ENROLLED


COMMITTEE SUBSTITUTE

FOR

H. B. 2891

(By Delegates C. White, Campbell, Coleman,

Boggs, Yeager and Stalnaker)

[Passed April 12, 2001; in effect ninety days from passage.]




AN ACT 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; providing for a first offense felony when the value of the timber is more than one thousand dollars; establishing notice requirements; and tolling of the 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:
§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, or fined not more than three times the value of the timber injured, removed or destroyed, or both fined and confined: Provided further, That a person convicted of a second or subsequent violation of the provisions of this section 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 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 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 a breach of the agreement occurs.
(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.