Minerals & Chemicals Philipp Corporation v. Milwhite Co.

• Decision Date: 05 August 1969
• Docket Number: No. 27124.,27124.
• Citation: 414 F.2d 428
• Parties: MINERALS & CHEMICALS PHILIPP CORPORATION, Plaintiff-Appellee-Cross-Appellant, v. The MILWHITE CO., Inc., Defendant-Appellant-Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

414 F.2d 428 (1969)

MINERALS & CHEMICALS PHILIPP CORPORATION, Plaintiff-Appellee-Cross-Appellant, v. The MILWHITE CO., Inc., Defendant-Appellant-Cross-Appellee.

No. 27124.

United States Court of Appeals Fifth Circuit.

August 5, 1969.

Carl R. Pennington, Jr., Wilfred C. Varn, Ervin, Pennington, Varn & Jacobs, Tallahassee, Fla., for appellant.

Charles S. Ausley, Harry L. Michaels, Ausley, Ausley, McMullen, Michaels, McGehee & Carothers, Tallahassee, Fla., Richard J. Gardner, Quincy, Fla., for appellee.

Before BELL and GOLDBERG, Circuit Judges, and ATKINS, District Judge.

ATKINS, District Judge:

It is contrary to human experience for a landowner to sit idly by and watch an adjacent landowner innocently trespass and mine some 50,000 tons of clay over a period of more than a year. The legal consequences of such behaviour are resolved by this opinion.

The Milwhite Company, the innocent trespasser, appeals from a remittitur-reduced jury verdict in favor of Minerals & Chemicals Philipp Corporation, the landowner whose clay was mined. Pursuant to a complex set of interrogatories the jury found that the trespass by appellant extended from January 6, 1964 to May 24, 1965 and was at all times non-willful. The jury further found that the appellee became aware of the trespass on April 30, 1964 and that all clay was removed subsequent to that time. The jury then found that 50,586.73 tons of clay were removed and awarded plaintiff $48,057.39 in damages. The trial judge reduced the damages to $35,000. The parties are in agreement as to the facts. The appeal arises from the alternative legal arguments that appellee was estopped from recovery or that the damages awarded were improperly computed. Not to be outdone the appellee has cross-appealed the entry of the remittitur. Appellant has moved to dismiss the cross-appeal. For reasons set forth below we reverse on the measure of damages and dismiss the cross appeal.

Estoppel

The doctrine of estoppel as applied in Florida is stated in Aetna Casualty and Surety Company v. Simpson, 128 So.2d 420 (D.C.A.Fla.1961) at page 425.

The essentials of equitable estoppel are (1) words and admissions, or conduct, acts and acquiescence, or all combined causing another person to believe in the existence of a certain state of things; (2) in which the person so speaking, admitting, acting and acquiescing did so wilfully, culpably, or negligently, and (3) by which such other person is or may be induced to act so as to change his own previous position injuriously. The parties sought to be estopped must be guilty of conduct which amounts to * * * concealment of material facts at a time when he has knowledge, actual or constructive of the real facts.

The case of Richards v. Dodge, 150 So. 2d 477 (D.C.A.Fla.1963) at page 481 equates the acts necessary to create an estoppel with

the failure to speak when under some duty to speak.

Milwhite contends that the appellee had such a duty when it became aware that Milwhite was on its land and mining. It is certain that appellee's failure to speak reinforced Milwhite's belief that it was mining properly. However, the record does not reflect willfulness on the part of appellee. Neither does it reflect that the silence actively induced Milwhite to change its position.

While this court is bound to follow Florida law a decision from a state where mining operations are common is instructive. Jacobs v. Perry, 135 Colo. 550, 313 P.2d 1008 (1957) involved a mining trespass and stated that there is no rule by which a mere trespasser may estop a rightful land owner from asserting title in a court of law or equity. Regardless of Milwhite's innocence in this case, it was no more than a trespasser and we hold that the doctrine of estoppel does not apply to bar complete recovery by appellee.

Damages

The jury was charged that it should value the clay taken as of the time when appellant committed acts inconsistent with appellee's ownership. Presumably applying this standard the jury assessed damages at $.95 per ton of clay. This rate was within several pennies of appellee's average profit during the period involved. It was similarly close to appellant's "mouth of the mine"¹ value per ton of the clay taken. The trial court concluded that the verdict was based on the average profit and entered a remittitur. In the order the judge incorrectly equated the mouth of the mine value theory with the "in situ" theory. The latter provides that a product is valued as it sits in its natural state. The...