§5.2 DEFINITION OF WASTE
Waste generally is defined by case law, but several statutes govern specific instances of waste. This section discusses both common-law and statutory definitions of waste.
(1) Elements of waste
Washington courts define "waste" as an act or omission that is "(a) an unreasonable or improper use, abuse, mismanagement, or omission of duty; (b) touching real estate; (c) by one rightfully in possession; and (d) resulting in substantial injury to the real property." Graffell v. Honeysuckle, 30 Wn.2d 390, 398, 191 P.2d 858 (1948). A person rightfully in possession of real property has "an obligation to treat that premises in such manner that no harm be done to them and that the estate may revert to those having an underlying interest undeteriorated by any willful or negligent act." Id. Liability for waste does not arise for damage to personal property unless it is affixed to real property. Womack v. Von Rardon, 133 Wn.App. 254, 261-62, 135 P.3d 542 (2006).
Whether a court considers a particular act or omission to be waste is a question of fact. Lee v. Weerda, 124 Wash. 168, 171, 213 P. 919 (1923). What courts consider waste depends on the situation, and therefore the definition of waste is flexible enough to encompass all types of injury to realty. As the court observed in Weerda :
The term "waste" is not an arbitrary one, to be applied inflexibly, without regard to the quality of the estate, the nature or species of property or the relation to it of the person charged to have committed the wrong; but the question as to whether it has been committed in a given case is to be determined in view of the situation of the property, and the particular facts and circumstances appearing in that case, and by the conditions which exist at the time the act is committed.
Id. at 171 (citing 40 Cyc. 501). A party with a future interest is free to permit a party with a present interest to commit certain acts that normally would constitute waste, such as cutting timber, removing the carpet from the bedrooms, or tearing down a structure. See, e.g., Burns v. Dufresne, 67 Wash. 158, 162, 121 P. 46 (1912) (lease agreement allowed lessee to bore holes in the walls to install pipes for its business).
(2) Statutory bases
Although waste generally is defined by case law, several statutes govern specific instances of waste, as described below.
(a) Statutory waste
RCW 4.24.630(1) provides in relevant part:
Every person who goes onto the land of another and who removes timber, crops, minerals, or other similar valuable property from the land, or wrongfully causes waste or injury to the land, or wrongfully injures personal property or improvements to real estate on the land, is liable to the injured party for treble the amount of the damages caused by the removal, waste, or injury.
Liability under this statute is premised on a defendant's physically entering onto a plaintiff's land without authorization and wrongfully causing waste or injury. Clipse v. Michel's Pipeline Constr., Inc., 154 Wn.App. 573, 580, 225 P.3d 492 (2010) (RCW 4.24.630 "requires a showing that the defendant intentionally and unreasonably committed one or more acts and knew or had reason to know that he or she lacked authorization[.]"); Colwell v. Etzell, 119 Wn.App. 432, 439, 81 P.3d 895 (2003) (statute is premised on wrongful invasion or physical trespass upon another's property). Thus, a waste claim under RCW 4.24.630(1) could not be brought for flooding, erosion, or sliding of a plaintiff's property that originates from a defendant's property and does not involve both the defendant's actual unauthorized physical presence and the defendant's intentional and unreasonable act on the plaintiff's property. Borden v. City of Olympia, 113 Wn.App. 359, 374, 53 P.3d 1020 (2002) (defendant acts wrongfully under statute only if he or she acts intentionally). See also Wood v. Mason County, No. 42110-1-II, 2013 WL 1164437 at *10 (Wn. App. Mar. 19, 2013) (unpublished) (waste statute did not apply to a claim of statutory waste through trespass by water; county held a prescriptive easement granting authority to discharge storm water from a culvert, so county was impliedly authorized to discharge storm water onto the plaintiffs' property).
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