ORS 105.810
Treble damages for injury to or removal of produce, trees or shrubs

  • costs and attorney fees
  • limitation on liability of contract logger

(1)

Except as provided in ORS 477.089 (Recovery for property damage) and 477.092 (Liability for destruction of property by wildfire) and subsections (4) to (7) of this section, 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, or of the state, county, United States or any public corporation, or on the street or highway in front of any person’s house, or in any village, town or city lot, or cultivated grounds, or on the common or public grounds of any village, town or city, or on the street or highway in front thereof, in an action by such person, village, town, city, the United States, state, county, or public corporation, 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.

(2)

A court may, in its discretion, award to a prevailing party under subsection (1) of this section reimbursement of reasonable costs of litigation including but not limited to investigation costs and attorney fees.

(3)

A court may, in its discretion, award to a prevailing plaintiff under subsection (1) of this section reasonable costs of reforestation activities related to the injury sustained by the plaintiff.

(4)

A contract logger is liable only for actual damages in an action under this section if:

(a)

The contract logger conducts an operation under a signed, written contract with a person the contract logger reasonably believes to be the legal owner of the produce, trees, timber or shrubs in the operation area;

(b)

The contract identifies the operation area by a metes and bounds description or other sufficient legal description;

(c)

Before the contract logger begins harvesting in the operation area, the person who engages the contract logger under the contract:

(A)

Locates, marks and protects from damage all survey monuments in the operation area;

(B)

Flags, stakes or otherwise clearly marks the boundaries of the operation area; and

(C)

Provides the contract logger with a copy of the deed, contract or other instrument that the person who engages the contract logger under the contract relies upon as proof of ownership of the produce, trees, timber or shrubs in the operation area;

(d)

The contract logger verifies the deed, contract or instrument described in paragraph (c)(C) of this subsection against the metes and bounds description or other sufficient legal description in the contract;

(e)

The contract logger retains a copy of the deed, contract or instrument described in paragraph (c)(C) of this subsection for at least three years; and

(f)

The contract logger does not receive written notice that any person has a claim of title to the land or timber in the operation area that is adverse to the person who engages the contract logger under the contract.

(5)

Subsection (4) of this section does not affect an action for double or treble damages against a contract logger for damages outside the operation area as described in subsection (4) of this section.

(6)

If an action is brought under this section against a contract logger, and the contract logger was engaged to harvest the timber by a person who purported to own the timber or to have authority to harvest the timber, the person who engaged the contract logger must be joined in the action as a defendant unless jurisdiction over the person cannot be had. If a judgment is entered against the contract logger and against the person who engaged the contract logger, the contract logger shall not be required to pay any part of the judgment unless the plaintiff establishes that the judgment cannot be enforced against the person who engaged the contract logger. The plaintiff may enforce the judgment against the contract logger only if:

(a)

The plaintiff makes a good faith effort for at least six months after the judgment becomes final and subject to execution to enforce the judgment against the person who engaged the contract logger; and

(b)

The court determines, upon motion of the plaintiff, that all or part of the judgment cannot be collected from the person who engaged the contract logger.

(7)

Subsections (2) and (3) of this section apply in an action against a contract logger under subsection (4) of this section.

(8)

For purposes of this section:

(a)

“Contract logger” means a person engaged in a commercial timber harvesting operation.

(b)

“Operation” has the meaning given in ORS 527.620 (Definitions for ORS 527.610 to 527.770) (12). [Amended by 1995 c.721 §1; 1999 c.544 §1; 2013 c.307 §4]

Source: Section 105.810 — Treble damages for injury to or removal of produce, trees or shrubs; costs and attorney fees; limitation on liability of contract logger, https://www.­oregonlegislature.­gov/bills_laws/ors/ors105.­html.

Notes of Decisions

In general

This section does not apply to injuries to fruit crops and trees caused by fumes emitted from defendant’s aluminum plant. Meyer v. Harvey Alum., 263 Or 487, 501 P2d 795 (1972)

Where defendant log hauler did not enter, hire others to enter or act in concert with those entering plaintiff’s land, defendant was not liable for timber trespass. Bergman v. Holden, 118 Or App 530, 848 P2d 141 (1993), as modified by 122 Or App 257, 857 P2d 217 (1993)

Attorney fees are available in action based on conduct occurring prior to effective date of 1995 amendments permitting attorney fees. Vloedman v. Cornell, 161 Or App 396, 984 P2d 906 (1999)

Court may not award attorney fees for claim that presents facts that constitute functional equivalent of timber trespass if pleading does not claim that defendant committed timber trespass. Olson v. Howard, 237 Or App 256, 239 P3d 510 (2010)

Person willfully injuring or severing produce or timber without authorization commits violation, even if person is lawfully present on land. Simington Gardens, LLC v. Rock Ridge Farms, LLC, 308 Or App 661, 481 P3d 396 (2021)

Willful trespass

Punitive damages are not recoverable in action for timber trespass under this section because statutory provision for treble damages is exclusive punitive remedy. Harris v. Wright, 81 Or App 126, 724 P2d 875 (1986)

Where defendant entered plaintiffs’ property and harvested timber, relying on timber deed which defendant executed with plaintiffs’ vendees, and timber deed was invalid because land sale contract under which vendees acquired land unambiguously provided vendees could not transfer interest in realty without plaintiffs’ consent, which was never given, holding that defendant had trespassed as matter of law was not error. Gerdes v. Bohemia, Inc., 88 Or App 62, 744 P2d 275 (1987)

In damage action for timber trespass, it was not error to deny plaintiffs’ claim for costs of reforestation because plaintiffs failed to prove it necessary. Gerdes v. Bohemia, Inc., 88 Or App 62, 744 P2d 275 (1987)

In action for timber trespass it was error to assess value of trees and road built by defendant as mitigating factors; both were relevant to value of property before and after logging and should have been deducted from stumpage value before amount was trebled as damages under this section. Gerdes v. Bohemia Inc., 88 Or App 62, 744 P2d 275 (1987)

Law Review Citations

36 WLR 401 (2000)

105.005
Right of action 105.010
Contents of complaint 105.015
Answer 105.020
Substitution of landlord for tenant 105.025
Verdict 105.030
Damages for withholding 105.035
Judgment when plaintiff’s right to possession expires 105.040
Order to make survey 105.045
Action not prejudiced by alienation by person in possession 105.050
Cotenant shall prove ouster 105.055
Conclusiveness of judgment 105.060
Effect of new trial on plaintiff’s possession 105.070
Rights of donee under Donation Law 105.075
Notice to quit 105.080
Reimbursement of tenants in common obtaining possession 105.105
Entry to be lawful and peaceable only 105.110
Action for forcible entry or wrongful detainer 105.111
Stay of eviction for state service member 105.112
Action by tenant to recover personal property 105.113
Form of summons 105.115
Causes of unlawful holding by force 105.120
Notice necessary to maintain action in certain cases 105.121
Forms in action for possession of group recovery home 105.123
Complaint 105.124
Form of complaint if ORS chapter 90 applies 105.126
Form of complaint if ORS chapter 90 does not apply 105.128
Landlord action to remove perpetrator of domestic violence, sexual assault or stalking from possession of dwelling unit 105.130
How action conducted 105.132
Assertion of counterclaim 105.135
Service and return of summons 105.137
Effect of failure of party to appear 105.138
Compelling arbitration 105.139
Burden of proof in certain cases 105.140
Continuance 105.145
Judgment on trial by court 105.146
Failure of defendant to perform as ordered 105.148
Contesting plaintiff’s affidavit or declaration of noncompliance 105.149
Hearing on compliance with order 105.151
Enforcement of judgment of restitution 105.152
Form of notice of restitution for judgment entered under ORS 105.146 105.153
Form of notice of restitution for judgment not entered under ORS 105.146 105.156
Form of writ of execution for judgment of restitution 105.157
Form of eviction trespass notice 105.158
Service of notice of restitution 105.159
Computation of time before plaintiff may request writ of execution 105.161
Service and enforcement of writ of execution and eviction trespass notice 105.163
Setting aside judgment 105.165
Alternative method of removing, storing and disposing of tenant’s personal property 105.168
Minor as party in proceedings pertaining to residential dwellings 105.170
Definitions for ORS 105.170 to 105.185 105.175
Easement to be kept in repair 105.180
Action for failure to comply with duty of holder 105.185
Application of ORS 105.170 to 105.185 105.190
Covenant of good faith and fair dealing 105.200
Request for itemized statement 105.205
Who may maintain partition 105.210
When and how partition prevented 105.215
Complaint 105.220
Tenants and lien creditors as defendants 105.225
Summons 105.230
Service by publication 105.235
Answer 105.240
Rights determinable 105.245
Sale or partition ordered by court 105.250
Compensation when partition cannot be made without prejudice to party’s interest 105.255
How referees make partition 105.260
Power of court over report 105.265
Persons not affected by judgment 105.270
Order of sale on referees’ report 105.275
Conclusiveness of order confirming report 105.280
How sale made 105.285
Distribution of proceeds of sale 105.290
Distribution of proceeds by referee or payment into court 105.295
Continuance of suit after proceeds paid into court 105.300
When lienholder has other securities 105.305
Credit allowed 105.310
Setting off estate for life or years in part not sold 105.315
Disposition of life estate or leasehold 105.320
Compensation of tenants in case of sale 105.325
When court determines value of tenancy 105.330
Rules for determining value of certain estates 105.335
Protection of unknown tenants 105.340
Provision for future rights or interests 105.345
Notice of terms of sale 105.350
Purchase by referee, conservator or guardian forbidden 105.355
Report of sale 105.360
Exception to report 105.365
Purchase by encumbrancer or party entitled to share 105.370
Investment of proceeds for certain parties 105.375
In whose name securities taken or investments made 105.380
When securities are payable to parties 105.385
Clerk’s treatment of securities and investments 105.390
When proceeds paid to conservator or guardian of infant 105.395
Payment of proceeds to conservator of incapacitated person 105.400
When conservator or guardian may consent to partition 105.405
Costs and expenses of partition 105.420
Findings 105.425
Definitions for ORS 105.420 to 105.455 105.430
Receivership for buildings that constitute threat to public health, safety or welfare 105.435
Authority of receiver 105.440
Report of abatement expenditures 105.445
Effect on purchase money security interest of lien for unpaid abatement expenses 105.450
Termination of receivership 105.452
Applicability of Oregon Receivership Code 105.455
Short title 105.462
Definitions for ORS 105.462 to 105.490 105.463
Preemptive effect of ORS 105.464 105.464
Form of seller’s property disclosure statement 105.465
Application of ORS 105.462 to 105.490, 696.301 and 696.870 105.470
Exclusions from ORS 105.462 to 105.490, 696.301 and 696.870 105.475
Buyer’s statement of revocation of offer 105.480
Representations in disclosure statement 105.485
Allocation of burden of proof 105.490
Effect of ORS 105.462 to 105.490, 696.301 and 696.870 on rights and remedies 105.505
Remedies available for private nuisance 105.510
Procedure for abating a nuisance 105.515
Stay of issuance of warrant to abate 105.520
Justification of sureties 105.550
Definitions for ORS 105.550 to 105.600 105.555
Places declared nuisances subject to abatement 105.560
Action to restrain or enjoin nuisance 105.565
Complaint 105.575
Precedence of action on court docket 105.580
Order of abatement 105.585
Costs of securing or decontaminating property as lien 105.590
Penalty for intentional violation of restraining order 105.595
Action to abate nuisance not to affect other remedies 105.597
Places declared nuisances per se 105.600
ORS 105.550 to 105.600 not to limit authority of cities or counties to further restrict activities 105.605
Suits to determine adverse claims 105.610
Suit to cancel patent of donee under Donation Law 105.615
Action by tenant in common against cotenants 105.618
Adverse possession of railroad property 105.620
Acquiring title by adverse possession 105.623
Short title 105.624
Definitions for ORS 105.623 to 105.649 105.626
Scope 105.628
Effect on other law 105.629
Power to disclaim 105.633
Disclaimer of interest in property 105.634
Disclaimer of rights of survivorship in jointly held property 105.636
Disclaimer of interest by trustee 105.638
Disclaimer of power of appointment or other power not held in fiduciary capacity 105.639
Disclaimer by appointee, object or taker in default of exercise of power of appointment 105.641
Disclaimer of power held in fiduciary capacity 105.642
Delivery or filing 105.643
When disclaimer barred or limited 105.645
Tax qualified disclaimer 105.646
Recording of disclaimer 105.647
Application to existing relationships 105.648
Effect on recovery of money or property under ORS 411.620 105.649
Uniformity of application and construction 105.668
Immunity from liability for injury or property damage arising from use of trail or structures in public easement or right of way 105.672
Definitions for ORS 105.672 to 105.696 105.676
Public policy 105.682
Liabilities of owner of land used by public for recreational purposes, gardening, woodcutting or harvest of special forest products 105.688
Applicability of immunities from liability for owner of land 105.692
Right to continued use of land following permitted use 105.696
Duty of care or liability not created 105.699
Rules applicable to state lands 105.700
Prohibiting public access to private land 105.705
Right to bring action 105.710
Pleadings 105.715
Mode of proceeding 105.718
Procedure for determining location of public land survey corner 105.720
Oath and report of commissioners 105.725
Proceedings on motion to confirm report 105.755
State liability for damages resulting from change of grade of roads other than city streets 105.760
State or county liability for damages resulting from change of grade of streets 105.770
Failure of contingency 105.772
Preservation of future interests 105.774
Exclusions from application of ORS 105.770 and 105.772 105.780
Notice of substantial damage from flooding to residential structures 105.805
Action for waste 105.810
Treble damages for injury to or removal of produce, trees or shrubs 105.815
When double damages are awarded for trespass 105.820
Remedy of tenants in common 105.825
Action for injury to inheritance 105.831
Damages for injury to mining claim 105.834
Owner’s immunity from liability for theft of metal property 105.836
Definitions for ORS 105.836 to 105.842 and 476.725 105.838
Carbon monoxide alarm in dwelling 105.840
Action by purchaser for failure of seller to install carbon monoxide alarm 105.842
Tampering with carbon monoxide alarm 105.844
Short title 105.848
Radon information for potential buyers of one and two family dwellings 105.850
“Commercial property” defined for ORS 105.850 to 105.870 105.855
Requirement to compensate commercial property owners for reduced value of property caused by street use restriction 105.860
Cause of action against city for compensation 105.865
Apportioning compensation among property owners 105.870
Limitation on commencement of action 105.880
Conveyance prohibiting use of solar energy systems void 105.885
Definitions for ORS 105.885 to 105.895 105.890
Solar energy easement appurtenant 105.895
Requirements for easement creation by instrument 105.900
“Wind energy easement” defined for ORS 105.905 and 105.910 105.905
Wind energy easement appurtenant 105.910
Requirements for easement creation by instrument 105.915
Recording instrument creating lease or lease option of real property for wind energy conversion system 105.920
Joint tenancy in personal property 105.925
Definitions for ORS 105.925 to 105.945 105.928
Ownership of recorded data 105.932
Effect of vehicle ownership transfer on ownership of data 105.935
Court order for retrieval or use of data by law enforcement officers or certain emergency service providers 105.938
Court order for retrieval or use of data by insurer 105.942
Retrieval or use of data for responding to medical emergency, for medical research or for vehicle servicing or repair 105.945
Exempted data 105.950
Statutory rule against perpetuities 105.955
When nonvested property interest or power of appointment created 105.960
Reformation 105.965
Exclusions from statutory rule against perpetuities 105.970
Prospective application 105.975
Short title 105.980
Xeriscaping
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Current through early 2024

§ 105.810’s source at oregon​.gov