Bergman v. Holden

• Decision Date: 10 March 1993
• Citation: 848 P.2d 141,118 Or.App. 530
• Parties: Ethel BERGMAN, Respondent, v. Stephen E. HOLDEN; Malcolm Massey and Wayne Massey, dba M & M Logging Company; Merlin Smith, Defendants, and Art Lewis, Appellant. 87-2115; CA A72538.
• Court: Oregon Court of Appeals

Page 141

848 P.2d 141

118 Or.App. 530

Ethel BERGMAN, Respondent, v. Stephen E. HOLDEN; Malcolm Massey and Wayne Massey, dba M &amp M Logging Company; Merlin Smith, Defendants and Art Lewis, Appellant.

87-2115; CA A72538.

Court of Appeals of Oregon.

Argued and Submitted Jan. 26, 1993.

Decided March 10, 1993.

David Brian Williamson, St. Helens, argued the cause and filed the briefs for appellant.

Michael B. Mendelson, Portland, argued the cause and filed the brief for respondent.

Before WARREN, P.J., and EDMONDS and LANDAU, JJ.

LANDAU, Judge.

Defendant Lewis appeals from a judgment entered against him for timber trespass. He challenges the trial court's construction of the applicable statutes, as well as the sufficiency of the evidence to establish his liability under those statutes. We review the trial court's decision for errors of law and findings not supported by any competent evidence, Rosalez v. Unigard Insurance Co., 283 Or. 63, 67, 581 P.2d 945 (1978), and reverse.

The material facts are not in dispute. Defendant was hired to haul away timber that was decked on a landing located on property adjacent to plaintiff's. The timber had been severed and moved to the landing by other defendants, ¹ who had trespassed on plaintiff's property. Defendant did not participate in the severing of the timber and did not enter onto plaintiff's property. In the course of hauling away the timber, defendant did not examine each log to determine whether it was "branded" with an owner's identifying mark. See ORS 532.130(1). ² He simply hauled away all the timber he found on the landing.

Plaintiff sued defendant for violation of ORS 105.810 and ORS 105.815. ³ The trial court heard the case without a jury. The court concluded that, although defendant had not entered onto plaintiff's land, he was nevertheless liable under ORS 105.815. It found that, because defendant hauled logs that were not branded, knowledge of the other defendants' trespass could be imputed to him, and this knowledge made defendant liable under the statutes.

Defendant argues that he cannot be found liable under ORS 105.810 or ORS 105.815 without evidence that he personally entered plaintiff's property to remove the timber. Plaintiff contends that actual entry onto her land is not required. According to plaintiff, ORS 105.810 provides that it is unlawful to carry off timber "on the land of another"; therefore, if defendant hauled away plaintiff's logs from the land of any other person, defendant committed timber trespass.

We do not agree with either party's construction of the timber trespass statutes. ORS 105.810 provides that it is unlawful to carry off a tree, timber or shrub "on the land of another," and that in a successful action "by such person" judgment shall be given in favor of that person. Thus, entry onto the plaintiff's land is an element of the statutory action for timber trespass. That element may, in some cases, be satisfied by an entry by persons other than the defendant. In Gordon Creek Tree Farms v. Layne et al., 230 Or. 204, 358 P.2d 1062, 230 Or. 204, 368 P.2d 737 (1962), the Supreme Court held that logging contractors could be liable for the timber trespass of their subcontractors, even though the contractors had never entered onto the plaintiff's land. The element of entry was satisfied by imputing to them the subcontractor's actions under the doctrine of respondeat superior.

There is no suggestion here that defendant acted as a contractor and hired others to enter onto plaintiff's land to haul away her timber; nor is there evidence that defendant entered onto plaintiff's land, either to participate in the removal of the timber to the landing on the neighboring property or in the process of hauling the timber from the landing. The statute does not make defendant liable for carrying the timber from some property other than plaintiff's. Defendant, therefore, is not liable under ORS 105.810 or ORS 105.815.

Plaintiff argues that, even if defendant did not enter her property, he is liable as a joint tortfeasor under Restatement (Second) Torts § 876 (1977), which provides:

"For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he

"(a) does a tortious act in concert with the other or pursuant to a common design with him, or

"(b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or "(c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person."

According to plaintiff, defendant hauled away the logs in violation of ORS 532.130, which prohibits the hauling of unbranded timber, and this makes him liable along with the other defendants under either section 876(a), (b) or (c). We disagree. Assuming, but not deciding, that the Restatement tests apply in Oregon, there is no evidence to support liability.

Liability under section 876(a) requires evidence that defendant acted in concert or pursuant to a common design with the other defendants. Plaintiff points to no evidence of any conduct in concert with the other defendants or of any common design, and we find none.

Liability under section 876(b) requires evidence that defendant knew that the conduct of the other defendants constituted a breach of duty. Again, there is no direct evidence that defendant knew anything about the conduct of the other defendants. There is no evidence that he knew who had cut the logs that he hauled or that he knew that they had come from any property other than the place where he found them. Plaintiff...