April 11, 2008
No clear winner in fight over tree cutting
By ANDREW BERGH
Special to the Journal

The name of the case — Happy Bunch v. Grandview N. — caught my eye.

That's because litigants, in my experience, are rarely a happy lot. Sure enough, in this Skagit County case involving a dispute between neighboring property owners, there was plenty of bad blood and no obvious winner.

Happy Bunch is actually the name of a limited liability company in Washington. Through this entity, Lester Wong and his family own land in Mount Vernon. Grandview North, meanwhile, is a property development company solely owned and managed by Scott Wammack.

In early September 2002, Grandview, intending to build a fast-food restaurant, bought a commercial lot next to the Happy Bunch property. To comply with the local building code, Wammack determined that he needed to construct a retaining wall on the boundary line between the two properties.

That was easier said than done, however, because 12 mature trees stood either on or near the boundary line. Since their trunks and roots extended onto Grandview's property, Wammack thought the trees would interfere with construction of the retaining wall. He therefore decided to remove them, including two trees that he knew from a recent survey were located entirely on Happy Bunch's property.

Before taking matters into his own hands, the developer three times contacted Wong to get permission to remove the trees. Wong not only said no, he also paid for a rush survey that confirmed most of the trees were situated on the common boundary line.

Not to be denied, Wammack hired loggers and told them to remove the trees. After being tipped off, Wong went to the site, insisted that the cutting stop, and called the Mount Vernon police. But by the time the local constabulary arrived, nine trees were already felled.

After Not-So-Happy Bunch's attorney twice wrote Grandview and its attorney, demanding that no further tree cutting occur, the Wongs left town for a short time. While they were gone, Wammack directed the loggers to remove the remaining trees, and to grind those portions of the stumps located on Grandview's side of the property line.

What Wong said when he learned about the second tree cutting is unknown (and maybe unprintable).

But Happy Bunch responded by suing Grandview in Skagit County Superior Court, seeking, among other things, damages for the reasonable value of the cut trees, $2,500 for grinding out the remainder of the stumps, and approximately $15,000 for removing the trees' root systems and repairing damage to its driveway. In addition, the property owner sought treble (i.e., triple) damages under Washington's timber trespass statute. The grand total? About $168,000.

Prior to trial in the fall of 2006, the parties stipulated that the gross value of the trees was approximately $40,000.

But even after finding that Grandview had committed timber trespass, the trial court declined to award this amount. Relying on Wong's survey to determine the percentage of the cut trees that were growing on Happy Bunch's property, the court instead awarded around $33,000. More significantly, since the cut trees “straddled the property line,” the court said the plaintiff wasn't entitled to treble damages under the timber trespass statute. Though the court also awarded $2,500 for the stump grinding work, that undoubtedly provided small solace for Happy Bunch.

In the ensuing appeal, Happy Bunch argued that unless the property owners agree otherwise, a boundary line tree belongs entirely to the party on whose land the tree was originally planted. The trial court therefore erred, said the plaintiff, by using a percentage to reduce the award.

But a Washington appeals court recently disagreed.

It's true, said the court, that some states follow the rule that a tree planted on one parcel which grows across a boundary line doesn't automatically become common property. But in most jurisdictions, a tree standing on a common property line is considered the property of both landowners as tenants in common. Siding with the majority, the court ultimately affirmed the apportionment formula used by the trial court.

On the treble damages issue, however, Happy Bunch definitely fared better.

Given the compensatory and punitive policies underlying the timber trespass statute, said the appeals court, the treble damages provision is mandatory unless the trespasser can prove mitigating circumstances. For example, treble damages would be inappropriate if Wammack had reasonably believed the trees were his own property. Since that wasn't the case, said the court, the treble damages provision had to be applied.

So if my math is correct, this means that instead of about $35,500, Grandview will have to pay Happy Bunch three times that, or almost $107,000. But after deducting legal expenses and the $15,000 repair expense not awarded by the court, it's unclear whether the plaintiff really came out ahead.

If, on the other hand, only bragging rights matter, then Happy Bunch might be exactly that.