26.09 Civil liability for unauthorized cutting, removal or transportation of raw forest products.

(1b) Definitions. In this section:

(a) “Compass" means a sighting compass with a liquid-filled capsule that has been adjusted for the proper declination.

(b) “Fair market value" means the amount for which the raw forest products or land can be sold in an open market by a person willing and able but not compelled to sell and a purchaser willing and able but not obliged to buy.

(c) “Harvest" means to cut, remove or transport.

(d) “Harvesting" means cutting, removing or transporting.

(e) “Harvesting boundary" means the boundary of an area in which the harvesting of raw forest products is planned.

(f) “Owner" includes the board of commissioners of public lands if the board holds a land contract certificate under ch. 24 to the land from which the raw forest products were harvested.

(g) “Raw forest products" has the meaning given in s. 26.05 (1).

(h) “Recorded survey" means a land survey that is recorded with the register of deeds in each of the counties in which the harvesting took place.

(i) “Slash" has the meaning given in s. 26.12 (6) (a).

(j) “Stumpage value" means the applicable stumpage value established under s. 77.91 (1) or the fair market value of raw forest products less the cost of their harvesting, whichever is greater.

(k) “Subdivision" means a township, section, quarter-quarter section, government lot or fractional lot.

(2) Persons entitled to sue; exception.

(a) In addition to any other enforcement action that may be taken and subject to par. (b), an owner of raw forest products that were harvested without the consent of the owner may bring a civil action against the person who harvested the raw forest products to recover the damages caused by the harvesting. In addition to any other enforcement action and subject to par. (b), a county in which a violation of s. 26.03 (1g) or (1r) or a rule promulgated under s. 26.03 (1g) or (1r) occurred may bring a civil action to recover damages for the violation.

(b) An owner may not recover damages under this subsection if the person harvesting the raw forest products or the person giving consent for the harvesting reasonably relied on a written agreement among adjacent owners, or their agents, that the owner giving consent to harvest has the authority to do so even if after the harvesting it is determined that the owner giving the consent did not have such authority, but only if the harvesting is from land owned by an owner who is a party to the agreement.

(3) Damages.

(a) A person against whom an action is brought as provided in sub. (2) is liable for the applicable damages under par. (b) or (c), subject to sub. (6), and other reasonable and necessary costs under par. (d).

(b)

1. A court shall award damages that equal the stumpage value of the raw forest products harvested if the person harvesting the raw forest products or the person giving consent for the harvesting reasonably relied upon a recorded survey that was done by a person who is licensed under ch. 443 as a professional land surveyor even if the recorded survey is determined, after the harvesting, to be in error.

2. A court shall award damages that are equal to 2 times the stumpage value of the raw forest products harvested if a recorded survey was not relied upon as specified in subd. 1. but the person harvesting the raw forest products took reasonable precautions in identifying harvesting boundaries.

3. A court shall award damages that are equal to 4 times the stumpage value or 2 times the fair market value of the raw forest products harvested, whichever is greater, if a recorded survey was not relied upon as specified in subd. 1. and the person harvesting the raw forest products did not take reasonable precautions in identifying the harvesting boundaries.

(c) In addition to the award under par. (b), a court shall award the owner of raw forest products that were harvested without the consent of the owner, any economic damages resulting from that harvest.

(d) A court shall award other reasonable and necessary costs, which may include costs for any of the following:

1. Repair of damage to, or cleanup on, the land from which the raw forest products were harvested.

2. Removal of slash from agricultural land, waterways, highways, private roads, trails or other sites where the slash would interfere with reforesting or replanting.

3. Determining the fair market value, the stumpage value or the volume of the raw forest products that were harvested.

4. Determining the location of property boundaries necessary for determining whether a violation occurred.

5. Preparing forest management or reforestation plans.

6. Reforesting.

7. Replanting by direct seeding or by use of seedlings.

(4) Legal costs. Notwithstanding the limitations under s. 814.04, and in addition to the remedies available under s. 807.01, the court shall award the successful party in a civil action brought under sub. (2) court costs and reasonable attorney fees if the unsuccessful party, before the commencement of the action, unreasonably refused to pay a demand for damages or to accept an offer of payment for damages.

(5) Reasonable precautions.

(a) For purposes of sub. (3) (b), a person takes reasonable precautions if the person does all of the following:

1. Identifies the harvesting boundaries as required under par. (b).

2. Reviews land ownership records and any other resources or documentation regarding the land. These records, resources and documentation include instruments of conveyance, certified survey maps, survey field notes and information on the land's boundaries provided by the owners, or their agents, of any land that abuts a proposed harvesting boundary.

(b) For purposes of par. (a), the harvesting boundaries may be identified by any of the following methods:

1. By use of a compass and measuring device or by use of a global position system if the identification is conducted by a person trained in the method used and if the identification is based on an established survey corner as specified in par. (c). If a global positioning system is used, it shall be accurate to plus or minus 2 meters.

2. By use of a method established by rule by the department.

(c) A survey corner is an established survey corner for purposes of par. (b) if it is part of a U.S. government survey plat and it is used to determine one or more boundaries of a subdivision. The survey corner may be evidenced by a monument or other marking that was placed at the time that the survey was conducted or, if the monument or marker is no longer visible or in existence, the position of the survey corner may be reconstructed by doing one of the following:

1. Using a reference to a description contained in applicable surveying field notes or other supplemental surveying record.

2. Locating the survey corner by use of physical evidence or witness testimony.

(6) Damages; other. An owner may not receive both payment under s. 26.06 (3) and damages specified under sub. (3) (b) or (c) from the same person. An owner may not receive both payment under s. 26.05 (3) (c) and the damages specified in sub. (3) (d) 3.

History: 1981 c. 67; 1999 a. 190; 2009 a. 365; 2013 a. 358.

Double damages under this section are not “punitive damages." Hartland Cicero Mutual Insurance Co. v. Elmer, 122 Wis. 2d 481, 363 N.W.2d 252 (Ct. App. 1984).

The proper measure of damages is the market value of the logs reduced by the cost of cutting. Double damages are set by doubling that amount. Tydrich v. Bomkamp, 207 Wis. 2d 632, 558 N.W.2d 692 (Ct. App. 1996), 96-2086.

Changes to this section effective June 2, 2000 were not retroactive. The prior version of this section was not the exclusive remedy for timber trespass. Bill's Distributing, Ltd v. Cormican, 2002 WI App 156, 256 Wis. 2d 142, 647 N.W.2d 908, 01-2567.