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      SUPREME COURT OF THE STATE OF WASHINGTON

CERTIFICATION FROM THE                      )
UNITED STATES DISTRICT                      )
COURT, DISTRICT OF OREGON,                  )
PORTLAND DIVISION                           )       No. 85905-1
                 IN                         )
                                            )
BROUGHTON LUMBER CO.,                       )
a Washington corporation,                   )       EN BANC
                                            )
                      Plaintiff,            )
                                            )
v.                                          )       Filed May 31, 2012
                                            )
BNSF RAILWAY COMPANY                        )
and HARSCO CORPORATION,                     )
a Delaware corporation,                     )
                                            )
                      Defendants.           )
______________________________ )

       FAIRHURST, J. -- This case1 requires us to construe former RCW 64.12.030 

(Code of 1881, § 602), the "timber trespass statute." Birchler v. Castello Land Co.,

133 Wn.2d 106, 114, 942 P.2d 968 (1997).            Plaintiff Broughton Lumber Company 

       1Broughton is a companion case to Jongeward v. BNSF Railway, No. 85781-4 (Wash. 
May 31, 2012). 

Broughton Lumber Co. v. BNSF Ry. & Harsco Corp., No. 85905-1

asserted a timber trespass claim against defendants BNSF Railway Company and 

Harsco Corporation in the United States District Court, District of Oregon, Portland 

Division, after a fire spread from BNSF's property and destroyed Broughton's trees. 

The district court certified to us the following question: 

       Can a plaintiff recover damages under [former] RCW 64.12.030 for 
       trees damaged by a fire that spreads from a defendant's neighboring 
       parcel, where the alleged acts or omissions of the defendant were not 
       directed at plaintiff's trees or property, and did not occur on plaintiff's 
       property'[2]  

Certification to Wash. State Supreme Ct. (Certification) at 2-3. 

                                  I. FACTUAL HISTORY
       The parties stipulated3 to the following facts that constitute the record under 

RCW 2.60.010(4):

              This is a civil case brought by plaintiff against defendants. 
              On September 20, 2007, a fire broke out along a railroad right-of-
       way following rail grinding operations jointly conducted by defendants 
       on BNSF tracks near Underwood, Washington.  Plaintiff owns 260 
       acres of property adjoining the railroad right-of-way. The fire spread to 
       plaintiff's property and destroyed trees on the property. No employee 
       or agent of either defendant was physically present on plaintiff's 
       property at any time relevant to the start or spread of the fire or the 
       damage to plaintiff's trees. Defendants have admitted that they were 
       negligent in failing to prevent the spread of the fire from the right-of-
       way to plaintiff's property. 

       2We have reformulated the question. See Broad v. Mannesmann Anlagenbau AG, 196 
F.3d 1075, 1076 (9th Cir. 1999). 
       3Broughton moved to supplement the record, but its motion was denied.  See Letter Order 
Den. Appellant's Mot. to Suppl. R.
                                               2 

Broughton Lumber Co. v. BNSF Ry. & Harsco Corp., No. 85905-1

Certification at 2.

                          II. PROCEDURAL HISTORY

       Broughton sued BNSF and Harsco for real and personal property damage in 

federal district court. Among other claims, Broughton asserted a timber trespass 

claim for treble damages. The district court granted partial summary judgment 

dismissing Broughton's treble damages claim.  Broughton Lumber Co. v. BNSF Ry.,

No. 09-1110-KI, 2010 WL 4670479 (D. Or. Nov. 9, 2010). After the United States 

District Court for the Eastern District of Washington certified to us similar questions 

in Jongeward v. BNSF Railway Company, No. 85781-4, the United States District 

Court, District of Oregon, Portland Division, submitted its certified question.

                                       III. ANALYSIS

       Certified questions from federal court are questions of law that we review de 

novo.  Bradburn v. N. Cent. Reg'l Library Dist., 168 Wn.2d 789, 799, 231 P.3d 

166 (2010).     We consider the legal issues not in the abstract but based on the 

certified record provided by the federal court. Id. (citing RCW 2.60.030(2)).

       The meaning of a statute is a question of law we review de novo. State v. 

Breazeale, 144 Wn.2d 829, 837, 31 P.3d 1155 (2001). In interpreting a statute, our 

fundamental objective is to ascertain and carry out the legislature's intent. Dep't of 

                                               3 

Broughton Lumber Co. v. BNSF Ry. & Harsco Corp., No. 85905-1

Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002).

       The territorial legislature enacted the timber trespass statute in 1869 to (1) 

punish a voluntary offender, (2) provide treble damages, and (3) "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."  Laws of Wash. Terr. 1869, ch. XLVIII, § 556, at 143; Guay v. Wash. 

Natural Gas Co., 62 Wn.2d 473, 476, 383 P.2d 296 (1963). The statute contains 

two relevant sections. Former RCW 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, . . . without lawful authority, in an action by such person, 

. . . against the persons committing such trespasses," the prevailing plaintiff is 
entitled to treble damages.4 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 

       4This is the text of former RCW 64.12.030 as it existed at the time of the fire. It reads in 
its entirety:
              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 persons 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 

Broughton Lumber Co. v. BNSF Ry. & Harsco Corp., No. 85905-1

his or her own, . . . judgment shall only be given for single damages."  

       In 1877, the territorial legislature reenacted both former RCW 64.12.030 and 

RCW 64.12.040, retaining the original language, and the timber trespass statute 

became the law of Washington at statehood.  See Laws of Wash. Terr. 1877, ch. 

XLVIII, §§ 607-08, at 125.         The text remained unchanged until 2009, when the 

legislature amended former RCW 64.12.030 to clarify that treble damages are 

available for the unlawful cutting of Christmas trees.5 Laws of 2009, ch. 349, § 4.

       Because former RCW 64.12.030 and RCW 64.12.040 relate to the same 

subject matter, they must be construed together.  Hallauer v. Spectrum Props., Inc., 

143 Wn.2d 126, 146, 18 P.3d 540 (2001).  Former RCW 64.12.030  creates liability 

and imposes mandatory treble damages when a defendant cuts down, girdles or 

otherwise injures, or carries off a plaintiff's trees. RCW 64.12.040  serves as a 

mitigation provision. See, e.g., Smith v. Shiflett, 66 Wn.2d 462, 463, 403 P.2d 364 

(1965) ("This is another case of trespassing loggers cutting timber and seeking to 

avoid the statutory treble damages by urging that they did not know they were 

       5The current version of RCW 64.12.030 reads: 
              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. 
(Reviser's note omitted.) 
                                               5 

Broughton Lumber Co. v. BNSF Ry. & Harsco Corp., No. 85905-1

trespassing." (Footnote omitted.)).  "Once a trespass is established [under former 

RCW 64.12.030], the burden shifts to the defendant to show it was not willful or 

reckless, but rather was casual or involuntary, or done with probable cause to 

believe the land was his own." Hill v. Cox, 110 Wn. App. 394, 406, 41 P.3d 495 

(2002) (citing Seattle-First Nat'l Bank v. Brommers, 89 Wn.2d 190, 197-98, 570 

P.2d 1035 (1977)).  

       "Under the above sections, a recovery, whether of treble damages under the 

former, or single damages under the latter, can be had only for a trespass 

committed." Tacoma Mill Co. v. Perry, 40 Wash. 44, 47, 82 P. 140 (1905). In other 

words, to obtain damages under either former RCW 64.12.030 or RCW 64.12.040, 

a plaintiff must first establish that a defendant's conduct constitutes timber trespass.  

That is the first issue before us -- whether the defendants' failure to prevent a fire 

from spreading constitutes timber trespass as contemplated by the statute. The 

second issue is whether the statute applies when a defendant has not physically 

trespassed onto a plaintiff's land. To resolve these issues, we look to the plain 

meaning of the statute, canons of construction, and Washington case law.

A.     Plain Meaning Analysis

       If a statute's meaning is plain on its face, we must "give effect to that plain 

meaning as an expression of legislative intent." Campbell & Gwinn, 146 Wn.2d at 9-

                                               6 

Broughton Lumber Co. v. BNSF Ry. & Harsco Corp., No. 85905-1

10. The plain meaning "is discerned from all that the Legislature has said in the 

statute." Id. at 11. Plain meaning may also be discerned from "related statutes which 

disclose legislative intent about the provision in question." Id. An examination of 

related statutes aids our plain meaning analysis "'because legislators enact 

legislation in light of existing statutes.'" Id. (quoting 2A Norman J. Singer, Statutes 

and Statutory Construction § 48A:16, at 809-10 (6th ed. 2000)). 

       1.     Statutory text

       As noted above, former RCW 64.12.030 applies when a defendant shall 

"girdle or otherwise injure" a plaintiff's trees.  Broughton contends that nothing in 

the plain language of the statute requires direct action, and we should not imply a 

requirement where none exists.  According to Broughton, the phrase "otherwise 

injure" clearly functions as a catchall, third category of harm that makes a person 

potentially liable for treble damages whenever he or she unlawfully injures trees. 

       But Broughton's plain meaning analysis begins and ends with the phrase 

"otherwise injure."  When read in isolation, the phrase "otherwise injure" could 

conceivably be read to encompass a defendant's failure to prevent a fire from 

spreading.  This reading is too limited, however, because a statute's plain meaning 

must be "discerned from all that the Legislature has said in the statute," not just two 

words. Campbell & Gwinn, 146 Wn.2d at 11 (emphasis added).  

                                               7 

Broughton Lumber Co. v. BNSF Ry. & Harsco Corp., No. 85905-1

       The legislature used the term "trespass/trespasses" three times to describe the 

conduct that triggers statutory liability.  A proper plain meaning analysis therefore 

begins with the term "trespass." Our analysis of the term is informed by the 

common law.  See Suter v. Wenatchee Water Power Co., 35 Wash. 1, 6, 76 P. 298 

(1904) ("'[I]t is plain that we are bound to consult the common law, and the 

classification of common-law actions, for the proper determination as to what the 

law-making power of this state had in mind when using the [term] "trespass."'"

(quoting Hicks v. Drew, 117 Cal. 305, 308, 49 P. 189 (1897))).  A subsequent 

change in the common law does not impact our statutory analysis. See Spokane 

Methodist Homes, Inc. v. Dep't of Labor & Indus., 81 Wn.2d 283, 287, 501 P.2d 

589 (1972) (Just because "the court makes a change in the common law, [a] statute 

which was enacted with the existing rule of common law in mind,                        is [not] 

automatically amended to conform to the new rule adopted by the court.").  We 

therefore do not consider the modern view of trespass, but the historical view.  See 

Bloomer v. Todd, 3 Wash. Terr. 599, 615, 19 P. 135 (1888) ("The ordinary use of 

words at the time when used, and the meaning adopted at that time, is usually the 

best guide for ascertaining legislative intent.").

        When the timber trespass statute was enacted, trespass6 was classified into 

       6"The writ of trespass was the original writ most commonly resorted to as a precedent."  1 
Judge Bouvier's Law Dictionary 243 (12th ed. 1867). It originally supposed "a wrong to be done 
with force."  VI  The Law-Dictionary 288 (1811).       But "in process of time," trespass was 
                                               8 

Broughton Lumber Co. v. BNSF Ry. & Harsco Corp., No. 85905-1

"two sorts:"7 trespass on the case and trespass vi et armis. VI The Law-Dictionary 

288 (1811).  Trespass on the case was an act that was not immediately injurious or a 

culpable omission.  See, e.g., Stenberg v. Pac. Power & Light Co., 104 Wn.2d 710, 

715, 709 P.2d 793 (1985).                    The     plaintiff's    resulting injury was 

indirect -- consequential or collateral.  Id. at 716.        Trespass vi et armis, most often 

referred to as simply trespass, was "[a]ny unlawful act committed with violence, 

actual or implied, to the person, property, or rights of another." 2 Judge Bouvier's

Law Dictionary 608 (12th ed. 1867).            Trespass was also described as a "direct 

trespass" -- an act "'done which is in itself an immediate injury to another's person 

or property.'"  Welch v. Seattle & Mont. Ry., 56 Wash. 97, 99, 105 P. 166 (1909)

(quoting 3 Blackstone Commentaries 123 (Lewis' ed. 1902)).  The plaintiff's 

resulting injury was "'immediate, and not consequential.'"  Suter, 35 Wash. at 7

(quoting Roundtree v. Brantley, 34 Ala. 544, 554 (1859)). 
       Because case and trespass actions triggered different statutes of limitations,8

"extended as to include every species of wrong causing an injury . . . apparently for the purpose of 
enabling an action on the case to be brought in the King's Bench."  1 Bouvier's, supra, at 243.
Trespass was then used to signify "[a]ny misfeasance or act of one man whereby another is 
injuriously treated or damnified."  2 Bouvier's, supra, at 608.
       7There were only two sorts, but there were many forms.  For example, trespass against 
realty, or trespass quare clausum fregit, was used "to recover damages for injuries to the realty 
consequent upon entry without right upon the plaintiff's land."  2 Bouvier's, supra, at 610. Such 
trespass was done "by breaking the close."  Id. at 609. But this type of limited trespass was 
clearly not intended here because the legislature used the phrase "such trespasses" to refer to the 
verbs "cut down, girdle or otherwise injure, or carry off." Former RCW 64.12.030.  
       8Trespass vi et armis triggered the three-year statute of limitations, while trespass on the 
case triggered the two-year "catchall" statute of limitations. Stenberg, 104 Wn.2d at 715.  For 
                                               9 

Broughton Lumber Co. v. BNSF Ry. & Harsco Corp., No. 85905-1

the direct/indirect distinction was often litigated.  See, e.g., id. ("'It is argued that 

trespass is a comprehensive term, which includes trespass on the case; and that this 

cause of action is a trespass on the case to real or personal property, which is 

embraced in the section under the term "trespass."'" (quoting Roundtree, 34 Ala. at 

554).  Over time, "trespass on the case" "lost the peculiar character of a technical 

trespass."  1 Bouvier's, supra, at 243.      "[T]he name was to a great extent dropped, 

and actions of this character came to be known as actions on the case."  Id.  

       Applying these principles here, the territorial legislature might conceivably 

have used the term "trespass" to mean any misfeasance that results in injury to a 

plaintiff's trees.  But based on the common understanding of the term "trespass" in 

1869, it seems more likely that the legislature used the term "trespass" to mean 

direct acts causing immediate injuries, not culpable omissions causing collateral 

damage. See 2 Bouvier's, supra, at 609 (The term "trespass" was "used oftener" in 

a restricted signification.); see also  Rayonier, Inc. v. Polson, 400 F.2d 909, 918 

n.11 (9th Cir. 1968) (The "legislature clearly had particular evils in mind when it 
enacted the treble damage statute.").9

example, the defendant in Suter  owned and operated an irrigation canal near the plaintiffs' 
property in Chelan County.  Waters overflowed the canal and washed over the plaintiffs' land, 
cutting deep and wide ditches.  Because the plaintiffs did not file their complaint until after the 
two-year statute of limitations had run, the issue was whether the defendant was potentially liable 
in trespass on the case.  We applied the two-year statute of limitations, holding that the damage 
was consequential and no trespass. We later eliminated the direct/indirect distinction in Stenberg
to "return to the original understanding" of the statutes of limitations.  104 Wn.2d at 721.
                                               10 

Broughton Lumber Co. v. BNSF Ry. & Harsco Corp., No. 85905-1

       The legislature's use of verbs also suggests that the statute applies to direct 

acts that cause immediate, not consequential, injury.  "Cut" means "to make a gash, 

incision, or notch" in "any body by an edged instrument, either by striking, as with 

an ax, or by sawing or rubbing."1 An American Dictionary of the English Language

295 (1853). "Girdle" means "to make a circular incision, like a belt, through the 

bark and alburnum of a tree, to kill it."  Id. at 503. "Carry off" means "to remove to 

a distance."  Id. at 177.  Because these verbs describe direct acts, which formerly 

would have been characterized as trespass vi et armis, we cannot conclude that the 

legislature intended the statute to penalize indirect acts or omissions, particularly in 

light of the treble damages provision. 

       2.     The fire act

       Because a statute's plain meaning may also be determined from related 

       9We also note that the timber trespass sounds in tort and trespass is an intentional tort.  
Birchler, 133 Wn.2d at 115 (citing Tacoma Mill, 40 Wash. at 47). Contrary to the dissent's 
argument, the legislature's use of the phrase "casual and involuntary" does not transform an 
action for trespass into an action for negligence.  RCW 64.12.040. An act is involuntary when it 
"is performed with constraint (q.v.), or with repugnance, or without the will to do it. An action is 
involuntary, then, which is performed under duress." 1 Bouvier's, supra, at 747. An "involuntary 
trespass" is not negligence; it is still a trespass.  Hawley v. Sharley, 40 Wn.2d 47, 50, 240 P.2d 
557 (1952). An act is "casual" when it "happens accidentally, or is brought about by causes 
unknown; fortuitous; the result of chance."  Black's Law Dictionary 178 (1891).  An accidental 
trespass is also not negligence; it is still a trespass.  Rogers v. Kangley Timber Co., 74 Wash. 48, 
54, 132 P. 731 (1913). And an "[a]ccident may in some cases excuse a trespass."  2 Bouvier's, 
supra, at 609. This appears to be the intent of the legislature; by creating RCW 64.12.040 as a 
mitigation provision, it permitted defendants to argue that their trespasses were involuntary, 
accidental, or accomplished under a mistaken belief of ownership. 
       1"[W]hen an entire separation of the body is intended, it is usually followed by . . . down . . 
. or other word denoting such severance."  An American Dictionary of the English Language 295 
(1853).
                                               11 

Broughton Lumber Co. v. BNSF Ry. & Harsco Corp., No. 85905-1

statutes, BNSF and Harsco contend that the fire act, RCW 4.24.040-.060, is 

relevant to our analysis.  According to the defendants, the fire act shows legislative 

intent that the timber trespass statute does not apply in this case.

       The fire act was originally enacted in 1877 and is now codified as RCW 

4.24.040-.060.  It creates a cause of "action on the case" against a defendant who 

permits a fire to spread and damage a plaintiff's property.  Laws of Wash. Terr.

1877, § 3, at 300; Code of 1881, § 1226; Rem. Rev. Stat. § 5647.                  The fire act 

applies when a defendant "for any lawful purpose kindle[s] a fire upon his or her 

own land" but fails to take "such care of it to prevent it from spreading and doing 

damage to other persons' property." RCW 4.24.040.               The fire act also expressly 

preserves "[t]he common law right to an action for damages done by fires." RCW 

4.24.060. Both the statutory claim under RCW 4.24.040 (for fires kindled "for any 

lawful purpose") and the common law claim preserved by RCW 4.24.060 (for 

"damages done by fires") allow only the recovery of single compensatory damages. 

       But the fire act is only marginally helpful to our analysis. The territorial 

legislature could not have enacted the timber trespass statute in light of the fire act 

because the timber trespass statute predates the fire act. Further, the fire act does 

not apply in this case.11 However, in a broad sense, the fire act does demonstrate the 

       11See Jordan v. Welch, 61 Wash. 569, 112 P. 656 (1911).  The Jordan defendant, a 
railway company, negligently permitted its engine to ignite a fire that spread and damaged the 
plaintiff's property.  Id. at 570. The action was not within the terms of the fire act because the 
                                               12 

Broughton Lumber Co. v. BNSF Ry. & Harsco Corp., No. 85905-1

legislature's intent to impose liability for only single compensatory damages when 

property is destroyed by fire. See, e.g., N. Bend Lumber Co. v. Chi., M. & P.S. Ry.,

76 Wash. 232, 234, 135 P. 1017 (1913) (jury properly instructed as to fire act after 

a fire intentionally started on a railroad company's right of way, spread to plaintiff's 

property, and destroyed plaintiff's timber); Burnett v. Newcomb, 126 Wash. 192, 

217 P. 1017 (1923) (fire act imposes liability where defendant starts a fire to destroy 

weeds on his property but negligently allows fire to spread and damage plaintiff's 

merchantable timber).  It also demonstrates that the legislature intended fire damage 

to be recoverable through an "action on the case," rather than through a direct 
trespass action.12 It also demonstrates that Broughton may sue the defendants under 

the common law. 

       The plain meaning of the timber trespass statute cannot be dispositively 

determined from the text of the statute or the fire act. The phrase "otherwise injure" 

could conceivably be read to encompass the defendant's failure to prevent the 

spread of a fire.  But the legislature's use of the word "trespass," as understood at 

the time, strongly suggests that the legislature intended to punish only direct 

trespasses causing immediate injury, not culpable omissions causing collateral 

defendant did not purposely kindle the fire.  Id. at 573.
       12The legislature's decision to include the case language in the fire act does not 
demonstrate that the legislature purposely omitted the case language from the timber trespass 
statute.  However, it does suggest that the legislature was aware of the direct/indirect distinction 
in the common law and knew how to use it to create statutory liability.     
                                               13 

Broughton Lumber Co. v. BNSF Ry. & Harsco Corp., No. 85905-1

damage.      And while the fire act suggests that the legislature intended to impose 

only single compensatory damages when property is damaged by fire, the fire act 

does not conclusively preclude application of the timber trespass statute to 

negligently set fires.  

B.     Interpretative Aids 

       If a statute remains ambiguous after a plain meaning analysis, it is appropriate 

to resort to interpretive aids, including canons of construction and case law. 

Campbell & Gwinn, 146 Wn.2d at 12. 

       1.     Canons of construction

       The timber trespass "statute is penal in its nature, not merely remedial. As 

such it should be strictly construed." Bailey v. Hayden, 65 Wash. 57, 61, 117 P. 720 

(1911); accord Birchler, 133 Wn.2d at 110; Grays Harbor County v. Bay City 

Lumber Co., 47 Wn.2d 879, 886, 289 P.2d 975 (1955); Gardner v. Lovegren, 27 

Wash. 356, 362, 67 P. 615 (1902). Broughton concedes that our decisions require 

the statute to be strictly construed, but argues that the rule of strict construction 

applies only to the imposition of a higher measure of damages and not to the 

circumstances that give rise to liability. Broughton then cites Go2Net, Inc. v. 

FreeYellow.com, Inc., 158 Wn.2d 247, 143 P.3d 590 (2006), for the proposition 

that remedial statutes must be liberally construed. 

                                               14 

Broughton Lumber Co. v. BNSF Ry. & Harsco Corp., No. 85905-1

       Broughton's argument fails. We have repeatedly held that the timber trespass 

statute is penal in nature and subject to strict construction. See, e.g., Skamania 

Boom Co. v. Youmans, 64 Wash. 94, 96-97, 116 P. 645 (1911); accord Birchler,

133 Wn.2d at 110; Gardner, 27 Wash. at 356.  Our cases do not support 

Broughton's attempt to divide the statute into a penal portion and a remedial 

portion. See, e.g. Gardner, 27 Wash. at 362 ("Being, then, of a penal nature, it must 

be construed as other penal statutes are construed, viz., the intent to commit the 

trespass must appear."). And because Go2Net interpreted Washington's  Securities

Act, chapter 21.20 RCW, not the timber trespass statute, it does not apply.  

       Further, because a plaintiff must bring a timber trespass claim under former 

RCW 64.12.030, the statute subjects every defendant to potential treble damages.  

See, e.g., Shiflett, 66 Wn.2d at 464-65 ("It is clear that treble damages will be 

imposed . . . under RCW 64.12.030, unless those trespassing exculpate themselves 

under . . . RCW 64.12.040.").  As noted above, the burden is on the defendant to 

show mitigating circumstances.  See, e.g., Cox, 110 Wn. App. at 406 ("'Defendant 

Cox has failed to bring himself within the mitigation provision of the state timber 

trespass statute, RCW 64.12.040.'" (quoting Clerk's Papers at 692)).  Because a 

plaintiff may not bring an action directly under RCW 64.12.040, the statute cannot 

reasonably be divided into a penal portion and a remedial portion. We therefore hold 

                                               15 

Broughton Lumber Co. v. BNSF Ry. & Harsco Corp., No. 85905-1

that the entire timber trespass statute is subject to strict construction, as we have in 

the past. And under a strict construction, BNSF and Harsco should not be subject to 

the severe penalty of treble damages without clear evidence that they violated the 

statute. 

       Next, a court must not interpret a statute in any way that renders any portion 

meaningless or superfluous. Svendsen v. Stock, 143 Wn.2d 546, 555, 23 P.3d 455 

(2001). Broughton contends that a construction that excludes fire-damaged timber 

would "interpret[] the meaning out of the term 'otherwise injures' [sic] and its 

intended breadth." Pl.'s Reply Br. on Certified Question at 14.  But the phrase 

"otherwise injure" has a separate meaning if it encompasses acts that are similar to 

cutting, girdling, or carrying off another's trees, such as spiking, poisoning, or 

drilling.  A narrow interpretation does not violate this canon of construction, but a 

broad interpretation would break the rule. If the phrase "otherwise injure" were a 

catchall category of harm, encompassing every conceivable act or omission that 

collaterally injures trees, the terms "cut down," "girdle," and "carry off" would have 

no separate meaning and would be rendered superfluous.

       Finally, we avoid interpretations "that yield unlikely, absurd or strained 

consequences."  Kilian v. Atkinson, 147 Wn.2d 16, 21, 50 P.3d 638 (2002).

Broughton correctly claims it would be absurd if the statute did not punish "a 

                                               16 

Broughton Lumber Co. v. BNSF Ry. & Harsco Corp., No. 85905-1

defendant, who, inches from their [sic] property line, shoots fireworks into a 
neighboring tree farm intending to start a fire."13 Pl.'s Opening Br. on Certified 

Question at 29. Statutory violations involve trespass to a tree, not trespass to the 

land on which the tree grows. It would be absurd to allow a trespasser to escape the 

statute's reach, simply because he or she was not physically located on a plaintiff's 

property.  And because, as noted above, the legislature intended the statute to 

"punish a voluntary offender," it would also violate the clear purpose of the statute. 

Guay , 62 Wn.2d at 476. Because the statute focuses on conduct, not location, the

statute was certainly intended to apply to Broughton's hypothetical defendant, as 

well as to a defendant who stands on her own property and sprays herbicide on her 

neighbor's hydrangeas. 

       2.     Case law

       If a statute remains ambiguous after a plain meaning analysis, it is also 

appropriate to refer to relevant case law. Campbell & Gwinn, 146 Wn.2d at 12. 

       Broughton notes that Washington case law has abandoned the distinction 

between direct and indirect trespass.  Based in part on this change, Broughton 

       13In a related argument, Broughton also points to the physical entry requirement in the 
waste statute, RCW 4.24.630, to contend that the legislature did not intend to include a physical 
entry requirement in the timber trespass statute.  However, this line of reasoning is unpersuasive. 
Although the legislature is deemed to intend a different meaning when it uses different words, this 
principle applies only to different terms in the same statute.  State v. Roggenkamp, 153 Wn.2d 
614, 625, 106 P.3d 196 (2005).
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contends that the timber trespass statute should expand to comport with the modern 

view of trespass. To support this claim, Broughton first cites Birchler, 133 Wn.2d at 

106, a case recognizing emotional distress damages for timber trespass. Broughton 

also cites to cases not involving the timber trespass statute: Zimmer v. Stephenson,

66 Wn.2d 477, 403 P.2d 343 (1965) (spark from defendant's tractor burned 

neighbor's wheat crop); Bradley v. Am. Smelting & Ref. Co., 104 Wn.2d 677, 709 

P.2d 782 (1985) (smelter's pollutants trespassed on neighbor's property).

       Broughton's argument again fails. While we noted in Birchler that "recovery 

of emotional distress damages in cases of intentional torts is consistent with the 

modern rule," we did not expand the scope of the statute to conform to the modern 

rule.  133 Wn.2d at 116.        Instead, we cited cases from as far back as 1906 to 

demonstrate that emotional distress damages have always been available upon proof 

of an intentional tort.  Id. at n.4 (citing McClure v. Campbell, 42 Wash. 252, 84 P. 

825 (1906) (emotional distress damages available from wrongful eviction)). And as 

noted above, "[a] statute which was enacted with the existing rule of common law in 

mind is [not] automatically amended to conform to the new rule adopted by the 

court." Spokane Methodist Homes, 81 Wn.2d at  287. The timber trespass statute 

does not supply a common law remedy but imposes potential punitive damages for 

specifically delineated acts. We therefore decline to import the holdings from our 

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Broughton Lumber Co. v. BNSF Ry. & Harsco Corp., No. 85905-1

common law trespass cases into Broughton's statutory claim.  

       We instead look to our cases specifically construing the timber trespass 

statute.  And in each of our cases construing the statute over the last 142 years, the 

defendant entered the plaintiff's property and committed a direct trespass against the 

plaintiff's timber, trees, or shrubs, causing immediate, not collateral, injury. 

Examples include:  Birchler, 133 Wn.2d at 106, where the defendant encroached on 

plaintiffs' properties and removed trees and shrubbery; Guay, 62 Wn.2d at 473, 

where the defendants cut a swath on plaintiff's property, destroyed trees, brush, and 

shrubs, and denuded the strip;  Mullally v. Parks, 29 Wn.2d 899, 190 P.2d 107 

(1948), where the defendants entered a disputed area and destroyed trees; 

Luedinghaus v. Pederson, 100 Wash. 580, 171 P. 530 (1918), where the defendant 

trespassed upon plaintiff's land and removed standing timber; Gardner, 27 Wash. 

356, where the defendants entered plaintiff's land, cut down and converted into 

shingle bolts and removed plaintiff's cedar trees; and Maier v. Giske, 154 Wn. App. 

6, 21, 223 P.3d 1265 (2010), where the defendant entered a disputed area and 

destroyed trees and plants. These cases strongly suggest that the timber trespass 

statute does not apply when a defendant fails to prevent the spread of a fire. 

       Further, Division Three of the Court of Appeals considered an analogous case 

and held that the plaintiffs could not bring a timber trespass claim for tree damage 

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Broughton Lumber Co. v. BNSF Ry. & Harsco Corp., No. 85905-1

due to fungus because the statute did not contemplate an award of damages for 

canal seepage.  Seal v. Naches-Selah Irrigation Dist., 51 Wn. App. 1, 751 P.2d 873 

(1988).  In so holding, the court rejected the plaintiffs' claim that there was no 

distinction "'between trees damaged by the trespass of an individual with a chain 

saw, or by the trespass of a thing under a person's control.'" Id. at 4.             The court 

refused to accept the plaintiff's argument that the girdling of a tree by a fungus was 

"'as much a trespass as the girdling of a tree by a human hand.'" Id.                 Although 

Broughton attempts to distinguish Seal, the reasoning in Seal provides persuasive 

authority that the statute is not implicated here. 

       In sum, our canons suggest that the legislature used the phrase "otherwise 

injure" to describe  direct trespasses that are comparable to cutting down, girdling, 

and carrying off, and intended the statute to apply in the absence of physical 

trespass to a plaintiff's land.  Our cases demonstrate that the statute applies only 

when a defendant commits a direct trespass causing immediate injury to a plaintiff's 

trees, timber, or shrubs.  Based on our canons and cases, we make two conclusions: 

(1) a plaintiff cannot recover damages under the timber trespass statute when a 

defendant commits an indirect act or omission that causes mere collateral injury, but 

(2) a plaintiff may recover damages when a defendant commits a direct trespass 

causing immediate injury to a plaintiff's trees, even if the defendant is not physically 

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Broughton Lumber Co. v. BNSF Ry. & Harsco Corp., No. 85905-1

present on the plaintiff's property.  

                                               21 

Broughton Lumber Co. v. BNSF Ry. & Harsco Corp., No. 85905-1

D.     Persuasive Authority

       We generally do not rely on cases from other jurisdictions to interpret our 

own statutes, but when it is helpful to us, we do. Meyer v. Burger King Corp., 144 

Wn.2d 160, 166-67, 26 P.3d 925 (2001).            Both Broughton and the defendants cite 

persuasive authority to support their arguments.  Although these cases provide only 

limited value, we address them in turn.14

       1.     Similar statutes 

        Courts interpreting identical or similar statutes reject punitive damages for 

fires spreading from defendants' lands. For example, in Osborne v. Hurst, 947 P.2d 

1356, 1361 (Alaska 1997), the Supreme Court of Alaska found that its nearly 

identical timber trespass statute did not apply where the defendant set a grass fire 

that spread out of control and destroyed the plaintiff's trees because the defendant 

did not act with intent. Id.  In Jordan v. Stevens Forestry Services, Inc., 430 So. 2d 

806 (La. Ct. App. 1983), the Court of Appeals of Louisiana found that a defendant, 

who had lost control of a deliberately set burn on his own property, was not liable 

       14 Persuasive authority is not very helpful to us in this case.  This is true not only because 
most of the cited cases construe much broader statutes, but also because Washington, unlike other 
states, employs a very restrictive approach to punitive damages.  Unlike Alaska, Louisiana, 
California, Oregon, and Idaho, Washington prohibits the recovery of punitive damages as a 
violation of public policy unless expressly authorized by statute.  Barr v. Interbay Citizens Bank 
of Tampa, Fla., 96 Wn.2d 692, 635 P.2d 441, 649 P.2d 827 (1982). Our interpretative approach 
should account for this philosophical difference.  
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Broughton Lumber Co. v. BNSF Ry. & Harsco Corp., No. 85905-1

for treble damages because he did not engage in "any willful or intentional acts . . . 

which resulted in the destruction of [the plaintiff's] trees." Id. at 809.        But because 

we are concerned with the defendants' conduct and location, not the defendants' 

intent, these cases are of little help to us.  

       2.     Broader statutes

       Courts interpreting broader statues have held that a plaintiff may recover 

damages when a defendant destroys the plaintiff's trees by fire.  For example, in 

Kelly v. CB&I Constructors, Inc., 179 Cal. App. 4th 442, 102 Cal. Rptr. 3d 32 

(2009), the California Court of Appeals held that fire damage constitutes injury to 

trees.  In Worman v. Columbia County, 223 Or. App. 223, 195 P.3d 414 (2008), the 

Court of Appeals of Oregon recognized that the spraying of herbicides on trees and 

shrubs is a "'deliberate trespass such as involved in cutting standing timber.'"  Id. at 

238 (internal quotation marks omitted) (quoting Meyer v. Harvey Aluminum, 263 

Or. 487, 497, 501 P.2d 795 (1972)).  And in Mock v. Potlach Corp., 786 F. Supp. 

1545, 1549 (D. Idaho 1992) (quoting Idaho Code § 6-202-A (1990)), the United 

States District Court held that the Idaho timber trespass statute defines "entry" to 

include "'going upon or over real property, either in person, or by causing any 

object, substance or force to go upon real property.'"  

       But the statutes construed in these cases are substantially different from the 

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Broughton Lumber Co. v. BNSF Ry. & Harsco Corp., No. 85905-1

language of former RCW 64.12.030.  California's statute provides a broad remedy 

"[f]or wrongful injuries to timber, trees, or underwood upon the land of another, or 

removal thereof."  Cal. Civ. Code § 3346(a).          Oregon's statute contains a separate 

clause imposing liability for willfully injuring trees. Or.  Rev. Stat. Ann.                   § 

105.810(1).      And Idaho's statute expressly requires "entry" and includes a 

legislative definition of the word "enter."  See Idaho Code Ann. § 6 -- 202A.  

Because we "need not adopt the construction placed on a similar statute in another 

state if the language of the statute . . . is substantially different" from the language of 

our own, we do not adopt the construction of these statutes.  Everett Concrete 

Prods., Inc. v. Dep't of Labor & Indus., 109 Wn.2d 819, 826, 748 P.2d 1112 

(1988).  

                                    IV.  CONCLUSION

       When the timber trespass statute was enacted, the term "'trespass'" had "'a 

well ascertained and fixed meaning.'"  Suter, 35 Wash. at 7 (quoting Roundtree, 34 

Ala. at 554).  It did not refer to indirect acts or culpable omissions causing collateral 

damage, but only to direct acts causing immediate injuries.  Id. ("'It would be a 

perversion of language to denominate an act, which produced a consequential injury 

to real or personal property, a trespass.  It would be a perversion alike of the legal 

and common acceptation of the words.'" (quoting Roundtree, 34 Ala. at 554)).  It 

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Broughton Lumber Co. v. BNSF Ry. & Harsco Corp., No. 85905-1

therefore seems likely that the territorial legislature intended the term "trespass" to 

carry this restrictive meaning in the timber trespass statute.  Further, our canons and 

case law strongly suggest that the legislature intended the timber trespass statute to 

apply only when a defendant commits a direct trespass that immediately injures a 

plaintiff's trees.   We therefore hold that a plaintiff cannot recover damages under 

former RCW 64.12.030 and RCW 64.12.040 for trees damaged by a fire that 

spreads from a defendant's neighboring parcel, where the alleged acts or omissions 

of the defendant caused only collateral injury.  We further hold that a plaintiff may 

recover from a defendant who  commits a direct trespass that causes immediate, not 

collateral, injury to a plaintiff's tree, timber, or shrub, even if the defendant has 

never been physically on the plaintiff's property.  Accordingly, we answer no to the 

certified question.

AUTHOR:
        Justice Mary E. Fairhurst

WE CONCUR:
        Chief Justice Barbara A. Madsen                  Justice James M. Johnson

        Justice Charles W. Johnson                       Gerry L. Alexander, Justice Pro Tem.

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Broughton Lumber Co. v. BNSF Ry. & Harsco Corp., No. 85905-1

        Justice Susan Owens

                                               26