Guay v. Washington Natural Gas Co.

• Decision Date: 03 July 1963
• Docket Number: No. 36398,36398
• Citation: 383 P.2d 296,62 Wn.2d 473
• Court: Washington Supreme Court
• Parties: Harry GUAY, Appellant, v. WASHINGTON NATURAL GAS COMPANY, a corporation, and Mid-Mountain Contractors, Inc., a corporation, Respondents.

Page 473

62 Wn.2d 473

383 P.2d 296

Harry GUAY, Appellant, v. WASHINGTON NATURAL GAS COMPANY, a corporation, and Mid-Mountain Contractors, Inc., a corporation, Respondents.

No. 36398.

Supreme Court of Washington, Department 1.

July 3, 1963.

Wright, Wendells, Froelich & Power, Seattle, for appellant.

Ogden & Ogden, Seattle, for respondents.

HALE, Judge.

Treble damages are sought in this action for injuries to trees, timber, shrubs and land.

Appellant owns an undeveloped 40-acre tract of land in King County. Its highest and best use, achieved through contour or curvilinear platting, is first-class suburban residential. The respondent, Washington Natural Gas Company sought easements across a part of this tract to run a pipeline to the Hazelwood Housing Development located about a mile from appellant's property.

To obtain these easements, the gas company's supervising engineer, Malcolm McCallum, designated one Willis Cook, who had little or no experience in title searches or the handling of easement matters. Mr. Cook set about his task without the aid of a legal description of appellant's property or a written title report as to its ownership. He was unable to determine ownership from his own examination of the county assessor's records, but sought no help from the assessor or any member of his staff. He called the offices of a title insurance company about the matter and was told by someone, whom he could not identify, that the property over which the casement would run was the property of 'Malibu Homes, Inc.,' a corporation owned by a Mr. Morrison.

Mr. Morrison detailed an engineer in his employ to aid Mr. Cook, and together they prepared an easement from Malibu Homes to the Washington Natural Gas Company. The easement, recorded May 5, 1960, in the office of the King County Auditor, generously allowed the gas company to take a 1354-foot strip of appellant's property and a 365-foot strip of Malibu Homes' land for the construction of its pipeline. About five days after the easement had been recorded, the other respondent, Mid-Mountain Contractors, Inc., acting for the respondent gas company, entered upon appellant's land to clear the right of way for the pipeline.

The trial court found that the respondents on appellant's property '* * * cut a swath in a north-south direction * * * ranging from thirty to fifty feet in width, cutting and destroying trees, brush and shrubs and denuding the strip, making some twelve piles to stumps, logs and debris along the easterly edge of the cut. * * *'

Appellant's ownership of his land was at all times evident by his recorded deed in the auditor's files, and the gas company's agents saw his name carried as owner on a Kroll Atlas of the area. No search of the county auditor's record was ever made by either of the respondents to ascertain the ownership of appellant's property. Respondents pleaded that their entry upon appellant's land was casual and involuntary, but the court qualified this assertion in its finding of fact reading as follows:

'Defendant's entry on plaintiff's land was intentional, but under the mistaken belief that it had obtained a valid easement. Defendant was negligent in the manner in which it obtained the invalid easement. In this respect defendant's entry on plaintiff's land was willful.'

Judgment was awarded appellant on two distinct items of damages, expressly stated in the findings of fact, conclusions of law and judgment, seriatim: (1) $1,500 as the reasonable cost of removing the twelve piles of debris from appellant's property, and (2) $1 for diminution in the value of appellant's land.

Mr. Guay appeals this judgment, insisting that treble damages as to both items are mandatory under the provisions of RCW 64.12.030, which reads:

'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.'

Appellant urges that the court's findings, by their very language, exclude the idea of mitigation as declared in RCW 64.12.040, as follows:

'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.'

Appellant asserts that cutting the swath across his land reduced the market value of all lots planned when the forty acres are platted according to the contour or curvilinear method--at three lots to the acre--in the amount of $400 each. The actual damage thus claimed is $48,000. He urges trebling this amount, and likewise pleads for trebling the actual cost of removal, $1,435.20. Total damages of $148,305.60 are thus...