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Not All
Trespasses to Timber are Created Equal
October 2005
In many parts of Oregon, there
are few claims that evoke as much emotional response as
a timber trespass claim. Oregonians love their trees and
for many in our state, timber represents their
livelihood. Accordingly, beginning back when Deady
codified Oregon law, the law of Oregon has provided for
a remedy if someone wrongfully damages or severs from
the land of another produce, shrubs, trees or timber1.
In order to deter timber trespasses, Oregon law has long
provided for treble or double damages for timber
trespass claims. However, not all trespasses will fall
under the timber trespass statutes and result in treble
or double damages.
ORS 105.810(1) provides:
* * * whenever any person, without lawful authority,
willfully injures or severs from the land of another any
produce thereof or cuts down, girdles or otherwise
injures or carries off any tree, timber or shrub on the
land of another person * * * if judgment is given for
the plaintiff, it shall be given for treble the amount
of damages claimed, or assessed for the trespass. In any
such action, upon plaintiff’s proof of ownership of the
premises and the commission by the defendant of any of
the acts mentioned in this section, it is prima facie
evidence that the acts were committed by the defendant
willfully, intentionally and without plaintiff’s
consent.
ORS 105.815(1) provides:
* * * if, upon the trial of an action included on ORS
105.810, it appears that the trespass was casual or
involuntary, or that the defendant had probable cause to
believe that the land on which the trespass was
committed was the land of the defendant or the land of
the person in whose service or by whose direction the
act was done, or that the tree or timber was taken from
unenclosed woodland for the purpose of repairing any
public highway or bridge upon the land or adjoining it,
judgment shall be given for double damages.
In Meyer v. Harvey Aluminum,
263 Or 487, 501 P.2d 795 (1972), plaintiffs had obtained
a judgment for injuries to their fruit crops and trees
caused by emissions from defendant’s aluminum plant. The
trial court had trebled the damages pursuant to ORS
105.810(1). The Supreme Court held that treble damages
were not available. In so holding the court stated:
In one of the early fume cases
in Oregon seeking damages for the destruction of crops
and trees, United States District Judge James Alger Fee,
held: ‘There is, however, no basis for the allowance of
treble damages under the Oregon statute, since the
language shows the enactment covers only deliberate
trespass such as involved in cutting standing timber.’
One purpose of the treble
damage statute is to deter the cutting of another
person’s timber. The destruction of fruit and fruit
trees by fumes might also be deterred by the assessment
of treble damages.
Another purpose of the multiple damage statutes is
applicable to timber trespass but not to injury of fruit
and fruit trees. If a trespasser who cuts another’s
timber is required only to pay as damages the value of
the timber felled, the trespasser, in effect, would have
forced the timber owner to sell his timber at market
value. Such a practice obviously would be advantageous
to a trespasser who needed timber and unfair to a timber
owner who did not want to sell. To offset this
unfairness several states have rules calling for double,
treble and even quadruple damages in the event of
trespass to timber. * * *
Based upon the litigation history of this treble damage
statute and the total scheme of the multiple damage
statutes, we conclude that they do not apply to the kind
of damages assessed in the instant case.
Similarly, in Chase v.
Henderson, 265 Or. 431, 509 P.2d 1188 (1973), the
court held that plaintiffs could not recover double
damages pursuant to ORS 105.815 when chemicals defendant
sprayed on his pasture drifted onto plaintiffs’ property
damaging their pole bean crop.
Accordingly, pollution based trespasses will not result
in treble or double damages even if the pollution caused
damage to produce, shrubs, trees or timber. (However,
punitive damages may then be available.) This does not
mean that the owner of the damaged produce, shrubs,
trees or timber does not have a claim against the
trespasser. It simply means that damage caused by
pollution does not fall under the timber trespass
statutes. This is important not only because double and
treble damages are therefore not available, but because
ORS 105.810(2) allows the court, in its discretion, to
award attorneys’ fees. If ORS 105.810 does not apply and
the claim is instead a simple trespass claim then the
threat of attorneys’ fees does not become an issue in
the case.
Please direct any questions in this area of law to the
author, Lori DeDobbelaere, at 503-768-9600, or by email
to lori@lerlaw.com.
1.
The term “produce” was not added to the timber trespass
statutes until 1925.
© 1999 - 2005 Lachenmeier Enloe Rall & Heinson
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