H. B. 2891
(By Delegates C. White, Campbell, Coleman,
Boggs, Yeager and Stalnaker)
[Introduced March 16, 2001; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section fifty-two, article three,
chapter sixty-one of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, relating to the unlawful
taking of timber; and providing for a first offense felony
when the value of the timber is more than one thousand
dollars; notice requirements; and tolling of statute of
limitations.
Be it enacted by the Legislature of West Virginia:
That section fifty-two, article three, chapter sixty-one of
the code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-52. Wrongful injuries to timber; criminal penalties.
(a) Any person who willfully and maliciously and with intent
to do harm unlawfully enters upon the lands of another, cuts down, injures, removes or destroys any timber, without the permission of
the owner or his or her representative is guilty of a misdemeanor
and, upon conviction thereof, shall be fined not more than three
times the value of timber injured, removed or destroyed, or
confined in the county or regional jail for thirty days, or both:
Provided, That if the timber is valued at one thousand dollars or
less, the fine shall be no more than one thousand dollars:
Provided, however, That a person convicted of a first offense
violation of the provisions of this section in which the timber is
valued at more than one thousand dollars is guilty of a felony and,
upon conviction thereof, shall be confined in a correctional
facility for not less than one nor more than two years, in addition
to the fine set forth above: Provided however further, That a
person convicted of a second or subsequent violation of the
provisions of this section
shall be is guilty of a felony and, upon
conviction thereof, shall be confined in a correctional facility
for not less than one nor more than three years, or fined not more
than three times the value of the timber injured, removed or
destroyed, or both fined and confined.
(b) The necessary trimming and removal of timber to permit the
construction, repair, maintenance, cleanup and operations of
pipelines and utility lines and appurtenances of public utilities,
public service corporations and to aid registered land surveyors
and professional engineers in the performance of their professional services, and municipalities, and pipeline companies, or lawful
operators and product purchasers of natural resources other than
timber shall not be
deemed considered a willful and intentional
cutting down, injuring, removing or destroying of timber.
(c) The necessary trimming and removal of timber for boundary
line maintenance, for the construction, maintenance and repair of
streets, roads and highways or for the control and regulation of
traffic thereon by the state and its political subdivisions or
registered land surveyors and professional engineers shall not be
deemed considered a willful and intentional cutting down, injuring,
removing or destroying of timber.
(d) No fine or imprisonment imposed pursuant to this section
shall be construed to limit any cause of action by a landowner for
recovery of damages otherwise allowed by law.
If a person charged
or convicted under the provisions of this section enters into an
agreement with a landowner to make financial restitution for the
landowner's timber damages, any applicable statute of limitations
effecting the landowner's cause of action shall be tolled from the
date the agreement was entered into until full financial
restitution is made.
(e) If a criminal action is brought under the provisions of
this section, the county prosecutor shall publish a Class II legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code in the county where the property involved is located which provides a description of the property
and a general summary of the timber damages. If a landowner
suffering timber damages is not aware of those damages prior to the
publication of the Class II legal advertisement, any applicable
statute of limitations effecting the landowner's cause of action
for the recovery of damages shall be tolled from the time the
damages were incurred, and may not commence until the date the
final Class II legal advertisement is published.
NOTE: The purpose of this bill is to provide for a first
offense felony for the unlawful taking of timber when the value of
the timber is more than one thousand dollars.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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