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Jongeward v. BNSF Railway Co.

                                     No. 85781-4

       WIGGINS, J. (dissenting)          --     I agree with the majority that the 

Jongewards (hereinafter referred to collectively as Jongeward) may be unable 

to recover treble damages.  But our legislature enacted this timber trespass 

statute with more than treble damages in mind.  Our timber trespass statute 

also creates a single damages remedy for plaintiffs whose trees have been 

damaged by apparently "casual or involuntary" trespass.  Jongeward may be 

entitled to damages on these facts, so this case should be allowed to proceed.  

Instead of recognizing this potential remedy, the majority takes our timber 

trespass statute in a new direction, resurrecting a distinction from the English 

common law that neither party advocates, and that has no proper place in our 

timber trespass analysis.  This approach unnecessarily limits the possibility that 

a plaintiff like Jongeward can obtain relief, defying the language of the statute, 

subverting its purpose, and placing us at odds with other jurisdictions including 

Oregon, on whose statute ours is based.  Jongeward might not recover treble 

damages here, but that should not prevent this case from going forward given 

the possibility of recovery for casual or involuntary trespass.  I respectfully 

dissent. 

       I.     The approach advocated by BNSF Railway Company (BNSF)
              would  unnecessarily limit       recovery for casual or involuntary
              trespass, contravening the plain language of our             statute   and 
              placing us at odds with other jurisdictions

       As the majority points out, our timber trespass scheme includes  two  

No. 85781-4

statutes not just one, former RCW 64.12.030 (Code of 1881, § 602) and RCW 

64.12.040.  Subsection  .030 is a basis for liability, while subsection  .040 

mitigates that liability in certain circumstances.  At the time of the fire at issue in 

this case, former RCW 64.12.030 imposed treble damages on anyone who cut 

down, girdled or otherwise injured, or carried off a tree:

              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.

While   subsection     .030 creates liability and imposes treble damages, 

subsection .040 provides that treble damages are not always appropriate and

allows a plaintiff to recover single damages when harm to timber is caused by 

"casual or involuntary" trespass:

       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 
       his own, or that of the person in whose service or by whose 
       direction the act was done, or that such tree or timber was taken 
       from uninclosed woodlands, for the purpose of repairing any 
       public highway or bridge upon the land or adjoining it, judgment 
       shall only be given for single damages.

RCW 64.12.040.  Subsection .040 also allows single damages recovery when 

there is a mistaken belief of ownership.  Id.

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No. 85781-4

       When interpreting our timber trespass scheme, we must look at both 

subsections .030 and .040.  As the majority points out, we construe statutes in 

context, examining all that the legislature has said on the matter, including 

provisions  in related statutes.  Majority at 7         (citing  Dep't of Ecology v. 

Campbell & Gwinn, LLC, 146 Wn.2d 1, 11, 43 P.3d 4 (2002)).                 The majority 

criticizes Jongeward for focusing too narrowly           on  two   words,   "'otherwise 

injure.'" Majority at 7-8.  I agree that analysis of statutory language cannot be 

artificially limited to a few select words.  But the majority commits the same 

error as Jongeward, limiting its analysis to one word, "trespass," and failing to 

account for the relationship between subsections .030 and .040.

       As a result, the majority interprets subsection  .030 in a way that 

undermines subsection .040.  The majority holds that liability under subsection 

.030 must be a "trespass vi et armis," a "direct act[] causing immediate injur[y]."  

Majority at 9, 11.  But it is a rare case that will involve direct action, comparable 

to cutting down or girdling, that is also  casual or involuntary.  The majority 

makes it extremely unlikely that any plaintiff will ever recover single damages, 

effectively reading those words out of the statute.

       No other jurisdiction that we have found takes an approach anything like 

this.  Nor is this approach advocated by the parties.1        This statute and others 

1 Under RAP 12.1(a), we can only decide cases on the basis of issues set forth by the 
parties in their briefs.  See Ducote v. Dep't of Soc. & Health Servs., 167 Wn.2d 697, 
701-02, 222 P.3d 785 (2009).  If the majority wants to decide the case on the distinction 
between trespass vi et armis and trespass on the case, we should call for additional 
briefing as required by RAP 12.1(b).

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No. 85781-4

like it have been litigated throughout the United States for over a century, and until 

now  no court has ever superimposed upon a timber trespass statute the 

ancient common law distinction between trespass vi et armis and trespass on 

the case.  The reason for this is simple: doing so virtually eliminates single 

damages recovery for casual or involuntary harm, which is plainly actionable 

under many of these statutes including our own.

       More to the point, the majority's approach belies the statute's history.  
We borrowed our timber trespass statute from Oregon,2 and Oregon borrowed 

its statute from the New York Field Code.3       This is significant, because neither 

2 When Washington enacted its timber trespass statute, it was, word for word, 
identical to Oregon's.  Compare Laws of Wash. Terr. 1869, ch. 48, §§ 556-557, at 
143-44, with 1862 Or. Laws §§ 335-336, at 88-89.  Oregon has since revised its 
statute, although, crucially, the "casual or involuntary" language remains.  See Or. 
Rev. Stat. §§ 105.810, .815.  Oregon's statute, as originally enacted, stated:

              Sec. 335.  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 person 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.

              Sec. 336. If upon the 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 his own, or that of the person in whose service, or by whose 
       direction the act was done, or that such tree or timber was taken from 
       uninclosed woodland, for the purpose of repairing any public highway 
       or bridge, upon the land or adjoining it, judgment shall only be given 
       for single damages.

3 Compare 1862 Or. Laws §§ 335-336, at 88-89, with former N.Y. Code Civ. Proc. 

                                          4 

No. 85781-4

Oregon nor New York bases its statutory analysis on the distinction between 

trespass vi et armis and trespass on the case.  Thus it is highly unlikely that our 

legislature, in borrowing those states' laws, somehow intended to create a law 

wholly unlike them yet completely identical in its text. I cannot take this illogical 

leap.

       Not only is there no support for this ancient distinction in Oregon and 

New York law or our own case law, but three decades ago we abandoned the 

distinction between trespass vi et armis and trespass on the case in a statute 

of limitations case.  In Stenberg v. Pacific Power & Light Co., we called the 

distinction "fabricated," noting that it is "'now rejected by most courts, and 

§§ 911-912 (1850); see also Matanuska Elec. Ass'n v. Weissler, 723 P.2d 600, 606-
07 (Alaska 1986). The New York Field Code states:

              § 911. Every person who cuts down, or carries off, any wood or 
       underwood, tree or timber, or girdles or otherwise injures 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 or city 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, is 
       liable to the owner of such land, or to such city or town, for treble the 
       amount of damages, which may be assessed therefor, in a civil action, 
       in any court having jurisdiction, except as provided in the next section.

                  The cases to which a penalty is attached for wilful trespass, 
                extended so as to include ornamental trees in the streets.

              § 912. If, upon the trial of such action, it appear, that the 
       trespass was causal or involuntary, or that the defendant had probable 
       cause to believe, that the land, on which the trespass was committed, 
       was his own, or that of the person in whose service, or by whose 
       direction, the act was done, judgment must be given for only the single 
       damages assessed in the action.

Former N.Y. Code Civ. Proc. §§ 911-912.

                                          5 

No. 85781-4

would appear to be slowly on its way to oblivion.'"         104 Wn.2d 710, 718-19, 

709 P.2d 793 (1985) (internal quotation marks omitted) (quoting  Zimmer v. 

Stephenson, 66 Wn.2d 477, 482-83, 403 P.2d 343 (1965)).                 The distinction 

has been banished from our cases and discredited, and yet the majority would 

resurrect it now in a completely new context in which it has never been 

previously applied.  We have no clear indication that our territorial legislature 

had this distinction in mind or that it was doing anything more than borrowing a 

useful statute from Oregon.  Absent more compelling evidence of legislative 

intent, I would adhere to our more recent precedent abandoning the distinction.

       The majority approach would effectively limit single damages recovery to 

the mistaken belief of ownership defense.  See RCW 64.12.040.  We should 

not equate casual or involuntary action with action taken under a mistaken 

belief of ownership.  The legislature chose to include in the statute both "casual 

or involuntary" and the mistake of ownership defense, and we must assume 

that in using different words, the legislature meant to indicate different things.  

In re Pers. Restraint of Dalluge, 162 Wn.2d 814, 820, 177 P.3d 675 (2008) (

"When the legislature uses different words in the same statute, we presume 

the legislature intends those words to have different meanings.").           Moreover, 

as discussed below, this interpretation is contrary to every other jurisdiction that 

has interpreted casual or involuntary as meaning accidental or negligent.

       In ruling out liability for casual or involuntary trespass, the majority 

                                          6 

No. 85781-4

unnecessarily limits    single damages liability for accidental,        negligent, and 

involuntary conduct, placing us at odds with other jurisdictions with similar 

statutes. Equally troubling, the majority's approach contradicts Oregon, Alaska, 

and New York law.  All have similar "casual or involuntary trespass" language.  

Thus,  these states' interpretations are persuasive in interpreting our own 

statute.  See Green River Cmty. Coll., Dist. No. 10 v. Higher Educ. Pers. Bd., 

107 Wn.2d 427, 432, 730 P.2d 653 (1986); cf. State v. Carroll, 81 Wn.2d 95,

109, 500 P.2d 115 (1972).          Oregon has long interpreted the "[c]asual or 

involuntary" language in its          comparable timber trespass            statute as 

encompassing accidental, as well as "non-negligent, non-volitional trespass."  

Wyatt v. Sweitz, 146 Or. App. 723, 728, 934 P.2d 544, 546-47 (1997); Oregon 

& C.R. Co. v. Jackson, 21 Or. 360, 367, 28 P. 74, 75-76 (1891) (where 

trespass is not willful but "casual or involuntary," single damages are 

appropriate).   In  Wyatt, the defendant was liable for casual or involuntary

trespass after his truck slid off a roadway and damaged the plaintiff's trees.  

146 Or. App. at 728.  Likewise, in Matanuska, the Alaska Supreme Court drew 

the same conclusion, defining        "'casual'"  as   by  "'accident or negligence.'"  

Matanuska Elec. Ass'n v. Weissler, 723 P.2d 600, 607 (Alaska 1986) (quoting 

Viall v. Carpenter, 82 Mass. (16 Gray) 285, 286 (1860)).  The court in 

Matanuska     offered a few hypothetical examples of casual or involuntary 

trespass, including negligently swerving a bulldozer into trees and negligently 

                                          7 

No. 85781-4

igniting dynamite that harms trees.4  See also Yarnell v. Baldwin, 130 Misc. 2d 

653, 659, 497 N.Y.S.2d 268, 273 (1985) (defining "casual or involuntary" as 

accidental, not deliberate).  Oregon, Alaska, and New York all allow timber 

trespass liability based on accidental, negligent, or involuntary action.

       Other courts across the nation have interpreted similar language in 

much the same way.  See, e.g., Governale v. City of Owosso, 59 Mich. App. 

756, 760, 229 N.W.2d 918 (1975) (defining "[c]asual and involuntary" as "the 

opposite of deliberate and intentional");  Pluntz v. Farmington Ford-Mercury, 

Inc., 470 N.W.2d 709, 711-12 (Minn. Ct. App. 1991) (defining "'casual'" as 

"'thoughtless or accidental or unintentional,. . . [h]appening or coming to pass 

without design, and without being forseen [sic] or expected; coming by 

chance, . . . unforseen [sic], unpremeditated . . . fortuitous'"        (alterations in 

original) (quoting Lawrenz v. Langford Elec. Co., 206 Minn. 315, 323, 288 

N.W. 727, 731 (1939)))).

       In stark contrast, the majority opinion places us at odds with these 

jurisdictions by requiring direct  action and thereby eliminating liability for 

negligent, accidental, or involuntary conduct.  In reaching this result, the 

majority relies on the fact that we have never before found a defendant liable 

for negligent action under the timber trespass act.       Majority at 19-20.    But that 

is precisely why the federal courts certified this question to us: because it is 

4 One can imagine many other kinds of unintended trespass or damage as well, such 
as a plane crash, a dam failure, pond water runoff, a tree or other structure falling 
across a property line, removal of lateral support, or snow buildup.

                                          8 

No. 85781-4

novel and unresolved.  The majority's argument from silence proves too much; 

we have also never held that negligent action does not trigger liability under the 

statute.  The majority reaches that result for the first time in this case, 

eliminating a form of liability that our statute plainly supports.

       This strange result causes our timber trespass scheme to contradict 

itself.  It does not make sense to recognize that a plaintiff can in theory recover 

for casual or involuntary trespass, and yet at the same time adhere to a direct 

action requirement virtually  ensuring no plaintiff will ever recover for such 

trespass.

       Instead, we must interpret subsections .030 and .040 harmoniously, so 

that neither renders the other superfluous.   G-P Gypsum Corp. v. Dep't of 

Revenue, 169 Wn.2d 304, 309, 237 P.3d 256 (2010) ("'Statutes must be 

interpreted and construed so that all the language used is given effect, with no 

portion rendered meaningless or superfluous.'"             (internal quotation marks 

omitted) (quoting State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003))).  

BNSF, for its part, reaches an overt or directed action requirement only  by 

misapplying the ejusdem generis          canon and strict construction for penal 

statutes.  We should decline BNSF's invitation to rely on these canons, instead 

recognizing that a plaintiff can recover single damages for casual or involuntary 

action under subsection .040.

       II.    The majority sensibly rejects BNSF's ejusdem generis argument

                                          9 

No. 85781-4

       The majority correctly rejects the critical flaw in BNSF's reasoning: a

misplaced reliance on the ejusdem generis canon.  Under the ejusdem generis

rule, a general phrase in a statute that is used in conjunction with specific 

phrases should be interpreted to incorporate only things similar to the specific 

phrase.  See Simpson Inv. Co. v. Dep't of Revenue, 141 Wn.2d 139, 151, 3 

P.3d 741 (2000). 

       Fundamentally, the language of subsection .030 simply does not follow 

the pattern associated with ejusdem generis.            That canon properly applies 

where there is a list of specific terms followed by a general term, i.e., "specific, 

specific, or general."  See Sw. Wash. Ch., Nat'l Elec. Contractors Ass'n v. 

Pierce County, 100 Wn.2d 109, 116, 667 P.2d 1092 (1983).  Here, we are 

interpreting language from former RCW 64.12.030, specifically the words "cut 

down, girdle or otherwise injure, or carry off."5       This language creates three 

categories of culpable action: (1) cutting down trees, (2) girdling or otherwise 

injuring trees, and (3) carrying off trees.  Properly read, the general  phrase 

"otherwise injure" modifies only "girdle," not "cut down" or "carry off."     Thus, the 

general phrase does not appear in a "specific, specific, or  general" list as 

ejusdem generis requires.      Rather, the pattern is "specific, specific or general, 

specific."  

       This is not just splitting hairs.    The first phrase, "cut down," refers to 

5 The statute was amended in 2009, and there is now a comma between "girdle" and 
"otherwise injure."  See majority at 5. As the majority makes clear, this addition does 
not affect this case.  See majority at 18-19.

                                         10 

No. 85781-4

harvesting the tree, which results in killing the tree but making it available for 

something useful such as lumber or firewood.  The second phrase, "girdle or 

otherwise injure," refers to injuring the tree, not cutting it down.          The third 

phrase, "carry off," refers to capturing or transporting the tree.  In other words,

each represents a separate category of culpable action.           Read this way, it is 

evident from the structure of the sentence that "or otherwise injure" modifies 

only the "girdle" category, not "cutting down" or "carrying off," or even a general 

category encompassing all three.       We are left with a specific way of injuring a 

tree -- girdling -- followed by an expansive general term -- "or otherwise injure."

This is simply not the "specific, specific, or  general" pattern to which the 

ejusdem generis rule applies.

       Instead, it appears that the legislature, in using the phrase "otherwise 

injure" to modify "girdle," intended to allow liability for all kinds of injuries to 

trees, not simply girdling.  This reading is consistent with subsection  .040, 

which allows liability for casual or involuntary trespass that is not necessarily 

direct in the sense of trespass vi et armis. 

       This reading ensures that "otherwise injure" does not render other terms 

in the statute superfluous as the majority suggests.  See majority at 17-18.  

Since "otherwise injure" is associated only with "girdle," the terms "cut down" 

and "carry off" retain independent meaning. The fact that "girdle" is included as 

an example of a specific type of injury does not make the term superfluous.

                                         11 

No. 85781-4

       This reading of the statute is more consistent with the entire statutory 

scheme, and under this reading the ejusdem generis canon is not applicable.

       But even if one accepts BNSF's flawed reading of the statute, the 

ejusdem generis rule still does not apply.  This court is in agreement with our 

federal courts that the ejusdem generis rule has no application if there is a 

clearly manifested legislative intent that the general term be given a broader 

meaning than the doctrine requires.   Silverstreak, Inc. v. Dep't of Labor & 

Indus., 159 Wn.2d 868, 883, 154 P.3d 891 (2007); United States v. Baranski, 

484 F.2d 556, 567 (7th Cir. 1973).  

       Here, there is such a clearly manifested legislative intent.  It is plain that 

the legislature intended "otherwise injure" to encompass more than simply 

trespass vi et armis, because subsection .040 allows a plaintiff to recover for 

casual or involuntary trespass.     RCW 64.12.040.        As discussed above, direct 
action will almost never be casual or involuntary.6 Thus, application of ejusdem 

generis contravenes a clearly manifested legislative intent by restricting the 

casual or involuntary language out of existence.           In this situation, ejusdem 

generis should not be part of our analysis.  Silverstreak, 159 Wn.2d at 883; 

Baranski, 484 F.2d at 567.  

       Even assuming there is no contrary legislative intent, BNSF's reliance 

6 Again, casual or involuntary trespass cannot be limited to the mistaken belief of 
ownership defense.  That defense is listed in the statute separately from casual or 
involuntary trespass, and moreover, as discussed above, Oregon and most other 
jurisdictions define casual or involuntary to include negligent or accidental trespass.

                                         12 

No. 85781-4

on ejusdem generis is still misplaced.  It does not make sense to apply the rule 

where  a general phrase is modified by "otherwise."  The word "otherwise" 

means "different" or "in a different way or manner."  Webster's Third New 

International Dictionary 1598 (2002).  This alone manifests a legislative intent 

not to limit the general phrase to things comparable to the specific phrases, 

and other courts have refused to apply ejusdem generis to "otherwise" phrases

for this very reason.  City of Toledo v. Beazer Materials & Servs., Inc., 912 F. 

Supp. 1051, 1069 n.4 (N.D. Ohio 1995), rev'd on other grounds sub nom. City 

of Toledo v. Beazer E., Inc., noted at 103 F.3d 128, 1996 WL 683505 (6th 

Cir.); People v. Reilly, 255 A.D. 109, 110, 6 N.Y.S.2d 161, 162 (1938), aff'd, 

280 N.Y. 509, 19 N.E.2d 919 (1939).  But see Gibson v. Dep't of Licensing, 54 

Wn. App. 188, 192-93, 773 P.2d 110 (1989); Northlake Concrete Prods., Inc. 

v. Wylie, 34 Wn. App. 810, 813-14, 663 P.2d 1380 (1983).  Indeed, under 

BNSF's  reading, "otherwise" would mean "comparable to," not different.  We 

should not accept an interpretation that so drastically alters the meaning of an 

unambiguous word.  Silverstreak, 159 Wn.2d at 884 (noting that "'[o]therwise'"

means "'differently'" and that rules of statutory construction should not give it a 

contrary meaning (quoting Scribner-Bantom English Dictionary 641 (1977))).

       III.   When recovery is for single damages, the statute is not penal and 
              should not be strictly construed

       The majority rests its interpretation in part on the fact that former RCW 

64.12.030 is penal because it imposes treble damages, citing Bailey v. 

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No. 85781-4

Hayden, 65 Wash. 57, 61, 117 P. 720 (1911).  Majority at 15.  It is telling that 

Bailey is a treble damages case.  When treble damages are imposed, the 

statute is indeed penal and should be strictly construed.  Bailey, 65 Wash. at 

61.  But when the proper remedy is single damages, the statute only

compensates the plaintiff and does not punish the defendant.  See Gardner v. 

Lovegren, 27 Wash. 356, 67 P. 615 (1902) ("'When this law gives single 

damages it has a single object, and that is to redress the injured party. But 

when the damages are to be trebled, the object is two-fold, namely: to redress 

the injury done, and also to punish the wrong-doer.'" (quoting Wallace v. Finch, 

24 Mich. 255, 1872 WL 5931, at *2)).  When only single damages are being 

imposed, as in the case of a casual or involuntary trespass, the statute does 

not warrant strict construction because there is simply no penalty involved.

                                    CONCLUSION

       There is not even a hint of language in our timber trespass statute 

suggesting  that  liability  should   turn on the outdated distinction between 

trespass vi et armis and trespass on the case.  We should read the statute as it

is written, declining to rely on BNSF's erroneous application of ejusdem generis

or on strict construction for penal statutes.  BNSF has done substantial harm to 

timber, and our legislature wrote former RCW 64.12.030 and RCW 64.12.040 

to allow plaintiffs like Jongeward to argue that they are entitled to damages for 

harm that was caused in a casual or involuntary fashion.

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No. 85781-4

       I respectfully dissent.

AUTHOR:
        Justice Charles K. Wiggins

WE CONCUR:

                                                         Justice Debra L. Stephens

        Justice Tom Chambers

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