Pendergrast v. Matichuk ( 2016 )

This opinion was filed for record FILE
IN CLERK'S OFFICE
~G..ry\on~f Ol\p
SUPREME COURT, STATE OF WASHINGTON
at 0.,~0 1 s 23'16
;AN~ARLSON
DATE_',"'_"'.)_ _ __
Supreme Court Clerk
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
LESLIE M. PENDERGRAST, as an )
individual, )
) No. 92324-8
Respondent, )
)
v. )
)
ROBERT MATICHUK and JANE )
DOE MATICHUK, as individuals and)
in their marital capacity; BLAINE )
PROPERTIES L.L.C., a Washington )
State limited liability company, ) En Bane
)
Petitioners, )
)
BANK OF THE PACIFIC, a )
Washington State corporation; MARK)
R. and CYNTHIA A SANFORD, )
as individuals and in their marital )
capacity; and GINA M. )
LINGENFELTER and JOl-IN DOE )
LINGENFELTER, as individuals and ) Filed SEP I ri 2016
in their marital capacity, )
)
Defendants. )
)
GONZALEZ, J.-Leslie Pendergrast and Robert Matichuk bought
adjacent lots separated by a solid wooden fence. The fence enclosed a
Pendergrast v. Matichul~ et. al., No. 92324-8
venerable cherry tree on Pendergrast's lot. For several years, Pendergrast
and Matichuk maintained their lots as if the fence was the boundary line
between them. Unfortunately, the fence stood several feet from the deed
line and, according to the legal description, on Matichuk's land. The cherry
tree stood on the disputed part of Pendergrast's lot. Instead of suggesting
mediation or arbitration or filing a quiet title suit, and over Pendergrast's
strenuous objection and despite her tearful plea, Matichuk tore down the
fence, built a new one on the deed line, and had the cherry tree cut down.
Litigation ensued, and Pendergrast prevailed at summary judgment, at trial,
and at the Court of Appeals. Matichuk claims the disputed land is his a:nd if
not, the jury gave Pendergrast too much relief. Finding no error, we affirm
the Court of Appeals.
FACTS
In 2006, Pendergrast and Matichuk bought separate lots in Blaine,
Washington, from Tali and Cyrus Conine. 1 Matichuk bought two lots (one
with a small house, one vacant), intending to build condominiums. Five
months later, Pendergrast bought an adjoining lot that included a 1907 home
'The complaints name Robert Matichuk and his wife, several corporations, and
subsequent grantees as defendants, but as it appears Robert held most ofthe property at
issue as his separate property at the time the controversy arose and was the primary actor
here, we refer to the defendants collectively as Matichuk.
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Pendergrast v. Matichuk, et. al., No. 92324-8
she intended to turn into a bed-and-breakfast. Pendergrast, who had retired
from a job as a nursing instructor after a car accident left her unable to safely
handle medical equipment, hoped to use the bed-and-breakfast to generate
income for herself and her disabled daughters.
At some point prior to either sale, a six-foot-tall, solid wooden fence
was built, partially enclosing Pendergrast's parcel and separating her lot
from the vacant parcel owned by Matichuk. The fence had been built about
six to eight feet west of the deed line, enclosing the venerable cherry tree on
the parcel with the 1907 home. The Conines' disclosure statement for the
Pendergrast parcel asserted that there were no "encroachments, boundary
agreements, or boundary disputes," suggesting they believed the fence was
on the property line. Clerk's Papers (CP) at 33. Consistently, the
Pendergrast property was described in the listing agreement as partially
fenced. Id. at 32. The record does not include similar documents from the
Matichuk sale, but at oral argument, Matichuk conceded that the Conines
represented to him that there were no encroachments on his parcel. Wash.
Supreme Court oral argument, Pendergrast v. Matichuk, No. 92324-8 (June
21, 2016) at 39 min., 16 sec., audio recording by TVW, Washington State's
Public Affairs Network, http://www.tvw.org.
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Pendergrast v. Matichuk, et. al., No. 92324-8
The record does include Matichuk's deposition testimony that he
paced off the lot and "came to the conclusion the fence was not on the
property line. Actually, let me rephrase that, I came to the conclusion I
didn't know where the fence was in relation to the property line." CP at 52.
He testified he was not concerned about any discrepancy because he "was
buying on the description of the property." Id. at 53. Nothing in the record
suggests he sought clarification about the relation between the fence and the
deed line before buying the lot.
Meanwhile, Pendergrast planned a nautically themed bed-and-
breakfast that would make use of the house, several outbuildings, and a tree
fort in the cherry tree she planned to make look like the bow of a ship and
use as a viewing station. At some point, she called Matichuk to ask him if
he would consider selling one ofhis parcels to her. Nothing came of that
conversation, and Matichuk did not use the occasion to alert Pendergrast that
he was concerned the fence between their properties was misplaced. Over
the next few years, she discussed her plans with the city and invested about
$130,000 in remodeling the home. During those years, she used and
maintained the property up to the fence line. From time to time, she would
have casual conversations with Matichuk. They never discussed the
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Pendergrast v. Matichuk, et. a!., No. 92324-8
boundary line. Pendergrast's plans suffered a significant setback when a
pipe .on an upper floor burst, necessitating costly repairs.
In 2008, Matichuk had the property surveyed and determined that the
legal description of his lot extended several feet beyond the fence into the lot
Pendergrast had purchased. The next year, by letter, he informed
Pendergrast that he had discovered that the fence encroached on his land and
that he intended to move it to the deed line, much to her distress.
Pendergrast believed her parcel extended to the fence line and that moving it
would leave her with insufficient room to develop the bed and breakfast.
Via counsel, she informed Matichuk that she claimed the property enclosed
by the fence and instructed him not to move the fence. When the letter was
unavailing, Pendergrast called Matichuk in tears and begged him not to
move the fence. The day after that call, Matichuk had the fence torn down.
Later, Matichuk cut down the cherry tree.
Pendergrast sued, seeking, among other things, to quiet title in the
strip of land between the old fence line and the new one. She also sought
damages for trespass and timber trespass, including treble damages under the
timber trespass statute, RCW 64.12.030. Both parties moved for summary
judgment. Nothing in the record before us suggests that Matichuk opposed
Pendergrast's summary judgment motion on the grounds that a material
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Pendergrast v. Matichuk, et. al., No. 92324-8
question of fact was presented by his deposition testimony that he did not
know where the fence was located in relation to the deed line. Instead, he
contei1ded that he was entitled to prevail at summary judgment because
"there is absolutely no evidence that the common grantor ever established a
boundary line different from the deeded botmdary," "no evidence of any .
formal or specific agreement about the boundary," and "[no] evidence that
the parties acted in a way after the sale to suggest that they agreed that the
fence was the boundary." CPat 31 Ocll. Judge Mura granted partial
summary judgment in favor ofPendergrast. in a brief order.
The parties went to trial on trespass and timber trespass. Pendergrast
testified that she begged Matichuk not to move the fence, that she "felt
violated," that his actions left her in serious financial straits at a time when
she was carrying both of her disabled daughters' mortgages, and that she
could not sell the house while the lawsuit was pending. 2 Verbatim Report
of Proceedings (Jan. 30, 2014) at 51. We have not been provided with
MatiChuk's testimony. The jury was instructed that damages for both
trespass (removing the fence) and timber trespass (cutting the cherry tree)
"include economic and non-economic loss that you find was proximately
caused by the trespass and/or timber trespass," and that if they found
6
Pendergrast v. Matichuk, et. al., No. 92324-8
Matichuk committed either trespass, they should consider whether his
actions caused Pendergrast emotional distress. CP at 196.
The jury found for Pendergrast. It awarded her $5,200 in economic
and $75,000 in noneconomic damages for the trespass. It awarded her
$3,310 in economic and $40,000 in noneconomic damages for the timber
trespass. The trial judge tripled the timber trespass economic damages under
RCW 64.12.030 and .040, but declined to triple the noneconomic ones
"because such a trebling is not specifically provided in RCW 64.12.030,
which, as a penal or punitive statute, should be interpreted and applied
literally and narrowly." I d. at 237. The judge also ordered equitable relief
in the form of abatement of the trespass and the entry of new legal
descriptions. Matichuk's motion for a new trial or reduction of
noneconomic damages was denied.
Both sides appealed. The Court of Appeals largely affirmed.
Pendergrast v. Matichuk, 189 Wn. App. 854,355 P.3d 1210 (2015). It
upheld the summary judgment ruling quieting title based on the common
grantor award and declined to reduce the jury's award of noneconomic
damages. !d. at 859. However, it concluded that the plain language of the
timber trespass statute required the court to treble the noneconomic damages
7
Pendergrast v. Matichuk, et. a!., No. 92324-8
found by the jury. I d. We granted review. 185 Wash. 2d 1002, 366 P.3d 1243
(2016).
ANALYSIS
1. QUIET TITLE AND THE COMMON GRANTOR DOCTRINE
The quiet title action was decided on cross motions for summary
judgment. We review summary judgment de novo. Becerra Becerra v.
Expert Janitorial, LLC, 181 Wash. 2d 186, 194, 332 P.3d 415 (2014) (quoting
Rivas v. Overlake Hosp. Med. Ctr., 164 Wash. 2d 261, 266, 189 P.3d 753
(2008)).
It has long been the law in Washington that "[t]he location of a line by
a common grantor is binding upon the grantees." Turner v. Creech, 58
Wash. 439,443, 108 P. 1084 (1910) (citing McGee v. Stone, 9 Cal. 600
(1858)). A common grantor can "establish[] an 'on the ground' boundary
line between" tracts of land sold to separate parties "that is binding on the
common grantees," even when the deed describes a different boundary.
Thompson v. Bain, 28 Wash. 2d 590,593, 183 P.2d 785 (1947). In the opinion
characterized by Washington Practice as best encapsulating the doctrine, the
Court of Appeals wrote:
A grantor who owns land on both sides of a line he has
established as the common boundary is bound by that line. Fralick v.
Clark Cy., 22 Wash. App. 156, 589 P.2d 273 (1978). The line will also
be binding on grantees if the land was sold and purchased with
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Pendergrast v. Matichuk, et. al., No. 92324-8
reference to the line, and there was a meeting of the minds as to the
identical tract ofland to be transferred by the sale. Kronawetter v.
Tamoshan, Inc., 14 Wash. App. 820, 545 P.2d 1230 (1976). The
common grantor doctrine involves two questions: (1) was there an
agreed boundary established between the common grantor and the
original grantee, and (2) if so, would a visual examination of the
property indicate to subsequent purchasers that the deed line was no
longer functioning as the true boundary? Fralick, 22 Wash. App. at 160.
Winans v. Ross, 35 Wash. App. 238, 240-41, 666 P.2d 908 (1983); 17
WILLIAM B. STOEBUCK & JOHN W. WEAVER, WASHINGTON PRACTICE: REAL
ESTATE: PROPERTY LAW§ 8.22, at 546 (2d ed. 2004). We too find Winans
usefully distills the doctrine.
In Winans, a common grantor had purchased two lots separated by a
fence that was about 60 feet west of the deed line. Winans, 35 Wash. App. at
239-40. Later, and without moving the fence, the grantor sold each lot to
separate purchasers. I d. The court found the fence had become the legal
boundary between the two parcels despite the fact there was no direct
evidence of an agreement between the parties to treat it as such or evidence
that the grantor intended to move the boundary. !d. at 240-41. Once the
"grantee purchases believing the indicated line is the true line, ... the
indicated line is binding between grantor and grantee. And their successors
in title will also be bound by that line if, when they succeed to title, the
indicated line is physically visible on the ground." 17 STOEBUCK &
WEAVER, supra, § 8.22, at 546. "An agreement or meeting of the minds
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between the common grantor and original grantee may be shown by the
parties' manifestations of ownership after the sale." Winans, 35 Wash. App. at
241 (citing Thompson, 28 Wash. 2d 590); see also Turner, 58 Wash. at 444.
Matichuk presents us with three grounds for reversing judgment in the
quiet title action. First, Matichuk seems to suggest the common grantor
doctrine is inconsistent with RCW 64.04.010, which states that "[e]very
conveyance of real estate ... shall be by deed." See Pet'r's Suppl. Br. at 1.
But the common grantor doctrine has been recognized in this state since at
least 1910 without the legislature indicating disapproval. See Turner, 58
Wash. at 443. This court will not overturn precedent without either "a clear
showing that an established rule is incorrect and harmful," In re Rights to
Waters of Stranger Creek, 77 Wash. 2d 649, 653, 466 P.2d 508 (1970), or a
clear showing that the legal underpinnings of the precedent have been
eroded, W.G. Clark Constr. Co. v. Pac. Nw. Reg'! Council of Carpenters,
180 Wash. 2d 54, 66,322 P.3d 1207 (2014) (citing United States v. Gaudin,
515 U.S. 506, 521, 115 S. Ct. 2310, 132 L. Ed. 2d 444 (1995)). Neither
showing has been made here.
Second, Matichuk suggests that application of the common grantor
doctrine was inappropriate because there was no evidence that the common
grantor "actively and purposefully changed the boundary of his or her
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Pendergrast v. Matichuk, et. al., No. 92324-8
property, and that change of boundary was made with full knowledge and
recognition by the original grantee." Pet'r's Suppl. Br. at 2. Such evidence
has been found sufficient to establish the first Winans element. See Kay
Corp. v. Anderson, 72 Wash. 2d 879, 436 P.2d 459 (1967); Atwell v. Olson, 30
Wash. 2d 179, 190 P.2d 783 (1948); Windsor v. Bourcier, 21 Wash. 2d 313, 150
P.2d 717 (1944); Angell v. Hadley, 33 Wash. 2d 837, 207 P.2d 191 (1949);
Martin v. Hobbs, 44 Wash. 2d 787, 270 P.2d 1067 (1954). But we find nothing
in our case law that holds such evidence is necessary. Instead, in several
cases, a boundary by common grantor was found without proof of an active
and purposeful change made with full knowledge and recognition of the
original grantee. See, e.g., Thompson, 28 Wash. 2d at 592-93; Strom v.
Arcorace, 27 Wash. 2d 478, 481-82, 178 P.2d 959 (1947); Winans, 35 Wn.
App. at 241-42.
Third, Matichuk argues that the courts below erred by considering the
fact that Pendergrast maintained the property up to the fence line for three
years without Matichuk informing her that he believed it was not the
boundary line. Pet'r's Suppl. Brat 6-7. But courts have looked to "the
parties' manifestations of ownership after the sale" as evidence of the
boundary line before. Winans, 35 Wash. App. at 241 (citing Thompson, 28
Wash. 2d 590); see also Strom, 27 Wash. 2d at 481-82 (looking to postpurchase
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Pendergrast v. Matichuk, et. al., No. 92324-8
conduct as evidence of the adjusted boundary). This argument is
unavailing. 2
Matichuk has shown no error in the trial court's summary judgment
on the quiet title action. Accordingly, we affirm.
2.DAMAGES
Next, we turn to Matichuk's claim that Pendergrast was not entitled to
statutory treble damages under the timber trespass statute for the loss of her
tree. The timber trespass statute provides in relevant part:
Whenever any person shall cut down ... any tree ... on the land of
another person ... without lawful authority, in an action by the person
... against the person committing the trespasses ... any judgment for
the plaintiff shall be for treble the amount of damages claimed or
assessed.
RCW 64.12.030. 3 The purpose of the timber trespass statute is well
established: "to (1) punish a voluntary offender, (2) provide treble damages,
2
Generously construed, Matichuk's argument suggests that his testimony that he "didn't
know where the fence was in relation to the property line" created a material question of
fact that should have prevented summary judgment. See, e.g., Pet'r's Suppl. Br. at 6-7;
CP at 52. But, perhaps strategically (at least in the record provided to this court)
Matichuk did not raise his testimony before the trial court as a reason to avoid summary
judgment and did not assign error to the trial court's summary judgment order on that
basis. See Resp'ts'/Cross-Appellants' Opening Br. at 1. Instead, both at summary
judgment and in his assignments of error, Matichuk pursued victory as a matter of law,
not trial on the merits. Accordingly, we decline to consider whether Matichuk's
deposition testimony presented a material question of fact that should have prevented
summary judgment. For similar reasons, we decline to consider his belatedly raised
argument that noneconomic damages should be limited to a multiplier of economic
damages.
3
This statute was amended during the course of this case to specifically include
Christmas trees. LAWS OF 2009, ch. 349, § 4. The amendment does not affect this case.
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Pendergrastv. Matichuk, et. al., No. 92324-8
and (3) 'discourage persons from carelessly or intentionally removing
another's merchantable shrubs or trees on tbe gamble that the enterprise will
be profitable if actual damages only are incurred."' Broughton Lumber Co.
v. BNSF Ry. Co., 174 Wash. 2d 619, 625, 278 P.3d 173 (2012) (quoting LAWS
OF 1869, ch. 48, § 556, at 143). The timber trespass statute does not limit
the types of damages subject to trebling as some more recent statutes do.
Compare RCW 64.12.030 (timber trespass statute), with RCW 48.30.015(2)
(providing for treble damages under the Insurance Fair Conduct Act limited
to actual damages), and RCW 19.86.090 (Consumer Protection Act damages
limited to actual damages and not more than $25,000).
It is also well established at least since 1997 that emotional distress
damages are available under the timber trespass statute, though, until now,
we have not been properly asked to decide whether those damages are
subject to statutory trebling. Birchler v. Castello Land Co., 133 Wash. 2d 106,
110 n.3, 116, 942 P.2d 968 (1997). Pendergrast maintains, and the Court of
Appeals agreed, that she is entitled to treble these damages under the plain
language of the timber trespass statute. Since this requires us to interpret a
statute, our review is de novo. Broughton Lumber Co., 174 Wash. 2d at 624-25
(citing State v. Breazeale, 144 Wash. 2d 829, 837, 31 P.3d 1155 (2001)).
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Pendergrast v. Matichuk et. a!., No. 92324-8
Matichuk argues that since "the timber trespass statute is penal in
nature," it is "subject to strict construction." Broughton Lumber Co., 174
Wash. 2d at 633 (citing Skamania Boom Co. v. Youmans, 64 Wash. 94, 96-97,
116 P. 645 (1911)). He is correct that punitive damages are penal in nature
and their award "violat[es] public policy unless expressly authorized by
statute." !d. at 638 n.l4 (citing Barr v. Interbay Citizens Bank of Tampa, 96
Wash. 2d 692, 635 P.2d 441, 649 P.2d 827 (1982)). But however strictly we
construe it, the timber trespass statute explicitly authorizes treble damages.
RCW 64.12.030 says that "any judgment for the plaintiff shall be for treble
the amount of damages claimed or assessed." Our goal in statutory
interpretation is to carry out the legislature's intent, and here, that intent is
plainly expressed. Dep 't ofEcology v. Campbell & Gwinn, LLC, 146 Wash. 2d
1, 9-10, 43 P.3d 4 (2002).
While certainly the legislature would be well within its power to limit
emotional distress damages available under the timber trespass statute, it has
not. We find under the plain language of the statute, Pendergrast is entitled
to treble damages on all damages awarded under the timber trespass statute. 4
4We agree that the legislature is well able to limit punitive damages as described in the
concurring/dissenting opinion. But the fact is, despite almost 20 years to do so, the
legislature has expressed no dissatisfaction with the Birchler opinion and has not limited
the punitive damages to nonemotional distress damages. Without overruling Birchler
(which no party asks us to do), there is no way to limit damages as proposed by the
concurrence/dissent.
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Pendergrast v. Matichuk, et. al., No. 92324-8
Matichuk also requests a new trial on the theory that the noneconomic
damages were excessive. The jury awarded Pendergrast $5,200 and $3,310
in economic damages for the trespass and timber trespass respectively and
$75,000 and $40,000 in emotional damages for each wrong. CP at 240. The
trial court denied his motion for a new trial on this ground, and the Court of
Appeals affirmed in a detailed ruling. Pendergrast, 189 Wash. App. at 867-
72. We find no error in either decision. Briefly, a trial court may order a
new trial when the damages awarded are "so excessive or inadequate as
unmistakably to indicate that the verdict must have been the result of passion
or prejudice." CR 59(a)(5). We review the trial court's decision for abuse
of discretion. Brundridge v. Fluor Fed. Servs., Inc., 164 Wash. 2d 432, 454,
191 P.3d 879 (2008) (citing Alum. Co. ofAm. v. Aetna Cas. & Sur. Co., 140
Wash. 2d 517, 537, 998 P.2d 856 (2000)). "'An appellate court will not disturb
an award of damages made by a jury unless it is outside the range of
substantial evidence in the record, or shocks the conscience of the court, or
appears to have been arrived at as the result of passion or prejudice."'
Bunch v. King CountyDep'tofYouth Servs., 155 Wash. 2d 165, 179, 116 P.3d
381 (2005) (quoting Bingaman v. Grays Harbor Cmty. Hasp., 103 Wash. 2d
831, 835,699 P.2d 1230 (1985)).
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Pendergrast v. Matichuk, et. al., No. 92324-8
Matichuk does not dispute that Pendergrast testified at length about
the substantial distress his actions caused her. He argues he was not the real
cause of her distress and instead other misfortunes in her life were the real
cause of the distress she testified about at trial. These are proper arguments
for the jury to resolve, and we decline to disturb its resolution. Matichuk
also emphasizes that Pendergrast did not offer any corroborating testimony
regarding her distress. But a jury's damages verdict may rest on the
plaintiffs testimony alone. Bunch, 155 Wash. 2d at 181 (citing Nord v.
Shoreline Sav. Ass 'n, 116 Wn.2d 477,487, 805 P.2d 800 (1991)).
Pendergrast testified that she had spent about $130,000 to turn the house into
a bed-and-breakfast that she intended to use as a source of income for herself
and her disabled daughters. She testified that Matichuk's actions prevented
her from completing the project and caused her severe distress. Matichuk
has not shown that the jury's noneconomic damages award of$115,000 was
outside the range of the evidence presented or that the trial court abused its
discretion in declining to order a new trial. We affirm.
CONCLUSION
We affirm the trial court's summary judgment on the quiet title action
and its denial of the motion for a new trial. We affirm the Court of Appeals'
decision on damages under the timber trespass statute. As Matichuk is not
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Pendergrast v. Matichuk, et. a!., No. 92324-8
the prevailing party, his motion for attorney fees under the lis pendens
statute is denied. We remand to the trial court for any further proceedings
necessary consistent with this opinion.
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Pendergrast v. Matichuk, et. al., No. 92324-8
WE CONCUR:
~-~133 Wash. 2d 106, 116, 942 P.2d 968 (1997). And the majority is
correct that the statute "does not limit the types of damages subject to trebling as some
more recent statutes do." Majority at 13. However, the statute does not expressly
authorize the trebling of noneconomic damages, and for this reason I would reverse the
Court of Appeals as to trebling of emotional distress damages under the timber trespass
statute.
No. 92324-8
(Madsen, C.J. concurring/dissenting)
The timber trespass statute is punitive in nature, and it is therefore "subject to
strict construction." Broughton Lumber Co. v. BNSF Ry. Co., 174 Wash. 2d 619, 633, 278
P.3d 173 (2012) (citing Skamania Boom Co. v. Youmans, 64 Wash. 94, 96-97, 116 P. 645
(1911)). Punitive damages "violate public policy unless expressly authorized by statute."
!d. at 638 n.14 (citing Barr v. Interbay Citizens Bank of Tampa, 96 Wash. 2d 692, 635 P.2d
441, 649 P.2d 827 (1982)). "Our interpretive approach should account for this
philosophical difference." !d. Although the timber trespass statute does not explicitly
limit the types of damages subject to trebling, the more modern statutes do. See, e.g.,
RCW 48.30.015(2) (providing for treble damages under the Insurance Fair Conduct Act
limited to actual damages); RCW 19.86.090 (Consumer Protection Act damages limited
to actual damages and not more than $25,000). The Consumer Protection Act, Laws of
2007, ch. 498, § 3; and the Insurance Fair Conduct Act, Laws of 1961, ch. 216, § 9;
reflect decades of modern tort law development. The timber trespass statute, on the other
hand, dates back to territorial, prestatehood days. See LAWS OF 1869, ch. 143, §55.
Respondent called nothing to our attention to suggest that the territorial legislature
contemplated that people would have an emotional attachment to their trees and shrubs or
had cause to contemplate whether timber trespass could cause emotional distress, let
alone trebling of those damages. Indeed, the purpose of the statute was to '"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."'
Broughton Lumber Co., 174 Wash. 2d at 625 (emphasis added) (quoting LAWS OF 1869, ch.
2
No. 92324-8
(Madsen, C.J. concurring/dissenting)
48, § 556, at 143). Because we construe punitive statutes strictly, and because the timber
trespass statute does not expressly authorize trebling of punitive damages, I cannot say
that the territorial legislature in 1869 intended to discourage the careless or intentional
removal of merchantable timber by trebling damages for emotional distress. Therefore, I
respectfully dissent in part.
3
No. 92324-8
(Madsen, C.J. concurring/dissenting)
4