Bates v. Smith

McMURRAY, J. pro tem.* This is the third time this action has reached an appellate court.

This appeal is from a judgment against appellants in the sum of $5,968.64. The first appeal was in Smith v. Daly, 181 Cal.App.2d 154 [5 Cal.Rptr. 176], which reversed a judgment quieting title in appellants. Thereafter, Meyer was substituted for appellants in another quiet title action, but appellants remained in the case as cross-defendants on the trespass action brought by Nellie Daly.

At the second trial title was quieted in Nellie E. Daly, individually and as executrix of the estate of her husband, Alvin Daly. However, no damages were awarded to her for the trespass because the court found that the trespass was in “good faith,” and further found that the mining business carried on by appellants had resulted in no profit to them. On appeal this court upheld the finding that the trespass was not [359]wilful, but reversed for a redetermination of the damage issue, indicating that at least nominal and perhaps substantial damages would be in order. (Daly v. Smith, 220 Cal.App.2d 592 [33 Cal.Rptr. 920].) In accordance with the holding in Daly v. Smith, trial was held in which Attorneys Alfred and Bennett Siemon were found to be without fault and not liable for any damages to respondent, and after reading the prior transcript and taking testimony, judgment was entered in favor of respondent in the sum of $5,968.64 damages.

The controversy centers around a strip mining operation conducted by appellants in the Cantil area of Kern County, which required four inches of overburden to be removed to uncover underlying gypsite, which was then disked and allowed to dry. Some of it was graded and screened before loading, but about 50 percent was loaded by skip loader directly into trucks and shipped to buyers in loads of 20 to 22 tons each. Some 4,663 tons were removed from respondent’s property in this manner. The gypsite obtained was classified as 60 percent and better, the price increasing with higher gypsite content.

This court, in Daly v. Smith, supra, ordered the trial court to ascertain the value of the gypsite in situ, indicating that this could be done by ascertaining market value, less mining expenses and necessary transportation expenses. At the trial portions of the transcript of two prior trials were introduced and evidence was introduced showing the cost per ton of mining and milling and hauling the gypsite.