FAIRHURST, J.
¶ 1 This case
Certification to Wash. State Supreme Ct. (Certification) at 2-3.
¶ 2 The parties stipulated
Certification at 2.
¶ 3 Broughton sued BNSF and Harsco for real and personal property damage in federal district court. Among other claims, Broughton asserted a timber trespass claim for treble damages. The district court granted partial summary judgment dismissing Broughton's treble damages claim. Broughton Lumber Co. v. BNSF Ry., No. 09-1110-KI, 2010 WL 4670479 (D.Or. Nov.9, 2010). After the United States District Court for the Eastern District of Washington certified to us similar questions in Jongeward v. BNSF Railway Company, No. 85781-4, the United States District Court, District of Oregon, Portland Division, submitted its certified question.
¶ 4 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)).
¶ 5 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).
¶ 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 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.
¶ 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.
¶ 9 "Under the above sections, a recovery, whether of treble damages under the former, or single damages under the latter, can be had only for a trespass committed." Tacoma Mill Co. v. Perry, 40 Wn. 44, 47, 82 P. 140 (1905). In other words, to obtain damages under either former RCW 64.12.030 or RCW 64.12.040, a plaintiff must first establish that a defendant's conduct constitutes timber trespass. That is the first issue before us—whether the defendants' failure to prevent a fire from spreading constitutes timber trespass as contemplated by the statute. The second issue is whether the statute applies when a defendant has not physically trespassed onto a plaintiff's land. To resolve these issues, we look to the plain meaning of the statute, canons of construction, and Washington case law.
¶ 10 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)).
¶ 11 As noted above, former RCW 64.12.030 applies when a defendant shall "girdle or otherwise injure" a plaintiff's trees. Broughton contends that nothing in the plain language of the statute requires direct action, and we should not imply a requirement where none exists. According to Broughton, the phrase "otherwise injure" clearly functions as a catchall, third category of harm that makes a person potentially liable for treble damages whenever he or she unlawfully injures trees.
¶ 12 But Broughton'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).
¶ 13 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 Wn. 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
¶ 14 When the timber trespass statute was enacted, trespass
¶ 15 Because case and trespass actions triggered different statutes of limitations,
¶ 16 Applying these principles here, the territorial legislature might conceivably have used the term "trespass" to mean any misfeasance that results in injury to a plaintiff's trees. But based on the common understanding of the term "trespass" in 1869, it seems more likely that the legislature
¶ 17 The legislature's use of verbs also suggests that the statute applies to direct acts that cause immediate, not consequential, injury. "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."
¶ 18 Because a statute's plain meaning may also be determined from related statutes, BNSF and Harsco contend that the fire act, RCW 4.24.040-.060, is relevant to our analysis. According to the defendants, the fire act shows legislative intent that the timber trespass statute does not apply in this case.
¶ 19 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. 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 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.
¶ 20 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.
¶ 21 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.
¶ 22 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 Wash.2d at 12, 43 P.3d 4.
¶ 23 The timber trespass "statute is penal in its nature, not merely remedial. As such it should be strictly construed." Bailey v. Hayden, 65 Wn. 57, 61, 117 P. 720 (1911); accord Birchler, 133 Wash.2d at 110, 942 P.2d 968; Grays Harbor County v. Bay City Lumber Co., 47 Wn.2d 879, 886, 289 P.2d 975 (1955); Gardner v. Lovegren, 27 Wn. 356, 362, 67 P. 615 (1902). Broughton concedes that our decisions require the statute to be strictly construed, but argues that the rule of strict construction applies only to the imposition of a higher measure of damages and not to the circumstances that give rise to liability. Broughton then cites Go2Net, Inc. v. FreeYellow.com, Inc., 158 Wn.2d 247, 143 P.3d 590 (2006), for the proposition that remedial statutes must be liberally construed.
¶ 24 Broughton's argument fails. We have repeatedly held that the timber trespass statute is penal in nature and subject to strict construction. See, e.g., Skamania Boom Co. v. Youmans, 64 Wn. 94, 96-97, 116 P. 645 (1911); accord Birchler, 133 Wash.2d at 110, 942 P.2d 968; Gardner, 27 Wash. at 356, 67 P. 615. Our cases do not support Broughton's attempt to divide the statute into a penal portion and a remedial portion. See, e.g. Gardner, 27 Wash. at 362, 67 P. 615 ("Being, then, of a penal nature, it must be construed as other penal statutes are construed, viz., the intent to commit the trespass must appear."). And because Go2Net interpreted Washington's Securities Act, chapter 21.20 RCW, not the timber trespass statute, it does not apply.
¶ 25 Further, because a plaintiff must bring a timber trespass claim under former RCW 64.12.030, the statute subjects every defendant to potential treble damages. See, e.g., Shiflett, 66 Wash.2d at 464-65, 403 P.2d 364 ("It is clear that treble damages will be imposed . . . under RCW 64.12.030, unless those trespassing exculpate themselves under. . . RCW 64.12.040."). As noted above, the burden is on the defendant to show mitigating circumstances. See, e.g., Cox, 110 Wash.App. at 406, 41 P.3d 495 ("`Defendant
¶ 26 Next, 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). Broughton contends that a construction that excludes fire-damaged timber would "interpret[] the meaning out of the term `otherwise injures' [sic] and its intended breadth." Pl.'s Reply Br. on Certified Question at 14. But the phrase "otherwise injure" has a separate meaning if it encompasses acts that are similar to cutting, girdling, or carrying off another's trees, such as spiking, poisoning, or drilling. A narrow interpretation does not violate this canon of construction, but a broad interpretation would break the rule. If the phrase "otherwise injure" were a catchall category of harm, encompassing 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.
¶ 27 Finally, we avoid interpretations "that yield unlikely, absurd or strained consequences." Kilian v. Atkinson, 147 Wn.2d 16, 21, 50 P.3d 638 (2002). Broughton correctly claims it would be absurd if the statute did not punish "a defendant, who, inches from their [sic] property line, shoots fireworks into a neighboring tree farm intending to start a fire."
¶ 28 If a statute remains ambiguous after a plain meaning analysis, it is also appropriate to refer to relevant case law. Campbell & Gwinn, 146 Wash.2d at 12, 43 P.3d 4.
¶ 29 Broughton notes that Washington case law has abandoned the distinction between direct and indirect trespass. Based in part on this change, Broughton contends that the timber trespass statute should expand to comport with the modern view of trespass. To support this claim, Broughton first cites Birchler, 133 Wash.2d at 106, 942 P.2d 968, a case recognizing emotional distress damages for timber trespass. Broughton also cites to cases not involving the timber trespass statute: 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).
¶ 30 Broughton's argument again fails. While we noted in Birchler that "recovery of emotional distress damages in cases of intentional torts is consistent with the modern rule," we did not expand the
¶ 31 We instead look to our cases specifically construing the timber trespass statute. And 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 Wash.2d at 106, 942 P.2d 968, where the defendant encroached on plaintiffs' properties and removed trees and shrubbery; Guay, 62 Wash.2d at 473, 383 P.2d 296, where the defendants cut a swath on plaintiff's property, destroyed trees, brush, and shrubs, and denuded the strip; Mullally v. Parks, 29 Wn.2d 899, 190 P.2d 107 (1948), where the defendants entered a disputed area and destroyed trees; Luedinghaus v. Pederson, 100 Wn. 580, 171 P. 530 (1918), where the defendant trespassed upon plaintiff's land and removed standing timber; Gardner, 27 Wn. 356, 67 P. 615, where the defendants entered plaintiff's land, cut down and converted into shingle bolts and removed plaintiff's cedar trees; and 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 fails to prevent the spread of a fire.
¶ 32 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, 751 P.2d 873. 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 Broughton attempts to distinguish Seal, the reasoning in Seal provides persuasive authority that the statute is not implicated here.
¶ 33 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, and intended the statute to apply in the absence of physical trespass to a plaintiff's land. 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 cases, we make two conclusions: (1) a plaintiff cannot recover damages under the timber trespass statute when a defendant commits an indirect act or omission that causes mere collateral injury, but (2) a plaintiff may recover damages when a defendant commits a direct trespass causing immediate injury to a plaintiff's trees, even if the defendant is not physically present on the plaintiff's property.
¶ 34 We generally do not rely on cases from other jurisdictions to interpret our own statutes, but when it is helpful to us, we do. Meyer v. Burger King Corp., 144 Wn.2d 160, 166-67, 26 P.3d 925 (2001). Both Broughton and the defendants cite persuasive authority to support their arguments.
¶ 35 Courts interpreting identical or similar statutes reject punitive damages for fires spreading from defendants' lands. For example, in Osborne v. Hurst, 947 P.2d 1356, 1361 (Alaska 1997), the Supreme Court of Alaska found that its nearly identical timber trespass statute did not apply where the defendant set a grass fire that spread out of control and destroyed the plaintiff's trees because the defendant did not act with intent. Id. In Jordan v. Stevens Forestry Services, Inc., 430 So.2d 806 (La.Ct.App.1983), the Court of Appeals of Louisiana found that a defendant, who had lost control of a deliberately set burn on his own property, was not liable for treble damages because he did not engage in "any willful or intentional acts ... which resulted in the destruction of [the plaintiff's] trees." Id. at 809. But because we are concerned with the defendants' conduct and location, not the defendants' intent, these cases are of little help to us.
¶ 36 Courts interpreting broader statutes have held that a plaintiff may recover damages when a defendant destroys the plaintiff's trees by fire. For example, in Kelly v. CB & I Constructors, Inc., 179 Cal.App.4th 442, 102 Cal.Rptr.3d 32 (2009), the California Court of Appeals held that fire damage constitutes injury to trees. In Worman v. Columbia County, 223 Or.App. 223, 195 P.3d 414 (2008), the Court of Appeals of Oregon recognized that the spraying of herbicides on trees and shrubs is a "`deliberate trespass such as involved in cutting standing timber.'" Id. at 238, 195 P.3d 414 (internal quotation marks omitted) (quoting Meyer v. Harvey Aluminum, 263 Or. 487, 497, 501 P.2d 795 (1972)). And in Mock v. Potlatch Corp., 786 F.Supp. 1545, 1549 (D.Idaho 1992) (quoting Idaho Code § 6-202-A (1990)), the United States District Court held that the Idaho timber trespass statute defines "entry" to include "`going upon or over real property, either in person, or by causing any object, substance or force to go upon real property.'"
¶ 37 But the statutes construed in these cases are substantially different from the language of former RCW 64.12.030. California's statute provides a broad remedy "[f]or wrongful injuries to timber, trees, or underwood upon the land of another, or removal thereof." Cal. Civ.Code § 3346(a). Oregon's statute contains a separate clause imposing liability for willfully injuring trees. Or.Rev. Stat. Ann. 105.810(1). And Idaho's statute expressly requires "entry" and includes a legislative definition of the word "enter." See Idaho Code Ann. § 6-202A. Because we "need not adopt the construction placed on a similar statute in another state if the language of the statute ... is substantially different" from the language of our own, we do not adopt the construction of these statutes. Everett Concrete Prods., Inc. v. Dep't of Labor & Indus., 109 Wn.2d 819, 826, 748 P.2d 1112 (1988).
¶ 38 When the timber trespass statute was enacted, the term "`trespass'" had "`a well ascertained and fixed meaning.'" Suter, 35 Wash. at 7, 76 P. 298 (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 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
WE CONCUR: BARBARA A. MADSEN, Chief Justice, CHARLES W. JOHNSON and JAMES M. JOHNSON, Justices and GERRY L. ALEXANDER, Justice Pro Tem.
WIGGINS, J. (dissenting).
¶ 39 This case presents substantially the same questions as Jongeward v. BNSF Railway, ___ Wash.2d ___, 278 P.3d 157 (2012). In that case, I dissented because the majority approach virtually eliminates liability for "casual or involuntary" trespass, which our timber trespass statutes plainly contemplate. See former RCW 64.12.030 (Code of 1881, § 602) and RCW 64.12.040. I explained that the ejusdem generis rule and strict construction for penal statutes simply have no application to our timber trespass scheme. Further, the historical distinction drawn by the majority is not supported by the statute's history or text. For the reasons set forth in my dissenting opinion in Jongeward, I also dissent in this case.
¶ 40 I respectfully dissent.
(Reviser's note omitted.)