dissenting.
I agree with the majority to the extent that 1.C. 25-86.5-1-17(a) (repealed by PL. 220-1993, SEC.10) imposes strict liability and therefore the Timber Company's belief and the facts surrounding the transaction are wholly irrelevant to the issue before the court. The statute is clear and unambiguous and it does not provide for a defense of mistake of fact nor does it require an intent element on the part of the person who cuts the timber.
However, it is on the issue of treble damages that I diverge with the majority. I would reverse the trial court on the issue of treble damages because I believe that the Timber Company previously purchased the timber within the meaning of I.C. 25-36.5-1-17(a), albeit not from the true owner. I interpret Baxter v. Lyttle (1985), Ind., 475 N.E.2d 675, reh'g demied, as supporting my position that the statutory imposition of tre-bie damages does not apply to the facts of this case. The statute states only that a person who cuts timber which "[he] has not previously purchased" is liable to the owner for treble damages. I.C. 25-86.5-1-17(@). The statute does not articulate from whom that timber must be purchased.
According to Baxter, we must interpret the statute according to its plain and unambiguous meaning. 475 N.E.2d 675. The Timber Company's purchase of the timber from a third party, albeit not from the true owners, precludes the imposition of treble damages pursuant to the statute. While I recognize that the contract between the Timber Company and Gayla Marling was void as to the true owners of the timber, it does not logical-Ty follow that for purposes of the statute, the contract never existed. My position recognizes the historical deterrent purpose underlying the treble damages statute and also follows the basic premise of statutory construction upon which the First District in Wright v. Reuss (1982), Ind.App., 434 N.E.2d 925, so strictly adhered.
I feel constrained to point out however, that the Timber Company's alleged good faith is not what I base my decision on. I would concur with the majority on the issue of admissibility of the Timber Company's intent. I reach my decision based solely on rules of statutory construction. For the foregoing reasons, I would reverse and vacate the trial court's award of treble damages.