Crooked timber, imperfect statutes

Gunn v. Riely, No. 45177-8-II (Wash. Ct. App. Jan. 21, 2015). 

 Credit: Steve Fareham

Credit: Steve Fareham

Here’s one for the statutory-interpretation geeks.

Since territorial days, Washington has had a timber-trespass law saying that you can’t “cut down, girdle, or otherwise injure, or carry off any tree” from another person’s land. Under this law, the timber trespasser has to pay treble damages to the landowner. 

Now, Washington also has a “waste” statute. It says that everyone who “removes timber, crops, minerals, or other similar valuable property” from another person’s land has to pay treble damages to the landowner. The waste statute has a more generous measure of damages than the timber-trespass statute, but—and here’s the important part—the waste statute says that it doesn’t apply “in any case where liability for damages is provided under” the timber-trespass law. 

So that’s the law. Now the facts: Terry and Petra Riely went onto the land of their neighbor, Robert Gunn, and cut down and removed “approximately 107” of his trees to clear out a grassy path for themselves. Gunn sued under both statutes, asserting his two claims in the alternative—as, of course, he’s allowed to do under the civil rules.

But what statute applies here? The trial court thought the waste statute applied. Gunn, said the trial court, would get paltry damages under the timber-trespass statute, and anyway, the “essence of the claim” was damage to the land, not to the trees. The trial court’s thinking, it seems, is that the damage was really the creation of a tree-free grassy path where Gunn didn’t want one.

The Washington Court of Appeals, however, reverses the trial court. The court of appeals points out that Gunn could have received damages under the timber-trespass law. Everyone agrees on that. If that’s true, then—in the words of the waste statute—“liability for damages is provided under” the timber-trespass law. And if that is true, then the waste statute—again in its own words—“does not apply.” Even if Gunn’s land was damaged in addition to his timber,  the timber-trespass law still applies to his situation. Which, in turn, means that the waste statute doesn’t. The plain language of the law settles this case, says the court of appeals.

I think the court of appeals may well be right, but their reading of the waste statute does create a potential puzzle. The timber-trespass law authorizes damages when somebody has cut down or carried off trees from your land. The waste statute, likewise, gives you damages when somebody has removed “timber” from your land. But if the defendant has removed timber, that removal would seem to make him liable under the timber-trespass law, which means the waste statute doesn’t apply. Now, if the waste statute doesn’t apply to such a situation, doesn’t that make the waste statute’s use of the word “timber” ineffective? And aren’t courts supposed to read statutes so that no word is ineffective? 

There seem to be two possible answers to those questions. The legalistic answer is that “timber,” as used in the waste statute, should be interpreted to mean “already cut wood,” rather than a living tree. The timber-trespass statute would then prohibit the cutting of live trees, while the waste statute would prohibit the stealing of dead wood. An arguably more realistic answer is that the Washington Legislature probably wasn’t thinking of the distinction between live trees and dead wood, and the word “timber” probably is unnecessary. Sometimes legislatures just write statutes with extra words in them.