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Gunn v. Riely

Court of Appeals of Washington, Division 2

January 21, 2015

Robert Gunn, Respondent,
Terry L. Riely et al., Appellants

Appeal from Clallam Superior Court. Docket No: 10-2-00230-1. Judge signing: Honorable S Brooke Taylor. Judgment or order under review. Date filed: 07/02/2013.

Curtis G. Johnson, for appellants.

William J. Davis (of Bell & Davis PLLC ), for respondent.

Authored by Linda CJ Lee. Concurring: Lisa Sutton, Lisa Worswick.


Page 1226

[185 Wn.App. 519] Lee, J.

 ¶ 1 Terry and Petra Riely appeal the trial court's judgment awarding damages to Robert Gunn for timber trespass on Gunn's property. The Rielys argue that the trial court erred when it (1) applied RCW 4.24.630, the waste statute, instead of RCW 64.12.030, the timber trespass statute; (2) did not consider the Rielys' affirmative defense that Oasis Well Drilling was liable; and (3) did not consider whether the Rielys had an implied easement. Because the trial court incorrectly applied the waste statute, RCW 4.24.630, we reverse and remand for further proceedings.


¶ 2 Gunn and the Rielys own adjacent property in the Storm King Ranch subdivision in Clallam County, Washington. [185 Wn.App. 520] Joel Sisson, one of the Storm King developers, purchased the Storm King land and subdivided it into eight parcels. Parcels 1, 2, and 3 share a common corner. Gunn owns parcel 1 and the Rielys own parcel 2. The owners of parcel 3 are not parties to this appeal.

¶ 3 Sponberg Lane runs west through Gunn's property. A grassy path (an old logging road) diverges from Sponberg Lane, and runs roughly parallel along the boundary line between Gunn's property and the Rielys' property, and ends near the common corner shared by parcels 1, 2, and 3. The grassy path is entirely on Gunn's property and is about 75 feet from the boundary line with the Rielys' property.

¶ 4 Between 2000 and 2009, the Rielys used the grassy path to access parts of their property. During that time, Gunn repeatedly told the Rielys that they did not have the right to use the grassy path and that they were not welcome on his land. The Rielys continued to tell Gunn that they believed that they had a right to use the path. In the spring of 2008, Gunn went to the courthouse to inspect the deeds and determined that the Rielys did not have an easement of record. Also in 2008, the Rielys asked to purchase an easement from Gunn, but he declined.

¶ 5 In 2009, the Rielys hired Oasis Well Drilling to build a well on their property near the common corner. The Rielys directed Oasis to use the grassy path for access to the Rielys' property. When the Rielys directed Oasis to use the grassy path, they were aware that Oasis planned to cut trees on the grassy path to get to the drill site. Oasis cut

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down approximately 107 of Gunn's trees along the grassy path to make room for the equipment needed to drill the well.

¶ 6 Gunn filed his complaint for timber trespass in 2010 and his amended complaint in 2013. In Gunn's amended complaint, he alleged that the Rielys came onto his property and injured trees; that the Rielys knew that they did not have the right to be on his property; and that Gunn was entitled to damages pursuant to the timber trespass statute, [185 Wn.App. 521] RCW 64.12.030,[1] or in the alternative, the waste statute, RCW 4.24.630.[2]

¶ 7 In their answer to Gunn's complaint, the Rielys stated that (1) they had " certain easement rights" over the grassy path and (2) Gunn's injuries were caused by someone else not under the control, supervision, or direction of the Rielys. For the first time in their trial brief, the Rielys argued that Oasis was liable for the damage to the trees and that they held an implied easement over the grassy path.

¶ 8 The case was heard in a two-day bench trial. The parties stipulated to the value of the cut trees ($153 total).

[185 Wn.App. 522] ¶ 9 At trial, Gunn moved in limine[3] to exclude the Rielys' argument that Oasis was liable, and to prevent the Rielys from bringing a quiet title action to establish an implied easement because the Rielys did not plead these claims and Gunn did not have notice of these claims. With regard to the argument that Oasis was liable, the Rielys argued that while they did not specifically plead it or disclose it in discovery, Gunn was on notice that the Rielys would argue that Oasis was liable because Gunn knew that Oasis built the well. The trial court ruled that it would allow the Rielys to present evidence relevant to the wrongfulness of the tree cutting, but the fault of a nonparty must be affirmatively pleaded and because it was not, the trial court would not determine whether Oasis was liable.

¶ 10 With regard to the implied easement issue, the Rielys argued that their pleadings implied that they would bring a quiet title action because their affirmative defense was based on their belief that they held an easement. The trial court ruled that the Rielys could prove their defense, but that they could not bring a quiet title action because it had not been pleaded. The Rielys then requested a continuance to amend their pleadings to add a claim for a quiet title action based on an implied easement, and the trial court denied the request.

¶ 11 The trial court found the Rielys liable for damages for timber trespass to Gunn under the waste statute, RCW 4.24.630. The trial court ruled:

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The essence of the claim here is damage to the land, not to the trees. The value of the trees is the smallest component of damages and trebling it is really useless in terms of restoring to Mr. Gunn what ...

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