Case of the Day – Wednesday, August 2, 2017

NOT A HAPPY BUNCH AT ALL

This bunch is pretty happy ... The Wongs? Not so much.

This bunch is pretty happy … The Wongs? Not so much.

The Wong family, through their company Happy Bunch, LLC, was quite happy indeed with the nice piece of property the family occupied. The Wongs especially liked the 10 trees that lined one boundary. They had planted and nurtured them for 20 years or so, and the trees had gotten big enough that eight of them actually straddled the boundary line with their neighbor.

But what a hot dog the neighbor turned out to be! Grandview North was a developer, and planned a Wienerschnitzel franchise on the lot next door. The City required that Grandview add about four feet of fill to the lot, and Grandview was afraid the Wongs’ boundary trees would get in the way. Grandview had a survey done, and the company knew the trees were on the boundary line, with most of the trunks on the Happy Bunch land (two were entirely on the Happy Bunch side of the boundary). So what? After finding itself unsuccessful at getting Mr. Wong to consent to the trees being cut down, Grandview made its view grander by taking out the trees itself. Mr. Wong was done wrong …

Happy Bunch sued. The trial court ruled that Grandview owed $32,000 or so for the trespass to timber, but it refused to impose statutory treble damages, finding them not applicable to boundary trees.

The Court of Appeals, in a case of first impression, disagreed. It ruled that boundary trees in Washington State are owned by both landowners as common property, and neither may cut them down without the consent of the other. The Court ruled that damages when a boundary tree is cut down is the replacement value of the tree, apportioned by the percentage of the trunk on the injured landowner’s property, a method that strikes us as rather artificial and likely to undervalue the tree to the injured property owner. What, Happy Bunch gets half a tree back? There was a little justice, however: the Court of Appeals ruled that the treble damage statute for trespass to timber applied to boundary trees as well as other trees.

Happy Bunch, LLC v. Grandview North, LLC, 173 P.3d 959 (Wash.App. Div. 1, 2007). The Wong family owned land through its limited liability company, Happy Bunch LLC. Grandview, was a property development company that purchased a parcel of property next door the Happy Bunch property to build a Wienerschnitzel drive-through restaurant. The City of Mount Vernon required that four feet of fill be placed on the Grandview property as part of the planned development.

cutdownTwelve mature trees stood either on or near the boundary line between the Happy Bunch and Grandview properties. Some portion of the trunks of 10 of the trees — all originally planted by the Wongs some years before — extended from the Happy Bunch property onto the Grandview property. Grandview believed it couldn’t meet the city’s fill requirement without putting a retaining wall on the Happy Bunch/Grandview property line. Because the roots and trunks of the trees extended onto Grandview’s property, Grandview believed that they would interfere with the construction of the retaining wall and decided to move them, even though Grandview knew a survey showed the trees’ true location on the property line.

The Happy Bunch was not happy, not agreeing with the plan, and found through its own survey that the trees were either on the boundary line or entirely on the Happy Bunch land. Despite Happy Bunch’s opposition, Grandview cut down all ten trees. Happy Bunch sued, claiming that it had acquired title to the land under and around the trees by adverse possession due to the Wongs’ maintenance of the trees and surrounding area. It also sought damages for both the value of the cut trees and the estimated $15,065 cost of digging up the trees’ root systems and repairing damage to the Wongs’ driveway likely to be sustained as a result. Happy Bunch also requested that the entire award be trebled pursuant to Washington law because of Section 64.12.030 of the Revised Code of Washington, the state’s timber trespass statute, thus seeking a total damage award of $168,294.

Hotdogg160610The trial court ruled that Grandview committed timber trespass by cutting the trees on the Wong/Grandview property line. The trial court took the damage figure to the trees of $40,033, and multiplied it by the percentage of the cut trees that had been growing on Happy Bunch’s property, resulting in damages of $32,519.22 to Happy Bunch on its timber trespass claim, as well as $2,500 for the cost of grinding out the remainder of the stumps. The court denied the damages of $15,065 for completely removing the trees’ root systems and repairing the resulting damage. Finally, the trial court ruled that Happy Bunch was not entitled to treble damages as provided by the timber trespass statute “[b]ecause the trees that were cut straddled the common property line.”

Happy Bunch, LLC appealed.

Held: Judgment was reversed on most counts. The Court of Appeals concluded that Happy Bunch was only entitled to recover damages for injury to those portions of the trees growing on its land. However, the Court found that RCW § 64.12.030’s treble damages provision did apply.

In most jurisdictions, a tree standing on a common property line is considered the property of both landowners as tenants in common. Although Happy Bunch admitted that courts commonly calculate damages based on the value of each cut tree, apportioned according to the percentage of the tree that was located on the injured landowner’s property, it contended that the proper approach here was the one applied in the Colorado case, Rhodig v Keck. Rhodig held that absent a showing of an agreement to the contrary, a boundary line tree belongs entirely to the party on whose land the tree was originally planted, with damages calculated accordingly.

The Court of Appeals rejected Rhodig, holding that adoption of its rule would enable Washington landowners to effect boundary line adjustments with trees, creating “an entirely new theory of adverse possession without a basis in either the statutory or common law of this state.” The Court said the Rhodig holding would mean that Happy Bunch acquired title to the land under the trees simply because had once had planted the trees. Therefore, the Court held, a tree standing directly upon the line between adjoining owners so that the line passes through it is the common property of both parties, whether marked or not; and trespass will lie if one cuts and destroys it without the consent of the other. Grandview had an interest in the trees proportionate to the percentage of their trunks growing on Grandview’s property, and thus, the trial court correctly awarded Happy Bunch only that portion of the trees’ value reflecting Happy Bunch’s property interest in them.

Happy Bunch contended that an award of treble damages was mandatory pursuant to RCW § 64.12.030, unless Grandview proved one of the mitigating factors listed in the statute. The Court agreed, holding that the trespasser must allege and prove mitigation, and absent such a showing, treble damages will be imposed. The Court rejected Grandview’s argument that it believed it had a right to remove the trees, noting that Grandview possessed a survey that indicated that the majority of the trees were predominantly located on Happy Bunch’s property, and that at least two of the trees were not located on Grandview’s property at all. The Court said that where a person has been given notice that another has an ownership interest in trees, and the person nonetheless cuts them down, the actor will be liable for treble damages under the statute. Both the punitive and compensatory policies underlying the statute are implicated with respect to boundary line trees, the Court reasoned, and for that reason, the statute must be applied.

– Tom Root

TNLBGray140407

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