Chapter 544 Oregon Laws 1999
Session Law
AN ACT
SB 673
Relating to trespass by
contract loggers; amending ORS 105.005, 105.810 and 105.815.
Be It Enacted by the People of the State of Oregon:
SECTION 1.
ORS 105.810 is amended to read:
105.810. (1) Except as provided in ORS 477.090 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 [plaintiff] 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 527.620 (12).
SECTION 2.
ORS 105.815 is amended to read:
105.815. (1) Except as
provided in subsection (3) of this section, if, upon the trial of an action
included in ORS 105.810, it appears that the trespass was casual or
involuntary, or that the defendant had probable cause to believe that the land
on which the trespass was committed was the land of the defendant or the land
of the person in whose service or by whose direction the act was done, or that
the tree or timber was taken from uninclosed woodland for the purpose of
repairing any public highway or bridge upon the land or adjoining it, judgment
shall be given for double damages.
(2) A judgment for the costs of litigation and reforestation as
provided in ORS 105.810 shall be in addition to and not in lieu of a judgment
for damages under this section.
(3) This section does
not apply to a contract logger if the contract logger is subject only to actual
damages under ORS 105.810 (4).
SECTION 3.
ORS 105.005 is amended to read:
105.005. (1) Any person who has a legal estate in real property
and a present right to the possession of the property, may recover possession
of the property, with damages for withholding possession, by an action at law.
The action shall be commenced against the person in the actual possession of
the property at the time, or if the property is not in the actual possession of
anyone, then against the person acting as the owner of the property.
(2) In an action brought under subsection (1) of this section
or in a separate action for damages only, a person who, throughout the vesting
period, used or occupied land of another with the honest and objectively
reasonable belief that the person was the actual legal owner of the land shall
not be liable for:
(a) Double or treble damages under ORS 105.810 (1) to (3) or 105.815; or
(b) The value of the use or occupation of the land by the
person throughout the vesting period.
Approved by the Governor
July 8, 1999
Filed in the office of
Secretary of State July 8, 1999
Effective date October 23,
1999
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