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      SUPREME COURT OF THE STATE OF WASHINGTON

CERTIFICATION FROM THE                      )
UNITED STATES DISTRICT                      )
COURT FOR THE EASTERN                       )
DISTRICT OF WASHINGTON                      )
                 IN                         )       NO. 85781-4
                                            )
JASON and LAURA JONGEWARD, )
husband and wife; GORDON and                )       EN BANC
JEANNIE JONGEWARD, husband                  )
and wife and as trustees of the             )
Jongeward Family Trust,                     )
                                            )       Filed May 31, 2012
                      Plaintiffs,           )
                                            )
v.                                          )
                                            )
BNSF RAILWAY COMPANY,)
commonly known as THE                       )
BURLINGTON NORTHERN                         )
SANTA FE RAILWAY, a Delaware                )
corporation doing business in the           )
state of Washington,                        )
                                            )
                      Defendant.            )
______________________________ )

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

Jongeward v. BNSF Ry., No. 85781-4

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

133 Wn.2d 106, 114, 942 P.2d 968 (1997). Plaintiffs Jason and Laura Jongeward, 

husband and wife, and Gordon and Jeannie Jongeward, husband and wife, and as 

trustees of the Jongeward family trust (hereinafter collectively referred to as 

Jongeward) asserted a timber trespass claim against defendant BNSF Railway 

Company in the United States District Court for the Eastern District of Washington, 

after a fire spread from BNSF's property and destroyed Jongeward's trees. The 
court certified to us three questions:2  

              QUESTION NO. [1]: Does a Defendant who negligently causes 
       a fire that spreads onto Plaintiff's property, and damages or destroys 
       Plaintiff's trees, "otherwise injure" trees, timber or shrubs for purposes 
       of [former] RCW 64.12.030?

              QUESTION NO. [2]:  Can a Plaintiff recover damages under 
       [former] RCW 64.12.030 for trees damaged or destroyed by a 
       Defendant who never has been physically present on Plaintiff's 
       property? 

              QUESTION NO. 3: Must damages awarded under [former] 
       RCW 64.12.030 be reasonable in relation to the value of the underlying 
       real property? 

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

       1Jongeward is a companion case to Broughton Lumber Co. v. BNSF Railway, No. 85905-
1 (Wash. May 31, 2012).
       2We have reordered the questions. See Broad v. Mannesmann Anlagenbau AG, 196 F.3d 
1075, 1076 (9th Cir. 1999).
                                               2 

Jongeward v. BNSF Ry., No. 85781-4

                    I. FACTUAL AND PROCEDURAL HISTORY

       The parties stipulated to the following facts that constitute the record under 

RCW 2.60.010(4):

              This is a civil case brought by [Jongeward] against Defendant 
       BNSF.
              On August 11, 2007, a fire broke out at several points along the 
       railroad right-of-way as a BNSF train passed through the Marshall area 
       southwest of Spokane, Washington. [Jongeward] own[s] property 
       located nearby but not adjoining the railroad right-of-way. The fire 
       spread to [Jongeward's] property and destroyed about 4000 trees on 
       the property. No employee or agent of BNSF was physically on 
       [Jongeward's] property at any time relevant to the start or spread of the 
       fire or the damage to [Jongeward's] trees. The Court has determined 
       that BNSF negligently caused the fire that destroyed [Jongeward's] 
       trees. 
              [Jongeward] [has] asserted a claim for damages under [former] 
       RCW 64.12.030.

Certification at 2.

                                       II. 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)).

              QUESTION NO. [1]: Does a Defendant who negligently causes 
       a fire that spreads onto Plaintiff's property, and damages or destroys 
       Plaintiff's trees, "otherwise injure" trees, timber or shrubs for purposes 
       of [former] RCW 64.12.030?

                                               3 

Jongeward v. BNSF Ry., No. 85781-4

Certification at 3.  

       This question requires us to determine whether the timber trespass statute 

applies to BNSF's conduct.  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 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.3 RCW 64.12.040 provides, "If upon trial of such action 

       3This 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 
                                               4 

Jongeward v. BNSF Ry., No. 85781-4

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 

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.4        Laws of 2009, ch. 349, § 4.

As a result of this amendment, a comma was inserted between the words "girdle" 

and "or."  Id.

       Because former RCW 64.12.030 and RCW 64.12.040 relate to the same 

       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.
       4The 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 

Jongeward v. BNSF Ry., No. 85781-4

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 

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

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)).  To determine whether BNSF committed a statutory trespass in this case, 

we consider the statute's plain meaning, canons of construction, and Washington 
case law.5

       5The dissent worries that our approach contradicts Oregon, Alaska, and New York law.  
But because Oregon and New York have markedly different statutes, and all three states have 
markedly different philosophies, our approach should be different.  For example, while Oregon's 
statute was originally identical to ours, it now applies "whenever any person . . . willfully injures 
or severs from the land of another any produce thereof" and provides double damages even when 
a trespass is casual or involuntary. Or.  Rev. Stat. §§ 105.810(1), .815.     Because Oregon's 
legislature broadened its statute and our legislature did not broaden ours, we should construe our 
statute more narrowly.    Further, while Oregon, Alaska, and New York each allow general 
recovery of punitive damages, see Or. Rev. Stat. § 31.730; Alaska Stat. 09.17.020;  Welch v. Mr. 
Christmas Inc., 57 N.Y.2d 143, 454 N.Y.S.2d 971, 440 N.E.2d 1317 (1982), Washington 
                                               6 

Jongeward v. BNSF Ry., No. 85781-4

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-

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.  Because the adverb "otherwise" is 

defined as "in a different way or manner," Jongeward contends that the phrase 

"otherwise injure" clearly functions as its own distinct category of wrongful action 

that encompasses a defendant's failure to prevent the spread of a fire. Webster's 

Third New International Dictionary 1598 (2002).              According to Jongeward, the 

meaning of the statute is plain on its face.

expressly prohibits punitive damages as a violation of public policy unless explicitly authorized by 
statute.  Barr v. Interbay Citizens Bank of Tampa, Fla., 96 Wn.2d 692, 635 P.2d 441, 649 P.2d 
827 (1982); see also Spokane Truck & Dray Co. v. Hoefer, 2 Wash. 45, 25 P.1072 (1891).      The 
law of other states is simply not as persuasive as the dissent suggests. 
                                               7 

Jongeward v. BNSF Ry., No. 85781-4

       But Jongeward'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).  

       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 

                                               8 

Jongeward v. BNSF Ry., No. 85781-4

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 

"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 

       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 
"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.  
                                               9 

Jongeward v. BNSF Ry., No. 85781-4

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

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 

       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 
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 

Jongeward v. BNSF Ry., No. 85781-4

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

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

acts that cause immediate injury, not consequential damage.  "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 

       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 Co. v. Perry, 40 Wash. 44, 47, 82 P. 140 
(1905)). 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 

Jongeward v. BNSF Ry., No. 85781-4

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 

statutes, BNSF contends that the fire act, RCW 4.24.040-.060, is relevant to our 

analysis.  According to BNSF, the fire act precludes application of the timber 

trespass statute to negligently set fires.

        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.  See 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 

                                               12 

Jongeward v. BNSF Ry., No. 85781-4

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 

that the legislature intended 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 Jongeward 

       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 
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 
                                               13 

Jongeward v. BNSF Ry., No. 85781-4

may sue BNSF 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 

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 

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.  
                                               14 

Jongeward v. BNSF Ry., No. 85781-4

such it should be strictly construed."13 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). Although Jongeward urges us to "remain mindful 

of the purposes of the provision when engaging in such construction," a strict 

construction suggests that BNSF should not be subject to the severe penalty of 

treble damages without clear evidence that it violated the statute. Opening Br. of 

Pls. at 5.

       Under the principle of noscitur a sociis, "a single word in a statute should not 

be read in isolation." State v. Roggenkamp, 153 Wn.2d 614, 623, 106 P.3d 196 

(2005).   Instead, "'the meaning of words may be indicated or controlled by those 

with which they are associated.'" Id. (internal quotation marks omitted) (quoting 

State v. Jackson, 137 Wn.2d 712, 729, 976 P.2d 1229 (1999)).  The statutory 

       13The dissent improperly suggests that the statute is not penal "[w]hen only single damages 
are in play."  Dissent at 14. But under the plain language of the statute, treble damages are always
in play, because every defendant is potentially liable for treble damages.  See, e.g.,  Shiflett, 66 
Wn.2d at 464-65 ("It is clear that treble damages will be imposed upon trespassers cutting timber 
under RCW 64.12.030, unless those trespassing exculpate themselves under the provisions of 
RCW 64.12.040.").    As noted above, the burden is on the defendant to show mitigating 
circumstances.  See, e.g., Hill, 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.

                                               15 

Jongeward v. BNSF Ry., No. 85781-4

phrase "otherwise injure" must therefore be read in conjunction with the other 

verbs -- cut down, girdle, and carry off. Because each of these verbs connotes direct 

action, this canon suggests that the timber trespass statute does not apply when a 

defendant fails to prevent the spread of a fire.

       Further, 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). Although Jongeward contends that a narrow reading of the statute 

would strip all common sense meaning from the phrase "otherwise injure," the 

phrase has a separate meaning if it encompasses acts that are similar to the word 

"girdle," such as spiking or poisoning. Further, if the legislature used the phrase 

"otherwise injure" to encompass 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 employ traditional rules of grammar in discerning the plain 

language of a statute."  State v. Bunker, 169 Wn.2d 571, 578, 238 P.3d 487 (2010).  

According to Jongeward, the 2009 punctuation change is further evidence that the 

legislature intended the phrase "otherwise injure" to serve as a separate and distinct 

category of wrongful action. 

       But Jongeward finds significance where none exists. First, the 2009 

                                               16 

Jongeward v. BNSF Ry., No. 85781-4

grammatical change makes the statute consistent with the Washington Code 

Reviser's style manual, which requires a comma to be inserted between each item in 

a series of three or more words (except the last). Office of the Code Reviser, Statute 

Law Committee, Bill Drafting Guide 2011, pt.                     IV(1)(a)(i),    available at

http://www.leg.wa.gove/CodeReviser/Pages/bill_drafting_guide.aspx#part4.

       Further, despite the omission of a comma in the 1869 and 1877 enactments, 

the 1932 compilation of Remington Revised Statutes included a comma between the 

words "girdle, or otherwise injure," and we have quoted the language as it now 

appears in cases both before and after the 1932 codification. See Mullally v Parks, 

29 Wn.2d 899, 908-09, 190 P.2d 107 (1948); Simons v. Wilson, 61 Wash. 574, 112 

P. 653 (1911). So while we sometimes express a "high regard for the lowly 

comma," Peters v. Watson Co., 40 Wn.2d 121, 123, 241 P.2d 441 (1952), the 

insertion of a comma in the 2009 statute is of no import here, particularly because 

the purpose of the amendment was to clarify that the statute applies to Christmas 

tree theft.   

       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.

Jongeward correctly cites two cases for the proposition that the timber trespass 

                                               17 

Jongeward v. BNSF Ry., No. 85781-4

statute applies to the destruction of ornamental trees: Nystrand v. O'Malley, 60 

Wn.2d 792, 375 P.2d 863 (1962); Tronsrud v. Puget Sound Traction Light &

Power Co., 91 Wash. 660, 158 P. 348 (1916). However, Jongeward does not (and 

cannot) cite a single Washington case where a court has applied the timber trespass 

statute when a defendant has failed to prevent the spread of a fire. 

       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,  29 Wn.2d 899, 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. at 356, where the defendants entered 

plaintiff's land, cut down and converted into shingle bolts and removed plaintiff's 

cedar trees; 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 

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Jongeward v. BNSF Ry., No. 85781-4

negligently causes a fire that spreads and damages a neighbor's trees. 

       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 

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 

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

authority that the timber trespass statute is not implicated by the defendant's 

conduct.

       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, such as spiking or poisoning.  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 case law, 

we hold that a defendant who negligently causes a fire that spreads onto a plaintiff's 

                                               19 

Jongeward v. BNSF Ry., No. 85781-4

property and destroys a plaintiff's trees does not "otherwise injure" the plaintiff's 
trees for the purposes of former RCW 64.12.030.14 The plaintiff's remedy is limited 

to the common law.

              QUESTION NO. [2]:  Can a Plaintiff recover damages under 
       [former] RCW 64.12.030 for trees damaged or destroyed by a 
       Defendant who has never been physically present on Plaintiff's 
       property? 

Certification at 3.  

       To answer this question, we must determine whether the timber trespass 

statute applies when a defendant commits a direct trespass that causes an immediate 

injury to a plaintiff's timber, tree, or shrub but does not physically trespass onto a 

plaintiff's land.  BNSF contends that the statute applies only when a defendant 

physically trespasses onto a plaintiff's property, because the acts of cutting down, 

girdling, and carrying off all require a defendant's physical presence on a plaintiff's 

property.  BNSF's argument has some merit.  Because a defendant must be 

physically present on a plaintiff's land to cut down, girdle or carry off a plaintiff's 

trees, the text could be read to require physical trespass onto a plaintiff's land.  

Further, each of our cases involves a defendant who was physically present on the 

plaintiff's  property, and the statute requires the damaged tree to be physically 

       14Our holding does not preclude recovery for involuntary trespass, only for indirect 
trespass causing consequential or collateral injury. 
                                               20 

Jongeward v. BNSF Ry., No. 85781-4

located "on the land of another person." Former RCW 64.12.030.

       But statutory recovery for an unauthorized cutting of trees does not require 

proof that the wrongdoer was trespassing upon the plaintiff's land.  See JDFJ Corp. 

v. Int'l Raceway, Inc., 97 Wn. App. 1, 970 P.2d 343 (1999).              Nothing in the plain 

language of the statute requires a defendant to be physically present on a plaintiff's 

land, and it is not difficult to imagine a circumstance in which a defendant trespasses 

against a plaintiff's trees without trespassing on a plaintiff's property. For example,

"a person who stands at his or her fence line and intentionally sprays herbicide on a 

neighbor's trees" engages in conduct prohibited by the statute because the person 

commits a direct trespass and causes immediate injury to the plaintiff's trees. 

Opening Br. of Pls. at 14. It would thwart the clear purpose of the statute to allow 

that voluntary offender to escape the statute's reach.  And as Jongeward points 
out,15 it would also be absurd "if that same tortfeasor simply took one more step on 

to the victim's land, then the statute would apply." Id.

       Ultimately, the legislature enacted the timber trespass statute to deter specific 

       15Jongeward also cites cases not involving the timber trespass statute for the proposition 
that trespass does not require human entry onto a plaintiff's land: 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).  But these cases are inapposite.  The question before us is not 
whether physical presence is required for trespass under the common law, but whether physical 
presence is required to trigger the timber trespass statute. Further, the statute does not supply a 
common law remedy, but supplements the common law.  Although our analysis of the statutory 
term "trespass" is necessarily informed by the common law,  we decline to conflate  the two 
remedies. 
                                               21 

Jongeward v. BNSF Ry., No. 85781-4

conduct and punish a voluntary offender. Guay,  62 Wn.2d at 476.  Statutory 

violations involve direct trespass to a tree, not trespass to the land on which the tree 

grows. Because it is at least possible for a defendant to commit a statutory timber 

trespass without entering a plaintiff's property, we hold that 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.

              QUESTION NO. 3: Must damages awarded under [former] 
       RCW 64.12.030 be reasonable in relation to the value of the underlying 
       real property? 

Certification at 3.

       Because the timber trespass statute does not apply in this case, the issue of 

damages is not properly before us.  Under the principle of judicial restraint, we 

respectfully decline to answer the third certified question. 

                                    III. 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 

                                               22 

Jongeward v. BNSF Ry., No. 85781-4

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 

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. Therefore, we answer no to the first certified question; a defendant 

who causes a fire that spreads and damages trees on a plaintiff's property does not 

"otherwise injure" the plaintiff's trees for the purposes of the timber trespass statute.  

We answer yes to the second certified question; a plaintiff may recover from a 

defendant who commits a direct trespass against a plaintiff's trees, causing injury 

that is immediate and not consequential, even if the defendant has never been 

physically present on the plaintiff's property.  And we respectfully decline to answer 

the third certified question.  Because the timber trespass statute does not apply in 

this case, the question of damages is not properly before us. 

                                               23 

Jongeward v. BNSF Ry., No. 85781-4

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.

        Justice Susan Owens

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