PUBLISHED OPINION
Case No.: 96-2086
Complete
Title
of
Case:MARTIN TYDRICH,
Plaintiff-Appellant,
v.
DENNIS BOMKAMP,
WISCONSIN RIVERVALLEY HARDWOODS,
HERITAGE MUTUAL INSURANCE COMPANY,
Defendants-Respondents.
Submitted
on Briefs: October 9, 1996
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: December 27, 1996
Opinion
Filed: December
27, 1996
Source
of APPEAL Appeal from a judgment
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Richland
(If
"Special" JUDGE: Kent
C. Houck
so
indicate)
JUDGES: Vergeront,
Roggensack and Deininger, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSFor the plaintiff-appellant the
cause was submitted on the briefs of John D. Brown of John D. Brown
Law Office of Richland Center.
Respondent
ATTORNEYSFor the defendants-respondents the
cause was submitted on the brief of Roger J. Mueller of Hamilton
& Mueller, S.C. of Dodgeville.
|
COURT OF
APPEALS DECISION DATED AND
RELEASED December
27, 1996 |
NOTICE |
|
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 96-2086
STATE OF WISCONSIN IN
COURT OF APPEALS
MARTIN
TYDRICH,
Plaintiff-Appellant,
v.
DENNIS
BOMKAMP,
WISCONSIN
RIVERVALLEY HARDWOODS,
HERITAGE
MUTUAL INSURANCE COMPANY,
Defendants-Respondents.
APPEAL
from a judgment of the circuit court for Richland County: KENT C. HOUCK, Judge. Affirmed.
Before
Vergeront, Roggensack and Deininger, JJ.
DEININGER,
J. Martin Tydrich appeals from a judgment awarding him damages
under § 26.09, Stats.,[1]
for the unlawful cutting of thirty-five large maple trees on his farm. He claims the trial court erred in computing
damages: (1) by deducting the cost of
cutting the trees from the market value of the timber; and (2) by allowing an
offset against double damages for the net amount Tydrich received upon sale of
the timber. We conclude the damages
awarded are not improper under § 26.09 and thus affirm the judgment.
BACKGROUND
There
are no facts in dispute. Dennis Bomkamp
was cutting trees on a farm adjoining Tydrich's and negligently cut thirty-five
trees on the Tydrich farm. He was
acting under the direction of Wisconsin Rivervalley Hardwoods, Inc., which paid
Bomkamp $1,180 for cutting and skidding Tydrich's trees. Tydrich discovered the downed logs before
they were removed from his land. He
sold them to a third party for $7,650.
The trial court found the cost to clean up brush from the cut trees on
Tydrich's land was $600.
The
trial court computed Tydrich's damages as follows: the market value of the logs ($7,650) was reduced by the cost of
cutting the trees ($1,180) and increased by the land clean up cost ($600); that
amount ($7,070) was doubled per § 26.09, Stats.,
to arrive at $14,140. The court then
applied an offset of $6,724.35 to account for the net proceeds Tydrich received
when he sold the logs ($7,650 less $925.65 for income taxes paid on the
proceeds). A judgment in favor of
Tydrich for $7,415.65, plus allowable costs, was entered against Bomkamp,
Wisconsin Rivervalley Hardwoods, Inc., and Heritage Mutual Insurance Company
(Defendants).
ANALYSIS
Construction
of a statute, or its application to a particular set of facts is a question of
law, which we decide independently, owing no deference to the trial court's
determination. Minuteman, Inc. v.
Alexander, 147 Wis.2d 842, 853, 434 N.W.2d 773, 778 (1989).
a. "Stumpage" Versus Market Value
Tydrich
argues that the plain language of § 26.09, Stats., i.e., "the amount of damages suffered,"
requires that damages be based upon the market value of the logs. He further argues that even if the statute
is ambiguous, the legislative history of the statute supports his interpretation. Tydrich thus claims that the trial court
erred by deducting tree cutting costs from the market value of the timber,
thereby awarding him only "stumpage" value for the trees that were
cut by Bomkamp.[2] He maintains that this approach to computing
damages improperly rewards wrongdoers by compensating them for the unlawful
cutting, and it is therefore inconsistent with the deterrent purpose of
§ 26.09. He points to cases from
Washington which reject "stumpage" value and embrace market value as the
measure of damages under a similar statute.[3]
Defendants
assert that the plain language of the statute supports the trial court's
determination of damages based upon stumpage value. They argue that "the true value of plaintiff's loss is the
difference between the value of plaintiff's land before the cutting and
immediately after the 35 trees were cut."[4] Diminished land value may properly be
equated with the standing value of the trees that have been cut. Nelson v. Churchill, 117 Wis.
10, 12-13, 93 N.W. 799, 799 (1903).
Thus, defendants maintain that the trial court did not err by
determining damages based upon the standing value of the trees. Defendants do not object to the $600 awarded
for "clean up costs" as a part of Tydrich's damages.
The
parties' disagreement as to the meaning of § 26.09, Stats., does not render the statute
ambiguous. See National
Amusement Co. v. DOR, 41 Wis.2d 261, 267, 163 N.W.2d 625, 628
(1969). A statute may be said to be
ambiguous when it is capable of being understood by reasonably well-informed
persons in either of two senses. Id. Whether a statute is ambiguous is a question
of law. Boltz v. Boltz,
133 Wis.2d 278, 284, 395 N.W.2d 605, 607 (Ct. App. 1986). We conclude that § 26.09 is ambiguous
because it does not specify the method for computing "the amount of
damages suffered," and either market value of the logs or stumpage value
are reasonable possibilities. When a
statute is ambiguous, we may construe it in light of its history, context,
subject matter and scope to determine the legislature's intent. Kluth v. General Cas. Co., 178
Wis.2d 808, 815, 505 N.W.2d 442, 445 (Ct. App. 1993).
The
legislative history of § 26.09, Stats.,
is discussed at length in Swedowski v. Westgor, 14 Wis.2d 47, 109
N.W.2d 549 (1961), and in George Radler, Recent Decisions, Damages—Recovery
of Double Damages for Conversion of Timber, 39 Marq. L. Rev. 64 (1955). Prior to 1873, Wisconsin courts were
awarding victims of unlawful timber cutting only stumpage value, regardless of
whether the cutting was intentional or by mistake. In response, because it wished to enhance economic sanctions
against those who commit "timber trespass," the legislature enacted
the following provision as Laws of 1873, ch. 263, § 1, later codified as §
331.18, Stats.:
In all
actions to recover the possession or value of logs, timber or lumber wrongfully
cut ... the highest market value of such logs, timber or lumber, in
whatsoever place, shape or condition, manufactured or unmanufactured ... shall
be found or awarded to the plaintiff ....
(Emphasis added).
Following
enactment of § 331.18, Stats.,
the supreme court held that the legislative directive for "highest market
value" damages applied in all cases of "unlawful and unauthorized
cutting of logs," whether intentional or inadvertent. Webber v. Quaw, 46 Wis. 118,
122-23, 49 N.W. 830, 831 (1879). In
1905, the legislature enacted another provision, a predecessor to the present
§ 26.09, Stats., which
authorized double damages for unlawful timber cutting.[5] The double damages provision applied only if
the unlawful cutting constituted "wilful trespass." Boneck v. Herman, 247 Wis.
592, 596-97, 20 N.W.2d 664, 667 (1945); see also Swedowski,
14 Wis.2d at 49, 109 N.W.2d at 551.
Then,
in 1949, the legislature extensively revised the statutes in this area, repealing
§ 331.18, Stats., and
enacting the present § 26.09, Stats.[6] Under the revised § 26.09, double damages
can be sought from "any person unlawfully cutting ... raw forest
products." There is no longer a
reference to "wilful trespass."
The supreme court in Swedowski held that the 1949
revisions, and particularly the revised § 26.09, were intended "to cover
the field," such that the doubling of damages is now intended by the
legislature to apply to all unauthorized cutting, not just that which is
"wilful." Swedowski,
14 Wis.2d at 52-53, 109 N.W.2d at 553.
From
this history, Tydrich argues that the former "highest market value"
measure of damages from the repealed § 331.18, Stats., must be applied to "damages suffered" in
§ 26.09, Stats. We must presume, however, that the 1949
Legislature was aware of the case law which predated the enactment of
§ 331.18, Stats. See Reiter v. Dyken, 95 Wis.2d
461, 471-72, 290 N.W.2d 510, 515-16 (1980).
By repealing the "highest market value" provision and failing
to specify any other measure of damages, we conclude that the legislature
intended to have damages computed under § 26.09, Stats., in accordance with the common law of damages for
unlawful tree cutting as it had developed prior to enactment of the repealed
provision. Had the legislature intended
to continue a "highest market value" determination of damages, or to
establish some measure other than that developed by case law, it would have
specifically so provided, especially given the history described above.
Support
for this interpretation of § 26.09, Stats.,
is found in the Swedowski case.
There, as here, a direct evaluation of the decrease in real estate value
due to tree removal was apparently not feasible. The supreme court affirmed a double damage award under
§ 26.09 based upon the standing value of the trees that had been cut.[7] We note also the supreme court's emphasis in
Swedowski on the legislature's failure to carry over the
"wilful trespass" language to the revised § 26.09 in concluding
that the statute now covers negligent cutting.
See Swedowski, 14 Wis.2d at 52-53, 109 N.W.2d at
553. We similarly conclude that the
repeal of "highest market value" was purposeful and indicative of
legislative intent to change the method by which damages are determined for
unlawful cutting of forest products.
Thus,
we conclude the trial court's determination that the "amount of damages
suffered" under § 26.09, Stats.,
is the market value of the logs reduced by the costs of cutting, is consistent
with the legislative history, context, subject matter and scope of
§ 26.09.[8]
b. Offset for Log Sale Proceeds
Tydrich
also argues that the trial court improperly offset the net sale proceeds
Tydrich received for the logs against the doubled damages. He notes correctly that since he was the
owner of the logs, he was entitled to repossess them under § 26.06, Stats., (sheriff may seize and hold for
owner any forest products unlawfully severed or removed). Therefore, since § 26.09 provides for
the award of double damages "[i]n addition to the other penalties and
costs," Tydrich claims the legislature intended that there be no offset to
double damages when a landowner gains possession of wrongfully cut logs and sells
them. We disagree.
Tydrich's
argument is premised on a strained reading of these sections. In this regard, we conclude § 26.09, Stats., is not ambiguous. The plain language of the statute requires
that a plaintiff be awarded "double the amount of damages
suffered." The trial court
correctly noted that not offsetting the double damages by Tydrich's sale
proceeds would result in him receiving treble damages. The additional "other penalties and
costs" for which a wrongful timber cutter may be liable are civil
forfeitures and criminal penalties. See
§§ 26.05, 26.06, 943.20 and 943.34, Stats.
As
we have discussed, the "amount of damages suffered" by Tydrich is the
value of the standing trees that were cut.
He is entitled to recover twice that value. To read the statute as Tydrich urges has the effect of rewarding
timber trespassers for stealth and speed.
Had the defendants been quicker or more secretive in cutting and
removing the trees, they would have received the proceeds from selling
the logs and would have been liable to Tydrich for full double damages of
$14,140. Since Tydrich directly
received the sale proceeds for the logs, however, he had already recovered a
portion of his entitlement under § 26.09, Stats. The trial
court did not err by awarding Tydrich only the balance of his statutory
damages.
By
the Court.—Judgment affirmed.
[1] Section 26.09, Stats., provides as follows:
26.09 Civil liability for unlawful cutting, removal and
transport. In addition to the other
penalties and costs, any person unlawfully cutting, removing or transporting
raw forest products is liable to the owner or to the county holding a tax
certificate, or to the board of commissioners of public lands holding a land
contract certificate under ch. 24, to the land on which the unlawful cutting
was done or from which it was removed, in a civil action, for double the amount
of damages suffered. This section does
not apply to the cutting, removal and transporting of timber for the emergency
repair of a highway, fire lane or bridge upon or adjacent to the land.
[2] The Washington Court of Appeals has defined
stumpage as "the value of timber as it stands before it is cut, or put
another way, the amount a purchaser would pay for standing timber to be cut and
removed." Pearce v. G. R.
Kirk Co., 589 P.2d 302, 305 (Wash. App.), aff'd, 602 P.2d 357
(Wash. 1979). The rationale behind
"stumpage" value for evaluating damages is that logs which have been
cut, trimmed, and stacked for removal to a mill are worth more than the trees
standing because of the value added by the labor in preparing the logs for
market.
[3] See, e.g., Pearce, 589 P.2d at
306:
Under [Washington's statute], we hold that for a
plaintiff who intended to market trees personally and realize a retail profit,
the proper measure of damages to be trebled is the proven market value of those
trees. That value is not to be reduced or mitigated by a wrongdoer under a
punitive statute such as this, bearing in mind that "(t)he statutory
purpose is to protect the right of the owner to use or preserve his trees as he
sees fit, and not force compensation upon him when undamaged, growing trees
were what he would have possessed but for the willful intrusion of the
trespasser."
(Quoted source omitted).
[4] The only evidence offered on the change in
land value was a comparison showing that the assessed value of Tydrich's land
actually increased after the cutting.
[7] In Swedowski, the standing
value of the trees was actually higher than their value cut. These were young trees worth approximately
$2.00 to $2.50 apiece after cutting, but the trial court awarded a higher
figure, $5.00 per tree, on the rationale that the trees had future growth
potential, and thus were worth more standing.
Swedowski v. Westgor, 14 Wis.2d 47, 56, 109 N.W.2d 549,
555 (1961).
[8] Further support for this interpretation is
found in The Law of Damages in Wisconsin,
§ 18.16 (State Bar of Wisconsin CLE Books ed., 1994). Preceding a paragraph that describes the
availability of double damages under § 26.09, Stats., the text states that "[i]n most of the reported
cases" diminished land value after timber has been destroyed "is
established by proof of the fair market value of the standing timber (sometimes
referred to as stumpage value)."