Fuller Ex Rel. Fuller v. Mountain Sculpture , 6 Utah 2d 385 ( 1957 )

WORTHEN,- Justice

(concurring and dissenting).

I concur in affirming the action of the trial court in quieting plaintiffs’ title to the claims in controversy, hut I find myself unable to agree with the main opinion that $500 is the proper measure of plaintiffs’ damages under the evidence.

Plaintiff, Glen E. Fuller, testified that from his observations of defendants’ trucks loaded with rock moving from the vicinity and from his examination of the premises before and after the removal of rock, he would state that it was his opinion that 80 tons of rock had been removed by defendants from his claims. Defendants admitted moving rock from plaintiffs’ claims. One of the defendants, Ralph Maxwell, testified as follows:

“Q. And, as a matter of fact, most of the green rock has been loaded from a point east of those stakes, hasn’t it?

A. Yes, a good share of it.”

The record discloses that “those stakes” mentioned in the above question were in the west boundary line of plaintiffs’ claims.

Another defendant, Richard K. Hatch, was asked:

“Now, Mr. Hatch, I’m going to try to ascertain from you how much of this turquoise green stone has been removed from the area that’s in controversy, in the placer claim shown on Exhibit 16. * * * ”

After some discussion between Mr. Fuller and Mr. Hatch as to Hatch’s deposition taken by Fuller Mr. Hatch testified:

“There might have been one load at the most of green stone taken out. As far as I recollect, there was at that time about twenty-five ton of stone. I think at this time there might be around fifty ton of stone taken from the green quartz area.”

Since plaintiff testified that the stone was irreplaceable and was worth $32.50 per ton at the quarry, less $2.50 per ton road building costs, I would direct the lower court to enter judgment in favor of plaintiffs and against defendants for $1,500 plus interest thereon from July 1, 1956. I think that plaintiffs’ alleged laxity as to boundaries, monuments, directions, etc. should defeat only his claim to punitive damages and not to compensation for rock actually removed from the claims since defendants have unjustly received the benefit from the removal of that rock.