Jongeward v. BNSF Ry. Co.

• Decision Date: 31 May 2012
• Docket Number: No. 85781–4.,85781–4.
• Citation: 174 Wash.2d 586,278 P.3d 157
• Court: Washington Supreme Court
• Parties: Certification from the United States District Court for the Eastern District of Washington in Jason and Laura JONGEWARD, husband and wife; Gordon and Jeannie Jongeward, husband and wife and as trustees of the Jongeward Family Trust, 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.

174 Wash.2d 586

278 P.3d 157

Certification from the United States District Court for the Eastern District of Washington in Jason and Laura JONGEWARD, husband and wife; Gordon and Jeannie Jongeward, husband and wife and as trustees of the Jongeward Family Trust, 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.

No. 85781–4.

Supreme Court of Washington, En Banc.

Argued Nov. 15, 2011.

Decided May 31, 2012.

Richard Charles Eymann, Steven Lawrence Jones, John Allison, Eymann Allison Hunter Jones PS, Spokane, WA, for Plaintiffs.

Julie A. Owens, Attorney at Law, Ausey H. Robnett, Paine Hamblen LLP, Coeur d'Alene, ID, Paul J. Lawrence, Gregory J. Wong, Pacifica Law Group LLP, Seattle, WA, for Defendant.

FAIRHURST, J.

[174 Wash.2d 590]¶ 1 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 Wash.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.

I. FACTUAL AND PROCEDURAL HISTORY

¶ 2 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

¶ 3 Certified questions from federal court are questions of law that we review de novo. Bradburn v. N. Cent. Reg'l Library Dist., 168 Wash.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)).

[174 Wash.2d 592]¶ 4 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?

Certification at 3.

¶ 5 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 Wash.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 Wash.2d 1, 9, 43 P.3d 4 (2002).

¶ 6 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 Wash.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.³RCW 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 his or her own, ... judgment shall only be given for single damages.”

¶ 7 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.

¶ 8 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 Wash.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 Wash.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 Wash.App. 394, 406, 41 P.3d 495 (2002) (citing Seattle–First Nat'l Bank v. Brommers, 89 Wash.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

A. Plain Meaning Analysis

¶ 9 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 Wash.2d at 9–10, 43 P.3d 4. The plain meaning “is discerned from all that the Legislature has said in the statute.” Id. at 11, 43 P.3d 4. 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

¶ 10 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.

¶ 11 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 Wash.2d at 11, 43 P.3d 4 (emphasis added).

¶ 12 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 Wash.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...