Case of the Day – Friday, September 9, 2022


I have to confess that, although I am a proud Midwesterner, I love the State of Washington. Temperate rain forests, soaring mountains, beautiful lakes, great coffee, greater beer, and Seattle in the sunlight.

OK, not so much about the sunlight. But for that, Washington is two fantastic states, the first being a lush and moist paradise west of the crest of the Cascades, and the other being a sprawling, sunny and semi-arid plain east of the mountains.

Despite my love of the place, I was unstinting in my criticism yesterday about how the Mustoe court had sanctioned an “anything goes” culture in Washington, in which a landowner could misuse the Massachusetts Rule to kill a neighbor’s tree by indiscriminate cutting of roots and branches, regardless of effect. As long as you stay on your own property, you can trim branches and roots with a backhoe bucket, if you so choose.

Today’s case is every bit as puzzling as is Mustoe, but in quite the opposite direction. One set of neighbors hacked branches off a boundary tree to the point that the other set legitimately feared that it was so unstable it would fall. The second set of neighbors then retaliated, taking the rest of the branches off the tree. That stabilized the tree trunk but had the unfortunate side effect of killing the tree.

Neighbor One, who lacked not for chutzpah, sued Neighbor Two for timber trespass. The courts found Neighbor Two liable for treble damages under the State’s timber trespass statute, regardless of the fact that Neighbor One’s reckless trimming created a hazard tree and the need for the drastic remedy that killed the tree.

The Court in today’s case candidly “acknowledge[s] that under Mustoe and our holding here, it would appear that a property owner has greater rights with respect to trimming a neighboring tree than a tree standing on a common property line with a neighboring property. This outcome is the result of applying a statute to a situation that was not likely contemplated upon the statute’s drafting. Our legislature may clarify the statute’s applicability to boundary trees in future legislation.”

Of course, part of the problem may be that the lawyer for the Pelayos (Neighbor Two) failed to remember that the best defense is often a good offense. He did not file a timber trespass claim against the Herrings (Neighbor One), which would have placed their misconduct into play. To be sure, in any fair world, the Herrings’ conduct in removing all the branches overhanging their property also violated RCW 64.12.030, and should have mitigated, if not outright excused, the Pelayos’ cutting in response.

Herring v. Pelayo, 397 P.3d 125 (Wash.App. Div. 2, 2017). The Herrings and Pelayos are neighbors. In December 2011, the Herrings hired a tree trimmer to remove some branches from a tree located on the common property line. The Herrings did not discuss their plan to remove branches from the tree with the Pelayos prior to the work. When they discovered the trimming, the Pelayos believed that the work had caused the tree to become unbalanced, constituting a danger to their home. Three weeks after the Herring trimming, the Pelayos had a tree trimmer remove all the remaining branches from the boundary tree, causing the boundary tree to die. Like the Herrings, the Pelayos did not discuss their plans with the neighbors before the work was done.

The Herrings sued, claiming a timber trespass in violation of RCW 64.12.030 or, in the alternative, regular garden-variety trespass in violation of RCW 4.24.630. At trial, Jose testified that he knew the tree at issue was on the common property line, he told the tree trimmer to remove all of the remaining branches from the tree, he did not discuss his plan with the Herrings, (4) the tree was alive prior to the removal of the remaining branches, and (5) he believed that removing the remaining branches would kill the tree, which it did.

The Pelayos’ tree trimmer, Tim Jones, testified that he believed the tree was a danger to the Pelayos, and he had recommended that they. Tim stated that remove the entire tree or, at least cut off all the remaining branches. But Tim also told the Pelayos that they could remove a top portion of the tree to balance it, and Tim admitted that he might have been able to remove some of the remaining branches to render the tree safer without killing it.

The trial court held that the Pelayos committed timber trespass under RCW 64.12.030, and their defense of mitigating circumstances, allowed by RCW 64.12.040, did not apply.

Held: The Pelayos had to pay.

Jose and Blanca Pelayo argued that the trial court failed to find that their conduct in removing the branches from the boundary tree was both (1) willful and (2) without lawful authority. Without those findings, they contended, they could not have violated RCW 64.12.030.

RCW 64.12.030 provides that “whenever any person shall cut down, girdle, or otherwise injure, or carry off any tree… on the land of another person… without lawful authority, in an action by the person… against the person committing the trespasses… any judgment for the plaintiff shall be for treble the amount of damages claimed or assessed.” Washington law is clear that there must be an element of willfulness on the part of the trespasser to support treble damages under RCW 64.12.030. In this context, the Court said, “willful” simply means that the trespass was “not casual or involuntary.” The burden of proving that a trespass was casual or involuntary is upon the defendant once the fact of trespass and the damages caused thereby have been shown by the plaintiff.

Here, the Court said, the Pelayos never argued and no evidence ever suggested that the trespass was casual or involuntary. Under those circumstances, it was not necessary for the Herrings to prove willfulness.

Jose admitted at trial that he knew the Herrings had an ownership interest in the boundary tree and that he had ordered the remaining branches to be removed from the tree knowing that such removal of branches would kill the tree. The Court said his testimony “was tantamount to a concession” that the conduct in removing the branches was willful. No other evidence would have let the trial court infer that this conduct was casual or involuntary. Therefore, no specific finding as to willfulness was required.

Next, the Pelayos argued that they were lawfully authorized to remove branches from the boundary tree that were overhanging their property. The Court made short work of that argument as well.

RCW 64.12.030 applies only to people acting without lawful authority. A landowner has the legal authority to engage in self-help and trim the branches and roots of encroaching onto his or her property. On the other hand, a landowner does not have the legal authority to cut down an encroaching tree. But here, the issue was whether a landowner may trim the branches of a tree standing on a common property line in a manner that a defendant knows will kill the tree.

The Court began by holding that trees standing directly on the property line of adjoining landowners are the common property of both landowners. The Pelayos contended that landowners had an unfettered right to trim branches that overhang their property regardless of whether the tree is situated entirely on a neighboring property or, instead, is situated on a shared property line.

Despite Washington State’s rather cavalier treatment of a tree owner’s rights vis-à-vis the neighbor in the Mustoe decision, the Court concluded that where the tree stood on a common property line, both the Pelayos and the Herrings had undivided property interests in the tree. This was consistent with the only other relevant decision on the matter, a Washington appellate decision in Happy Bunch LLC. Because the Pelayos have a property interest in the tree at issue, the Court reasoned, portions of the tree overhanging their property could not be said to be “encroaching” in the same way that the branches and roots were encroaching in Mustoe.

The Pelayos and Herrings owned the tree as tenants in common, and thus each couple was entitled to use, maintain, and possess the boundary tree, but not in a manner that “interfered with the coequal rights of the other cotenants.” Unlike a landowner engaging in self-help to trim branches overhanging his or her property from a tree situated entirely on the property of another, the Court ruled, a cotenant owning a boundary tree had a duty not to destroy the common property and thereby interfere with the rights of the other cotenants.

After all, the Court argued, if landowners had an unfettered right to cut away the portions of a common boundary tree that stand on their property, without any regard for whether such cutting would injure or destroy the tree, the timber trespass statute could become inapplicable to neighbors sharing a property interest in a boundary tree. Under the Pelayos’ argument, the Court complained, a neighbor sharing a property interest in a boundary tree could effectively destroy the tree and escape liability under the timber trespass statute if the neighbor destroys the tree in a manner that does not physically trespass on the portion of the tree situated on the neighboring property. “This result cannot withstand the plain language of RCW 64.12.030,” the Court said, “which imposes liability on ‘any person… [who] cut[s] down … or otherwise injure[s] … any tree… on the land of another person’.”

The Court observed that it also had to “give effect to language in the statute shielding from liability conduct that is taken with ‘lawful authority’… In recognition of the long-recognized lawful authority to trim overhanging vegetation, the lawful authority to use and maintain property held in common with a cotenant, and the plain language of the timber trespass statute, we hold that where a tree stands on a common property line, the common owners of the tree may lawfully trim vegetation overhanging their property but not in a manner that the common owner knows will kill the tree.”

Because the Pelayos admitted they directed the removal of the remaining branches of the boundary tree, knowing that the removal would kill the tree, they were liable under RCW 64.12.030.

The Pelayos tried to avoid being hit with treble damages under RCW 64.12.040 by arguing that mitigating circumstances applied to their conduct. They said that because they cut the tree branches while standing on their property, they had probable cause to believe that they owned the land where such conduct took place.

The Court rejected that argument, too, holding that RCW 64.12.030 violations involve direct trespass to a tree, not trespass to the land on which the tree grows. The timber trespass statute applies when a defendant commits a direct trespass that causes immediate, not collateral, injury to a plaintiff’s timber, trees, or shrubs, even if the defendant is not physically present on a plaintiff’s property.

– Tom Root


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