[No. 58975-0-I. Division One. December 3, 2007.]
[1] Statutes — Construction — Review — Standard of Review. Questions of statutory interpretation are reviewed by an appellate court de novo. [2] Appeal — Review — Issues of Law — Standard of Review. Claimed errors of law are reviewed by an appellate court de novo. [3] Appeal — Review — Issues of Law — Undisputed Facts. Review of a judgment is de novo if the facts of the case are undisputed and the only unresolved issues are issues of law. [4] Adverse Possession — Proof — Question of Law or Fact — Review. Whether adverse possession is established by the facts as found by a trial court is a question of law that an appellate court reviews de novo. [5] Appeal — Findings of Fact — Review — Report of Proceedings — Failure To Supply — Unchallenged Findings — Effect. When an appellant fails to supply the appellate court with a verbatim report of trial proceedings and challenges only the trial court's conclusions of law, the findings of fact are treated as verities on appeal. [6] Appeal — Findings of Fact — Failure To Assign Error — Support for Conclusions of Law. When no error is assigned to a trial court's findings of fact, appellate review is limited to determining whether or not the trial court's conclusions of law properly follow from the findings. [7] Adverse Possession — Elements — In General. Title to real property is acquired by adverse possession if, for a period of 10 years, the possession is (1) exclusive, (2) actual and uninterrupted, (3) open and notorious, and (4) hostile. The burden of proving these elements is on the party claiming title by adverse possession. [8] Adverse Possession — Elements — Possession — Open and Notorious Possession — What Constitutes. The open and notorious element of adverse possession requires proof that (1) the true owner had actual notice of the adverse use throughout the statutory period or (2) the claimant used the land in a way that any reasonable person would have thought that the claimant owned the land. [9] Adverse Possession — Elements — Hostility — What Constitutes — In General. The hostility necessary to support an adverse possession claim requires that the claimant treat the land as his or her own as against the world throughout the statutory period. [10] Appeal — Findings of Fact — Review — Report of Proceedings — Failure To Supply — Effect. When an appellant fails to provide the appellate court with a verbatim report of trial proceedings, which prevents the appellate court from reviewing the evidence produced at trial, appellate review is limited to a review of the findings of fact as entered by the trial court. [11] Appeal — Notice of Cross Appeal — By Respondent — Necessity — Claim for Affirmative Relief. An appellate court will not consider a respondent's claim for affirmative relief unless the respondent raised the claim in a notice of cross appeal. [12] Trespass — Cutting of Timber — Boundary Line Tree — Common Ownership. A tree standing directly on the boundary line between adjoining lands, so that the line passes through the tree, is the common property of both landowners, whether marked or not. A claim for trespass will lie if one of the landowners cuts and destroys the tree without the consent of the other. [13] Trespass — Cutting of Timber — Boundary Line Tree — Damages — Measure of Damages. When a landowner violates RCW 64.12.030 by willfully cutting and destroying a boundary line tree and the adjoining landowner seeks damages based on the value of the tree, the measure of damages is calculated by multiplying the tree's value by the percentage of the tree's trunk that had been growing on the adjoining landowner's property. [14] Appeal — Findings of Fact — Failure To Assign Error — Effect. Unchallenged findings of fact are verities on appeal. [15] Appeal — Findings of Fact — Review — Report of Proceedings — Failure To Supply — Review of Conclusions of Law. When an appellant fails to provide the appellate court with a verbatim report of trial proceedings, the appellate court's review of the trial court's conclusions of law is limited to determining whether the trial court's findings of fact mandate a different result. [16] Trespass — Cutting of Timber — Treble Damages — Mitigation — Burden of Proof. When a plaintiff has proved a trespass to timber warranting an award of treble damages under RCW 64.12.030, the trespasser has the burden of alleging and proving mitigation under RCW 64.12.040 to avoid a trebling of damages. [17] Trespass — Cutting of Timber — Treble Damages — Discretion of Court. The trebling of damages for a trespass to timber is legislatively mandated and is not a matter left to the discretion of the courts. [18] Trespass — Cutting of Timber — Treble Damages — Mitigation — Subjective Belief. A mere subjective belief in a right to cut trees is not a mitigating factor under RCW 64.12.040 for avoiding liability for treble damages under RCW 64.12.030. [19] Trespass — Cutting of Timber — Treble Damages — Notice of Ownership. Where a person has been given notice that someone else has an ownership interest in certain trees and the person nonetheless cuts and destroys the trees, the person will be liable for treble damages under RCW 64.12.030. [20] Trespass — Cutting of Timber — Treble Damages — Purposes. The purposes of treble damages for a timber trespass under RCW 64.12.030 are to punish a voluntary offender, to provide a rough measure for future damages, and to discourage persons from carelessly or intentionally removing another's merchantable shrubs or trees on the gamble that the enterprise will be profitable if only actual damages are incurred. Nature of Action: Action for damages for the unauthorized cutting of trees on the boundary line between the plaintiff's and the defendant's properties. The plaintiff claimed that it had acquired title to the land under and around the trees by adverse possession due to its maintenance of the tress and surrounding area. The plaintiff sought damages for both the value of the cut trees and the estimated $15,065 cost of digging up the trees' root systems and repair of the plaintiff's driveway likely to be needed as a result. The plaintiff also requested that the entire award be trebled pursuant to the timber trespass statute. Superior Court: The Superior Court for Skagit County, No. 04-2-02027-4, Michael E. Rickert, J., on September 28, 2006, entered a judgment in favor of the plaintiff, awarding $32,519.22 for the timber trespass claim. In addition, the court concluded that the plaintiff was entitled to recover $2,500.00 for the cost of grinding out the remainder of the stumps but was not entitled to recover the $15,065.00 cost of completely removing the trees' root systems and repairing resulting damage. The court also ruled that the plaintiff was not entitled to treble damages as provided by the timber trespass statute because the trees that were cut straddled the common property line. Court of Appeals: Holding that the plaintiff did not prove its claim of adverse possession, but that the plaintiff proved its claim of timber trespass and is entitled to treble damages, the court affirms the judgment in part, reverses it in part, and remands the case for further proceedings. Craig E. Cammock-, for appellant. William B. Foster III-, for respondents. ¶1 DWYER, J. — Happy Bunch, LLC, appeals from a judgment in its favor against Grandview North, LLC, contending that Happy Bunch was awarded insufficient damages. Happy Bunch successfully sued Grandview pursuant to Washington's timber trespass statute, RCW 64.12.030, after Grandview wrongfully directed loggers to cut down 12 large trees on or near the border between Grandview's property and land owned by Happy Bunch. Happy Bunch asserts that the trial court erred by ruling that Happy Bunch had not acquired title to the land under the trees by virtue of adverse possession, that Happy Bunch was only entitled to recover damages for injury to those portions of the trees growing on its land, that Happy Bunch was only entitled to recover additional restoration damages in the amount of the $2,500 cost of grinding out the tree stumps, and that RCW 64.12.030's treble damages provision did not apply because the trees were growing on or across the common property line. Finding that the treble damages provision of RCW 64.12.030 is applicable to Happy Bunch's claim, we reverse the trial court's ruling on that issue. In all other respects, we affirm the decisions of the trial court. FACTS ¶2 The Wong family owns land in Mount Vernon, Washington, through its limited liability company, Happy Bunch. Grandview is a property development company solely owned and managed by Scott Wammack. On September 6, 2002, Grandview purchased a parcel of property adjacent to the Happy Bunch property in order to construct a Wienerschnitzel drive-through restaurant. The city of Mount Vernon building code required that approximately four feet of fill be placed onto the Grandview property as part of the planned development. ¶3 At the time of Grandview's purchase, 12 mature trees stood either on or near the boundary line between the Happy Bunch and Grandview properties. Some portion of the trunks of 10 of the trees extended from the Happy Bunch property onto the Grandview property. The trial court found that because the center of most of the trees lay on the Happy Bunch side of the boundary line, it is likely that all of the trees were originally planted on Happy Bunch's property. From the time the Wongs purchased their property in 1985, they maintained the trees and the area around them. ¶4 Wammack did not believe that Grandview could meet the city's fill requirement without constructing a retaining wall along the Happy Bunch/Grandview property line. Because the roots and trunks of the trees extended onto Grandview's property, Wammack believed that they would interfere with the construction of the retaining wall. Accordingly, he decided to remove the trees. From a survey taken around the time Grandview purchased its property, Wammack knew that 10 of the trees were located on the Happy Bunch/Grandview property line and that the remaining two trees were located entirely on Happy Bunch's property. ¶5 On September 24, 2002, Wammack contacted Lester Wong by telephone. Without disclosing the existence of the survey, Wammack informed Wong that he wanted to remove the trees and offered to install a fence in their place. Lester Wong did not agree to Wammack's proposal. ¶6 The next day Wammack again telephoned Lester Wong. During this conversation, Wammack indicated that Grandview's attorney had advised him to cut down the trees without obtaining the Wongs' permission. Lester Wong did not acquiesce to the removal of the trees. Instead, on September 26, 2002, Lester Wong independently engaged a surveyor to perform a rush survey of the boundary line. The surveyor hired by the Wongs, John Semrau, completed his survey on September 27. The Semrau survey agreed with the conclusions of the earlier survey obtained by Grandview that most of the trees were located on the boundary line between the two parcels. ¶7 Early the following Monday, September 30, Wammack again contacted Lester Wong to discuss removal of the trees. Lester Wong informed Wammack of the results of the Semrau survey and once again denied Wammack permission to remove the trees. ¶8 Nevertheless, Wammack immediately directed loggers to cut down the trees. Upon learning of the cutting, Lester Wong went to the site, demanded that the cutting cease, and called the Mount Vernon police. By the time a police officer arrived, the loggers had removed the nine easternmost trees along the boundary line. That day and the next, Happy Bunch's attorney sent letters, both to Grandview and Grandview's attorney, demanding that no further tree cutting take place. ¶9 Nevertheless, Wammack, after waiting until the Wongs were away, and at some point prior to October 11, directed the loggers to remove the remaining trees and grind those portions of the stumps located on the Grandview side of the property line. Pursuant to Wammack's direction, the loggers left intact those portions of the stumps on the Happy Bunch side of the property line. ¶10 Happy Bunch then filed this action, claiming that it had acquired title to the land under and around the trees by adverse possession due to the Wongs' maintenance of the trees and surrounding area. It also sought damages for both the value of the cut trees and the estimated $15,065 cost of digging up the trees' root systems and repairing damage to the Wongs' driveway likely to be sustained as a result. Happy Bunch also requested that the entire award be trebled pursuant to RCW 64.12.030, thus seeking a total damage award of $168,294. ¶11 The trial court ruled that Happy Bunch had not proved that it had acquired the land under the trees by adverse possession. However, the court did find that Grandview committed timber trespass, as defined by RCW 64.12.030, "by cutting the trees on the Wong/Grandview property line." The parties stipulated that the method used by Happy Bunch's expert arborist, Jim Barborinas, accurately assessed the value of the cut trees. The parties also stipulated to the gross value arrived at by Barborinas, $40,033. ¶12 In reaching its decision as to the amount of recoverable damages, the trial court utilized the Semrau survey to determine the percentage of the cut trees that had been growing on Happy Bunch's property. It then multiplied this percentage by the total stipulated gross value of the trees. This resulted in an award of $32,519.22 to Happy Bunch on its timber trespass claim. ¶13 In addition, the trial court concluded that Happy Bunch was entitled to recover $2,500 for the cost of grinding out the remainder of the stumps but was not entitled to recover the $15,065 cost of completely removing the trees' root systems and repairing the resulting damage. Finally, the trial court ruled that Happy Bunch was not entitled to treble damages as provided by the timber trespass statute "[b]ecause the trees that were cut straddled the common property line." DISCUSSION Standard of Review Adverse Possession ¶15 Happy Bunch first assigns error to the trial court's determination that Happy Bunch did not meet its burden of proving that it "adversely possessed the area around the trees, their stumps, and roots." Happy Bunch contends that, because the trial court found that "[t]he Wongs had maintained the trees and the spaces in between the trees by mowing, weeding, trimming and otherwise caring for the area since 1985," and that "[n]o evidence was submitted that Grandview or its predecessors maintained the trees or the spaces in between the trees," the trial court was required to adopt the legal conclusion that Happy Bunch had acquired title to the land under and around the trees as a result of adverse possession. We disagree. Measure of Damages under RCW 64.12.030 ¶19 In most jurisdictions, a tree standing on a common property line is considered the property of both landowners as tenants in common. See, e.g., Patterson v. Oye, 214 Neb. 167, 333 N.W.2d 389 (1983); Ridge v. Blaha, 166 Ill. App. 3d 662, 520 N.E.2d 980, 117 Ill. Dec. 629 (1988); Higdon v. Henderson, 304 P.2d 1001 (Okla. 1956); Cathcart v. Malone, 33 Tenn. App. 93, 229 S.W.2d 157 (1950). However, courts in other states have held that a tree planted on one parcel which grows across a boundary line does not automatically become common property but, rather, becomes so only if both landowners treat it as such pursuant to either an expressed agreement or a course of conduct. See Garcia v. Sanchez, 108 N.M. 388, 772 P.2d 1311 (Ct. App. 1989); Holmberg v. Bergin, 285 Minn. 250, 172 N.W.2d 739 (1969). ¶20 In its briefing Happy Bunch discusses two different approaches to the question of how damages should be measured and contends that the trial court erred by adopting the wrong approach. Citing Doran v. Rugg, 22 Conn. Supp. 189, 192, 164 A.2d 859 (1960), Happy Bunch admits that courts commonly calculate damages based on the value of each cut tree, apportioned according to the percentage of the tree that was located on the injured landowner's property, the approach taken by the trial court in this case. Happy Bunch, however, contends that the proper approach, applied in Rhodig v. Keck, 161 Colo. 337, 421 P.2d 729 (1966), is that, absent a showing of an agreement to the contrary, a boundary line tree belongs entirely to the party on whose land the tree was originally planted, with damages calculated accordingly. ¶21 We view Doran as the more persuasive authority. Doran involved the application of a treble damage statute similar to RCW 64.12.030 to the wrongful cutting of ornamental boundary-line trees. Doran, 164 A.2d at 861. In contrast, as the Rhodig court itself noted, Rhodig was "not a true boundary line case" at all. Rhodig, 421 P.2d at 730. In Rhodig, the landowners seeking to prevent the cutting did not own the land upon which the trees had been originally planted. In addition, the placement and history of the trees was significantly more well known than in the present case. ¶22 More importantly, Rhodig's reasoning is not compelling. The basis for the Rhodig decision was more fully articulated in Garcia as being that, unless proven otherwise, trees growing across a properly line belong solely to the party that originally planted them. See Garcia, 772 P.2d at 1314-15; Rhodig, 421 P.2d at 730-31. In essence, this rule provides that the boundary between two parcels of real property shifts over time with the natural growth of trees planted along the boundary unless the party upon whose land the trees are encroaching negotiates some form of joint ownership agreement with the party on whose land the trees were originally planted. For us to hold that a Washington landowner can effect such a boundary line adjustment would be to create an entirely new theory of adverse possession without a basis in either the statutory or common law of this state. Were we to apply the theory discussed in Rhodig in the present case, we would essentially be holding that Happy Bunch acquired title to the land under the trees, notwithstanding our affirmance of the trial court's conclusion that Happy Bunch failed to prove this under the existing requirements of the law. ¶24 There was no error. Additional Restoration Damages ¶25 Happy Bunch next contends that the trial court erred by refusing to enter Happy Bunch's proposed conclusion of law, which provided, in relevant part, that Happy Bunch was entitled to recover "the cost of removal and repair of the remaining stumps and root systems of $15,065.00." Happy Bunch argues that the proper measure of damages for unlawful cutting of residential or ornamental trees is the restoration or replacement cost Treble Damages ¶28 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, . . . 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. (Emphasis added.) RCW 64.12.040 provides: If upon trial of [an action under RCW 64.12.030] 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, . . . judgment shall only be given for single damages. The trespasser must allege and prove mitigation under RCW 64.12.040. Seattle-First Nat'l Bank v. Brommers, 89 Wn.2d 190, 197-98, 570 P.2d 1035 (1977). "It is clear that treble damages will be imposed . . . under RCW 64.12.030, unless those trespassing exculpate themselves under . . . RCW 64.12.040." Smith v. Shiflett, 66 Wn.2d 462, 464-65, 403 P.2d 364 (1965). The punitive aspect of the trebling provision is one that has been mandated by the legislature, not left to the discretion of the courts. Pearce v. G.R. Kirk Co., 92 Wn.2d 869, 875, 602 P.2d 357 (1979). ¶29 Grandview does not respond directly to this argument but, instead, merely asserts that Wammack's belief that he had the right to remove the trees, coupled with the principle that penal statutes are to be strictly construed, prevents the imposition of treble damages. It further asserts that, because he knew that the trees straddled the boundary line, Wammack had a justified belief that the land from which the trees were removed was his own. [T]o punish a voluntary offender and also to provide, by trebling the actual present damages, a rough measure for future damages, [as well as t]o 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. Guay v. Wash. Natural Gas Co., 62 Wn.2d 473, 476, 383 P.2d 296 (1963). Put another way, the legislature intended, "[i]n short, that there should be no self-created right of eminent domain." Shiflett, 66 Wn.2d at 463. Private condemnation of another's property in the course of business succinctly characterizes Grandview's actions here. It had full knowledge that the trees were, to varying degrees, growing on Happy Bunch's property, yet proceeded to have them removed anyway, gambling that it would at most be forced to pay Happy Bunch their value. Grandview knowingly and willfully cut trees belonging, at least in part, to another. The legislature has mandated that in such circumstances the court has no discretion to award other than treble damages. ¶32 Happy Bunch correctly construes both the text and purpose of the statute. Both the punitive and compensatory policies underlying the statute are implicated with respect to boundary line trees. We remand this case to the trial court with directions that it amend its judgment in accordance with this opinion. ¶33 Affirmed in part, reversed in part, and remanded. SCHINDLER, A.C.J., and AGID, J., concur.