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# ;AN~ARLSON Supreme Court Clerk 

### FILE IN CLERK'S OFFICE SUPREME COURT, STATE OF WASHINGTON**0.,~0** 

### 1

# s 23'16 DATE_',"'_"'.)
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INTHE SUPREME COURT OF THE STATE OF WASHINGTON
LESLIE M. PENDERGRAST, as an ) individual, ) ) Respondent, ) ) v. ) ) ROBERT MATICHUK and JANE ) DOE MATICHUK, as individuals and) in theirmarital capacity; BLAINE ) PROPERTIES L.L.C., a Washington ) State limited liability company, ) ) Petitioners, ) ) BANK OF THEPACIFIC, 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 ) in their marital capacity, ) ) Defendants. ) ) No. 92324-8

En Bane

Filed 

### SEP I 

## ri 2016

GONZALEZ, J.-Leslie Pendergrast and Robert Matichukbought adjacent lots separated by a solid wooden fence. The fence enclosed aPendergrast v.**Matichul~** et. al., No. 92324-8 

### venerable cherry tree on Pendergrast's lot. For several years, Pendergrast and Matichuk maintainedtheir lots as ifthe fence was the boundary line between them. Unfortunately, the fence stood several feet from the deed line and, according to the legal description, onMatichuk's land. The cherry tree stood on the disputedpart ofPendergrast's lot. Instead ofsuggesting 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, builta new oneonthe deed line, and had the cherry tree cut down. Litigation ensued, and Pendergrastprevailed at summaryjudgment, at trial, and at the Court ofAppeals. Matichuk claims the disputed land is his a:nd if not, thejury gave Pendergrasttoo much relief. Finding no error, we affirm the Court ofAppeals. FACTS 

### In 2006, Pendergrast and Matichukbought separate lots in Blaine, Washington, from Tali and Cyrus Conine. 1 

### Matichuk boughttwo lots (one with a small house, one vacant), intending to build condominiums. Five months later, Pendergrastbought an adjoining lotthat included a 1907home

'The complaints name Robert Matichuk and his wife, several corporations, and subsequent grantees as defendants, but as it appears Robert held most oftheproperty at issue as his separateproperty at the time the controversy arose and was the primary actor here, we refer to the defendants collectively as Matichuk. 2Pendergrast v. Matichuk, et. al., No. 92324-8 

### she intended to turn into a bed-and-breakfast. Pendergrast, who had retired from ajob 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 herselfand her disabled daughters. At some point priorto 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 ofthe deed line, enclosingthe venerable cherry tree on the parcel with the 1907 home. The Conines' disclosure statement for the Pendergrastparcel asserted thatthere were no "encroachments, boundary agreements, or boundary disputes," suggesting they believedthe fence was
onthe property line. Clerk's Papers (CP) at 33. Consistently, the Pendergrastproperty was described inthe 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.

3Pendergrast v. Matichuk, et. al., No. 92324-8 

### The record does include Matichuk's depositiontestimony that he paced offthe 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'tknow 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 ofthe property." Id. 

### at 53. Nothing inthe record suggests he sought clarification about the relation between the fence and the deed line before buying the lot. Meanwhile, Pendergrastplanned a nautically themed bed-andbreakfastthat would make use ofthe house, several outbuildings, and a tree fort in the cherry tree she planned to make look like the bow ofa ship and
use as a viewing station. At some point, she called Matichuk to askhim if he would consider selling one ofhisparcels to her. Nothing came ofthat conversation, and Matichuk did not use the occasion to alert Pendergrast that he was concerned the fence betweentheir properties was misplaced. Over the next few years, she discussed her plans with the city and invested about $130,000 inremodeling 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

4Pendergrast 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 thatthe legal description ofhis lot extended several feet beyond the fence into the lot Pendergrasthad purchased. The next year, by letter, he informed Pendergrastthat he had discovered thatthe fence encroached onhis land and that he intended to move it to the deed line, much to her distress. Pendergrast believed herparcel extended to the fence line and thatmoving it would leave her with insufficient room to develop the bed and breakfast. Via counsel, she informed Matichukthat she claimed the property enclosed by the fence and instructed him notto move the fence. Whenthe letter was unavailing, Pendergrast called Matichuk in tears and begged him notto
move the fence. The day afterthat call, Matichuk had the fence torn down. Later, Matichuk cut down the cherry tree. Pendergrast sued, seeking, among other things, to quiettitle in the strip ofland between the old fence line and the new one. She also sought damages for trespass and timber trespass, including treble damages underthe timber trespass statute, RCW 64.12.030. Bothparties moved for summary judgment. Nothing in the record before us suggests that Matichuk opposed Pendergrast's summaryjudgmentmotion on the grounds that a material

5Pendergrast v. Matichuk, et. al., No. 92324-8 question offact 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 entitledto prevail at summaryjudgmentbecause "there is absolutely no evidence thatthe common grantor ever established a boundary line different fromthe deeded botmdary," "no evidence ofany . formal or specific agreement about the boundary," and "[no] evidence that the parties acted in a way after the sale to suggestthatthey agreed that the fence was the boundary." CPat 31 Ocll. Judge Mura grantedpartial summaryjudgmentin favor ofPendergrast. in a brieforder. The parties wentto trial on trespass andtimber trespass. Pendergrast testified that she beggedMatichuknotto move the fence, that she "felt violated," that his actions left her in serious financial straits at a time when she was carrying both ofher disabled daughters' mortgages, and that she could not sell the house while the lawsuit was pending. 2 Verbatim Report ofProceedings (Jan. 30, 2014) at 51. We have not been provided with MatiChuk's testimony. Thejury was instructed that damages for both trespass (removing the fence) and timber trespass (cutting the cherry tree) "include economic and non-economic loss thatyou find wasproximately caused bythe trespass and/ortimbertrespass," and that ifthey found

6Pendergrast v. Matichuk, et. al., No. 92324-8 

### Matichuk committed either trespass, they should consider whether his actions caused Pendergrast emotional distress. CP at 196. Thejury found for Pendergrast. It

### awarded her $5,200 in economic and $75,000 in noneconomic damages for the trespass. It

### awardedher $3,310 in economic and $40,000 in noneconomic damages for the timber trespass. The trialjudge 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. Thejudge also ordered equitable relief inthe form ofabatement ofthe trespass and the entry ofnew legal descriptions. Matichuk's motion for anewtrial or reduction of noneconomic damages was denied. Both sides appealed. The Court ofAppeals largely affirmed. Pendergrast v. Matichuk, 189 Wn. App. 854,355 P.3d 1210 (2015). It 

### upheld the summaryjudgmentruling quieting title based on the common grantor award and declinedto reduce thejury's award ofnoneconomic damages. !d. at 859. However, it concluded that the plain language ofthe timbertrespass statute required the courtto treble the noneconomic damages

7Pendergrast v. Matichuk, et. a!., No. 92324-8 

### found by thejury. Id. 

### We granted review. 185 Wn.2d 1002, 366 P.3d 1243 (2016). ANALYSIS 

### 1. QUIET TITLEAND THE COMMON GRANTORDOCTRINE 

### The quiettitle action was decided on cross motions for summary judgment. We review summaryjudgment de novo. BecerraBecerra v. ExpertJanitorial, LLC, 

### 181 Wn.2d 186, 194, 332 P.3d 415 (2014) (quoting Rivas v. Overlake Hosp. Med. Ctr., 

### 164 Wn.2d 261, 266, 189 P.3d 753 (2008)). It

### has long been the law in Washington that "[t]he location ofa line by
a common grantor is binding upon the grantees." Turner v. Creech, 

### 58 Wash. 439,443, 108 P. 1084 (1910) (citingMcGee v. Stone, 

### 9 Cal. 600 (1858)). A common grantor can "establish[] an 'onthe ground' boundary line between" tracts ofland sold to separate parties "that is binding on the
common grantees," even when the deed describes a differentboundary. Thompson v. Bain, 

### 28 Wn.2d 590,593, 183 P.2d 785 (1947). In the opinion characterized by Washington Practice 

### as best encapsulating the doctrine, the Court ofAppeals wrote: A grantor who owns land onboth sides ofa line he has established as the common boundary is bound by that line. Fralick v. Clark Cy., 

### 22 Wn. App. 156, 589 P.2d 273 (1978). The line will also be binding on grantees ifthe land was sold and purchased with
8Pendergrast v. Matichuk, et. al., No. 92324-8 reference to the line, and there was a meeting ofthe minds as to the identical tract oflandto betransferredbythe sale. 

### Kronawetter v. Tamoshan, Inc., 14 Wn. App. 820, 545 P.2d 1230 (1976). The common grantor doctrine involves two questions: (1) was there an agreedboundary establishedbetween the common grantor and the original grantee, and (2) ifso, would a visual examination ofthe propertyindicate to subsequent purchasers that the deed line was no longer functioning as the trueboundary? 

### Fralick, 22 Wn. App. at 160. 

### Winans v. Ross, 35 Wn. App. 238, 240-41, 666 P.2d 908 (1983); 17 WILLIAM B. STOEBUCK & JOHNW. WEAVER, WASHINGTON PRACTICE: REAL ESTATE: PROPERTYLAW§ 8.22, at546 (2d ed. 2004). Wetoo find 

### Winans usefully distills the doctrine. In 

### Winans, a common grantor had purchased two lots separatedby a fence thatwas about 60 feet west ofthe deed line. 

### Winans, 35 Wn. App. at 239-40. Later, and without moving the fence, the grantor sold each lot to separate purchasers. 

### Id. The court found the fence hadbecome the legal boundarybetweenthe two parcels despitethe fact there was no direct evidence ofan agreement between theparties to treat it as such orevidence that the grantor intendedto move theboundary. 

### !d. at 240-41. Once the "granteepurchases believing the indicated line is the true line,
... the indicated line is bindingbetween grantor and grantee. Andtheir successors in title will also beboundbythat line if, when they succeed to title, the indicated line is physicallyvisible onthe ground." 17 STOEBUCK & WEAVER, 

### supra, § 8.22, at 546. "An agreement ormeeting ofthe minds
9Pendergrast v. Matichuk, et. al., No. 92324-8 betweenthe common grantor and original grantee may be shownbythe parties' manifestations ofownership after the sale." 

### Winans, 35 Wn. App. at 241 (citing 

### Thompson, 28 Wn.2d 590); 

### see also Turner, 58 Wash. at 444. Matichukpresents us withthree grounds for reversingjudgmentin 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 ofreal estate ... shall be by deed." 

### See Pet'r's Suppl. Br. at 1. Butthe common grantor doctrine has been recognized in this state since at least 1910 without the legislature indicating disapproval. 

### See Turner, 58 Wash. at443. This court will not overturnprecedentwithout either "a clear showing that an establishedrule is incorrect and harmful," 

### In re Rights to Waters of Stranger Creek, 77 Wn.2d 649, 653, 466 P.2d 508 (1970), or a clear showing that the legal underpinnings ofthe precedenthave been eroded, 

### W.G. Clark Constr. Co. v. Pac. Nw. Reg'! Council of Carpenters, 180 Wn.2d 54, 66,322 P.3d 1207 (2014) (citing 

### UnitedStates 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 ofthe common grantor doctrine was inappropriate because there was no evidence thatthe common grantor "actively andpurposefully changed the boundary ofhis or her

10Pendergrast v. Matichuk, et. al., No. 92324-8 property, and that change ofboundarywas made with full knowledge and recognition bythe 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 Wn.2d 879, 436 P.2d 459 (1967);

### Atwellv. Olson, 30 Wn.2d 179, 190 P.2d 783 (1948); 

### Windsor v. Bourcier, 21 Wn.2d 313, 150 P.2d 717 (1944);

### Angellv. Hadley, 33 Wn.2d 837, 207 P.2d 191 (1949); 

### Martin v. Hobbs, 44 Wn.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 boundaryby common grantor was found without proofofan active and purposeful change made with full knowledge and recognition ofthe original grantee. 

### See, e.g., Thompson, 28 Wn.2d at 592-93; 

### Strom v. Arcorace, 27 Wn.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 Pendergrastmaintained the propertyup 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 ofownership afterthe sale" as evidence ofthe boundary line before. 

### Winans, 35 Wn. App. at 241 (citing 

### Thompson, 28 Wn.2d 590); 

### see also Strom, 27 Wn.2d at 481-82 (looking to postpurchase

11Pendergrast v. Matichuk, et. al., No. 92324-8 conduct as evidence ofthe adjustedboundary). This argument is unavailing. 2 Matichukhas shown no error in the trial court's summaryjudgment
onthe quiet title action. Accordingly, we affirm. 2.DAMAGES Next, we turn to Matichuk's claimthat Pendergrast was not entitledto statutorytreble damages underthe timber trespass statute for the loss ofher tree. Thetimber trespass statuteprovides in relevant part: Whenever anyperson shall cut down
... any tree ... on the land of anotherperson ...without lawful authority, in an actionbytheperson

... against the person committing the trespasses ... anyjudgment for the plaintiffshall be for treble the amount ofdamages claimed or assessed. RCW 64.12.030. 3 The purpose ofthe timber trespass statute is well established: "to (1) punish a voluntary offender, (2) provide treble damages,

2 Generously construed, Matichuk's argument suggests thathis testimony thathe "didn't know wherethe fence was in relation to the propertyline" created a material question of fact that shouldhaveprevented summaryjudgment. 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 notraise his testimonybeforethetrial court as a reason to avoid summary judgment and did not assign errorto the trial court's summaryjudgment order onthat basis. See Resp'ts'/Cross-Appellants' Opening Br. at 1. Instead, both at summary judgment and inhis assignments oferror, Matichukpursued victory as a matter oflaw, not trial onthe merits. Accordingly, we decline to consider whether Matichuk's deposition testimonypresented a material question offact that should have prevented summaryjudgment. For similarreasons, we decline to considerhisbelatedlyraised argument that noneconomic damages shouldbelimited to a multiplier ofeconomic damages. 3 This statute was amended during the course ofthis case to specificallyinclude Christmas trees. LAWS OF 2009, ch. 349, §4. The amendment does not affect this case. 12Pendergrastv. Matichuk, et. al., No. 92324-8 and (3) 'discouragepersons from carelessly orintentionally removing another's merchantable shrubs or trees ontbe gamble that the enterprise will beprofitable ifactual damages only are incurred."' BroughtonLumber Co.
v. BNSFRy. Co., 174 Wn.2d 619, 625, 278 P.3d 173 (2012) (quoting LAWS OF 1869, ch. 48, 

### § 556, at 143). Thetimbertrespass statute does not limit thetypes ofdamages subject to trebling as some more recent statutes do. Compare RCW 64.12.030 (timber trespass statute), with RCW48.30.015(2) (providing for treble damages underthe Insurance Fair Conduct Act limited to actual damages), andRCW 19.86.090 (ConsumerProtection Act damages limitedto actual damages and not more than $25,000). Itis also well established at least since 1997 that emotional distress damages are available underthe timbertrespass statute, though, until now,
we have not been properly asked to decide whether those damages are subject to statutorytrebling. Birchler v. Castello Land Co., 133 Wn.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 undertheplain language ofthe timbertrespass statute. Since this requires us to interpret a statute, our review is de novo. BroughtonLumber Co., 174 Wn.2d at 624-25 (citing State v. Breazeale, 144 Wn.2d 829, 837, 31 P.3d 1155 (2001)).

13Pendergrast v. Matichuk et. a!., No. 92324-8 Matichuk argues that since "the timbertrespass statute is penal in nature," it is "subject to strict construction." BroughtonLumber Co., 174 Wn.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] publicpolicyunless expressly authorized by statute." !d. at 638 n.l4 (citingBarr v. Interbay Citizens Bankof Tampa, 96 Wn.2d 692, 635 P.2d441, 649 P.2d 827 (1982)). Buthowever strictly we construe it, the timber trespass statute explicitly authorizes treble damages. RCW 64.12.030 says that "anyjudgment for the plaintiffshall be for treble the amount ofdamages claimed or assessed." Our goal in statutory interpretation is to carry out the legislature's intent, andhere, that intent is plainly expressed. Dep 't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002). While certainly the legislature wouldbe well within its power to limit emotional distress damages availableunder the timber trespass statute, it has not. We find under the plain language ofthe statute, Pendergrast is entitled to treble damages on all damages awarded underthe timbertrespass statute.4

4We agree that the legislature is well able to limitpunitive damages as described inthe concurring/dissenting opinion. But the fact is, despite almost 20 years to do so, the legislaturehas expressed no dissatisfactionwith theBirchler opinion and has not limited the punitive damages to nonemotional distress damages. Without overrulingBirchler (which no party asks us to do), there is no wayto limit damages as proposedbythe concurrence/dissent. 14Pendergrast v. Matichuk, et. al., No. 92324-8 Matichuk also requests a new trial on the theorythat the noneconomic damages were excessive. Thejuryawarded Pendergrast $5,200 and $3,310 in economic damages for the trespass and timbertrespass respectively and $75,000 and $40,000 in emotional damages for each wrong. CP at 240. The trial court deniedhis motion for a new trial onthis ground, and the Court of Appeals affirmed in a detailedruling. 

### Pendergrast, 189 Wn. 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 orinadequate as unmistakablyto indicate that the verdict must have beenthe result ofpassion
orprejudice." CR 59(a)(5). Wereview the trial court's decision for abuse ofdiscretion. 

### Brundridge v. FluorFed. Servs., Inc., 164 Wn.2d 432, 454, 191 P.3d 879 (2008) (citing

### Alum. Co. of Am. v. Aetna Cas. & 

### Sur. Co., 140 Wn.2d 517, 537, 998 P.2d 856 (2000)). "'An appellate court will not disturb
an award ofdamages made by ajuryunless it is outside the range of substantial evidence in the record, or shocks the conscience ofthe court, or appears to have been arrived at as the result ofpassion orprejudice."' 

### Bunch v. King CountyDep'tofYouth Servs., 155 Wn.2d 165, 179, 116 P.3d 381 (2005) (quoting

### Bingaman v. Grays Harbor Cmty. Hasp., 103 Wn.2d 831, 835,699 P.2d 1230 (1985)).

15Pendergrast 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 notthe real
cause ofher distress and instead other misfortunes in her life were the real
cause ofthe distress she testified about at trial. These are proper arguments for thejury to resolve, and we decline to disturb its resolution. Matichuk also emphasizes thatPendergrast did not offer any corroborating testimony regarding her distress. But ajury's damages verdict may rest on the plaintiffs testimony alone. Bunch, 

### 155 Wn.2d at 181 (citingNord v. Shoreline Sav. Ass 'n, 

### 116 Wn.2d 477,487, 805 P.2d 800 (1991)). Pendergrasttestified that she had spent about $130,000 to turn the house into
a bed-and-breakfast that she intended to use as a source ofincome 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 shownthatthejury'snoneconomic damages award of$115,000 was outside the range ofthe evidence presented orthatthe trial court abused its discretion in declining to order a new trial. We affirm. CONCLUSION 

### We affirm the trial court's summaryjudgment on the quiet title action and its denial ofthe motion for a new trial. We affirm the Court ofAppeals' decision on damages under the timbertrespass statute. As Matichuk is not

16Pendergrast 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.

17Pendergrast v. Matichuk, et. al., No. 92324-8



### WE CONCUR:

# ~-~<f? 

# Yf'lr'J·

18Pendergrast v. Matichuk, et ux., etal.

No. 92324-8 MADSEN, C.J.**(concurring/dissenting)~I** concur with the majority in affirming the Court ofAppeals as to the quiet title action and the award of, and reasonability of, damages. I write separately because I would hold that the respondent is not entitled to treble damages for emotional distress under the timber trespass statute. The timber trespass statute, RCW 64.12.030, provides in relevant part: Whenever any person shall cut down
... any tree ... on the land ofanother person ... without lawful authority, in an action by the person ... against the person committing the trespasses ... anyjudgment for the plaintiffshall be for treble the amount ofdamages claimed or assessed. Emotional distress damages are available under the timber trespass statute. Birchler v. Castello Land Co., 133 Wn.2d 106, 116, 942 P.2d 968 (1997). And the majority is correct that the statute "does not limit the types ofdamages subjectto trebling as some
more recent statutes do." Majority at 13. However, the statute does not expressly authorize the trebling ofnoneconomic damages, and for this reason I would reverse the Court ofAppeals as to trebling ofemotional 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 "subjectto strict construction." BroughtonLumber Co. v. BNSFRy. Co., 174 Wn.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 Bankof Tampa, 96 Wn.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 ofdamages subject to trebling, the more modern statutes do. See, e.g., RCW48.30.015(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 ConsumerProtection Act, Laws of 2007, ch. 498, § 3; and the Insurance Fair ConductAct, Laws of 1961, ch. 216, § 9; reflect decades ofmodern tort law development. The timber trespass statute, on the other hand, dates backto territorial, prestatehood days. See LAWS OF 1869, ch. 143, §55. Respondent called nothing to our attention to suggest that the territorial legislature contemplated thatpeople 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 ofthose damages. Indeed, thepurpose ofthe statute was to '"discourage persons from carelessly or intentionally removing another's merchantable shrubs ortrees
on the gamble that the enterprise will beprofitable ifactual damages only are incurred."' Broughton Lumber Co., 174 Wn.2d at 625 (emphasis added) (quoting LAWS OF 1869, ch.

2No. 92324-8 (Madsen, C.J. concurring/dissenting) 48, § 556, at 143). Becausewe construepunitive statutes strictly, and becausethe timber trespass statute does not expressly authorize trebling ofpunitive damages, I cannot say that the territorial legislature in 1869 intended to discourage the careless or intentional removal ofmerchantable timberby trebling damages for emotional distress. Therefore, I respectfully dissent in part.

3No. 92324-8 (Madsen, C.J. concurring/dissenting)

4