No. 162 March 6, 2024 429

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

SUNSHINE FARM, LLC,

Plaintiff-Appellant,

v.

Dennis GLASER, 

an individual, 

and Trever Glaser, 

an individual,

Defendants-Respondents,

and

MID-VALLEY FARMS, INC., 

an Oregon corporation,

Defendant.

Linn County Circuit Court

20CV43602; A176854

Thomas McHill, Judge.

Argued and submitted January 30, 2023.

Andrew DeWeese argued the cause for appellant. Also on 

the briefs was Kevin J. Jacoby, and Green Light Law Group. 

Also on the reply brief was Brett Mulligan.

Rachel A. Robinson argued the cause for respondents. 

Also on the brief was Jason Daywitt and Lewis Brisbois 

Bisgaard & Smith LLP.

Before Ortega, Presiding Judge, and Powers, Judge, and 

Hellman, Judge.

HELLMAN, J.

Affirmed.
430 Sunshine Farm, LLC v. Glaser
Cite as 331 Or App 429 (2024) 431

HELLMAN, J.

Plaintiff, a limited liability company operating a 

hemp farm, appeals a limited judgment dismissing its claim 

under ORS 105.810 and ORS 105.815, commonly referred to 

as the “timber trespass” statutes. In the sole assignment of 

error, plaintiff claims that the trial court incorrectly required 

plaintiff to plead that defendants willfully injured its crops 

because the statutes allow recovery for “casual or voluntary” 

timber trespass.1 Plaintiff also argues that, to the extent 

the trial court relied on Meyer v. Harvey Aluminum, 263 Or 

487, 501 P2d 795 (1972), and Chase v. Henderson, 265 Or 

431, 509 P2d 1188 (1973), to find that plaintiff could not sustain a cause of action under ORS 105.810 and ORS 105.815, 

such a ruling was incorrect because those cases should be 

limited to their facts. Because plaintiff’s claim is controlled 

by Meyer and Chase, we affirm.

When reviewing a ruling on an ORCP 21 A(1)(h) 

motion to dismiss for failure to state a claim, “we assume 

the truth of all allegations in plaintiff’s pleadings and view 

all reasonable inferences in the light most favorable to plaintiff.” Munson v. Valley Energy Investment Fund, 264 Or App 

679, 703, 333 P3d 1102 (2014) (internal quotation marks 

omitted). We state the facts relating to plaintiff’s timber 

trespass claim accordingly.

Plaintiff operates a hemp farm that uses “organic 

inputs and aquaponic fertilizer.” It also operates a hemp 

extraction facility, which processes hemp into extract and 

hemp products. Plaintiff’s property is surrounded by other 

agricultural property. Defendants are its neighbors to the 

east. In the summer of 2019, plaintiff had grown seven acres 

of hemp, and had not used pesticide spray on that crop.

In or around October 2019, defendants sprayed a 

mixture of chemicals, including pesticide and herbicide, on 

their own property. That spray drifted and fell on plaintiff’s 

land and hemp crop. The spray contaminated both the hemp 

crop and the soil. Thus, not only did it cause immediate damage to the existing hemp crop, but it also prevented plaintiff 

from cultivating future hemp crops and affected plaintiff’s 

1 Plaintiff withdrew its second assignment of error.
432 Sunshine Farm, LLC v. Glaser

ability to grow crops pesticide free. Defendants did not have 

lawful authority to allow the chemical spray mixture to 

cross onto plaintiff’s property and to injure plaintiff’s hemp 

crop.

Plaintiff brought an action alleging that defendants 

caused damage to its crop and property when defendants 

sprayed chemicals on their own land and those chemicals 

drifted onto plaintiff’s land. Among the claims alleged by 

plaintiff was a claim of casual timber trespass under ORS 

105.810 and ORS 105.815.2

ORS 105.810 provides that

“whenever any person, without lawful authority, willfully 

injures or severs from the land of another any produce 

thereof or cuts down, girdles or otherwise injures or carries 

off any tree, timber or shrub on the land of another person, 

*** in an action by such person * * * against the person 

committing such trespasses if judgment is given for the 

plaintiff, it shall be given for treble the amount of damages 

claimed, or assessed for the trespass. In any such action, 

upon plaintiff’s proof of ownership of the premises and the 

commission by the defendant of any of the acts mentioned 

in this section, it is prima facie evidence that the acts were 

committed by the defendant willfully, intentionally and 

without plaintiff’s consent.”

ORS 105.815 provides that “if, upon the trial of an action 

included in ORS 105.810, it appears that the trespass was 

casual or involuntary, * * * judgment shall be given for double damages.” A “casual or involuntary” timber trespass 

claim is one that involves any “nonnegligent, nonvolitional 

trespass.” Wyatt v. Sweitz, 146 Or App 723, 728, 934 P2d 

544, rev den, 325 Or 438, rev dismissed, 326 Or 63 (1997).

Those statutes were originally enacted to provide 

enhanced damages in cases where timber was “taken from 

land by one who has no authority to do so.” Pedro v. January, 

261 Or 582, 602, 494 P2d 868 (1972). As the Supreme Court 

explained, enhanced damages were necessary because “[i]f a 

person could take timber unlawfully and then be compelled 

to pay only the value of what [they] cut, the law would afford 

2 Plaintiff also alleged claims based on ultrahazardous activity, four counts 

of negligence per se, negligence, trespass, and private nuisance.
Cite as 331 Or App 429 (2024) 433

no protection against any wrongdoer who schemes to force 

a sale.” Id. ORS 105.810 was amended in 1925 to allow for 

damages to “produce” and to expand the concept of “injury” 

beyond simply the cutting of timber. Meyer, 263 Or at 496-97 

(citing Or Laws 1925, ch 14, § 24). The last Supreme Court 

cases directly on point, Meyer and Chase, were decided in 

the early 1970s.

In Meyer, the plaintiffs brought an action against 

an aluminum plant, alleging that fluoride emissions from 

the plant had damaged their apricot crop and trees. The 

court identified the issue at hand as “whether [ORS 105.810 

and ORS 105.815] apply to injuries to plaintiffs’ fruit crops 

and trees caused by fumes emitted from defendants’ plant.” 

Meyer, 263 Or at 496. After noting the long history of timber trespass statutes that focused only on cutting of trees, 

the Supreme Court noted the 1925 amendments that added 

the terms “produce” and “injury” to ORS 105.810, thereby 

expanding the ways in which harm could be caused. Id. at 

496-97. The Meyer court went on to describe the purpose of 

ORS 105.810 as “to deter the cutting of another person’s timber.” Id. at 498 (citing Kinzua Lbr. Co. v. Daggett et al, 203 

Or 585, 591-92, 281 P2d 221 (1955)). The court then wrote: 

“The destruction of fruit and fruit trees by fumes might also 

be deterred by the assessment of treble damages.” Meyer, 

263 Or at 498. The court also noted that a second purpose of 

the statute was to deter wrongdoers who would, in effect, try 

and force a sale of timber on an unwilling owner, explaining:

“If a trespasser who cuts another’s timber is required only 

to pay as damages the value of the timber felled, the trespasser, in effect, would have forced the timber owner to 

sell his timber at market value. Such a practice obviously 

would be advantageous to a trespasser who needed timber 

and unfair to a timber owner who did not want to sell. ‘To 

offset this unfairness several states have rules calling for 

double, treble, and even quadruple damages in the event of 

trespass to timber.’”

Id. at 498 (quoting Harry Falk Jr., Timber and Forest 

Products Law § 108 (1958)). In the very next sentence, without providing any analysis, the Meyer court summarily 

concluded:
434 Sunshine Farm, LLC v. Glaser

“Some of the distinctions that the multiple damages 

statutes make between the circumstances when treble 

damages may be assessed and when only double damages 

can be assessed cannot be made applicable to the instant 

case. ***.

“Based upon the litigation history of this treble damage statute and the total scheme of the multiple damage 

statutes, we conclude that they do not apply to the kind of 

damages assessed in the instant case.”

263 Or at 498-99.

In Chase, decided about a year-and-a-half after 

Meyer, the Supreme Court applied the holding of Meyer

to an action seeking double, rather than triple, damages. 

Chase, 265 Or at 432 (citing Meyer, 263 Or at 497-99). In so 

doing, it held that ORS 105.815 did not apply to damages to 

the plaintiffs’ pole bean crop that occurred when the defendant applied “chemical spray” to a pasture from a helicopter 

and the spray drifted onto the plaintiffs’ crop. Chase, 265 

Or at 432. Noting that Meyer was decided after the trial 

court had doubled the damages, the Chase court summarily 

concluded, “In [Meyer], the plaintiffs’ fruit crop and trees 

were allegedly damaged by emissions from the defendant’s 

aluminum plant. The same considerations which caused us 

to conclude that treble damages were not allowable in such 

a case cause us to conclude that double damages are not 

allowable in this case.” Id.

In the present case, defendants filed an ORCP 21 

A(1)(h) motion asserting, as relevant here, that plaintiff 

failed to state a claim for timber trespass because the statutes do not cover causes of action and damages resulting 

from chemical drift.3 The trial court agreed with defendants 

that the Supreme Court’s construction of ORS 105.810 and 

ORS 105.815 in Meyer and Chase barred plaintiff’s claim 

under those statutes. The trial court dismissed that claim 

with prejudice in the limited judgment at issue here.

3 Defendants’ motion was filed in 2021 under ORCP 21 A(8) (2021). 

Amendments to that rule took effect on January 1, 2022. Those amendments 

resulted in the subsections of the rule being renumbered. ORCP 21 A(1)(h) in 

the current version of the rule corresponds to ORCP 21 A(8) in the 2021 version. 

Because there are no substantive differences between them, we cite the current 

version.
Cite as 331 Or App 429 (2024) 435

On appeal, plaintiff urges us to confine Meyer and 

Chase to their facts and to decide that those cases do not bar 

plaintiff’s cause of action. Plaintiff points out that Meyer is 

over 50 years old; that it does not engage in the Supreme 

Court’s present form of statutory construction, nor much 

analysis of the words of the statute at all; and that our own 

recent cases concerning timber trespass claims have not 

relied on Meyer. Defendant argues that Meyer and Chase are 

controlling, and that those cases make clear that plaintiff 

cannot maintain a cause of action for timber trespass based 

on chemical drift.

In our only case to directly confront the issue, we 

highlighted the Meyer court’s lack of a clear statutory construction analysis, as well as the apparent internal inconsistencies in the opinion’s reasoning. Worman v. Columbia 

County, 223 Or App 223, 238-39, 195 P3d 414 (2008). But 

despite the concerns we articulated in Worman, that case 

does not aid plaintiff here. Worman involved a claim of direct 

chemical spray, not indirect chemical drift. Id. at 240. We 

noted in Worman that Meyer did not directly address direct 

chemical spray and wrote that we understood “Meyer to permit the application of ORS 105.810 to the direct spraying of 

herbicide on trees and shrubs—conduct that is a ‘deliberate trespass’ such as involved in cutting standing timber.” 

Worman, 223 Or at 240 (quoting Meyer, 263 Or at 497).

Since Meyer and Chase, we have never applied ORS 

105.810 or ORS 105.815 to allegations of indirect chemical 

drift. For example, in a case upon which plaintiff relies, 

Simington Gardens, LLC v. Rock Ridge Farms, LLC, 308 

Or App 661, 663, 481 P3d 396 (2021), the trespass was also 

direct: Cows escaped the defendant’s enclosure and trampled 

and defecated on the plaintiffs’ organic salad plants, and the 

defendant’s workers caused additional damage when they 

retrieved the cows.

Were we writing on a clean slate to interpret ORS 

105.810 and ORS 105.815, perhaps plaintiff would have the 

better argument. See State v. Gaines, 346 Or 160, 170-72, 

206 P3d 1042 (2009) (setting out methodology for statutory interpretation). It is unclear to us how the text of ORS 

105.815, on its face, allows for a distinction between chemical 
436 Sunshine Farm, LLC v. Glaser

drift and other methods of casual timber trespass, all of 

which could arguably involve “nonnegligent, nonvolitional 

trespass.” Wyatt, 146 Or App at 728. In other words, neither the text of ORS 105.810 nor ORS 105.815 put chemical 

drift into a special category of timber trespass that can only 

be accomplished willfully. However, we do not have a clean 

slate. Meyer holds that triple damages are not available 

under ORS 105.810 for injuries caused by indirect chemical 

drift. 263 Or at 499. And, applying Meyer, Chase reached 

the same result for double damages under ORS 105.815. 265 

Or at 432. The mere fact that the opinions did not engage 

in a present-day statutory analysis does not alter the fact 

that they remain precedential. See Mastriano v. Board of 

Parole, 342 Or 684, 692, 159 P3d 1151 (2007) (holding that 

the fact that a case predated PGE v. Bureau of Labor and 

Industries, 317 Or 606, 859 P2d 1143 (1993), and therefore 

did not follow that established method of statutory interpretation, “provides no basis, in and of itself, to disregard” 

the Supreme Court’s interpretation of the law). We are thus 

bound by Meyer and Chase, and their rulings require us to 

affirm the trial court’s limited judgment.

We also decline to interpret ORS 105.810 and ORS 

105.815 as establishing a separate “timber trespass” cause 

of action that plaintiff could maintain independent of the 

doubling or tripling of damages. First, there is nothing in 

the plain text of those statutes that establish a special cause 

of action for harm to “produce” or “tree, timber, or shrub” 

if the only remedy sought is actual damages.4 There are 

already other legal avenues for those types of claims, as 

evidenced by the other claims plaintiff alleged in this case. 

Second, neither Meyer nor Chase characterized the statutes 

as establishing an independent cause of action. Instead, 

those cases described that the statutes allow the trial court 

to triple or double the actual damages that the jury awarded 

on an existing claim. For example, after concluding that 

the plaintiffs did not establish that ORS 105.810 allowed 

4 In Simington Gardens, LLC, 308 Or App at 665, we characterized the claim 

at issue as one of “trespass to produce or timber” and found support for that specific kind of trespass in ORS 105.810(1). However, we were not asked to decide 

whether that claim could be maintained even if the damages provisions of the 

statute did not apply. We therefore do not view Simington Gardens, LLC as controlling on this issue. 
Cite as 331 Or App 429 (2024) 437

the tripling of damages for chemical drift, Meyer remanded 

the case to the trial court for a retrial on the amount of 

actual damages that the plaintiffs incurred. 263 Or at 499. 

Similarly, after concluding that double damages were likewise unavailable for chemical drift, Chase remanded to the 

trial court for entry of judgment of actual damages on the 

plaintiffs’ claim of “unintentional, non-negligent trespass” 

via ultrahazardous activities based, not on the statute, but 

on a common law cause of action. 265 Or at 432.

In sum, plaintiff claims a timber trespass by defendants based on allegations that chemicals drifted from 

defendants’ land, where they were applied to plaintiff’s crop 

on plaintiff’s land. Plaintiff has not identified any allegations that defendants willfully or directly applied chemicals 

to plaintiff’s crop or land. Thus, Meyer and Chase are controlling precedent in these circumstances. Because plaintiff 

cannot recover triple or double damages, ORS 105.810 and 

ORS 105.815 do not apply. The trial court thus did not err in 

dismissing plaintiff’s timber trespass claim. To the extent 

that Meyer and Chase may have incorrectly interpreted ORS 

105.810 and ORS 105.815, that is a question for the Supreme 

Court to answer.

Affirmed.