Daly v. Smith

• Decision Date: 20 September 1963
• Citation: 33 Cal.Rptr. 920,220 Cal.App.2d 592
• Court: California Court of Appeals Court of Appeals
• Parties: Nellie E. DALY, Individually and as Executrix, etc., Cross-Complainants and Appellants, v. V. R. SMITH et al., Cross-Defendants and Respondents. Civ. 209.

Page 920

33 Cal.Rptr. 920

220 Cal.App.2d 592

Nellie E. DALY, Individually and as Executrix, etc., Cross-Complainants and Appellants, v. V. R. SMITH et al., Cross-Defendants and Respondents.

Civ. 209.

District Court of Appeal, Fifth District, California.

Sept. 20, 1963.

Rehearing Denied Oct. 11, 1963.

Hearing Denied Nov. 13, 1963.

DiGiorgio & Davis and Thomas R. Davis, Bakersfield, for appellants.

Borton, Petrini, Conron, Brown & Condley and George A. Brown, Bakersfield, for cross-defendants and respondents V. R. Smith, Helen Smith, H. E. Barnett, Leona Barnett, Pete Cassou and Freda Cassou.

Bennett Siemon, Bakersfield, in pro. per. and for cross-defendant and respondent Inez B. Siemon.

CONLEY, Presiding Justice.

This is an appeal by the cross-complainants, Nellie E. Daly, individually and as executrix of the estate of her husband, A. D. Daly, from a judgment denying recovery for trespass and the removal and conversion by the trespassers of 4,663 tons of gypsite from mining claims in the Mohave Desert. Originally, V. R. Smith, Helen Smith, H. E. Barnett, Leona Barnett, Pete Cassou, Freda Cassou, Alfred Siemon and Bennett Siemon brought suit to quite their alleged title to the mining claims here involved; they claimed title by reason of having relocated the identical mining claims owned by the Dalys. Mr. Daly died prior to the institution of the suit. The first trial resulted in a judgment for the plaintiffs, but that judgment was reversed by the Fourth District Court of Appeal (Smith v. Daly, 181 Cal.App.2d 154, 5 Cal.Rptr. 176), and it was thereafter retried on all of the issues.

Prior to the commencement of the second trial, Harold E. Meyer was substituted in the place and stead of the original plaintiffs. The second trial resulted in an order that judgment be entered in favor of Mrs. Daly and others as to title and that plaintiff Meyer take nothing by his action. On the cross-complaint the evidence showed that 4,663 tons of gypsite had been removed from the Daly claims by all, or at least some, of the cross-defendants, but the court refused to allow any damages on the ground that which the trespass was committed 'with knowledge of the material facts,' it was carried on 'in the honest though mistaken belief that said claims were open to relocation as a matter of law'; said honest but mistaken belief was based upon the legal opinion rendered to said cross-defendants by one Alfred Siemon, 'an experienced and competent mining attorney'; the trial court concluded that as cross-defendants 'realized no profit from the sale of the 4,663 tons of gypsite taken during the trespass aforesaid,' no damages should be allowed.

The court below found that neither plaintiff nor his assignors owned the placer mining claims described in the complaint as Gypsy, Buffalo, Chicago, New York and San Francisco mining claims; that notices of location for all of these claims were in fact posted and recorded by plaintiff's predecessors in interest but that the land was not open to location under the mining laws; that A. D. Daly performed labor or improvements as required by law for the year ending July 1, 1957; that the lands were not vacant; that Nellie Daly, executrix of her deceased husband's will and testament, has succeeded to all rights of A. D. Daly, such rights not being subject to the rights of plaintiff; that at the time of his death Daly owned the following placer mining claims: Gypsy, Buffalo, Chicago, New York and San Francisco; that defendant George Arnett owns the Los Angeles placer mining claim; that claims of the cross-defendants are without foundation and cross-defendants are without any right to the mining claims; that defendants did the assessment work required by law on the claims in 1956-1957; that plaintiff's predecessors in interest and Daly by written contract, through latters, agreed that gypsite was to be purchased at a fixed rate per ton and that plaintiff's predecessors acquired an option to buy the claim for $100,000 on or before June 15, 1956; that during 1956-1957 plaintiff's predecessors removed gypsite ore under the above terms; that after January 1957 Daly was unable to conduct the operations necessary to effectuate f. o. b. delivery of the ore to plaintiff's predecessors; that plaintiff's predecessors in interest conducted the operations themselves; that they knew of Daly's failing health and knew of assessment work done or not done, and knew Daly was living in a home contiguous to the claims; they relied on facts gained under the contractual relationship in 1956-1957 to make the purported relocation of the subject mining claims; that cross-defendants attempted to file new locations over the locations belonging to cross-complainants and exclude cross-complainants from possession and operation of the claims; that entry of cross-defendants on the mining claims constituted a trespass; that cross-defendants removed 4,663 tons of gypsite; the sale price realized by cross-defendants averaged $8 per ton; the average cost of transportation to the customer was $4 per ton; that the f. o. b. sales price was thus $4 per ton; that cross-defendants committed said trespass with knowledge of the material facts but 'in the honest or mistaken belief that said claims were open to relocation as a matter of law' based upon the legal opinion of Alfred Siemon, an 'experienced and competent mining attorney.' The court also found that cross-defendants realized no profits from the sale of the 4,663 tons of gypsite taken during the trespass.

The judgment declared that appellant as executrix of the estate of A. D. Daly, and appellant Nellie Daly and Pancho Barnes owned the Gypsy, Buffalo, Chicago, New York, and San Francisco placer mining claims; that George Arnett owned the Los Angeles placer mining claim; that cross-defendants have no rights in or to said claims; that cross-complainants take nothing by the cross-complaint.

An appeal was filed by the plaintiff Meyer from that portion of the judgment on the complaint which held that he should take nothing by his suit. Subsequent to the filing of the appeal, Mr. Meyer's attorneys were substituted out of the case, and he thereafter represented himself in propria persona. As he failed to file his opening brief, the court in due course gave him the 30-day notice prescribed in rule 17(a) of the California Rules of Court; thereafter, two extension of 30 days each were granted to him, and no further extension of time having been secured and no valid excuse having been shown for his failure to comply with the rules, his appeal was dismissed. (Cal.Rules of Court, rule 17(a).) The sole question for consideration by this court therefore is whether or not the appeal on the cross-complaint filed by Mrs. Daly is meritorious.

The trial court found that the removal of the mineral product from the land owned by the cross-complainants was done in good faith. The question of good faith becomes important if any damages are to be allowed, for the rules applicable to a wilful trespass and a trespass committed in good faith are different.

In a note in American Law Reports, volume 7, page 908, it is stated with respect to the rule of damages for an innocent trespass:

'It is the prevailing rule that a trespasser who encroaches on the land of another, mining and removing minerals, if the taking is inadvertent or under a claim of right or a bona fide belief of title, is liable in damages only for the minerals removed, based on their value as they lay in the mine before being disturbed, or, as is often expressed, their value is situ. And if evidence is not obtainable of the value of the minerals in situ, or if the circumstances of the case make it impracticable to fix their value in this manner, the same result is generally arrived at by proving their value at the mouth of the pit, and deducting therefrom the expense of mining and transporting them to that place.'

Somewhat differently expressed but to the same effect is the rule set forth in 58 C.J.S. Mines and Minerals § 137g(2), page 237:

'Where the trespass is an innocent one, as it is where a person by mistake, or unintentionally and in the honest belief that he is exercising a right which he has, enters on the property of another, and takes ore, coal, oil, or other mineral therefrom, the rule supported by the weight of authority is that the measure of damages is the value of the mineral in place, or, as sometimes stated, the value of the mineral extracted from the ore, less the cost of mining and milling.'

(See also Empire Gold Mining Co. v. Bonanza Gold Mining Co., 67 Cal. 406, 7, P. 810; Lightner Mining Co. v. Lane, 161 Cal. 689, 120 P. 771; Quetin v. Caubu, 58 Cal.App.2d 793, 798, 137 P.2d 880; Ehrhart v. Bowling, 36 Cal.App.2d 503, 509, 97 P.2d 1010; Union Oil Co. of California v. Reconstruction Oil Co., 20 Cal.App.2d 170, 185, 66 P.2d 1215.)

On the other hand, where there is a wilful trespass the rule is as follows:

'* * * if the taking is reckless, wilful, or intentional, or without claim of right or title, the trespasser is liable for the enhanced value of the product when and where it is finally converted to the use of the trespasser, without any deduction for expenses incurred, or for any value he may have added to the mineral by his labor.' (7 A.L.R., Wilful Trespass, p. 922.)

And it is said in 58 C.J.S. Mines and Minerals § 137g(3)(a), page 239:

'A person who, with knowledge of the right or claim of the owner, wilfully and intentionally enters and takes mineral from the land of another is a 'willful trespasser,' and recovery against him is not confined to royalty value, or to value of the mineral in place, or to the sale price after deductions for expense incurred, but, instead, extends, without deduction of expenses, to the full enhanced value of the mineral at the time and place of severance, taking, or appropriation, or, in other words, the full value at the mouth of the mine, this being the place where, for...