or any of them, if judgment be given for the plaintiff, it shall be given for treble the amount of damages claimed or assessed therefor, as the case may be."
[***4] 2 RCW 64.12.040 states:

"Mitigating circumstances -- Damages. If upon trial of such action it shall appear that the trespass was casual or involuntary, or that the defendant had probable cause to believe that the land on which such trespass was committed was his own, or that of the person in whose service or by whose direction the act was done, or that such tree or timber was taken from uninclosed woodlands, for the purpose of repairing any public highway or bridge upon the land or adjoining it, judgment shall only be given for single damages."

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

WA[1][1] Although the award of treble damages conflicts with the more general policy against punitive damages, it is thought to be justified in this context because (1) it discourages the practice of private eminent domain; (2) it provides a rough estimate of future damages, especially for premature harvesting of trees; and (3) it punishes the voluntary trespasser. Seattle-First Nat'l Bank v. Brommers, supra; Bloedel Timberlands Dev., Inc. v. Timber Indus., Inc., 28 Wn. App. 669, 626 P.2d 30 (1981). Because punitive damages are [***5]  disfavored, however, our Supreme Court has  [*126]  reasoned that treble damages should be awarded only where there is "an 'element of willfulness' on the part of the trespasser". Blake v. Grant, 65 Wn.2d 410, 412, 397 P.2d 843 (1964). Willful behavior can be established by circumstantial evidence. Smith v. Shiflett, supra; Blake v. Grant, supra.

HN2Go to this Headnote in the case.In the context of a timber trespass, the question of whether one acted "willfully" so as to require trebling of damages has always been treated as one of fact. Our Supreme Court has said the issue is for the finder of fact and has refused to disturb findings based on substantial evidence. Blake v. Grant, supra; Hawley v. Sharley, 40 Wn.2d 47, 240 P.2d 557 (1952); Gibson v. Thisius, 16 Wn.2d 693, 134 P.2d 713 (1943).

In its written opinion, the trial court cited the following deficiencies in defendant's survey:

    No verification of the authenticity of the starting point was made, errors were made in the magnetic declination from true north, size of the quarter section was assumed and physical features were used as bench marks without [***6]  verification.

The court concluded:

    In the instant case, the line establishment procedure was so inadequate, in fact, as to be of little support for the position that a diligent or even reasonable effort was made to establish the boundaries of defendant's tract.

WA[2][2] Although reliance on an amateur survey is not reckless or willful per se, Grays Harbor Cy. v. Bay City Lumber Co., 47 Wn.2d 879, 289 P.2d 975 (1955), behavior almost identical to that encountered in the present case was held sufficient to support a finding of willfulness in Blake v. Grant, supra, where the court states in 65 Wn.2d at 412:

    [The] court could properly find the necessary element of willfulness on the part of appellants and their employees in attempting to establish the boundary line without locating a proper starting point; in failing to talk to adjoining owners about the true line; in failing to see a previously blazed dividing line; and in making a major error in direction in running the east-west line.

[*127]  Here Lyons failed to locate a proper point of departure; followed a fence which he mistakenly believed [***7]  established the property line; failed to talk to adjoining landowners;  [**21]  failed to close his traverse in conducting his survey; and made a significant error in direction in running the east-west line. Although reasonable minds might differ as to whether defendant's conduct was willful, as opposed to merely negligent or careless, in view of the holding in Blake it can hardly be said there is no substantial evidence to support the trial court's finding. Treble damages were proper.

WA[3][3] We turn now to defendant's contention that the trial court erred by awarding $ 3,000 for diminution in value of plaintiff's land. He maintains the additional damages were not properly segregated from the losses attributable to severance of the trees. HN3Go to this Headnote in the case.In this state, the landowner suffering a timber trespass may elect to pursue either common law remedies or statutory remedies. At common law, damages are measured by the difference in the value of the land before and after the trespass. H. Falk, Jr., Timber and Forest Products Law § 156 (1958). The statutory remedy trebles the "stumpage value" of the severed trees. It is designed to compensate the landowner for all damages [***8]  that are a normal consequence of the logging operation including, inter alia, "the loss of trees of less than merchantable size, the carving out of unwanted logging roads, or possible soil erosion and stream pollution". Pearce v. G.R. Kirk Co., 22 Wn. App. 323, 328, 589 P.2d 302, aff'd, 92 Wn.2d 869, 602 P.2d 357 (1979); Ventoza v. Anderson, 14 Wn. App. 882, 545 P.2d 1219 (1976). Extraordinary losses are recoverable, however, if they are properly segregated. Nystrand v. O'Malley, 60 Wn.2d 792, 375 P.2d 863 (1962). By extraordinary, we mean losses that are not the normal consequence of a logging operation conducted in a reasonably prudent manner, e.g., damages to bridges, pipelines, dwellings and outbuildings.

Because plaintiff has elected the statutory remedy, she is entitled to damages for diminution of the value of her land  [*128]  only to the extent that those damages stem from an injury which is not a usual or normal consequence of a logging operation. Testimony at trial tended to show that, disregarding the value of the timber removed, plaintiff's land was worth $ 2,500 per acre before the [***9]  trespass and $ 1,500 per acre after the trespass. There was scant evidence that this loss was extraordinary. In fact, photographs in evidence depict the usual aftermath of such an operation. Admittedly the presence of unwanted skid roads and the piles of debris and detritus are unsightly and unnerving to the owner-victim of the trespass. They are, however, a customary by-product of a logging operation. Therefore, the award for additional damages must be vacated.

WA[4][4] Finally, Lyons asserts that he was denied due process of law because the trial judge failed to disqualify himself sua sponte because of alleged implied bias. Defendant acknowledges that he was aware of the claimed bias at the outset and could have filed an affidavit of prejudice; he deliberately chose not to do so. He reasons, nevertheless, that the alleged denial of due process triggers RAP 2.5(a)(3), and he should be allowed to assert the alleged error for the first time on appeal. We have recently held that HN4Go to this Headnote in the case.even constitutional rights can be waived by failing to utilize the machinery available for asserting them. See State v. Valladares, 31 Wn. App. 63, 639 P.2d 813, review granted [***10]  , 97 Wn.2d 1015 (1982). Consequently, Lyons waived this issue by failing to bring the facts before the trial judge and to seek his recusal. See also State v. Rice, 24 Wn. App. 562, 603 P.2d 835 (1979); State v. Bolton, 23 Wn. App. 708, 598 P.2d 734 (1979).

With respect to the merits, we believe the unsavory attack against Judge Kolbaba in appellant's brief warrants comment. Certainly, the actions of every judicial officer are open to public scrutiny and criticism. We believe it is irresponsible, however, for serious allegations to be made without any apparent attempt to investigate or verify the charges. We are shocked that counsel on appeal, as officers of the court, would  [**22]  include such unsupported hearsay allegations  [*129]  in a brief. 3

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3 Counsel on appeal, who were not trial counsel, withdrew from the case prior to oral argument; Mr. Lyons appeared pro se.

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The trebling of damages for stumpage value is affirmed; the award of additional [***11]  damages is reversed.

Bloedel Timberlands Development, Inc., Respondent, v. Timber Industries, Inc., Appellant

No. 3909-II

COURT OF APPEALS OF WASHINGTON, Division Two

28 Wn. App. 669; 626 P.2d 30; 1981 Wash. App. LEXIS 2066

March 23, 1981

SUBSEQUENT HISTORY:  [***1]  Reconsideration Denied April 21, 1981. Review Denied by Supreme Court June 26, 1981.

CASE SUMMARY

PROCEDURAL POSTURE: Respondent timber owner brought an action for trespass and conversion of trees against appellant timber harvester. The timber harvester sought review of an award of treble damages under Wash. Rev. Code § 64.12.030. The timber owner cross-appealed from a setoff and dismissal of the timber harvester's president in his individual capacity. It also cross-appealed the dismissal of a conversion claim against a timber purchaser.

OVERVIEW: The timber harvester's president, acting in his official capacity, contracted with the timber owner to harvest standing timber on a tract of land irregular in shape. The actual logging was conducted four years later by the subcontractor. It was admitted that the subcontractor had trespassed over the boundaries of the tract and cut timber on other property of the timber owner. The court held that the question of whether the subcontractor was an agent or not was mostly governed by how much control the harvester exercised. There was sufficient evidence to support the trial court's finding that the subcontractor was in fact an agent. The court further held that there was insufficient evidence to mitigate the damages under Wash. Rev. Code § 64.12.040. The court then determined that the timber owner was not entitled to a judgment against the timber harvester's president in his individual capacity because he had not actively participated in the trespass. The court finally held that, because the timber owner had failed to provide sufficient evidence to trace the identity of the trespassed timber into the hands of the timber purchaser, dismissal of the conversion claim was appropriate.

OUTCOME: The court affirmed the judgment of the trial court, which awarded treble damages to the timber owner for trespass and conversion by the timber harvester, and dismissed the claims against the president of the timber harvester, in his individual capacity, and the timber purchaser.

CORE TERMS: timber, trespass, logging, logs, conversion, blazed, independent contractor, feet, purchaser, disputed, cutting, setoff, tree line, logging operations, orange-glow, flagging, tract, duty to disclose, unchallenged, trespasser, converter, innocent, involuntary, adjoining, converted, treble, casual, willful, flag, treble damages

LexisNexis® Headnotes Hide Headnotes

Governments > Local Governments > Finance
Torts > Damages > General Overview
Torts > Premises Liability & Property > Trespass > General Overview
HN1Go to the description of this Headnote.    Wash. Rev. Code § 64.12.030 provides: Injury to or removing trees, etc. --Damages. Whenever any person shall cut down, girdle or otherwise injure, or carry off any tree, timber or shrub on the land of another person, or on the street or highway in front of any person's house, village, town or city lot, or cultivated grounds, or on the commons or public grounds of any village, town or city, or on the street or highway in front thereof, without lawful authority, in an action by such person, village, town or city against the person committing such trespasses or any of them, if judgment be given for the plaintiff, it shall be given for treble the amount of damages claimed or assessed therefor, as the case may be.

Business & Corporate Law > Agency Relationships > Agents Distinguished > General Overview
Business & Corporate Law > Agency Relationships > Establishment > Elements > Right to Control by Principal
HN2Go to the description of this Headnote.    Factors to be considered in determining whether an agency relationship exists include: the extent of control; whether a distinct business exists; who supplies tools and equipment; the length of time worked; the method of payment; whether or not the work is part of the regular business of the employer; and the kind of occupation with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision. The crucial factor is the right of control which must exist to prove agency. Control is not established if the asserted principal retains the right to supervise the asserted agent merely to determine if the agent performs in conformity with the contract. Instead, control establishes agency only if the principal controls the manner of performance.

Business & Corporate Law > Agency Relationships > Agents Distinguished > Independent Contractors, Masters & Servants > General Overview
HN3Go to the description of this Headnote.    If the facts are undisputed and but a single conclusion may be drawn therefrom, it becomes a question of law as to whether one is an employee or an independent contractor. Conversely, where the facts as to the agreement between the parties to the transaction are in dispute or are susceptible of more than one interpretation or conclusion, then the relationship of the parties generally becomes a question to be determined by the trier of the facts.

Governments > Public Improvements > Bridges & Roads
Real Property Law > Torts > Trespass to Real Property
Torts > Premises Liability & Property > Trespass > General Overview
HN4Go to the description of this Headnote.    Wash. Rev. Code § 64.12.040 states: Mitigating circumstances -- Damages. If upon trial of such action it shall appear that the trespass was casual or involuntary, or that the defendant had probable cause to believe that the land on which such trespass was committed was his own, or that of the person in whose service or by whose direction the act was done, or that such tree or timber was taken from unenclosed woodlands, for the purpose of repairing any public highway or bridge upon the land or adjoining it, judgment shall only be given for single damages.

Torts > Premises Liability & Property > General Premises Liability > Duties of Care > Duty on Premises > Trespassers > General Overview
Torts > Premises Liability & Property > Trespass > Remedies > Damages > Award Calculations
Torts > Premises Liability & Property > Trespass > Remedies > Damages > Punitive Damages
HN5Go to the description of this Headnote.    Damages treble the stumpage value awarded for an intentional timber trespass are not necessarily punitive but attempt to compensate the owner of growing timber for premature harvesting by the trespasser. Once a trespass is established, the burden shifts to the defendant to mitigate damages by showing that it was casual or involuntary and not willful or reckless.

Torts > Premises Liability & Property > General Premises Liability > Duties of Care > Duty on Premises > Trespassers > General Overview
Torts > Premises Liability & Property > Trespass > General Overview
HN6Go to the description of this Headnote.    One who authorizes or directs a trespass is jointly liable with the actual trespassers.

Real Property Law > Deeds > Property Descriptions
Torts > Business Torts > Fraud & Misrepresentation > Nondisclosure > General Overview
HN7Go to the description of this Headnote.    A vendor has an affirmative duty to disclose boundaries if a reasonable and diligent vendee would be misled from the appearance of the property. Even innocent misrepresentations concerning boundaries entitle the purchaser to a setoff of the purchase price. Further liability can be imposed on the seller when it fails to disclose material information to the purchaser.

Contracts Law > Sales of Goods > General Overview
Contracts Law > Types of Contracts > Bona Fide Purchasers
Torts > Premises Liability & Property > General Premises Liability > Duties of Care > Duty on Premises > Trespassers > General Overview
HN8Go to the description of this Headnote.    In order to make a prima facie case in conversion, the burden is on the plaintiff to prove a right to possess the property converted. An innocent third party purchaser from a willful trespasser/converter may be held liable for conversion because knowledge that the goods are converted is not essential to establish culpability. Such a good faith purchaser may be held liable if plaintiff demonstrates intent to exercise control over plaintiff's property inconsistent with plaintiff's rights. Proof of identification of converted property in the hands of a third party purchaser must be reasonably certain.

Hide Headnotes / Syllabus

SUMMARY: Nature of Action: A landowner sought damages for timber trespass from a timber company and its president after a logging company employed by the timber company had mistakenly cut trees from the plaintiff's land. The landowner also sought damages for conversion from an exporter of logs.

Superior Court: After dismissing the president of the timber company and the exporter, the Superior Court for Clallam County, No. 24741, Gerald B. Chamberlin, J., on January 26, 1979, entered a judgment awarding treble damages for trespass against the timber company subject to a setoff for certain standing timber.

Court of Appeals: Holding that the setoff was proper, that there was insufficient evidence that the exporter had received the wrongfully cut trees, and that the evidence was sufficient to prove that the logging company had acted as the agent of the timber company, that the trespass was reckless, and that the president of the timber company had not participated in the trespass, the court affirms the judgment.

HEADNOTES
WASHINGTON OFFICIAL REPORTS HEADNOTES

WA[1][1] Principal and Agent -- Independent Contractor -- Distinction -- Right of Control A party is an agent and not an independent contractor if the principal has the right to control the manner in which the party performs the work, rather than merely the right to supervise the party to ascertain whether the work is performed in accordance with a  [***2]  contract.

WA[2][2] Principal and Agent-- Independent Contractor — Determination Whether a party acts as an agent or as an independent contractor is a question of fact if the agreement as to the extent of the asserted principal's control over the party is in dispute or is susceptible of more than one interpretation.

WA[3][3] Trespass -- Cutting of Timber -- Damages -- Mitigation -- Burden of Proof Once a timber trespass is established, treble damages under RCW 64.12.030 are appropriate unless the trespasser can meet its burden of mitigating damages under RCW 64.12.040 by proving that the trespass was casual or involuntary.

WA[4][4] Trespass -- Corporations -- Officers -- Liability -- Corporate Trespass A corporate officer is not liable for a trespass committed by the corporation unless the officer participates in the trespass as an individual.

WA[5][5] Appeal and Error -- Findings of Fact -- Failure To Assign Error -- Effect Unchallenged findings of fact become verities on appeal. The function of the appellate court is to determine whether the unchallenged findings, together with the challenged findings which are supported by substantial evidence, support the [***3]  conclusions of law and the judgment.

WA[6][6] Boundaries -- Logs and Logging -- Sale of Timber -- Boundary Dispute -- Duty To Disclose If the existence of a boundary dispute would not be apparent to a reasonable and diligent purchaser of timber, the vendor has a duty to disclose the dispute.

WA[7][7] Conversion -- Elements -- Possession Liability for conversion requires proof of the converter's possession of the property.

COUNSEL: Mark S. Clark and John Cooper, for appellant.

Joseph C. Finley, Gerald Shucklin, and Philip R. Shucklin, for respondent.

JUDGES: Petrich, J. Reed, C.J., and Petrie, J., concur.

OPINION BY: PETRICH

OPINION

[*670]   [**31]  Treble damages for a timber trespass and damages for conversion for the timber severed from the trespass area are sought in this lawsuit. 1

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1 The treble damage claim was based on the following statute:

HN1Go to this Headnote in the case."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, timber or shrub on the land of another person, or on the street or highway in front of any person's house, village, town or city lot, or cultivated grounds, or on the commons or public grounds of any village, town or city, or on the street or highway in front thereof, without lawful authority, in an action by such person, village, town or city against the person committing such trespasses or any of them, if judgment be given for the plaintiff, it shall be given for treble the amount of damages claimed or assessed therefor, as the case may be."

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[***4]  Appeals and cross appeals followed a bench trial resulting in the award of treble damages in favor of the plaintiff Bloedel Timberlands Development, Inc., against defendant Timber Industries, Inc., less a setoff and dismissal of the  [*671]  claim for treble damages against individual defendant Jack Ortolf, president of Timber Industries, as well as the dismissal of the claim against defendant Mitsui & Co. (U.S.A.), Inc., for conversion. We affirm the trial court's judgment in all respects.

Bloedel, as part of its ongoing forest management practices, decided in 1972 to sell some of its standing timber and took steps to prepare an offering of such timber in the tract known as the Wright Timber Sale. This area, carved out of a larger tract owned by Bloedel, consisted of about 60 acres of land irregular in shape. It was bounded on the north by the clearly identified Goodyear Camp railroad grade; on the east and west "by orange-glow flagging"; and the south by the southern section line of two adjoining sections. Defendant Jack Ortolf, acting in his capacity as president of Timber Industries, inspected the Wright Timber Sale in the company of John Allen, forest manager for Bloedel,  [***5]  who pointed out the orange-glow flagging. Allen had previously erected the orange-glow flagging  [**32]  for the east and west boundaries. During this inspection trip, a line of blazed trees extending between the southern termini of the east and west flag lines was observed and discussed by Ortolf and Allen. The testimony at trial was in conflict as to the representation of the blazed tree line as the section line, with Ortolf claiming Allen verbally represented the blazed tree line as the section line and Allen denying the same.

An agreement between Bloedel and Timber Industries dated November 8, 1972, entitled Timber to harvest standing timber in the Wright Timber Sale area in exchange for a cash payment of $ 80,000. Weather conditions as well as the timber market delayed completion of the project as originally scheduled. For additional sums of money and a deposit of $ 1,000 to be held as a "performance bond," time for completion was extended by written agreement to September 30, 1976. The actual operation extended into October or early November of 1976 without the benefit of a written extension. The source of the $ 80,000 cash consideration was from an advance in a like [***6]  amount to Timber  [*672]  Industries from defendant Mitsui. The advance was evidenced by a note and security agreement in favor of Mitsui on the timber to be harvested. Mitsui also agreed with Timber Industries to purchase about a million board feet of hemlock and douglas fir logs of certain sizes for export. Payment in part for such logs was by a credit on the advance at a predetermined rate. The remaining timber was to be sold by Timber Industries to other customers. This was one of other similar, although not necessarily identical, arrangements between Timber Industries and Mitsui which provided financing assistance to Timber Industries and a ready source of logs suitable for export to Mitsui.

Timber Industries contracted with logging operators for the actual logging operations. Three such operators in succession were so engaged, the last being M & M Logging owned by Ray Allen, with Stan Hull as one of its principal employees. Subsequent to the original Bloedel-Timber Industries agreement but before completion of the cutting, Crown Zellerbach, the owner of the property immediately south of the Wright Timber Sale area, located a claimed boundary line somewhat north of [***7]  the blazed tree line. Once this line was established, Timber Industries respected it and refrained from any cutting south of the Crown Zellerbach line.

Jack Ortolf was seldom on the tract after the initial inspection. In the spring of 1975, he personally inspected the property. Up to that time the logging operations were primarily in the western part, progressing toward the east. At this time he and his son erected red and blue flagging slightly inside the east orange-glow flag line. His stated reason was that the orange-glow flag line was poorly marked, and the new line was a clear warning of the east boundary, the general direction in which the operation was progressing. During the summer months of 1976, David Cassida, an employee of Timber Industries, was assigned the task of supervising the operation. Cassida, on behalf of Timber, entered into the agreement with Ray Allen of M &  [*673]  M Logging, the third and last logging contractor to do the cutting, loading and delivery of the timber.

However, David Cassida's knowledge of the boundaries was apparently gained from a map of the area, and the flagged boundary to the east had never been pointed out to him. Ray Allen [***8]  of M & M had been advised of the boundaries, not by Cassida but by members of a prior logging crew. Because of other commitments Ray Allen left the Wright tract the end of September, and Stan Hull, an employee of M & M Logging, continued the operation. The logging operation in late September and October of 1976 progressed east beyond the eastern boundary of the Wright tract and onto Bloedel's adjoining property. The operation to the east stopped when the outer limits of the most recent yarding site had been reached. It was not until the loggers returned towards the yarding site that the orange-glow flagging and the red and blue flagging were noticed. Upon realizing a probable trespass, Timber Industries ceased logging operations in the trespassed area.  [**33]  The fact of the trespass onto 9.3 acres of the Bloedel property is not disputed, nor is the stumpage value of $ 20,000 for severed timber.

At the close of the plaintiff's case the trial court dismissed the trespass claims against defendants Ortolf and Mitsui, as well as the alternate claim of conversion against defendant Mitsui. It did award judgment against defendant Timber Industries in the amount of $ 60,000, thrice [***9]  the value of the standing timber for the timber trespass, but allowed a setoff in the amount of $ 5,746 for the standing timber in the disputed area of the south boundary plus an additional $ 1,000, the amount of bond deposit.

Timber Industries appeals, claiming that the admitted trespass was committed with M & M Logging acting as an independent contractor rather than its agent, and further, that the trespass was unintentional and therefore not subject to treble damages. Bloedel cross-appeals the award of the setoff in favor of Timber Industries, as well as the dismissal of the trespass claim against the individual defendant Ortolf and the conversion claim against Mitsui.

[*674]  We first address Timber Industries' challenge to the trial court's determination that Ray Allen and Stan Hull, the owner and employee of M & M Logging, were its agents.

WA[1][1] The contract between Timber and M & M Logging specified that M & M was an independent contractor. The record shows that M & M was an entity distinct from Timber, that its employees were paid by it and that it supplied its workers with tools and equipment. Timber argues that M & M is an independent contractor as a matter [***10]  of law. The trial court found, however, that fallers Stan Hull and Ray Allen were agents of Timber because Timber retained the right to control them by the presence of Cassida in the field. HN2Go to this Headnote in the case.Factors to be considered in determining whether an agency relationship exists include: the extent of control; whether a distinct business exists; who supplies tools and equipment; the length of time worked; the method of payment; whether or not the work is part of the regular business of the employer; and the kind of occupation with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision. Hollingbery v. Dunn, 68 Wn.2d 75, 411 P.2d 431 (1966) (citing Restatement (Second) of Agency § 220(2) (1958)). The crucial factor is the right of control which must exist to prove agency. Control is not established if the asserted principal retains the right to supervise the asserted agent merely to determine if the agent performs in conformity with the contract. E.g., Seattle Aerie No. 1 v. Commissioner, 23 Wn.2d 167, 160 P.2d 614 (1945). Instead, control establishes agency only if the principal controls the manner [***11]  of performance, in this case the actual cutting. E.g., Langness v. Ketonen, 42 Wn.2d 394, 255 P.2d 551 (1953); Nawrocki v. Cole, 41 Wn.2d 474, 249 P.2d 969, 35 A.L.R.2d 799 (1952); Bill v. Gattavara, 24 Wn.2d 819, 167 P.2d 434 (1946).

WA[2][2] The holding of the court in Hollingbery v. Dunn, supra, concerning the determination of agency by the trier of fact is most helpful when it says at page 80:

     
    HN3Go to this Headnote in the case. [*675]  If the facts are undisputed and but a single conclusion may be drawn therefrom, it becomes a question of law as to whether one is an employee or an independent contractor. Conversely, where the facts as to the agreement between the parties to the transaction are in dispute or are susceptible of more than one interpretation or conclusion, then the relationship of the parties generally becomes a question to be determined by the trier of the facts. Restatement (Second), Agency § 220, comment c (1958); 57 C.J.S. Master and Servant § 530 (1948); 27 Am. Jur. Independent Contractors § 60 (1941).

(Italics ours.)

In the present case the extent of Cassida's control appears to be either a disputed factual question or facts that are  [***12]   [**34]  susceptible of more than one interpretation. Cassida testified that he supervised the removal of the cut logs from the tract intermittently by making certain that they were properly tagged, branded and loaded for delivery to Mitsui. This would only be control of performance to determine if it was in conformity with the contractual terms -- to see if M & M was cutting the proper amount of timber. Ray Allen testified that Cassida supervised the entire logging operation nearly every day, including the cutting, branding and loading. This would show control of the manner of performance and support the agency finding. Since the question of the extent of control appears disputed, the question of agency is a factual one, and we are satisfied that there was sufficient evidence which, if believed, would support the trial court's finding that M & M Logging, Ray Allen, Stan Hull and others engaged in the actual logging operation were agents of Timber Industries.

Timber Industries next contends that the admitted trespass was casual or involuntary, entitling the plaintiff to single damages only. 2

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2 HN4Go to this Headnote in the case.RCW 64.12.040 states:

"Mitigating circumstances -- Damages. If upon trial of such action it shall appear that the trespass was casual or involuntary, or that the defendant had probable cause to believe that the land on which such trespass was committed was his own, or that of the person in whose service or by whose direction the act was done, or that such tree or timber was taken from uninclosed woodlands, for the purpose of repairing any public highway or bridge upon the land or adjoining it, judgment shall only be given for single damages."

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[***13]  WA[3][3]  [*676]  HN5Go to this Headnote in the case.Damages treble the stumpage value awarded for an intentional timber trespass are not necessarily punitive but attempt to compensate the owner of growing timber for premature harvesting by the trespasser. Ventoza v. Anderson, 14 Wn. App. 882, 545 P.2d 1219 (1976). Once a trespass is established, the burden shifts to the defendant to mitigate damages by showing that it was casual or involuntary and not willful or reckless. E.g., Seattle-First Nat'l Bank v. Brommers, 89 Wn.2d 190, 197-98, 570 P.2d 1035 (1977); Smith v. Shiflett, 66 Wn.2d 462, 403 P.2d 364 (1965). In the present case, Hull and Ray Allen admitted the trespass in their testimony. No evidence was presented by defendant to prove that the trespass was not willful or reckless. Instead, the record shows that Timber did not inform its fallers of the exact boundary, and that the fallers crossed a line that was clearly flagged, facts clearly supporting a finding of recklessness. As such, defendant failed to carry its burden of proof to mitigate damages.

WA[4][4] Plaintiff Bloedel challenges the trial court's dismissal of the trespass claim against Jack Ortolf individually. No claim [***14]  was made that Timber Industries was Ortolf's alter ego. Bloedel contends that Ortolf authorized or directed the trespass. It is true that HN6Go to this Headnote in the case.one who authorizes or directs a trespass is jointly liable with the actual trespassers. Fordney v. King County, 9 Wn.2d 546, 557-58, 115 P.2d 667 (1941). However, in this case the record is devoid of any evidence that Ortolf directed the trespass or participated in it. Instead, he clearly marked the east boundary with red and blue flags and was not even present at the time of the logging. The unchallenged finding of the trial court is that Ortolf was never physically present at the Wright Timber Sale area or the trespass area during the time that the trespass occurred, and that he did not personally participate in the trespass or the cutting of the  [*677]  timber. Any liability attaching would only be the vicarious liability of Timber Industries, the corporate defendant, as principal for M & M Logging and its employees; liability would not attach to the corporate officers of Timber Industries absent active participation of the officers in the trespass. The trial court was correct in dismissing the claim against Ortolf individually.

[***15]  WA[5][5] Bloedel also challenges the trial court's award of a setoff in the amount of $ 5,746, the value of the standing timber in the disputed area of the south boundary adjoining the Crown Zellerbach property. The findings of the trial court determined  [**35]  that, prior to the Bloedel-Timber Industries agreement, John Allen informed Ortolf that the south boundary of the Wright Timber Sale area was the section line, and that a line of blazed trees existed in the general vicinity of the section line. Allen did not represent that the blazed tree line coincided with the section line. The location of the section line was later disputed by a survey which indicated the section line to be further north than the blazed tree line resulting in the disputed area of approximately 4 acres containing $ 5,746 of standing timber. The trial court further found that at that time John Allen had doubts as to whether the section line could be accurately located or whether the blazed tree line was the true section line, but that he failed to inform Timber Industries of these doubts. In a mixed finding and conclusion the trial court held that Timber Industries elected not to cut timber in [***16]  the disputed area because of the uncertainty of the boundary, and in so doing, acted reasonably under the then prevailing circumstances. Bloedel only assigned error to the mixed finding and conclusion. The unchallenged findings being verities on appeal, Gannon v. Robinson, 59 Wn.2d 906, 371 P.2d 274 (1962); Baugh v. Dunstan & Dunstan, Inc., 67 Wn.2d 710, 409 P.2d 658 (1966), and there being substantial evidence to support that portion of the challenged finding, we are satisfied that the findings support the court's award of the setoff. Brown v. Safeway Stores, Inc., 94 Wn.2d 359, 617 P.2d 704 (1980).

WA[6][6]  [*678]  HN7Go to this Headnote in the case.A vendor has an affirmative duty to disclose boundaries if a reasonable and diligent vendee would be misled from the appearance of the property. Huling v. Vaux, 18 Wn. App. 222, 566 P.2d 1271 (1977). Even innocent misrepresentations concerning boundaries entitle the purchaser to a setoff of the purchase price. Murphree v. Rawlings, 3 Wn. App. 880, 479 P.2d 139 (1970). Further liability can be imposed on the seller when it fails to disclose material information to the purchaser. Sorrell v. Young, 6 Wn. App. 220, 491 P.2d 1312 (1971). [***17]  Although business practice may have obligated Timber to locate the exact boundaries by a cruise, it would appear that Bloedel had an affirmative duty to disclose that a boundary dispute existed. (This finding was not challenged.) Further, it appears that the flagged east and west lines ended very near the blazed line in the vicinity of the southern boundary. This would appear to place an affirmative duty to disclose the nature of the dispute since it would mislead the purchaser into believing that the blazed line marked the south boundary. Therefore, it cannot be said that the trial court erred in awarding the setoff.

Finally, Bloedel challenges the trial court's dismissal at the end of plaintiff's case of its claim against Mitsui for conversion. The trial court's reason was the failure to trace the identity of the logs from the trespass area into the hands of Mitsui. Bloedel contends that, as the subsequent converter of logs from Timber Industries, Mitsui is liable to Bloedel for the value of the logs at the time of conversion (not the stumpage value) where the original trespass was willful, even though Mitsui is innocent of any wrongdoing. In support, it cites Smith v. Shiflett,  [***18]
supra. Bloedel argues further that Mitsui has the burden of proving the identity of the plaintiff's property in its possession or else will be liable for the entire mass of plaintiff's appropriated property where Timber Industries, the original trespasser, confused plaintiff's property with Timber Industries' property, citing Belmont v. Umpqua Sand & Gravel, Inc., 273 Or. 581, 542 P.2d 884 (1975). The authorities cited do not support  [*679]  Bloedel's position. In Smith v. Shiflett, supra, there was no problem in tracing the identity of the plaintiff's property into the hands of the innocent converter. In Belmont v. Umpqua Sand & Gravel, Inc., supra, there was no innocent third party purchaser from the original converter. The defendant in that case converted plaintiff's property and confused it with his own.

WA[7][7] HN8Go to this Headnote in the case.In order to make a prima facie case in conversion, the burden is on the plaintiff to prove a right to possess the property converted. E.g., Junkin v. Anderson,  [**36]
21 Wn.2d 256, 258, 150 P.2d 678 (1944). An innocent third party purchaser from a willful trespasser/converter may be held liable for conversion because knowledge that the [***19]  goods are converted is not essential to establish culpability. E.g., Grays Harbor County v. Bay City Lumber Co., 47 Wn.2d 879, 289 P.2d 975 (1955); Watkins v. Siler Logging Co., 9 Wn.2d 703, 728, 116 P.2d 315 (1941). Such a good faith purchaser may be held liable if plaintiff demonstrates intent to exercise control over plaintiff's property inconsistent with plaintiff's rights. W. Prosser, Torts § 15, at 83-85 (4th ed. 1971). Proof of identification of converted property in the hands of a third party purchaser must be reasonably certain. Freightliner Corp. v. Gyles, 268 Or. 357, 521 P.2d 1 (1974).

In the present case plaintiff failed to present sufficient evidence to establish that Mitsui did possess timber from the trespass area. Evidence disclosed that about 160,950 board feet of timber was cut from the timber trespass area during the period of late August through October of 1976. Of this amount, there was approximately 75,000 board feet of export quality logs. In October Timber Industries transported 444,000 board feet of timber from the Wright Timber Sale, and presumably from the trespass area, to its facility in the Everett area. Mitsui received 194,000 [***20]  board feet, and the remaining 250,000 feet was apparently sold to other unknown customers. Pursuant to CR 41(b)(3) the trial court entered findings of fact and conclusions of law, pertinent portions of which were unchallenged by Bloedel  [*680]  and provided as follows:

    During said period of August-October, 1976, at least 160,950 board feet of timber cut from the timber trespass area were removed therefrom by the defendant Timber Industries, Inc., and in October, 1976, approximately 194,000 board feet of logs were sold and delivered by Timber Industries, Inc. to the defendant Mitsui & Co. (USA), Inc., but there is insufficient evidence to prove what portion, if any, of said 194,000 board feet of logs came from the timber trespass area and what portion came from the Wright Timber sale area.

Lacking sufficient evidence to trace the identity of the trespassed timber into the hands of Mitsui, Bloedel was unable to sustain its burden of proof, and dismissal of this claim against Mitsui was proper.

The trial court's judgment is affirmed.

Catherine Smith et al., Respondents, v. Earl E. Shiflett et al., Appellants

No. 37371

SUPREME COURT OF WASHINGTON, Department One

66 Wn.2d 462; 403 P.2d 364; 1965 Wash. LEXIS 881

June 17, 1965

SUBSEQUENT HISTORY:  [***1]  Petition for Rehearing Denied August 20, 1965.

CASE SUMMARY

PROCEDURAL POSTURE: Defendants, loggers and mill, challenged a decision from the Superior Court of Ferry County (Washington), which awarded plaintiff landowner treble damages under Wash. Rev. Code § 64.12.030 for cutting timber on land of the landowner.

OVERVIEW: The loggers went onto property owned by the landowner and began cutting trees. The landowner approached them and warned that the land belonged to him. The loggers delivered the timber to the mill for processing. The landowner brought an action under Wash. Rev. Code § 64.12.030 to recover treble damages for the value of the timber that was cut and removed. The trial court granted judgment to the landowner for the treble damage amount and a judgment against the mill for the value of the timber as delivered. The loggers asserted that their entrance on the land was casual and involuntary and under Wash. Rev. Code § 64.12.040 the amount of damage awarded to the landowner should have been single damages. The court affirmed the award of treble damages because it determined that there was substantial evidence from which the jury concluded that the trespass was willful. While the evidence showed that the loggers did not deliberately cut the trees, knowing them to belong to the landowner, they proceeded without making any survey or any adequate investigation, and without probable cause to believe that the trees being cut were on land where they had authority to be.

OUTCOME: The court affirmed the decision awarding treble damages to the landowner for timber cut by the loggers and mill.

CORE TERMS: timber, logger, conversion, trespass, cutting, willful, treble damages, notice, feet, converter, trespasser, probable cause, involuntary, casual, stumpage, probable consequences, facts sufficient, reckless disregard, measure of damages, willfulness, trespassing, innocent, highway, village, mala, property lines, mile, innocent purchaser, good faith, own use

LexisNexis® Headnotes Hide Headnotes

Governments > Local Governments > Finance
Torts > Intentional Torts > Conversion
Torts > Premises Liability & Property > Trespass > General Overview
HN1Go to the description of this Headnote.    Wash. Rev. Code § 64.12.030 provides: Whenever any person shall cut down, girdle or otherwise injure, or carry off any tree, timber or shrub on the land of another person, or on the street or highway in front of any person's house, village, town or city lot, or cultivated grounds, or on the commons or public grounds of any village, town or city, or on the street or highway in front thereof, without lawful authority, in an action by such person, village, town or city against the person committing such trespasses or any of them, if judgment be given for the plaintiff, it shall be given for treble the amount of damages claimed or assessed therefor, as the case may be.

Governments > Public Improvements > Bridges & Roads
Torts > Intentional Torts > Conversion
Torts > Premises Liability & Property > Trespass > General Overview
HN2Go to the description of this Headnote.    Wash. Rev. Code § 64.12.040 provides: If upon trial of such action it shall appear that the trespass was casual or involuntary, or that the defendant had probable cause to believe that the land on which such trespass was committed was his own, or that of the person in whose service or by whose direction the act was done, or that such tree or timber was taken from unenclosed woodlands, for the purpose of repairing any public highway or bridge upon the land or adjoining it, judgment shall only be given for single damages.

Torts > Intentional Torts > Conversion
Torts > Premises Liability & Property > General Premises Liability > Duties of Care > Duty on Premises > Trespassers > General Overview
Torts > Premises Liability & Property > Trespass > General Overview
HN3Go to the description of this Headnote.    Treble damages will be imposed upon trespassers cutting timber under Wash. Rev. Code § 64.12.030, unless those trespassing exculpate themselves under the provisions of Wash. Rev. Code § 64.12.040. It must be made to appear that the trespass was casual or involuntary, or that the defendant had probable cause to believe that the land on which such trespass was committed was his own, or that of the person in whose service or by whose direction the act was done. Wash. Rev. Code § 64.12.040.

Torts > Intentional Torts > Conversion
HN4Go to the description of this Headnote.    In an action for conversion, a subsequent converter does not have the right to deduct the value added by the labor and expenditure of the original converter, when the original conversion was willful, and this rule applies even though the subsequent converter is an innocent purchaser for value.

Torts > Intentional Torts > Conversion
Torts > Premises Liability & Property > Trespass > General Overview
HN5Go to the description of this Headnote.    Obviously inadequate surveys are not evidence of good faith. Evidence of willfulness may be established by circumstantial evidence in trespass cases.

Civil Procedure > Remedies > Damages > Punitive Damages
Torts > Intentional Torts > Conversion > Remedies
Torts > Premises Liability & Property > Trespass > General Overview
HN6Go to the description of this Headnote.    Because the rule allowing a higher measure of damages in cases of willful conversion is in conflict with the policy with regard to punitive damages, it should be strictly limited in its application to those situations in which the mala fides of the defendant's act is proven by a preponderance of the evidence. That is, it should be shown that the defendant either intended to deprive the plaintiff of his property or, having knowledge of facts sufficient to put him on notice of the plaintiff's ownership, acted in reckless disregard of the probable consequences.

Torts > Intentional Torts > Conversion
Torts > Premises Liability & Property > General Premises Liability > Duties of Care > Duty on Premises > Trespassers > General Overview
Torts > Premises Liability & Property > Trespass > General Overview
HN7Go to the description of this Headnote.    While it is necessary that there be some element of wilfulness, it is not necessary to prove intent on the part of the trespasser to establish willfulness.

Hide Headnotes / Syllabus

SUMMARY: Appeal from a judgment of the Superior Court for Ferry County, No. 4330, Robert J. Murray, J., entered August 8, 1963.Affirmed.

Action for damages. Defendants appeal from a judgment in favor of the plaintiffs.

HEADNOTES
WASHINGTON OFFICIAL REPORTS HEADNOTES

WA[1][1] Trespass — Cutting of Timber — Treble Damages Treble damages will be imposed under RCW 64.12.030 on trespassers cutting trees unless the trespasser can bring himself within the terms of the exculpatory statute 64.12.040, i.e., it must be made to appear that the trespass is casual or involuntary, or that the trespasser had probable cause to believe that he had express authority to cut trees on the land.

WA[2][2] Conversion — Value of Property — Subsequent Converter An innocent subsequent converter will be liable only for the value of the goods at the time of the original conversion, unless such original conversion was willful, in which case the innocent subsequent converter will be liable for the value of the goods at the time he converted them to his own use.

WA[3][3] Trespass — Cutting of Timber — Treble Damages Where a person has trespassed on the land of another and cut timber so as to make himself liable for treble damages under RCW 64.12.030,  [***2]  the fact that he did not deliberately cut trees without proper authority does not, by itself, bring him within the exculpatory provisions of RCW 64.12.040, where he made no survey or other effort to determine the property lines even though he had notice that his informant as to such lines had no real knowledge thereof.

WA[4][4] Same — Conversion — Value of Property — Willfulness of Trespass A person who enters upon land and cuts therefrom timber with knowledge of facts sufficient to put him on notice of another's ownership, acts in reckless disregard of the probable consequences, and a conversion of such timber will be held to be willful.

COUNSEL: Witherspoon, Kelley, Davenport & Toole, by E. Glenn Harmon and Hancock & Kohls, by B. E. Kohls, for appellants.

Richard A. Perry, for respondents.

JUDGES: Hill, J. Ott and Hunter, JJ., and Barnett, J. Pro Tem., concur. Rosellini, C. J., dissenting.

OPINION BY: HILL

OPINION

[*463]   [**365]  This is another case of trespassing loggers cutting timber and seeking to avoid the statutory treble damages 1 by urging that they did [***3]  not know they were trespassing. It also involves the issue of the measure of damages to be paid by the mill which bought the timber from the loggers and thereby became responsible in conversion.

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1 HN1Go to this Headnote in the case."Whenever any person shall cut down, girdle or otherwise injure, or carry off any tree, timber or shrub on the land of another person, or on the street or highway in front of any person's house, village, town or city lot, or cultivated grounds, or on the commons or public grounds of any village, town or city, or on the street or highway in front thereof, without lawful authority, in an action by such person, village, town or city against the person committing such trespasses or any of them, if judgment be given for the plaintiff, it shall be given for treble the amount of damages claimed or assessed therefor, as the case may be." RCW 64.12.030.

HN2Go to this Headnote in the case."If upon trial of such action it shall appear that the trespass was casual or involuntary, or that the defendant had probable cause to believe that the land on which such trespass was committed was his own, or that of the person in whose service or by whose direction the act was done, or that such tree or timber was taken from uninclosed woodlands, for the purpose of repairing any public highway or bridge upon the land or adjoining it, judgment shall only be given for single damages." RCW 64.12.040.

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[***4]  The purposes for which our treble damage statute was enacted are stated in Guay v. Washington Nat. Gas Co., 62 Wn.2d 473, 476, 383 P.2d 296 (1963), one of them being:

    To discourage persons from carelessly or intentionally removing another's merchantable shrubs or trees on the gamble that the enterprise will be profitable if actual damages only are incurred. One ought not to be able to create a profitable buyer-seller relationship, wilfully or carelessly, where the seller is neither consulted nor willing.

In short, that there should be no self-created right of eminent domain.

The findings of the trial court -- that the timber cut (38,320 board feet of Ponderosa Pine and 1,070 board feet of Douglas Fir) by the defendant Earl E. Shiflett (as the agent of the defendants, Philip A. Cook and George A. Brown) belonged to the plaintiffs -- are supported by substantial  [*464]  evidence. It is undisputed that it was ultimately delivered to the defendant Deer Park Pine Industry, Inc. (hereinafter called Deer Park), at a place where Deer Park took possession of the timber for shipment to its mill, and thereby became an innocent converter.

The hotly controverted issue,  [***5]  in both the trespass and conversion phases of this case, is not whether the plaintiffs should be paid for their timber, but how much.

[**366]  The net stumpage market value of the timber cut was found to be $ 12.50 per thousand board feet for the Pine and $ 6.00 per thousand board feet for the Fir; a total of $ 485.42. The issue between the plaintiffs and the loggers was whether the stumpage value should be trebled ($ 1,456.26).

The trial court found, and there was substantial evidence to sustain the finding, that the value of the timber when delivered to defendant Deer Park was $ 32.50 per thousand board feet, or a value at the time of its conversion by Deer Park of $ 1,251.82. 2 The issue between the plaintiffs and Deer Park was whether the recovery should be the stumpage value ($ 485.42), or the value after it had been skidded, loaded, and hauled to the railroad.

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2 This figure is arrived at by multiplying only the 38,320 board feet of Pine by $ 32.50 ($ 1,245.40) and taking 1,070 board feet of Fir at $ 6.00 ($ 6.42), or a total of $ 1,251.82. This was because the trial court held that the plaintiffs' pleadings restricted them to $ 6.00 per thousand board feet on the Fir.

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[***6]  The difference of the maximum amount claimed by the plaintiffs against the loggers ($ 1,456.26) and the maximum amount claimed against Deer Park for the conversion ($ 1,251.82) accounts for the form of the judgment, i.e., a judgment against all defendants for the smaller amount $ 1,251.82, and against the loggers for an additional amount of $ 204.44 to bring it, as against them, to $ 1,456.26. (The loggers were primarily liable, and Deer Park was to have subrogation against them, if it paid the part of the judgment for which is was liable.)

WA[1][1] It is clear that HN3Go to this Headnote in the case.treble damages will be imposed upon trespassers cutting timber under RCW 64.12.030, unless  [*465]  those trespassing exculpate themselves under the provisions of RCW 64.12.040. It must be made to appear that the trespass was casual or involuntary, or that

    the defendant had probable cause to believe that the land on which such trespass was committed was his own, or that of the person in whose service or by whose direction the act was done, . . . . RCW 64.12.040.

Fredericksen v. Snohomish Cy., 190 Wash. 323, 67 P.2d 886, 111 A.L.R. 75 (1937). If the defendants come within the protection [***7]  of RCW 64.12.040, the judgment shall be for single damages.

WA[2][2] On the other hand, Deer Park stands in the position of being an innocent purchaser from the loggers who cut and converted the timber of the plaintiffs to their own use. Whether Deer Park is liable to the plaintiffs for the value of the timber at the time of the conversion by the loggers, i.e., stumpage value, or the value of the timber at the time of Deer Park's conversion, i.e., when it acquired the timber from the loggers, depends on whether the original conversion by the loggers was willful. Grays Harbor Cy. v. Bay City Lbr. Co., 47 Wn.2d 879, 289 P.2d 975 (1955); Watkins v. Siler Logging Co., 9 Wn.2d 703, 116 P.2d 315 (1941). The rule, as stated in the former case, is as follows: HN4Go to this Headnote in the case.In an action for conversion, a subsequent converter does not have the right to deduct the value added by the labor and expenditure of the original converter, when the original conversion was willful, and this rule applies even though the subsequent converter is an innocent purchaser for value.

Thus, in logging cases, if the willful conversion by the logger is established, the mill would be liable for the value of [***8]  the timber at the time it acquired possession, and the logger would be liable for treble damages. 3

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3 This does not imply that the owner is paid twice for his timber, though he would be entitled to judgment against the loggers and the mill for different amounts and to the ultimate recovery of the highest of the two figures. Liabilities, as between the loggers and the mill, are adjusted in the judgment, as was done in this case.

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In the present case, the trespass having been established,  [*466]  the trier of the facts was clearly convinced that the trespass was neither casual nor involuntary.

WA[3][3]  [**367]  The defendant Shiflett, who actually cut the timber while operating in several different sections, never made any pretense of making a survey; nor did he attempt to find out who owned the land where he was cutting. Shiflett said that the one person (an ostensible owner) who gave him instructions where to cut, told him to cut everything beyond a certain gate. The first tree he cut was a quarter [***9]  of a mile beyond the gate, and he was immediately advised by one of the plaintiffs (Warren Olson) that the tree belonged to the plaintiffs and that they owned land in that area. This was adequate to put defendant Shiflett on notice that the ostensible owner, who had given him his only instructions (and who never testified and was never proved to be an owner) did not know where the property lines were, and that he (Shiflett) would be proceeding at his own risk in cutting any timber without further investigation. (It is true that the plaintiff Olson did not at that time know the property lines of the plaintiffs with any degree of exactness, but he certainly was not telling Shiflett where he could cut.) Shiflett just moved a half or three-quarters of a mile east and cut 30 more trees without any further investigation.

The best that can be said for Shiflett is that he didn't deliberately cut the trees, knowing them to belong to the plaintiffs; but he proceeded without making any survey, or any adequate investigation, and without probable cause to believe that the trees being cut were on land where he had authority to be.

We have had occasion to hold that HN5Go to this Headnote in the case.obviously inadequate surveys [***10]  were not evidence of good faith. Blake v. Grant, 65 Wn.2d 410, 397 P.2d 843 (1964); Heybrook v. Index Lbr. Co., 49 Wash. 378, 95 Pac. 324 (1908); and that evidence of willfulness may be established by circumstantial evidence. Fredericksen v. Snohomish Cy., supra; Harold v. Toomey, 92 Wash. 297, 158 Pac. 986 (1916).

[*467]  The trespass being neither casual nor involuntary, Shiflett did not bring himself within the letter or the spirit of RCW 64.12.040; and we are satisfied that the trial court was correct in concluding that the trespass was within the terms of RCW 64.12.030 and that treble damages should be imposed on the loggers.

WA[4][4] On the conversion phase of the case, the trial court made no express finding that the original trespass and conversion were willful. However, the trial court did find that the loggers in their cutting operations "acted with wanton disregard for the rights of plaintiffs."

We correctly stated the rule in these cases when, in Grays Harbor Cy. v. Bay City Lbr. Co., supra, we said:

    HN6Go to this Headnote in the case.Because the rule allowing a higher measure of damages in cases of willful conversion is in conflict with our frequently expressed policy [***11]  with regard to punitive damages, it should be strictly limited in its application to those situations in which the mala fides of the defendant's act is proven by a preponderance of the evidence. That is, it should be shown that the defendant either intended to deprive the plaintiff of his property or, having knowledge of facts sufficient to put him on notice of the plaintiff's ownership, acted in reckless disregard of the probable consequences. (p. 886)

Certainly, the loggers here acted in reckless disregard of the probable consequences, and a willful conversion may be implied therefrom. As pointed out in both Mullally v. Parks, 29 Wn.2d 899, 910, 190 P.2d 107 (1948), and Fredericksen v. Snohomish Cy., supra, at p. 326,

    HN7Go to this Headnote in the case.While it is necessary, under the cases referred to, that there be some element of wilfulness, it is not necessary to prove intent on the part of the trespasser.

to establish willfulness.

The judgment appealed from is in all respects affirmed.

DISSENT BY: ROSELLINI

DISSENT

Rosellini, C. J. (dissenting)

In the case of Grays Harbor Cy. v. Bay City Lbr. Co., 47 Wn.2d 879, 289 P.2d 975, cited by the majority, we pointed out very clearly that [***12]  treble damages are punitive damages and are not favored  [*468]  by the courts, and said that the rule allowing a higher measure of damages in cases of willful conversion should be strictly limited to those situations in which the mala fides of the defendant's act is shown by a preponderance of the evidence. We also observed that the fact that a survey is not made is not in itself conclusive evidence of mala fides.

The evidence in this case disclosed that the employers of the defendant loggers pointed out the boundaries of the property to be logged. While they were in the process of cutting trees, they were approached by Olson, who told them they had just cut a tree on his property and stated that his property ran a mile north from that point. The loggers withdrew from that area and did no further logging beyond the boundary which he had indicated.

The trees, the cutting of which was the trespass giving rise to this action, were not located beyond that boundary but were in an area which Olson made no claim to at the time he talked to the loggers. In fact, he did not know at that time that he was the owner of this isolated piece of land. The trial court held, however,  [***13]  that the fact that Olson had notified the defendant loggers that he owned other designated land in the area was sufficient to put them on notice that he owned additional land, although he did not claim it at the time.

I do not believe this evidence is sufficient to support a finding of bad faith on the part of the loggers. I do not think that notice of a claim to "Tract A" can be said to be notice of a claim to "Tract B." The evidence was that the loggers acted in good faith and did not attempt to cut any trees within the area which Olson had told them was his property, but carefully avoided that area. It certainly cannot be said that Olson gave them notice that he claimed property which, at that time, he himself did not know that he owned.

In my opinion, this case is very much like the Grays Harbor case. While the defendants may have been negligent in not having a survey made, they were not willful trespassers; and they did not have knowledge of facts sufficient  [*469]  to put them on notice of an adverse claim to the trees which are the subject matter of this law suit.

In my opinion the only reasonable inference to be drawn from the evidence is that the cutting of the [***14]  trees was done with probable cause to believe that they were the property of the defendants' employers.

I would reverse the finding of willful trespass and order the awarding of compensatory damages only.

DISSENT BY: Tom Chambers (In Part); Richard B. Sanders

DISSENT

¶51 Chambers, J. (concurring in part and dissenting in part) — I agree with the dissent that there were genuine disputed issues of material fact with respect to Leo Brutsche's claim that law enforcement officers caused unreasonable damage under Restatement (Second) of Torts § 214(1) (1965) and Goldsby v. Stewart, 158 Wash 39, 41,  [*686] 290 P. 422 (1930). See Ellis v. City of Seattle, 142 Wn.2d 450, 458, 13 P.3d 1065 (2000). Therefore, it was error for the court to grant the government summary judgment on the trespass claim.  [***36] I would also permit the common law negligence claim to go forward.

¶52 I write separately to stress that there is nothing more reprehensible to the law than an agent of the government causing unnecessary and unreasonable damage to the person or property of a person while performing—or purporting to perform—a government function. It is not necessary that the State and its agents choose the means that causes the least damage, so long as the means chosen is reasonable under all of the circumstances. There may be a legitimate basis for breaking down doors the owner stands ready and willing to unlock. But that use of force should be subject to scrutiny. The State must be prepared to show it was reasonable under all of the circumstances.

¶53 In my view, Brutsche has raised sufficient facts to survive summary judgment on these two claims. In all other respects I agree with the majority.

Stephens, J., concurs with Chambers, J.

¶54 Sanders, J. (dissenting) — The issue here is whether the police can destroy property belonging to an innocent third party without incurring any liability for that destruction or, alternatively, be required to pay just compensation to the property owner who  [***37] is disadvantaged for the public good. The majority, by affirming summary judgment of dismissal favoring the city, shields the government from liability for trespass as well as its constitutional responsibility to pay just compensation.

¶55 The majority correctly holds police cannot destroy private property in the search for evidence unless the destruction is absolutely necessary to conduct a complete search. Majority at 673-74. But then it immediately eliminates any protection given to the property owner by affirming  [*687]  summary judgment for the city. Under these facts a  [**123]  reasonable jury could certainly find using a battering ram to destroy doors rather than using an available key was unnecessary. Moreover the majority fails to recognize where the police destroy private property for a public purpose, it is a damaging requiring just compensation under article I, section 16 of the Washington Constitution.
Trespass

¶56 Under long established precedent police officers are liable in trespass where they do “unnecessary damage to the property to be examined” and fail to “conduct the search as to do the least damage to the property consistent with a thorough investigation.” Goldsby v. Stewart, 158 Wash. 39, 41, 290 P. 422 (1930).  [***38] Stated another way, a warrant immunizes the police from liability for trespass but only where the police do no more damage to the property than is absolutely necessary for a thorough search. The only question then is whether the damage done by the police officers during the search was necessary to complete the search. If the damage was not necessary to the search, the police are liable in trespass.

¶57 Analyzing this question, we must first recall this issue was presented in a motion for summary judgment. Summary judgment is appropriate “only when reasonable minds could reach but one conclusion from” the facts, construing those facts and inferences in favor of the nonmoving party, Leo Brutsche. Sherman v. State, 128 Wn.2d 164, 184, 905 P.2d 355 (1995). Summary judgment must be denied if a reasonable person could find police battering down Brutsche's doors was not necessary for a complete search of Brutsche's property.

¶58 Construing the facts most favorably to the nonmoving party, a reasonable person could certainly determine battering down Brutsche's doors and destroying the door frames was not necessary to complete the search of his property. Brutsche offered to unlock all of the doors on  [*688]  his  [***39] property for the officers. He also offered the officers keys with which they could unlock all the doors themselves. The officers spurned Brutsche's offer to open the doors without damage. They chose instead to use a battering ram. Nonetheless the majority holds the officers' actions were necessary to the search as a matter of law. Majority at 673.

¶59 The majority asserts the officers' actions were necessary as a matter of law because of the asserted danger police officers might face when serving a warrant. Majority at 679. However even if serving warrants may sometimes be a dangerous task, that does not abrogate the officers' responsibility under Goldsby to serve warrants with no more damage to private property than is reasonably necessary. 14 At the least whether the asserted (but nonexistent) danger allegedly faced by the officers required destruction of the door frames rather than simply unlocking the doors is a question of fact for a jury consistent with our constitutional requirement that the right to trial by jury remain “inviolate.” Const. art. I, § 21; LaMon v. Butler, 112 Wn.2d 193, 199 n.5, 770 P.2d 1027 (1989).

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14 This is true whether Brutsche was barred from the search scene or evidence  [***40] was in danger of being destroyed.

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¶60 That the suspect barricaded himself in one building to possibly destroy evidence or arm himself may allow an inference that battering down the door to that particular building was necessary to effectuate the warrant. But that is not the only inference, as even that breach was arguably not strictly necessary as Brutsche offered the police a key to open that door as well. Moreover how a suspect barricading himself in one building justifies battering down doors to other outbuildings, especially after the barricaded suspect was arrested, is left to the imagination. There was simply no evidence, beyond the speculation of the officers, the other buildings contained individuals at all, much less those seeking to harm the officers or destroy evidence. Whether baseless suspicion justifies destruction of private property is at least a question of fact for the jury.
[*689]  Just compensation is required

¶61 Not only does the majority err when it affirms summary judgment dismissing the  [**124]  trespass claim, it also errs by rejecting Brutsche's alternative claim for just compensation for damaging his property. Article I, section 16 of the Washington Constitution provides in part, “No  [***41] private property shall be taken or damaged for public or private use without just compensation having first been made.” By this provision the framers gave us a simple, clear framework to determine when the State must compensate a property owner. Was this private property? Was it taken or damaged by the State? If the answers are yes, then the property owner must be compensated.

¶62 There was no claim these doors frames were a nuisance or otherwise harmful. A plain reading of article I, section 16 mandates Brutsche be justly compensated. 15 I agree that “taking” or “damaging” does not occur in the constitutional sense where the damage is occasioned by a traditional use of the “police power”; however this was not an exercise of the police power but rather an exercise of the power of eminent domain.

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15 The court would do well to heed the warnings of Justice Holmes when he wrote, “We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.” Pa. Coal Co. v. Mahon, 260 U.S. 393, 416, 43 S. Ct. 158, 67 L. Ed. 322 (1922).

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¶63 The majority rejects Brutsche's  [***42] takings claim based primarily on Eggleston v. Pierce County, 148 Wn.2d 760, 64 P.3d 618 (2003). In Eggleston, police seized a load bearing wall from Mrs. Eggleston's house as evidence for a murder trial involving her son. Id. at 763-65. Eggleston held collection of evidence is an exercise of the “police power,” which does not require compensation, rather than eminent domain, which does. Id. at 775. The court asserted, “The gathering and preserving of evidence is a police power function, necessary for the safety and general welfare of  [*690]  society.” Id. at 768. For the reasons set forth in my dissent, Eggleston was wrongly decided, is harmful, and should now be overruled, not extended. 16

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16 In re Rights to Waters of Stranger Creek, 77 Wn.2d 649, 653, 466 P.2d 508 (1970).

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¶64 That court failed to recognize the important distinction between the power of the police and the “police power.” Appropriating or damaging property for the public good does not absolve the State from compensating the owner, precisely the opposite. 17 That is what the takings clause is all about. We strongly rejected our new majority's opinion almost 90 years ago in Conger v. Pierce County, 116 Wash. 27, 33, 198 P. 377 (1921)  [***43] (rejecting the argument Pierce County was not liable for damages to private property because “the private individual … must suffer for the public good”). Conger held the county was not relieved from compensating the property owner “because [the county was] acting for the good of the public, or simply on the theory that the individual must suffer for the public good. To hold that [the county] would be relieved on any of these grounds would be entirely to disregard the express provisions of our constitution.” Id. at 35. Conger strongly supported protecting private property rights from encroachment in the name of the public good as “ One of the greatest contributions of the English-speaking people to civilization is the protection by law of the private individual in the enjoyment of his property and his personal liberties against the demands and aggressions of the public.” Id. at 33-34.

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17 See William B. Stoebuck, A General Theory of Eminent Domain, 47 Wash. L. Rev. 553 (1972).

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¶65 In essence Conger recognized, while Eggleston ignored or misperceived, “ the talisman of a taking is government action which forces some private persons alone to shoulder affirmative public burdens, ‘which,  [***44] in all fairness and justice, should be borne by the public as a whole.’” Mission Springs, Inc. v. City of Spokane, 134 Wn.2d 947, 964, 954 P.2d 250 (1998) (quoting Armstrong v. United States, 364 U.S. 40, 49, 80 S. Ct. 1563, 4 L. Ed. 2d 1554  [*691]  (1960)); accord Dolan v. City of Tigard, 512 U.S. 374, 384, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994). Eggleston erroneously required Mrs. Eggleston to bear the entire cost of this public acquisition of her private property on her lonely shoulders, whereas  [**125]  this burden in fairness and justice should be shared with the public as a whole. The same can be said of Mr. Brutsche, who the majority forces to uniquely shoulder the entire burden of police destruction of his property to gather evidence for the public good. This burden must be appropriately “borne by the public as a whole” 18 to satisfy the constitutional mandate.

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18 Armstrong, 364 U.S. at 49.

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¶66 When considering whether an exercise of the police power immunizes the State from compensating a property owner for damaging or taking his property, it is important to understand the traditional meaning of “police power.” It seems elementary the police power is not the power of the police, but rather the power  [***45] to police (or protect) our rights.

    The most important power surrendered to government is what Locke and others called “the executive power” and what is sometimes called the “police power.” This is the power to enforce or “police” one's rights when they have been violated by others. Indeed, John Locke argued that it was the “inconvenience” of exercising the executive power in the state of nature that justified the creation of an “imperial magistrate”—that is, government.

Randy E. Barnett, Restoring the Lost Constitution 70-71 (2004) (emphasis added); see also Christopher G. Tiedeman, A Treatise on the Limitations of Police Power in the United States 4-5 (1886); 19 Cato Handbook For Congress: Policy  [*692]  Recommendations for the 106th Congress 206 (Edward H. Crane & David Boaz eds., 1999) (the police power is “the power each of us has in the state of nature to secure his rights”). For example, if the police acquire land for a police station, which ultimately serves the ends of law enforcement, such is clearly an exercise of the power of eminent domain, requiring just compensation. If, however, government destroys property because that property is harmful, or used in a harmful way, that is  [***46] not an acquisition (or damaging) for the public good but an abatement of a nuisance, requiring no compensation. See, e.g., Miller v. Schoene, 276 U.S. 272, 48 S. Ct. 246, 72 L. Ed. 568 (1928).

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19

     The police power of the government, as understood in the constitutional law of the United States, is simply the power of the government to establish provisions for the enforcement of the common as well as civil-law maxim, sic utere tuo, ut alienum non loedas. … Any law which goes beyond that principle, which undertakes to abolish rights, the exercise of which does not involve an infringement of the rights of others, or to limit the exercise of rights beyond what is necessary to provide for the public welfare and the general security, cannot be included in the police power of the government. It is a governmental usurpation, and violates the principles of abstract justice, as they have been developed under our republican institutions.

Tiedeman, supra, at 4-5. “Use your property so as not to damage another's; so use your own as not to injure another's property.” Black's Law Dictionary 1757 (8th ed. 1999).

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¶67 Even if we accept, which I do not, 20 that the police power of the State is limited only  [***47] by the requirement it “reasonably tend to promote some interest of the State, and not violate any constitutional mandate,” 21 this does not answer the question of whether this action falls under the “police power” rather than eminent domain.

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20 As has been noted, “This broad definition of the police power appears overinclusive” and has significantly expanded in scope since the adoption of the constitution. Hugh D. Spitzer, Municipal Police Power in Washington State, 75 Wash. L. Rev. 495, 506 (2000).21 CLEAN v. State, 130 Wn.2d 782, 805, 928 P.2d 1054 (1996).

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¶68 “Police power” historically has allowed the government to physically destroy, take, or damage private property “to avert an immediate danger” posed by the property itself. 22 It is this power which allows the state, without compensation, to raze houses in an effort to contain a fire 23 or destroy diseased cedar trees in an effort to prevent the  [*693]  disease from spreading. 24 But that is not  [**126]  our present case. Here the doors and the jambs in and of themselves presented no danger to the community justifying their destruction.

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22 John M. Groen & Richard M. Stephens, Takings Law, Lucas, and the Growth Management Act, 16 U. Puget Sound L. Rev. 1259, 1290 (1993).23 See,  [***48] e.g., Bowditch v. City of Boston, 101 U.S. (11 Otto) 16, 25 L. Ed. 980 (1880).24 Miller, 276 U.S. 272.

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¶69 The distinction between police power and eminent domain was specifically recognized in Washington nearly 90 years ago in Conger. 25 There the court defined “police power” as the power of the State to prohibit the owner of property from using his property in ways harmful to others. It held “ eminent domain takes private property for a public use, while the police power regulates its use and enjoyment, or if it takes or damages it, it is not a taking or damaging for the public use, but to conserve the safety, morals, health and general welfare of the public.” Conger, 116 Wash. at 36. Put another way the police power allows the State to “prevent all things harmful to the comfort, welfare and safety of society.” Id. As Conger drew the distinction, the police power allows only the State to prohibit the property owner from using his property in ways harmful to others to avoid the just compensation constitutional mandate.

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25 Conger is important for more than its longevity. Constitutional provisions should be interpreted as they were conceived  [***49] at the time of adoption. State v. Brunn, 22 Wn.2d 120, 139, 154 P.2d 826 (1945). Conger, decided only 32 years after adoption of the constitution, is a good indicator of the understanding of the terms nearer the time of the constitution's adoption.

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¶70 The Conger distinction was supported by the Latin maxim sic utere tuo ut alienum non laedas 26 and by several treatises published at the turn of the 20th century, roughly contemporaneous with the state constitution. Since constitutional provisions should be interpreted as they were conceived at the time of adoption, sources such as these are invaluable to understanding our constitutional protections. State v. Brunn, 22 Wn.2d 120, 139, 154 P.2d 826 (1945). These treatises uniformly describe the police power as the ability of the State to restrict landowners from using their  [*694]  property to harm the public. The landowner “is … bound so to use and enjoy his own as not to interfere with the general welfare of the community in which he lives. It is the enforcement of this … duty which pertains to the police power of the State so far as the exercise of that power affects private property.” 1 John Lewis, A Treatise on the Law of Eminent Domain in the United States § 6,  [***50] at 14-15 (2d ed. 1900) (footnote omitted). “ it may be said that the state takes property by eminent domain because it is useful to the public, and under the police power because it is harmful … .” 27 Ernst Freund, The Police Power: Public Policy and Constitutional Rights § 511, at 546-47 (1904). As stated by Judge Dillon in 1890, “ this power to restrain a private injurious use of property, is essentially different from the right of eminent domain. It is not a taking of private property for public use, but a salutary restraint on a noxious use by the owner … .” John F. Dillon, Commentaries on the Law of Municipal Corporations § 141, at 212 (4th ed. 1890). As these treatises demonstrate, the “police power” was generally understood to be the power to prevent the use of property to harm others. However where the individual was deprived of the use of his harmless property (or it was damaged) for the public good, the State exercised its power of eminent domain.

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26 See Black's Law Dictionary, supra, at 1757.27 The Washington Constitution broadens the traditional eminent domain protections to include property that is damaged, as well as taken, by the State. Const. art. I, § 16.

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¶71 This  [***51] distinction between the police power and the power of eminent domain, vital and vibrant as it was at the time the constitution was adopted, still remains today. Professor Stoebuck reflected this distinction in his influential work, William B. Stoebuck, A General Theory of Eminent Domain, 47 Wash. L. Rev. 553, 569 (1972), clarifying when the State acquires property for the public good, it exercises its power of eminent domain and not its police power. Other experts continue to recognize this distinction as well, noting eminent domain is “the power to take property for public use upon payment of just compensation,”  [*695]  whereas the police power is the “power to secure rights, through restraints or sanctions, not some general power to provide public goods.” Cato Handbook for Congress, supra, at 206. Of importance, this court again recognized this distinction in  [**127]  Sintra, Inc. v. City of Seattle, 119 Wn.2d 1, 15, 829 P.2d 765 (1992), where we held the police power was exceeded where the ordinance went “beyond preventing harm.” Distinguishing police power (the State's ability to prevent harm to others) from eminent domain (the State's ability to take or damage property for the public good) is  [***52] based on both historical and current sources and should be followed here.

¶72 Understanding this distinction allows the “police power” to be harmonized with the power of eminent domain, maintaining the integrity of each. Conceptually we must recognize “as a legal term property denotes not material things but certain rights.” Morris R. Cohen, Property and Sovereignty, 13 Cornell L.Q. 8, 11-12 (1927-28). However those rights simply do not include the right to use property in a manner which harms the public. See Mugler v. Kansas, 123 U.S. 623, 662-63, 8 S. Ct. 273, 31 L. Ed. 205 (1887) (“Nor can it be said that government interferes with or impairs any one's constitutional rights … of property, when it determines that the manufacture and sale of intoxicating drinks … are, or may become, hurtful to society, and constitute, therefore, a business in which no one may lawfully engage.”); see also Conger, 116 Wash. at 36 (quoting 1 Lewis, supra, § 6). As such, no property right is infringed when the State prohibits use of the property in a way that harms the public or creates a nuisance; therefore no property  [***53] has been taken and hence no compensation is required. See, e.g., Mugler, 123 U.S. at 662-63. On the other hand, when government takes or damages an actual right one has in his property, compensation is mandatory. Const. art. I, § 16 (“No property shall be taken or damaged … without just compensation having been first made.” (emphasis added)).

[*696] ¶73 The majority's analysis is also squarely at odds with the Texas Supreme Court's sensible outcome in Steele v. City of Houston, 603 S.W.2d 786 (Tex. 1980). There the owners of a house sought compensation after their house was set ablaze by police officers in an effort to capture fugitives hiding in the house. Id. at 789. The Texas court properly rejected the assertion that destroying the property “for the safety of the public” was a proper exercise of the police power and mandated just compensation. Id. at 793. However our majority would apparently abandon this sensible outcome to reach the absurd conclusion that the property owners should bear the entire loss of their home, even though they were innocent of any wrongdoing and the house was burned for the public good of law enforcement. I agree with the Texas court when it held, “ Innocent third  [***54] parties are entitled by the Constitution [28] to compensation for their property.” Id. Once again, an innocent property owner should not be forced “‘to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’” Dolan, 512 U.S. at 384 (quoting Armstrong, 364 U.S. at 49).

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28 The case involved a provision of the Texas Constitution, which provides in relevant part, “No person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made … .” Tex. Const. art. I, § 17.

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¶74 For these reasons Brutsche's constitutional taking or damaging claim falls squarely within article I, section 16, requiring the State to justly compensate Brutsche for the property destroyed during the search.

¶75 The trial court's summary judgment should be reversed to reinstate Brutsche's trespass claim. It is at least a question of fact whether the destruction of Brutsche's property was necessary to conduct a complete search. Otherwise, damage to Brutsche's property requires just compensation pursuant to article I, section 16. This burden  [*697]  must in justice and fairness be borne by society as a whole because it is (allegedly) a necessary  [***55] cost of law enforcement.

¶76 I dissent.

J.M. Johnson, J., concurs with Sanders, J.

Reconsideration denied December 23, 2008.

THE ESTATE OF JAMES F. BRUTSCHE, et al., Plaintiffs, v. CITY OF FEDERAL WAY, et al., Defendants.

No. C05-1538Z

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON

2006 U.S. Dist. LEXIS 90883

December 14, 2006, Decided
December 14, 2006, Filed

SUBSEQUENT HISTORY: Reconsideration granted by, in part, Reconsideration denied by, in part The Estate of James F. Brutsche v. City of Fed. Way, 2007 U.S. Dist. LEXIS 11653 (W.D. Wash., Feb. 15, 2007)

PRIOR HISTORY: Brutsche v. City of Kent, 2006 Wash. App. LEXIS 1499 (Wash. Ct. App., July 17, 2006)

Judge Profile
View a summary by nature of suit of the civil cases heard by this judge, excerpted from the CourtLink Judicial Strategic Profile.

CORE TERMS: causes of action, raid, team, collateral estoppel, trailer, summary judgment, excessive force, police officers, uninvolved, intervene, reply, property damage, res judicata, final judgment, non-moving, integral, assault, mobile home, trespass, custody, arrest, door, search warrant, constitutional rights, deprivation, infliction, flash-bang, preclusion, emotional, distress

COUNSEL:  [*1]  For James Frederick Brutsche Estate of, by and through LEO C. BRUTSCHE, Personal Representative of the Estate, Leo Channing Brutsche, Father of James Frederick Brutsche, Norma Jean Brutsche, Mother of James Frederick Brutsche, Plaintiffs: John Rolfing Muenster, LEAD ATTORNEY, MUENSTER & KOENIG, SEATTLE, WA.

For City of Federal Way, a municipal corporation, Ryan Junker, in his capacity as a police officer for the City of Federal Way and as an individual, Defendants: Richard B Jolley, LEAD ATTORNEY, KEATING BUCKLIN & MCCORMACK, SEATTLE, WA; Amy Jo Pearsall, CITY OF FEDERAL WAY, FEDERAL WAY, WA.

For City of Auburn, a municipal corporation, Michael Jordan, in his capacity as a police officer for the City of Auburn and as an individual, Charles Jamie Sidell, in his capacity as a police officer for the City of Auburn, and as an individual, City of Kent, a municipal corporation, Bob Cline, in his capacity as a police officer for the City of Kent and as an individual, Darin Majack, in his capacity as a police officer for the City of Kent and as an individual, Scott Rankin, in his capacity as a police officer for the City of Kent and as an individual, Port of Seattle, Steven Courtney,  [*2]  in his capacity as a police officer for the Port of Seattle and as an individual, Brian Torre, in his capacity as a police officer for the Port of Seattle and as an individual, City of Tukwila, a municipal corporation, Mike Villa, in his capacity as a police officer for the City of Tukwila and as an individual, Mark Renninger, in his capacity as a police officer for the City of Tukwila and as an individual, Defendants: Richard B Jolley, LEAD ATTORNEY, KEATING BUCKLIN & MCCORMACK, SEATTLE, WA.

For City of Renton, a municipal corporation, Dave Adam, in his capacity as a police officer for the City of Renton and as an individual, Craig Sjolin, in his capacity as a police officer for the City of Renton and as an individual, Defendants: Richard B Jolley, LEAD ATTORNEY, KEATING BUCKLIN & MCCORMACK, SEATTLE, WA; Zanetta Lehua Fontes, WARREN BARBER & FONTES PS, RENTON, WA.

For King County, David McKenzie, in his capacity as a police officer for King County, and as an individual, Defendants: C Craig Parker, LEAD ATTORNEY, KING COUNTY PROSECUTING ATTORNEY'S OFFICE (4TH AVE), SEATTLE, WA.

For City of Auburn, a municipal corporation, Michael Jordan, in his capacity as a police officer [*3]  for the City of Auburn and as an individual, Charles Jamie Sidell, in his capacity as a police officer for the City of Auburn, and as an individual, City of Kent, a municipal corporation, Bob Cline, in his capacity as a police officer for the City of Kent and as an individual, Darin Majack, in his capacity as a police officer for the City of Kent and as an individual, Scott Rankin, in his capacity as a police officer for the City of Kent and as an individual, Port of Seattle, Steven Courtney, in his capacity as a police officer for the Port of Seattle and as an individual, Brian Torre, in his capacity as a police officer for the Port of Seattle and as an individual, City of Tukwila, a municipal corporation, Mike Villa, in his capacity as a police officer for the City of Tukwila and as an individual, Mark Renninger, in his capacity as a police officer for the City of Tukwila and as an individual, City of Federal Way, a municipal corporation, Ryan Junker, in his capacity as a police officer for the City of Federal Way and as an individual, Counter Claimants: Richard B Jolley, LEAD ATTORNEY, KEATING BUCKLIN & MCCORMACK, SEATTLE, WA.

For City of Renton, a municipal corporation, Dave [*4]  Adam, in his capacity as a police officer for the City of Renton and as an individual, Craig Sjolin, in his capacity as a police officer for the City of Renton and as an individual, Counter Claimants: Richard B Jolley, LEAD ATTORNEY, KEATING BUCKLIN & MCCORMACK, SEATTLE, WA; Zanetta Lehua Fontes, WARREN BARBER & FONTES PS, RENTON, WA.

For James Frederick Brutsche Estate of, by and through LEO C. BRUTSCHE, Personal Representative of the Estate, Leo Channing Brutsche, Father of James Frederick Brutsche, Norma Jean Brutsche, Mother of James Frederick Brutsche, Counter Defendants: John Rolfing Muenster, LEAD ATTORNEY, MUENSTER & KOENIG, SEATTLE, WA.

JUDGES: Thomas S. Zilly, United States District Judge.

OPINION BY: Thomas S. Zilly

OPINION

ORDER

This matter comes before the Court on Defendants' Motion to Dismiss Uninvolved Defendants, docket no. 60. The Court, having reviewed the briefs in support of and in opposition to these motions, hereby GRANTS IN PART and DENIES IN PART Defendants' Motion to Dismiss, docket no. 60.

BACKGROUND
A. Summary of the Facts

Plaintiff Leo "Pat" Brutsche and his wife, co-Plaintiff Norma Jean Brutsche have filed on their behalf, and on behalf [*5]  of their deceased son James Frederick Brutsche, civil rights claims against Defendant City of Federal Way, et. al., including several other Washington cities and police officers. The claim arises from a police raid on July 10, 2003, of the Brutsche property. First Am. Complaint at P 49, docket no. 2. James Brutsche resided in a mobile home on his parent's property at the time of the raid. Id. at P 50. The property also contained commercial buildings, semi-trailers, vehicles, equipment, and personal belongings of Pat Brutsche. Id. at P 51.

In 2003, Defendants Port of Seattle and the cities of Auburn, Federal Way, Kent, Renton, and Tukwila entered into an agreement to form a SWAT team, entitled the "Valley Special Response Team." Am. Compl. at P 74; Muenster Aff. Ex. F (Interlocal Cooperative Agreement - Valley Special Response Team), docket no. 70. On July 10, 2003, the SWAT team launched a raid on the Brutsche family property, based on a search warrant received on July 8, 2003. Id. at P 87; Muenster Aff. Ex. E (King County District Court Aukeen Division - Search Warrant). As alleged in the Complaint, Defendants Sjolin, Torre, Adam, Jordan, Renninger, Majack, and Junker [*6]  entered the home of Jim Brutsche. Am. Compl. at P 97. Defendant Adam shattered a glass door upon entry. Id. at P 95. There were four people inside the mobile home at the time of entry. 1 Id. at P 98. Defendants ordered Jim Brutsche to the ground; the shattered glass caused lacerations to his body. Id. at P 100; see also Muenster Aff. Ex. V (Valley Medical Center Patient Information at 60). Allegedly, "[o]ne or more of the defendants struck and/or kicked Jim Brutsche as he lay on the floor. Defendant Majack stood on Jim Brutsche's right hand." Am. Compl. at P 102-103. "As Jim Brutsche lay on the floor on his stomach, defendant Junker fired contact taser shots into Jim Brutsche's back." 2 Id. at P 105; Muenster Aff. Ex. S (Post Warrant/Incident Summary, Officer Junker). According to Defendant Junker's incident report, Jim Brutsche was combative. Muenster Aff. Ex. S (Post Warrant/Incident Summary, Officer Junker). The raid did not recover drugs or drug paraphernalia, and did not confiscate any property. Id. at Ex. D (Inventory and Return of Search Warrant at 2); Am. Compl. at P 122.

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1 The following people were in the mobile home: Jim Brutsche, Caroline Phillips, Duwayne Ulrich, and John Henry Edwards. [*7] 2 Defendants provide declarations from two of the police officers stating that when Jim Brutsche heard the police announcement he ran into the mobile home and barricaded himself. Villa Decl. PP 8-10, docket no. 61; Majack Decl. P 6, docket no. 62. Considering this is a motion for summary judgment, the facts must be read in the light most favorable to the non-moving party. Duwayne Ulrich's deposition testimony does not indicate that Brutsche attempted to barricade himself in the mobile home, and in fact describes a situation in which Ulrich was the first person to hear the incoming SWAT team. Muenster Aff. Ex. Y (Ulrich Dep. July 18, 2006 at 15-16).

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After the arrest, Defendants took Jim Brutsche to Valley Medical Center in Renton for treatment. Am. Compl. at P 123. Doctors reported numerous lacerations and abrasions to his body and head. Id. at P 125; see also Muenster Aff. Ex. V (Valley Medical Center Patient Information at 60). Attached to the Muenster Affidavit are detailed observations from medical personnel as well as pictures of Jim Brutsche's body following the raid. See [*8]  Muenster Aff. at Exs. V, W.

During the raid, Plaintiff Pat Brutsche arrived at the property and offered the keys to the various buildings on the property to Defendant Sidell. Leo Brutsche Aff. at P 7, docket no. 69. Defendant Sidell refused to accept them. Id. Following the raid, Leo Brutsche inspected his property, finding that the police had knocked down or shattered many of the doors and windows. Id. at 8. Additionally, Plaintiff states that following the raid his relationship with his son, Jim Brutsche deteriorated significantly. Id. at PP 9-13. Jim Brutsche died in July 2004, at the age of 46. 3 Id. at P 15.

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3 No documents have explained Jim Brutsche's cause of death.

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Prior to this action, Plaintiffs filed a claim in state court for negligence, conversion, and a taking in regard to the property damage. Brutsche v. Kent, 134 Wn. App. 1002, No. 56620-2-1, 2006 WL 1980216, at *2 (Wash. Ct. App. July 17, 2006); Jolley Decl., Ex. H (Brutsche v. Kent - Appellate [*9]  Decision), docket no. 63. The City of Kent and King County were the only defendants in the state action. Id. Plaintiffs settled their claims with King County and went to arbitration with the City of Kent. Id. After arbitration, Brutsche requested a trial de novo. Id. The trial court granted summary judgment for the City of Kent and dismissed the case. 134 Wn. App. 1002, [WL] at *3. The Court of Appeals affirmed the trial court's decision on July 17, 2006. 134 Wn. App. 1002, [WL] at *13.
B. Complaint and Motion

Plaintiffs claim, on behalf of their son Jim Brutsche, that Defendants violated his Fourth Amendment right against unreasonable seizures. Am. Compl. at PP 134-36. Additionally, Plaintiffs assert, on their own behalf, that they have a Fourth Amendment right "not to have their property subjected to an unreasonable seizure." Id. at PP 138-39. The second and third causes of action claim that the police arrested Jim Brutsche and searched the Brutsche property without probable cause; however, Plaintiffs only assert these claims against Officer David McKenzie and King County. Id. at PP 144, 151, 153, 155, 158. The fourth cause of action is a claim under the Fourteenth Amendment in regard [*10]  to the alleged damage to the parent/child relationship. Id. at P 162. The fifth and sixth causes of action involve alleged violations of the Fourth and Fourteenth Amendments but are directed only against the municipalities and King County. Id. at PP 179, 183, 189. The seventh through eleventh causes of action are personal injury survival claims under RCW 4.20.060, asserted only against the municipalities, and not the individual Defendants. Id. at PP 195-215. The eighth, ninth, and tenth causes of action assert that the Defendants and the Defendant cities, through the doctrine of respondeat superior, are liable under the theories of intentional infliction of emotional distress, assault and battery, and false arrest/false imprisonment. Id. at PP 199-207. The eleventh, and last cause of action, includes claims for property damage, trespass, and/or waste, but specifically excludes King County and the City of Kent as defendants from these claims. Id. at P 215.

Defendants' motion requests the dismissal of certain "uninvolved officers" from the case, specifically those officers that did not come into physical contact with Jim Brutsche. Defs.  [*11]  ' Mot. Dismiss at 2, docket no. 60. Though entitled a motion to dismiss, Defendants indicate that this is really a summary judgment motion. Id. at 8. Additionally, Defendants assert that under the doctrine of collateral estoppel the Court should bar Plaintiffs' claims for property damage because Plaintiffs litigated them in a previous lawsuit. Id. at 3. In specific, Defendants request that the Court dismiss all claims against the following defendants: Officers Torre, Adam, Courtney, Rankin, Sjolin, Jordan, Villa, Sidell and Cline. Id. at 2. During the police raid, the duties of the above officers were as follows:

Officer Torre: Detained Ms. Phillips inside the trailer, searched the trailer, and escorted Jim Brutsche to the aid car.

    Entered residence and encounter a white female moving towards me. I ordered her to the ground but she continued moving towards me. I grabed [sic] a hold of her and pushed her to the ground in the hallway. I then moved on and continued to clear the Residence. After the residence was clear I conducted the secondary search with Adam. I escorted Brutsche to the aid unit then moved back with the team . . .

Jolley Decl., Ex. A. (Post-Incident [*12]  Summary of Officer Torre).

Officer Adam did not state anything about Brutsche in his summary of events, but does specifically indicate that he encountered an injured Jim Brutsche, whether or not Officer Adam entered the trailer following the breach is unknown. Jolley Decl., Ex. C (Post-Incident Summary of Officer Adam). Officer Courtney never came into contact with Jim Brutsche but instead was responsible for breaching the doors of several of the buildings on the property. Jolley Decl., Ex. F (Post-Incident Summary of Officer Courtney). Officer Rankin drove the armored truck and never entered the residence, nor encountered the suspects, until they were detained at the armored truck. Jolley Decl., Ex. G (Post-Incident Summary of Officer Rankin). Officer Sjolin indicated that he was present in the trailer and was busy arresting another suspect.

    I was # 3 on the entry team. Upon approach I heard Lt. Villa call compromise. I then deployed the NFDD outside the trailer. Adam breached a glass sliding door. We entered and I saw four suspects inside the house. I was cuffing one suspect. I put a foot and knee onto the suspect during the cuffing. I heard a scuffle behind me and turned [*13]  around. Two officers were struggling with a white male suspect who was on the ground. He was being told repeatedly to put his hands behind his back but did not. I saw that there was a lot of blood on the floor under the suspect's head. The suspect was tazed. He then complied by putting his hands behind his back. He was removed and then treated by fire. We then cleared the rest of the property.

Jolley Decl., Ex. E (Post-Incident Summary of Officer Sjolin).

Officer Jordan wrote that he entered the trailer and took Ms. Phillips into custody. Jolley Decl., Ex. B (Post-Incident Summary of Officer Jordan). Additionally, he stated that he guarded three suspects. Id. Commander Villa was the field commander of this operation. He does not mention any contact with Jim Brutsche. Jolley Decl., Ex. D (Post-Incident Summary of Officer Villa). Sergeant Sidell did not come into contact with Jim Brutsche but is joined in this action because of his refusal to use Pat Brutsche's keys to enter the buildings (property damage claim). Am. Compl. at PP 110-13; Aff. of Leo Brutsche at P 7. Detective Cline, a police officer employed by the City of Kent requested the use of the SWAT team to execute [*14]  the search warrant.

DISCUSSION
A. Summary Judgment Standard

Summary judgment is appropriate when the moving party demonstrates that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). The party moving for summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986) (quoting FED. R. CIV. P. 56(c)). Once the moving party meets its initial responsibility, the burden shifts to the non-moving party to establish that a genuine issue as to any material fact exists. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). The non-moving [*15]  party "may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party." FED. R. CIV. PRO. 56(e). The non-moving party must present "significant probative evidence" outside of the allegations in the pleadings "tending to support its claim or defense." Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991); see also Celotex Corp., 477 U.S. at 324. The Court assumes that evidence submitted by a party opposing summary judgment is correct, and all reasonable inferences that may be drawn from that evidence must be drawn in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

B. 42 U.S.C. § 1983 Claim
1. Requirements of a § 1983 Claim

"Section 1983 does not create substantive rights; it [*16]  merely serves as the procedural device for enforcing substantive provisions of the Constitution and federal statutes." Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). Courts have required plaintiffs to "plead that (1) the defendants acting under color of state law (2) deprived plaintiffs of rights secured by the Constitution or federal statutes." Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986). Damages are available under § 1983 "for actions 'found . . . to have been violative of constitutional rights and to have caused compensable injury.'" Carey v. Piphus, 435 U.S. 247, 255, 98 S. Ct. 1042, 55 L. Ed. 2d 252 (1978) (emphasis omitted) (quoting from Wood v. Strickland, 420 U.S. 308, 319, 95 S. Ct. 992, 43 L. Ed. 2d 214 (1975)). Actual injury must occur for a court to award compensatory damages. See Memphis Comty. Sch. Dist. v. Stachura, 477 U.S. 299, 308, 106 S. Ct. 2537, 91 L. Ed. 2d 249 (1986) (affirming that "the abstract value of a constitutional right may not form the basis for § 1983 damages").

"A person 'subjects' another to the deprivation of a constitutional right, within the meaning of [§] 1983, if [that person] does an affirmative act, participates in another's [*17]  affirmative acts, or omits to perform an act which [that person] is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978); see also Redman v. County of San Diego, 942 F.2d 1435, 1439-40 (9th Cir. 1991) (en banc). "The requisite causal connection can be established not only by some kind of direct personal participation in the deprivation, but also by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury." Johnson, 588 F.2d at 743-44; see also Gilbrook v. City of Westminster, 177 F.3d 839, 854 (9th Cir. 1999). When making a determination about causation, the court "must take a very individualized approach which accounts for the duties, discretion, and means of each defendant." Leer v. Murphy, 844 F.2d 628, 633-34 (9th Cir. 1988).

2. Fourth Amendment Excessive Force Claim

Defendants' motion requests the dismissal of the fourth amendment excessive force claim for those officers who did not participate in taking [*18]  Jim Brutsche into custody. Defs.' Mot. at 8. There are two categories of police officers included in the "uninvolved officers." The first are the officers who were in the trailer but did not physically come into contact with Jim Brutsche. 4 The second are the officers that were present at the Brutsche property but never entered the trailer. 5 Plaintiffs argue that both these categories of Defendants are liable because 1) they failed to intervene, 2) they were integral participants in the SWAT raid and therefore share the liability, and 3) they conspired to violate Jim Brutsche's civil rights. Pls.' Resp. at 14-18, docket no. 68.

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4 The officers in the first category include Officers Torre, Jordan, Adam, and Sjolin.5 The officers in the second category include Officers Rankin, Sidell, Villa, and Courtney. Officer Cline also falls within this category, though it is unclear if he was present at the Brutsche property.

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a. Failure to Intervene (by officers present in the trailer)

Plaintiffs assert that [*19]  liability attaches to those officers that were present in the trailer at the time the alleged excessive force occurred. Pls.' Resp. at 14. These officers include: Officers Torre, Jordan, Adam, and Sjolin. Id. The Supreme Court determined that officers do have a duty to protect "when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety. . . . [An] affirmative duty to protect arises . . . from the limitation which [the state] has imposed on his freedom to act on his own behalf." United States v. Reese, 2 F.3d 870, 887-88 (9th Cir. 1993) (citing DeShaney v. Winnebago County Dep't. of Soc. Servs., 489 U.S. 189, 199-200, 109 S. Ct. 998, 103 L. Ed. 2d 249, (1989)). A "special relationship" which includes a duty to protect arises when the state has taken the person into custody. Id. at 888; Ting v. United States, 927 F.2d 1504, 1511 (9th Cir. 1991). In the Rodney King case the Ninth Circuit acknowledged that " pursuant to a long line of civil cases, police officers have a duty to intercede when their fellow officers violate the constitutional [*20]  rights of a suspect or other citizen." United States v. Koon, 34 F.3d 1416, 1447 n.25 (9th Cir. 1994) vacated in part on other grounds by Koon v. United States, 518 U.S. 81, 116 S. Ct. 2035, 135 L. Ed. 2d 392 (1996). Citing to several out of circuit cases, the Ninth Circuit noted that:

    the constitutional right violated by the passive defendant is analytically the same as the right violated by the person who strikes the blows. Thus an officer who failed to intercede when his colleagues were depriving a victim of his Fourth Amendment right to be free from unreasonable force in the course of an arrest would, like his colleagues, be responsible for subjecting the victim to a deprivation of his Fourth Amendment rights.

Id.; see also Reese, 2 F.3d at 890 (determining that a defendant Officer was liable for not intervening when reasonable steps could have prevented the excessive force, and when the defendant "deliberately chose not to act").

Relying on Ting, Defendants assert that the "bystanding officers' duty to protect is operative only when the officer is aware of a specific risk of harm to the plaintiff and has [*21]  time and opportunity to intervene." Defs.' Reply at 5, docket no. 72 (citing Ting, 927 F.2d at 1511-12). In Ting, a SWAT team raided the residence of Ronald Ting as part of a narcotics bust. 927 F.2d at 1508. Upon entry into the residence four of the officers encountered Mr. Ting, completely naked, and aiming a gun at them. Id. Agent Burns came in through a different door, aimed a 12-gauge Remington shotgun at Ting, and ordered him to drop the gun. Id. Burns removed Mr. Ting's gun and subdued him on the floor. Id. At some point Mr. Ting got free and lunged for a dressing area on the other side of the room, Burns fired his shotgun at Mr. Ting, injuring him in his shoulder and leaving him a quadriplegic. Id. Similar to the Brutsche's in the present case, Mr. Ting alleged that the non-shooting agents were liable because they did not intervene to prevent his injuries. Id. at 1511. The district court granted the defendants' motion for summary judgment and dismissed those defendants. Id. The Ninth Circuit affirmed the decision of the district court, finding that "there is no evidence that the four non-shooting agents [*22]  knew that Burns would hurt or shoot Ting" and that the "agents were positioned around the room away from Burns and Ting and were thus physically incapable of preventing the incidents surrounding the shooting, all of which transpired in a matter of seconds." Id. at 1511-12.

Defendants rely on the Ting case, asserting that "none of the individual Defendants had opportunity to intervene." Defs.' Reply at 5. However, the facts do not appear sufficiently analogous. Unlike in Ting, where Agent Bums' actions were rapid and left no time for intervention, the amount of time that elapsed in the present case is less clear. In his deposition, Duwayne Ulrich, a friend of Jim Brutsche and one of the four people arrested in the trailer, testified that he saw Jim Brutsche tazed on several occasions and heard what he thought was the butt of a gun hit Jim Brutsche. Muenster Aff., Ex. Y (Ulrich Dep. at 36-38). Defendants contend that the actions of the officers allegedly beating Jim Brutsche were "quick" and "non-repetitive," but provide no evidentiary support for this assertion. Defs.' Reply at 6. According to the incident reports of Officers Torre and Jordan, they were busy [*23]  taking the female suspect, Ms. Phillips, into custody at the time the officers allegedly tazed Jim Brutsche. Muenster Aff., Exs. M, N (Post-Incident Summary of Officers Torre & Jordan). However, as Mr. Ulrich testified, the officers that took Ms. Phillips into custody did so in the same room in the mobile home, and therefore may have witnessed the alleged abuse. Muenster Aff., Ex. Y (Ulrich Dep. at 32). Considering that the Court must look at the facts in the light most favorable to the non-moving party, Plaintiffs have raised a genuine issue of material fact.

As to the officers in the room, Officers Torre, Jordan, and Sjolin, who may have had the opportunity to intervene, the Court DENIES Defendants' Motion to Dismiss in relation to Plaintiffs' Fourth Amendment claim.

b. Failure to Intervene (by officers not in the trailer)

However, Plaintiffs also assert liability for officers not in the room, specifically Officers Adam, Rankin, Sidell, Villa, Cline, and Courtney. Plaintiffs proffer no proof to show that Officers Adam, Rankin, Sidell, Villa, Cline, or Courtney were aware of what was occurring in the trailer or that those officers had the opportunity to intervene, especially [*24]  considering that they were not present in the trailer at the time of the alleged abuse. Therefore, the Court GRANTS Defendants' Motion to Dismiss as it relates to Plaintiffs' Fourth Amendment claims of excessive force and unreasonable search and seizure. The Court DISMISSES Officers Adam, Rankin, Sidell, Villa, Cline, and Courtney from Plaintiffs' first cause of action.

c. Liability Due to Participation in SWAT Team

Plaintiffs argue that the members of the SWAT team that did not personally come in contact with Jim Brutsche are still liable because they were "integral participants" in the police raid. Pls.' Resp. at 15. Plaintiffs rely primarily on Boyd v. Benton, a case involving a SWAT team that deployed a flash-bang device when executing a raid. 374 F.3d 773, 777 (9th Cir. 2004). The SWAT team in Boyd used the flash-bang device upon entry into an apartment in which several people were sleeping, including Boyd, whom they injured when the device ignited. Id. at 778. Prior to the raid, the SWAT team supervisor created the raid plan, including what devices they would deploy and how the raid would commence. Id. at 777. "Every [*25]  CPD officer involved in the operation knew of the plan to use the flash-bang, did not object to that plan, and actively participated in its operation." Id. Boyd brought a civil rights action alleging that the use of the device constituted excessive force and that all of the participants in the SWAT team were liable for the violation. Id. at 780. The Ninth Circuit determined that "each officer involved in the search operation was an 'integral participant.'" Id. The SWAT team was standing behind the officer who deployed the device, they were all part of the operation, and they were all aware of the decision to use the flash-bang device. Id. Based on the analysis in Boyd, Plaintiffs contend that the officers, as members of a SWAT team in which they all actively participated, could be held liable as integral participants. See Pls.' Resp. at 16.

However, Boyd is distinguishable because " integral participation rather than simple participation in a team effort is required for liability under § 1983." Defs.' Reply at 7 (citing Chuman v. Wright, 76 F.3d 292, 294 (9th Cir. 1996)). The Ninth Circuit in Chuman refused to allow [*26]  liability based on a "team effort" theory, but rather stressed that earlier case law (Melear v. Spears, 862 F.2d 1177 (5th Cir. 1989)) required that there be integral participation by the defendant. Chuman, 76 F.3d at 295. 6

    The underlying problem with a 'team effort' theory is that it is an improper alternative grounds for liability. It removes individual liability as the issue and allows a jury to find a defendant liable on the ground that even if the defendant had no role in the unlawful conduct, he would nonetheless be guilty if the conduct was the result of a 'team effort.'

Id. The Ninth Circuit in Chuman concluded that the jury instruction, which allowed liability to extend to all of the team members regardless of who ultimately inflicted the injuries, was erroneous. Id. at 294-95.

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6 The Ninth Circuit in Chuman reviewed a district court's jury instruction. The facts in Chuman are not clearly laid out. What is clear is that the case involved a SWAT team raid in which no evidence was found nor arrests made. Chuman, 76 F.3d at 293. The appeal is from a jury trial where two of the officers, Mark Fronterotta and Craig Wright, were found guilty of civil rights violations. Id. at 293-94.

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[*27]  The situation in the present case is not similar to the one in Boyd. In Boyd, every member of the SWAT team was aware of the deployment of the flash-bang device. Boyd, 374 F.3d at 780. They all had the opportunity to object or express concerns over the safety of the device. Id. Additionally, they were all present when the device was detonated. In the present case, there is no evidence that the Defendants discussed the use of tasers, or other forms of significant force prior to entering the trailer. Additionally, not all of the Defendants were present when the officers allegedly abused Jim Brutsche. The plan was to raid the Brutsche estate, not to use excessive force. Holding all of the SWAT members liable is more analogous to the "team effort" theory discarded in Chuman than to the "integral participant" theory applied in Boyd. Accordingly, Plaintiff's "integral participant" fails.

d. § 1983 Conspiracy Liability

Though Plaintiffs state in their Response that the police officers conspired to assault Jim Brutsche, they provide no evidence of this agreement. See Pls.' Resp. at 17. Plaintiffs claim to have provided "direct evidence of [*28]  the agreement of the defendants to assault Jim Brutsche's home and use force against him," but they do not cite in their brief to any proof of such agreement. Admittedly an agreement existed to raid Jim Brutsche's home; however, there is no evidence that an agreement to utilize excessive force existed. See Muenster Aff., Ex. I (Valley Special Response Operations Order) (filed under seal). The non-moving party must present "significant probative evidence" outside of the allegations in the pleadings "tending to support its claim or defense." Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991); see also Celotex Corp., 477 U.S. at 324. Plaintiffs have provided neither circumstantial nor direct evidence from which to even infer a police conspiracy to engage in excessive force. Therefore, Plaintiff's conspiracy liability argument also fails.

3. Substantive Due Process Claim under the Fourteenth Amendment

Plaintiffs allege in their fourth cause of action that Defendants deprived Jim Brutsche, as well as his parents, of their federally protected rights to "love, companionship and society." Compl. at P 162,  [*29]  165, 167. The due process clause of the Fourteenth Amendment protects this right. See Strandberg v. City of Helena, 791 F.2d 744, 748 (9th Cir. 1986); see also Kelson v. City of Springfield, 767 F.2d 651, 655 (9th Cir. 1985) ("a parent has a constitutionally protected liberty interest in the companionship and society of his or her child"). Though the Ninth Circuit has not directly ruled that parents have a protected interest in their relationship with an adult child, they have implicitly recognized this right. Loomis v. City of Puyallup Police Dep't, No. C02-5417RJB, 2005 U.S. Dist. LEXIS 35695, 2005 WL 1036445, at *5 (W.D. Wash. May 3, 2005) (citing Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d 365, 371 (9th Cir. 1998)).

Defendants assert that Plaintiffs must prove that the "uninvolved" officers acted with "deliberate indifference." Defs.' Mot. at 10 (citing Lewis v. Sacramento County, 98 F.3d 434, 441 (9th Cir. 1996) rev'd, County of Sacramento v. Lewis, 523 U.S. 833, 854, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998)). 7 However, the Ninth Circuit's holding in Lewis, specifically the application of a "deliberate indifference"  [*30]  standard was reversed by the Supreme Court. 8 The Supreme Court instead held that in the context of a high speed chase "only a purpose to cause harm unrelated to the legitimate object of arrest will satisfy the element of arbitrary conduct shocking to the conscience, necessary for a due process violation." County of Sacramento v. Lewis, 523 U.S. at 834. Extending this rule, the Ninth Circuit in Moreland, "held that the critical question is determining the appropriate standard of culpability in whether the circumstances allowed the state actors time to fully consider the potential consequences of their conduct." Hos v. Pooler, No. CV-04-5123-RHW, 2006 U.S. Dist. LEXIS 4488, 2006 WL 196291, at *3 (E.D. Wash. Jan. 23, 2006) (citing Moreland, 159 F.3d at 373)). 9

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7 Lewis involved a high speed chase by police of two boys on a motorcycle. At one point, the motorcycle pulled over, however one of the police vehicles did not have enough distance to stop in time, and it ran into Lewis, a sixteen year old passenger on the motorcycle. Lewis was pronounced dead at the scene. Lewis v. Sacramento County, 98 F.3d at 437. [*31] 8 Defendants note that the Supreme Court "reversed on other grounds." Defs.' Mot. at 10. However, the Supreme Court did throw out the "deliberate indifference" standard, which the Ninth Circuit has since recognized. See Moreland, 159 F.3d at 372 (9th Cir. 1998).9 In Moreland, police officers responded to a call that there was a gun fight in a Las Vegas parking lot. When they arrived they found a man firing a semiautomatic handgun at individuals who were returning fire. Innocent bystanders were also trapped in the parking lot. The police officers shot at the man who was firing. This man was later identified as Damon Douglas. It is unclear whether Douglas was the shooter or an innocent bystander. Moreland, 159 F.3d at 368.

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Plaintiffs claim that the raid caused Jim Brutsche's attitude to change towards them, violating their due process rights to "love, companionship, and society."

    (10) Prior to the raid, my wife and I had a good relationship with our son. He was a decent, kind man. Prior to the raid, he listened to me. He would do the things [*32]  that I asked him to do.

    (11) What happened to Jim during the raid reversed everything. I had taught him that his home was a safe place. I had taught him to respect the police, and he did so until the SWAT raid.

    (12) The raid caused him to doubt what I had taught him. After the raid, Jim did not listen to me. He would not do things I asked him to do. He became isolated and withdrawn. It became difficult to talk with him. Before the raid, Jim frequently visited my wife and I at our home. After the raid, he seldom visited us.

Brutsche Aff. at 3. 10

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10 Plaintiffs do not allege that Jim Brutsche died as a result of the police misconduct.

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Plaintiffs are unable to satisfy the standard the Supreme Court in County of Sacramento v. Lewis created: that there must be "a purpose to cause harm unrelated to the legitimate object of arrest." County of Sacramento v. Lewis, 523 U.S. at 836. Plaintiffs assert that they are not "required to show that the defendants had an intent to deprive [*33]  the plaintiffs of their familial association rights in order to state a cause of action." Pls.' Resp. at 21 (citing Ovando, 92 F. Supp. 2d 1011, at 1019 n.8 (C.D. Cal. 2000)). Plaintiffs fail to recognize that the district court in Ovando determined that plaintiffs did not need to prove intent to survive a Rule 12(b)(6) motion, not a summary judgment motion. Ovando, 92 F. Supp. 2d at 1015, 1019 n.8. Plaintiffs have not cited to any evidence to show that the officers who did not personally touch Jim Brutsche, the "uninvolved officers," had any purpose to cause harm, especially because they did not cause any physical harm to Jim Brutsche. Additionally, it is hard to imagine that these uninvolved officers could have anticipated the change in relationship that resulted from the police raid, especially considering that Jim Brutsche was an adult. Plaintiffs fail to proffer any proof of intent to substantiate their claim for deprivation of "love, companionship, and society" under the Fourteenth Amendment.

Accordingly, the Court GRANTS Defendants' Motion to Dismiss the uninvolved officers from Plaintiffs Leo and Norma Brutsche's fourth cause of action, [*34]  the Fourteenth Amendment due process claims. Plaintiffs do not discuss the Estate of Jim Brutsche's due process claim, nor do they contend in their response brief that parents can vicariously assert this claim. The Court GRANTS Defendants' Motion to Dismiss regarding Plaintiff Estate of Jim Brutsche's claims under the Fourteenth Amendments. The Court DISMISSES Officers Adam, Rankin, Sidell, Villa, Cline, and Courtney from the fourth cause of action, the Fourteenth Amendment due process claims.
4. Assault and Infliction of Emotional Distress

Defendants contend that the Court should dismiss the assault and intentional infliction of emotional distress claims as they pertain to the individual Defendants, Plaintiffs eighth and ninth causes of action. Defs.' Mot. at 10. Plaintiffs point out in their Response that they only brought these claims against the Defendant cities, port, and county, not the individual Defendants. Pls.' Resp. at 21 (citing Compl. at PP 203, 206). Therefore, the Court STRIKES as MOOT Defendants' Motion to Dismiss the claims for assault and infliction of emotional distress as they relate to all of the individual defendants.
C. Collateral Estoppel

In [*35]  their motion, Defendants assert that Plaintiffs are collaterally estopped from bringing claims regarding property damage in this action. Defs.' Mot. at 11. 11 "The general term res judicata encompasses claim preclusion, (often itself entitled res judicata) and issue preclusion, also known as collateral estoppel." Shoemaker v. City of Bremerton, 109 Wn.2d 504, 507, 745 P.2d 858 (1987). The Washington State Supreme Court has stressed the importance of "preserving the distinction between these two defenses." Hisle v. Todd Pacific Ship Yards Corp., 151 Wn.2d 853, 865 n.9, 93 P.3d 108 (2004). "The doctrine of collateral estoppel differs from res judicata in that, instead of preventing a second assertion of the same claim or cause of action, it prevents a second litigation of issues between the parties, even though a different claim or cause of action is asserted." Seattle-First Nat'l Bank v. Kawachi, 91 Wn.2d 223, 225-26, 588 P.2d 725 (1978). "In the instance of claim preclusion, all issues which might have been raised and determined are precluded. In the case of issue preclusion, only those issues actually litigated and necessarily determined are precluded." Shoemaker, 109 Wn.2d at 507 [*36]  (citing Seattle-First Nat'l Bank, 91 Wn.2d at 228).

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11 However, in the Reply brief, Defendants instead assert that the "Plaintiffs' property damage claim should be barred by res judicata." Reply at 9. It is unclear whether Defendants are asserting a new theory by which the Court should dismiss the property damage claims, or if the Defendants are simply substituting the theory of res judicata for collateral estoppel. Since Defendants assert the defense of res judicata for the first time in their Reply brief, the theory will not be considered. See Okanogan Highlands Alliance v. Williams, 236 F.3d 468, 478 n.4 (9th Cir. 2000) (refusing to address an argument raised for the first time in a reply brief).

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1. Standard for Collateral Estoppel

Collateral estoppel precludes the "retrial of issues decided in a prior action." Seattle-First Nat'l Bank v. Kawachi, 91 Wn.2d at 228. Under this doctrine, if a plaintiff asserts a new, distinct claim, "it is still possible [*37]  that an individual issue will be precluded." Shoemaker, 109 Wn.2d at 507. "Collateral estoppel applies only to issues which were actually decided in prior litigation and does not operate as a bar to matters which could have then been raised but were not." Davis v. Nelson, 9 Wn. App. 864, 874, 515 P.2d 995 (1973). The elements of collateral estoppel are as follows:

    (1) identical issues; (2) a final judgment on the merits; (3) the party against whom the plea is asserted must have been a party to or in privity with a party to the prior adjudication; and (4) application of the doctrine must not work an injustice on the party against whom the doctrine is to be applied.

Malland v. Dep't of Retirement Sys., 103 Wn.2d 484, 489, 694 P.2d 16 (1985). "A court may apply collateral estoppel only if all four elements are met." Id. "In addition, the issue to be precluded must have been actually litigated and necessarily determined in the prior action." Shoemaker, 109 Wn.2d at 508.

2. Identical Issues

Plaintiffs argue that the issues litigated in state court are different from the issue that they now assert in federal court. Pls.  [*38]  ' Resp. at 22. In Brutsche v. Kent, Plaintiffs alleged negligence, takings, and trespass against the City of Kent and King County. 134 Wn. App. 1002, No. 56620-2-1, 2006 WL 1980216, at *2 (Wash. Ct. App. July 17, 2006); Jolley Decl., Ex. H (Brutsche v. Kent - Appellate Decision). In the state court action, the court granted summary judgment for the defendants finding that the actions of the defendants did not constitute a taking, nor were the actions negligent. 134 Wn. App. 1002, [WL] at *3-4. Additionally, the court determined that the defendants were not liable in trespass for damage to the property because Plaintiff failed to prove that the conduct was tortious. 134 Wn. App. 1002, [WL] at *4-5.

Plaintiffs contend that because they assert a claim under the Fourth Amendment "based upon the unreasonable manner in which the warrant was executed" the claims are not identical. Pls.' Resp. at 23. However, this argument ignores the purpose of collateral estoppel: "it prevents a second litigation of issues between the parties, even though a different claim or cause of action is asserted." Seattle-First Nat'l Bank, 91 Wn.2d at 225-26 (emphasis added). "Under collateral [*39]  estoppel, once a court decides an issue of fact or law necessary to its judgment, that decision precludes relitigation of the same issue on a different cause of action between the same parties." Kremer v. Chemical Const. Corp., 456 U.S. 461, 467 n.6, 102 S. Ct. 1883, 72 L. Ed. 2d 262 (1982).

Plaintiffs assert in this action that the police executed the warrant in an "unreasonable manner." Pls.' Resp. at 22. Plaintiffs argue, based on Boyd v. Benton County, that "[t]he execution of a warrant in an unreasonable manner, regardless of probable cause, triggers Fourth Amendment liability." Pls.' Resp. at 22 (citing Boyd v. Benton County, 374 F.3d 773, 779-80 (9th Cir. 2004)) (recognizing that "the use of excessive force during a search makes that search unreasonable under the Fourth Amendment."). The state court has already determined that the Defendants did not act in an unreasonable manner. Specifically, the Court of Appeals concluded that Plaintiffs proffered no evidence to support the contention that the police officers acted unreasonably: "The search warrant here ordered law enforcement to search buildings that were locked. The officers determined that the safest and most effective [*40]  way to do so was by breaking the doors. Brutsche offers nothing other than his personal belief to support characterizing the decision by the officers as unreasonable under the circumstances." Brutsche, 134 Wn. App. 1002, 2006 WL 1980216, at *2. Plaintiffs may be asserting a different claim in their federal cause of action; however, the state court has already determined the factual issue of whether the police officers were unreasonable in their search, which forms the basis of the Plaintiffs' Fourth Amendment claim. Since the state court previously decided that the officers have not acted unreasonably, the issue cannot be relitigated in this action. See 28 U.S.C. § 1738 (2000) (mandating that federal courts give "judicial proceedings of any court of any such State . . . the same full faith and credit in every court within the United States . . . as they have by law or usage in the courts of such State. . ."). Accordingly, because the state court held that no evidence existed to show that the execution of the warrant was unreasonable, this Court is precluded from considering the same issue.
3. Final Judgment on the Merits

Plaintiffs argue that because [*41]  the case is still pending in the Washington State Supreme Court there has not been a final judgment on the merits. Pls.' Resp. at 23. Additionally, Plaintiffs contend that "under federal law, the superior court's summary judgment order would not constitute a final judgment on the merits." Id. Both these arguments are without merit. "A grant of summary judgment constitutes a final judgment on the merits and has the same preclusive effect as a full trial on the issue." Lee v. Ferryman, 88 Wn. App. 613, 622, 945 P.2d 1159 (1997); see also Kourtis v. Cameron, 419 F.3d 989, 996 n.4 (9th Cir. 2005) (recognizing that summary judgment is a final judgment on the merits for preclusion purposes). " An appeal does not suspend or negate the res judicata or collateral estoppel aspects of a judgment entered after trial in the superior courts." Nielson v. Spanaway Gen. Med. Clinic, Inc., 135 Wn.2d 255, 264, 956 P.2d 312 (1998). Accordingly, the Washington State Court of Appeals decision, in affirming the trial court's grant of summary judgment, constituted a final judgment on the merits.
4. Must be a Party or in Privity

Plaintiffs did not join King County [*42]  and the City of Kent in their claim regarding the execution of the warrant. Compl. at P 215. According to the Response brief " the eleventh cause of action in the complaint alleges state law claims of property damage, trespass, and/or waste. The complaint alleges liability of the defendant cities and port under the doctrine of respondeat superior." Pls.' Resp. at 23. There is no dispute that the cities of Federal Way, Auburn, Renton, Tukwila, or the Port of Seattle were not part of the previous state cause of action. According to the test set out in Malland, "the party against whom the plea is asserted must have been a party to or in privity with a party to the prior adjudication." 103 Wn.2d at 489. Neither party provide support for their contentions regarding whether or not the Defendants are in privity with King County and the City of Kent for the purposes of collateral estoppel. Moreover neither party discusses the doctrine of nonmutual collateral estoppel in Washington.
5. Must not work an injustice

The last element, requiring that the application of collateral estoppel must not work an injustice, is also ignored by both parties. The determination [*43]  of this element depends on "whether the parties to the earlier proceeding received a full and fair hearing on the issue in question." Clark v. Baines, 150 Wn.2d 905, 913, 84 P.3d 245 (2004); see also Nat'l Union Fire Ins. Co. of Pittsburgh v. Northwest Youth Servs., 97 Wn. App. 226, 233-34, 983 P.2d 1144 (1999) (determining that an opportunity to litigate an issue in a previous action satisfies the collateral estoppel test).

Accordingly, the Court DENIES WITHOUT PREJUDICE Defendants' Motion to Dismiss Plaintiffs' eleventh cause of action regarding property damage, trespass, and waste. 12

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
12 At trial both parties should be prepared to discuss relevant cases on collateral estoppel relating to the third and fourth elements. Specifically, regarding the privity analysis the parties should focus on Blonder Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 91 S. Ct. 1434, 28 L. Ed. 2d 788 (1971), Nielson v. Spanaway Gen. Med. Clinic, Inc., 135 Wn.2d 255, 956 P.2d 312 (1998), Barlindal v. City of Bonney Lake, 84 Wn. App. 135, 925 P.2d 1289 (1996), and Lucas v. Velikanje, 2 Wn. App. 888, 471 P.2d 103 (1970), as well as other cases that may be relevant.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

[*44]  CONCLUSION

The Court enters the following Order:

1. The Court GRANTS IN PART and DENIES IN PART Defendants' Motion to Dismiss Plaintiffs' first cause of action, the Fourth Amendment claims of unreasonable seizures. The Court DENIES Defendants' Motion to Dismiss Officers Torre, Sjolin, and Jordan from Plaintiffs' first cause of action. The Court GRANTS Defendants' Motion to Dismiss Officers Adam, Rankin, Sidell, Villa, Cline, and Courtney from Plaintiffs' first cause of action. The Court DISMISSES Officers Adam, Rankin, Sidell, Villa, Cline, and Courtney from Plaintiffs' first cause of action.

2. The Court GRANTS Defendants' Motion to Dismiss the uninvolved officers from Plaintiffs' fourth cause of action, the Fourteenth Amendment due process claims. The Court DISMISSES Officers Torre, Adam, Courtney, Rankin, Sjolin, Jordan, Villa, Sidell and Cline from Plaintiffs' fourth cause of action.

3. The Court STRIKES as MOOT Defendants' Motion to Dismiss Plaintiffs' eighth and ninth causes of action, the claims of infliction of emotional distress and assault and battery, docket no. 60.

4. The Court DENIES WITHOUT PREJUDICE Defendants' Motion to Dismiss Plaintiffs' eleventh [*45]  cause of action, the claims for property damage, trespass, and waste, docket no. 60.

5. Except as granted or stricken, the Court DENIES the Motion to Dismiss.

IT IS SO ORDERED.

DATED this 14th day of December, 2006.

Thomas S. Zilly

United States District Judge

Henry O. Miethke et al., Respondents, v. Pierce County, Appellant

No. 24457

Supreme Court of Washington, Department One

173 Wash. 381; 23 P.2d 405; 1933 Wash. LEXIS 643

June 23, 1933

PRIOR HISTORY:  [***1]  Appeal from a judgment of the superior court for Pierce county, Remann, J., entered December 30, 1932, in favor of the plaintiffs, upon overruling a demurrer to the complaint, in an action to recover taxes paid under protest. Reversed.

CASE SUMMARY

PROCEDURAL POSTURE: Appellant county sought review of a judgment from the Superior Court for Pierce County, Washington, which was in favor of respondent nurserymen in their action to recover taxes that the county had assessed and levied their nursery stock as personal property.

OVERVIEW: The county assessed and levied personal property taxes on certain shrubs, trees, and plants that were growing upon the nurserymen's land. The nurserymen instituted an action to recover that money that they paid under protest to the county for the taxes. The trial court entered a judgment in favor of the nurserymen. On appeal, the court reversed the trial court's judgment and dismissed the action. The court concluded that the legislature had the undoubted right and power to define nursery stocks as merchandise that could be assessed under Wash. Rev. Stat. § 11129. The court found that there was no discrimination or lack of uniformity in taxing nursery stock on the one hand and exempting growing crops on the other.

OUTCOME: The court reversed the judgment against the county and dismissed the nurserymen's action to recover the taxes.

CORE TERMS: crop, taxation, nurserymen, growing crops, nursery stock, exempt, grown, soil, classification, uniformity, exempting, annual, stock, merchandise, season, shrubs, exemptions, personal property, exempted, severed, taxing, cultivated lands, gathered, levied, seed, taxed, annually, settled rule, planting, fruit

LexisNexis® Headnotes Hide Headnotes

Tax Law > State & Local Taxes > Personal Property Tax > Exempt Property > General Overview
Tax Law > State & Local Taxes > Real Property Tax > General Overview
HN1Go to the description of this Headnote.    See Wash. Rev. Stat. § 11135.

Tax Law > State & Local Taxes > Personal Property Tax > Tangible Property > General Overview
HN2Go to the description of this Headnote.    See Wash. Rev. Stat. § 11129.

Governments > Legislation > Enactment
Tax Law > State & Local Taxes > Administration & Proceedings > General Overview
HN3Go to the description of this Headnote.    The legislature may classify for the purposes of taxation.

Tax Law > State & Local Taxes > Personal Property Tax > Tangible Property > General Overview
HN4Go to the description of this Headnote.    Lexicographers define a "nursery" as: A place where trees, shrubs, vines, etc., are propagated for transplanting or for use as stocks for grafting. They also define a "crop" as: That which is cropped, cut or gathered from a single field or of a single kind; or in a single season or part of a season; the product of the field, whether gathered or growing; harvest.

Tax Law > State & Local Taxes > Personal Property Tax > Tangible Property > General Overview
HN5Go to the description of this Headnote.    A crop is primarily some product of the soil gathered during a single year, and when a man speaks of his crop he will ordinarily be understood to mean a crop raised by himself; and yet the words do not of themselves import this meaning, but may be taken to mean a crop that is a portion of the present year's growth of the article in question, which has become his by purchase as well as by production. The word crop is derived from the old English "croppe" signifying the top of a plant. It is primarily some product of the soil and has been defined as everything produced from the earth by annual planting, cultivation and labor; and it may mean either a gathered or growing crop. As thus limited the word is practically synonymous with emblements and hence does not include the fruits of perennial trees, but taken in its most comprehensive sense it includes grasses and the fruits of trees. The word "crops," in its more general signification, means all products of the soil that are grown and raised annually and gathered during a single season. In this sense the term includes both fructus industriales and fructus naturales. The word is also used, however, in a more restricted sense, as synonymous with fructus industriales or emblements. Everything produced from the earth by annual planting, cultivation and labor.

Governments > Legislation > Interpretation
Tax Law > State & Local Taxes > Personal Property Tax > Exempt Property > General Overview
HN6Go to the description of this Headnote.    Statutes exempting persons or property from taxation are to be strictly construed, and exemptions are not to be extended by judicial construction to property other than that designated by law.

Governments > Legislation > Enactment
Tax Law > State & Local Taxes > Administration & Proceedings > General Overview
HN7Go to the description of this Headnote.    The legislature may exercise wide discretion in selecting and classifying the subjects of taxation, and may arrange and divide the various subjects of taxation into distinct classes without violating the requirement of equality and uniformity, provided the tax is uniform on all members of the same class, and provided the classification is reasonable and provided it is not arbitrary.

Governments > Legislation > Enactment
Tax Law > State & Local Taxes > Personal Property Tax > General Overview
HN8Go to the description of this Headnote.    There is no vested right, either in a corporation or natural person, to have property assessed in any particular way. Such matters rest entirely within the control and discretion of the legislature. It is a question of uniformity and equality in the classes. The classification of property for assessment, where uniformity and equality exist in the classes, is a matter of legislative policy.

Governments > Legislation > Interpretation
Tax Law > State & Local Taxes > Personal Property Tax > General Overview
HN9Go to the description of this Headnote.    Statutes for assessment of property for taxation are to be liberally construed, so that property justly assessable shall not escape through technicalities.

Tax Law > State & Local Taxes > Administration & Proceedings > General Overview
Tax Law > State & Local Taxes > Personal Property Tax > Exempt Property > General Overview
HN10Go to the description of this Headnote.    Persons seeking to exempt themselves from a tax must affirmatively show that they come within a class specifically made exempt from such taxation.

Contracts Law > Types of Contracts > Severance
HN11Go to the description of this Headnote.    Growing crops are part of the real estate on which grown until grown and matured, or severed, either actually or constructively.

Tax Law > State & Local Taxes > Personal Property Tax > Exempt Property > General Overview
Tax Law > State & Local Taxes > Personal Property Tax > Tangible Property > General Overview
HN12Go to the description of this Headnote.    There is no reason why the stock of nurserymen, growing or otherwise, should not be listed and assessed as merchandise the same as the stocks of merchants which are assessed annually, as well as the lands on which situated. The legislature has the undoubted right and power to define nursery stocks as merchandise, and to exempt growing crops on cultivated lands.

Hide Headnotes / Syllabus

HEADNOTES
WASHINGTON OFFICIAL REPORTS HEADNOTES

WA[1][1] Taxation (41) -- Exemptions -- Construction and Operation of Exemptions -- Nursery Stock. In view of the strict construction of statutes exempting property from taxation and the burden upon persons seeking exemptions, Rem. Rev. Stat., § 11135, exempting crops on cultivated lands from taxation, is not to be extended to nursery stock, the same being outside the definition of "crops" in its ordinary sense.

WA[2][2] Same (39) -- Exemptions -- Power to Exempt -- Restrictions. The classification for taxation purposes of the stock of nurserymen, growing or otherwise, as "merchandise" by Rem. Rev. Stat., § 11129, is within the wide discretion of the legislature in selecting and classifying the subjects of taxation.

WA[3][3] Taxation (38) -- Exemptions -- Power to Exempt -- Effect of Requirement of Equality and Uniformity. There is no discrimination or lack of uniformity in taxing "nursery stock" as merchandise on one  [***2]  hand and exempting "growing crops" on the other, by Rem. Rev. Stat., §§ 11129 and 11135.

COUNSEL: Bertil E. Johnson and D. D. Schneider, for appellant.

Palmer, Askren & Brethorst and B. E. Lutterman, for respondents.

JUDGES: Holcomb, J. Tolman, Mitchell, Millard, and Steinert, JJ., concur.

OPINION BY: HOLCOMB

OPINION

[*381]   [**405]  Respondents are nurserymen and are owners of a growing nursery stock in Pierce county. Pierce county assessed and levied a tax on their nursery stock as personal property, and this action was begun by respondents to recover money paid under  [*382]  protest to the county for personal taxes which respondents claim were wrongfully assessed and levied by the county upon certain shrubs, trees and plants cultivated and growing upon their land.

[**406]  They allege in their complaint that they are the owners of a certain tract of land situated in Pierce county upon which, during the year 1931, they were growing a crop of deciduous and evergreen trees, which crop was being grown from seed, cuttings and grafts, and was not marketable in 1931, and will not become marketable for a period of from three to fifteen years; that, on March 15,  [***3]  1932, they paid the personal propertytax assessed by Pierce county under protest. They allege that the personal property on which the tax was levied had not been purchased either in or out of the state of Washington, but was being grown by them from seeds, cuttings and grafts, and that the statute does not authorize the county to assess and levy this tax on it because it is a growing crop. They also allege that Rem. Rev. Stat., § 11135, provides, in part, as follows:

HN1Go to this Headnote in the case."In assessing any tract or lot of real property, the value of the land, exclusive of improvements, shall be determined; also, the value of all improvements and structures thereon and the aggregate value of the property, including all structures and other improvements, excluding the value of crops growing on cultivated lands."

That the crop of trees and shrubs so taxed was a crop growing on cultivated lands, and was not severed from but was attached to and a part of the real property, and that the tax was therefore assessed and levied in violation of the cited statute.

They further allege that the only growing crops which are assessed by Pierce county are the crops which are being grown by nurserymen; that, throughout  [***4]   [*383]  Pierce county and on lands adjoining that of respondents, there are grown by farmers similar deciduous and evergreen trees; annual and perennial plants, such as shrubs, vines, berries, bushes, bedding stock, flowers, vegetables and grapes; apple, pear, peach, prune, cherry and apricot trees, and grain such as wheat, oats, rye, barley and corn; that Pierce county has not assessed nor levied a tax on any of such growing crops excepting that owned by nurserymen, and until after such crops have been severed from the soil and harvested and in the possession of the owners on the 1st day of March following harvest.

That taxing as personal property the growing trees and shrubs in the possession of the nurserymen and not taxing the same or similar growing of trees and shrubs in the possession of others than nurserymen, is in violation of the constitution of Washington and the United States, and operates as fraud upon the rights of nurserymen; that the attempted classification is arbitrary and not uniform, and that the discrimination against growing crops of nurserymen is intentional, arbitrary and vicious in principle; that Pierce county has classified for purposes of taxation  [***5]  property owned by nurserymen, but has not included in such classification property of the same kind and in the same condition, used for the same purpose, that is owned by others than nurserymen; that the attempted classification was not based upon any inherent characteristics of the property taxed, but upon the incidents of its ownership; and that the county during the year 1931 did tax the property of respondents under a different rule because they were known as nurserymen, and that the county did levy a tax during 1931 on the property owned by nurserymen, but exempted the same kind of property owned by others who were not styled nurserymen.

[*384]  The property was assessed by the assessing officers of Pierce county under and by virtue of the provisions of Rem. Rev. Stat., § 11129, which reads:

HN2Go to this Headnote in the case."Whoever owns, or has in his possession or subject to his control, any goods, merchandise, grain or produce of any kind, or other personal property within this state, with authority to sell the same, which has been purchased either in or out of this state, with a view to being sold at an advanced price or profit, or which has been consigned to him from any place out of this state for  [***6]  the purpose of being sold at any place within the state, shall be held to be a merchant, and when he is by this act required to make out and to deliver to the assessor a statement of his other personal property, he shall state the value of such property pertaining to his business as a merchant. No consignee shall be required to list for taxation the value of any property the product of this state, nor the value of any property consigned to him from any other place for the sole purpose of being stored or forwarded, if he has no interest in such property nor any profit to be derived from its sale. The stock of nurserymen, growing or otherwise, shall be listed and assessed as merchandise."

It will be observed that § 11135, referred to in the complaint of respondents, is a part of the same taxing statute.

The sole question submitted for our decision is whether or not the stocks of nurserymen, growing or otherwise, shall be listed and assessed as merchandise under § 11129, supra; whether that section is constitutional; and whether such property is assessable under § 11135, supra.

The trial judge, after hearing argument on the demurrer of appellant to the complaint, among  [***7]  other things said:

[*385]  "I am unable to distinguish between a 'crop' of seeds where two seasons are required to produce the seeds, and a 'crop' of holly trees or shrubs which may take several or many seasons; and the word 'crop,' it seems to me, must be taken in a general and not a restricted sense, and if as suggested above, it did take two years to get a crop of cabbage seed and seven years to grow a  [**407]  marketable holly tree, I am unable to determine why one should come under the classification of 'crop' and not the other, although generally speaking, in a popular sense, the term is most frequently applied to products of the soil harvested annually. . . .

"Section 52 [§ 11135, supra] clearly exempts growing crops on cultivated lands. If nursery stock is a crop, then this statute exempts it, and if we hold it is not a crop but admit that it is a product of the soil suitable for trade or consumption, then we exempt one product of husbandry and tax the other, and there is no inherent difference in the products themselves as such. Each springs from the soil, each is the product of cultivation and human effort, looking toward maturity and harvest; the only difference  [***8]  being that grain commonly would be harvested within a season of a year, while nursery stock, depending upon its kind and character, might reach maturity or the time when it is severed from the soil, in one or many seasons. So that either section 25 [§ 11129, supra] is unconstitutional, or section 52 [§ 11135, supra] makes nursery stock exempt. In either event the tax levy is unlawful. Defendant's demurrer, therefore, should be overruled."

With due deference to the trial judge, we are unable to agree either with his reasoning or his conclusion.

As was well said by him, that HN3Go to this Headnote in the case. the legislature may classify for the purposes of taxation, is, of course, conceded.

WA[1][1] WA[2][2] HN4Go to this Headnote in the case.Lexicographers define a "nursery" as:

"A place where trees, shrubs, vines, etc., are propagated for transplanting or for use as stocks for grafting." Webster.

[*386]  46 C.J. 836.

They also define a "crop" as:

"That which is cropped, cut or gathered from a single field or of a single kind; or in a single season or part of a season; the product of the field, whether gathered or growing; harvest, . . ." Webster.

HN5Go to this Headnote in the case."A crop is primarily some product of the soil gathered during a single year, and  [***9]  when a man speaks of his crop he will ordinarily be understood to mean a crop raised by himself; and yet the words do not of themselves import this meaning, but may be taken to mean a crop that is a portion of the present year's growth of the article in question, which has become his by purchase as well as by production." 2 Words & Phrases, 1755.

"The word crop is derived from the old English 'croppe' signifying the top of a plant. It is primarily some product of the soil and has been defined as everything produced from the earth by annual planting, cultivation and labor; and it may mean either a gathered or growing crop. As thus limited the word is practically synonymous with emblements and hence does not include the fruits of perennial trees, but taken in its most comprehensive sense it includes grasses and the fruits of trees." 8 R.C.L. 355.

"The word 'crops,' in its more general signification, means all products of the soil that are grown and raised annually and gathered during a single season. In this sense the term includes both fructus industriales and fructus naturales. The word is also used, however, in a more restricted sense, as synonymous with fructus industriales  [***10]  or emblements. Everything produced from the earth by annual planting, cultivation and labor." 17 C.J. 378.

In Cottle v. Spitzer, 65 Cal. 456, 4 P. 435, 52 Am. Rep. 305, that court defined "growing crops" as including only those crops which require an annual planting or sowing, or an annual harvesting, and therefore held that fruit trees growing upon land are not  [*387]  growing crops within the meaning of the provision of the California constitution exempting such crops from taxation. To the same effect is Kuehn v. City of Antigo, 139 Wis. 132, 120 N.W. 823, 131 Am. St. 1043.

In Burley Tobacco Growers' Co-op. Assn. v. City of Carrollton, 208 Ky. 270, 270 S.W. 749, that court held that growing crops, whether regarded as realty or personalty, are taxable unless exempted by their constitution and statute. It was there held that a tobacco crop, under a statute exempting from taxation crops grown in the year in which the assessment was made, was not exempt, but was taxable in the following year after severance.

It is a well settled rule that HN6Go to this Headnote in the case. statutes exempting persons or property from taxation are to be strictly construed, and that exemptions are not to be extended  [***11]  by judicial construction to property other than that designated by law. Thurston County v. Sisters of Charity, 14 Wash. 264, 44 P. 252.

It is also a well settled rule that:

HN7Go to this Headnote in the case."The legislature may exercise wide discretion in selecting and classifying the subjects of taxation, and may arrange and divide the various subjects of taxation into distinct classes . . . without violating the requirement of equality and uniformity, provided the tax is uniform on all members of the same class, and provided the classification is reasonable and provided it is not arbitrary." 61 C.J. 126.

Puget Sound Power & Light Co. v. Seattle, 117 Wash. 351, 201 P. 449. In this case (not cited by either party), we said:

HN8Go to this Headnote in the case."There is no vested right, either in a corporation or natural person, to have property assessed in any particular way. Such matters rest entirely within the control and discretion of the legislature. [Citing a case] It is a question of uniformity and equality in the classes. 'The classification  [**408]  of property for assessment,  [*388]  where uniformity and equality exist in the classes, is a matter of legislative policy.' [Citing a case.]"

and further, quoting  [***12]  approvingly from Chicago & Northwestern R. Co. v. State, 128 Wis. 553, 108 N.W. 557:

"The discretion of the legislature in this field is so broad that it is not competent for the court to mark the constitutional limitations of it other than at the farthest one might go without transcending all reason."

We also announced the principle in Spaulding v. Adams County, 79 Wash. 193, 140 P. 367, that HN9Go to this Headnote in the case. statutes for assessment of property for taxation are to be liberally construed, so that property justly assessable shall not escape through technicalities.

It is also a well settled rule that HN10Go to this Headnote in the case. persons seeking to exempt themselves from a tax must affirmatively show that they come within a class specifically made exempt from such taxation. Oswald v. Johnson, 285 P. 1067.

It is well known that HN11Go to this Headnote in the case. growing crops are part of the real estate on which grown until grown and matured, or severed, either actually or constructively. Churchill v. Ackerman, 22 Wash. 227, 60 P. 406; Snyder v. Harding, 38 Wash. 666, 80 P. 789.

Under our system of taxation, land is assessed for taxation every two years, while crops are grown annually. Hence, a growing crop would be assessed as part of the  [***13]  real estate unless exempted by law. It was the evident intention of the legislature in enacting § 11135, supra, that it was for the uniform control of assessing officers. After such annual crop is matured or severed, it becomes part of the mass of personal property. HN12Go to this Headnote in the case. There is no reason why the stock of nurserymen, growing or otherwise, should not be listed and assessed as merchandise the same as the stocks of merchants  [*389]  which are assessed annually, as well as the lands on which situated. The legislature had the undoubted right and power to define nursery stocks as merchandise, and to exempt growing crops on cultivated lands.

WA[3][3] Neither is there any discrimination or lack of uniformity in taxing nursery stock on the one hand and exempting such growing crops on the other. The reasoning in the Puget Sound Power & Light case, supra, and in Ridpath v. Spokane Co., 23 Wash. 436, 63 P. 261, is contrary thereto. All annual growing crops on real estate are exempted by the law before us and all nursery stocks are taxed. Uniformity and equality exist in those classes, and what was to be taxed and what to be exempted, was purely a matter of legislative  [***14]  policy.

It is plain that there is no provision of our state, or of the Federal, constitution violated by the foregoing provisions of our statutes.

The judgment of the trial court is reversed, and the action of respondents dismissed.

http://apps.leg.wa.gov/rcw/default.aspx?cite=64.12.035

RCW 64.12.035
Cutting or removing vegetation — Electric utility — Liability — Definitions.
   

(1) An electric utility is immune from liability under RCW 64.12.030, 64.12.040, and 4.24.630 and any claims for general or special damages, including claims of emotional distress, for cutting or removing vegetation located on or originating from land or property adjacent to electric facilities that:

     (a) Has come in contact with or caused damage to electric facilities;

     (b) Poses an imminent hazard to the general public health, safety, or welfare and the electric utility provides notice and makes a reasonable effort to obtain an agreement from the resident or property owner present on the property to trim or remove such hazard. For purposes of this subsection (1)(b), notice may be provided by posting a notice or flier in a conspicuous location on the affected property that gives a good faith estimate of the time frame in which the electric utility's trimming or removal work must occur, specifies how the electric utility may be contacted, and explains the responsibility of the resident or property owner to respond pursuant to the requirements of the notice. An electric utility may act without agreement if the resident or property owner fails to respond pursuant to the requirements of the notice. No notice or agreement is necessary if the electric utility's action is necessary to protect life, property, or restore electric service; or

     (c) Poses a potential threat to damage electric facilities and the electric utility attempts written notice by mail to the last known address of record indicating the intent to act or remove vegetation and secures agreement from the affected property owner of record for the cutting, removing, and disposition of the vegetation. Such notice shall include a brief statement of the need and nature of the work intended that will impact the owner's property or vegetation, a good faith estimate of the time frame in which such work will occur, and how the utility can be contacted regarding the cutting or removal of vegetation. If the affected property owner fails to respond to a notice from the electric utility within two weeks of the date the electric utility provided notice, the electric utility may secure agreement from a resident of the affected property for the cutting, removing, and disposition of vegetation.

     (2)(a) A hazard to the general public health, safety, or welfare is deemed to exist when:

     (i) Vegetation has encroached upon electric facilities by overhanging or growing in such close proximity to overhead electric facilities that it constitutes an electrical hazard under applicable electrical construction codes or state and federal health and safety regulations governing persons who are employed or retained by, or on behalf of, an electric utility to construct, maintain, inspect, and repair electric facilities or to trim or remove vegetation; or

     (ii) Vegetation is visibly diseased, dead, or dying and has been determined by a qualified forester or certified arborist employed or retained by, or on behalf of, an electric utility to be of such proximity to electric facilities that trimming or removal of the vegetation is necessary to avoid contact between the vegetation and electric facilities.

     (b) The factors to be considered in determining the extent of trimming required to remove a hazard to the general public health, safety, or welfare may include normal tree growth, the combined movement of trees and conductors under adverse weather conditions, voltage, and sagging of conductors at elevated temperatures.

     (3) A potential threat to damage electric facilities exists when vegetation is of such size, condition, and proximity to electric facilities that it can be reasonably expected to cause damage to electric facilities and, based upon this standard, the vegetation has been determined to pose a potential threat by a qualified forester or certified arborist employed or retained by or on behalf of an electric utility.

     (4) For the purposes of this section:

     (a) "Electric facilities" means lines, conduits, ducts, poles, wires, pipes, conductors, cables, cross-arms, receivers, transmitters, transformers, instruments, machines, appliances, instrumentalities, and all devices and apparatus used, operated, owned, or controlled by an electric utility, for the purposes of manufacturing, transforming, transmitting, distributing, selling, or furnishing electricity.

     (b) "Electric utility" means an electrical company, as defined under RCW 80.04.010, a municipal electric utility formed under Title 35 RCW, a public utility district formed under Title 54 RCW, an irrigation district formed under chapter 87.03 RCW, a cooperative formed under chapter 23.86 RCW, and a mutual corporation or association formed under chapter 24.06 RCW, that is engaged in the business of distributing electricity in the state.

     (c) "Vegetation" means trees, timber, or shrubs.

[1999 c 248 § 1.]

Notes:
     Severability -- 1999 c 248: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1999 c 248 § 3.]

A governmental abrogation of a preexisting, vested water right is an appropriation of [***99]  that enhanced minimum flow to a public use and therefore is a taking encompassed in the Fifth and Fourteenth Amendments no matter how minimal the intrusion may be. See Tulare Lake Basin Water Storage Dist. v. United States, 49 Fed. Cl. 313, 319-20 (2001) (discussing United States v. Causby, 328 U.S. 256, 66 S. Ct.  [*836]
1062, 90 L. Ed. 1206, 106 Ct. Cl. 854 (1946); Int'l Paper Co. v. United States, 282 U.S. 399, 51 S. Ct. 176, 75 L. Ed. 410, 71 Ct. Cl. 780 (1931); Dugan v. Rank, 372 U.S. 609, 83 S. Ct. 999, 10 L. Ed. 2d 15 (1963)).

The District (although a municipal corporation which is in some senses "public") holds water rights for the production and sale of electricity, a proprietary enterprise. Sundquist Homes, Inc. v. Snohomish County Pub. Util. Dist. No. 1, 140 Wn.2d 403, 410, 997 P.2d 915 (2000); Wash. Pub. Power Supply Sys. v. Gen. Elec. Co., 113 Wn.2d 288, 301, 778 P.2d 1047 (1989); State v. O'Connell, 83 Wn.2d 797, 834, 523 P.2d 872 (1974). Its water rights therefore are its "private property." See also 2 JULIUS L. SACKMAN, NICHOLS ON EMINENT DOMAIN § 5.06[8][a], at 5-440 to 5-444 (rev. 3d ed. 1999); 4A SACKMAN, supra, § 15.01[2], at 15-9 to 15-10 (rev. 3d ed. 1999); OSBORNE M. REYNOLDS, JR., HANDBOOK OF LOCAL GOVERNMENT LAW 72 (1982).